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Article 4 TFEU defines the policy areas that are ‘shared’ (sic) between the EU and member-states. Lisbon creates two new shared competences; energy and space.
Some noteworthy points about Article 4:
1. ‘Shared competence’ is made the default in future by article 4.1 which says all powers are ‘shared’ that are not listed in article 3 (exclusive competences) or article 6 (supporting competences).
2. The wording of Article 4.2 is such that this is not an exhaustive list of shared powers. (Note the word ‘principal’ which is not used in Articles 3 and 6 listing exclusive or supporting competences). This means that other powers granted to the EU, either directly by the treaties, through the ‘flexibility’ clause, ECJ rulings, etc. will be regarded as ‘shared competences’.
3. As per the definition of shared competence in Article 2, powers in this category are only shared in time, i.e. until the EU creates secondary EU legislation in these areas, at which point national parliaments must remove any conflicting national law. Therefore the EU really is given carte-blanche power to legislate in all these areas at any point in the future with national parliaments only retaining an ever-diminishing ‘residual power’ to legislate in these areas. The long-term impact is that the EU will take over in these fields over time as its body of law (the ‘aquis’) accumulates. Other changes in Lisbon (notably the voting rule changes) mean the replacement of national law by EU law would go further, and at an accelerated pace, in the existing 'shared competences' than under the current treaty.
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Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment;
(f) consumer protection;
(g) transport;
(h) trans-European networks;
(i) energy;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
