Conflicts of competence norms in EU law and the legal reasoning of the ECJ

Abstract

Defining competences in EU law has always been problematic, notwithstanding the inclusion since the Treaty of Maastrict of the principle of conferred powers as central to the constitutional character of the EU. Under the principle of conferral, the Union only has those powers actually conferred by the Treaties. However, the concepts of a common market or of 'ever‐closer Union' have a conceptual scope that potentially, in effect, negates the principle of conferral. This article argues that the framework of norm conflict offers conceptual insight into the dynamics of determining and limiting EU competence. In particular, it draws on the distinction between lex specialis and lex generalis to understand different ways of treating competence norms in legal reasoning. Following a discussion of the concept of competence norms, this conceptual framework is applied to two cases studies: (1) on the right to strike and (2) the general law of external relations.