Open main menu

The notorious Art. 308 of the Ec treaty reads:

If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures

This provision can be read in a narrow sense or a broad sense. In the narrow sense, it appears to say nothing more that that the EU institutions have the powers necessary to fulfil their specific treaty obligations (a codification of the 'doctrine of implied competence'). The broader sense is that the institutions have the power to act as necessary to fulfil the general objectives of the EU. These objectives are extremely wide-ranging and, on this broad reading, there seem to be few areas of social or economic life in which the EU would not have legislative competence.

Unsurprisingly, the EU institutions have preferred the broader reading, and Art. 308 has been used, for example, to create the powers necessary to distribute emergency food aid to non-EU states, and to legislate in the field of environmental protection.

Some authorities find this development rather worrying. Although the people making the decisions under Aart. 308 are, in all cases, the democratically elected representatives of the people of the member states, there is no 'opposition party' to the Council. It can be argued that the governments of, say, the UK and France are more likely to be in agreement on matters of policy that the government and opposition parties of either country. It follows that Art. 308 allows governments -- when they are in agreement -- to create legislation, that has effect in the member states, which the same governments would not be able to enact within their own states. There may even come a time when a particular national government may find it easier to use the EU as an instrument to legislate than its country's own internal procedures.

In practice, the situation is all that dire. First, Art. 308 requires unanimity in the Council. It takes years of patient negotiation to achieve unanimity on anything but the most uncontroversial of measures. Second, the ECJ has held that Art. 308 cannot be used in ways that would amount, essentially, to a modification of the Treaties. In particular, it stated that 308 could not be used to incorporate the provisions of the european convention on human rights into EU law. However, it has been argued, rather cynically perhaps, that it was in the ECJ's interest to make such a decision, as to hold otherwise would be to subject itself to the scrutiny of the European court of human rights.

Whether Art. 308 represents a genuine problem for democratic accountability or not, the member states now seem to realize that there is a need for reform. This was stated in the Laeken Declaration of December 2001 although, at the time of writing, little has been done.