Introduction  

Article 95 EC (ex 100a) empowers the Council to pass directives and regulations to facilitate harmonization of the internal market. It is a residual provision which operates, “save where otherwise provided in this Treaty”. This could be interpreted as a general power of regulating the market.

Article 308 EC (ex 235) provides the Community the power to legislate where it is “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 necessary powers”.

These Articles are clearly very broadly framed, and are with little restrictions. There is no enumeration of Community attributed competences that specifies legislative action to particular sectors.^[1] The broadly worded Articles can be very dangerous in the sense that it becomes impossible to have a clear conceptual outer limit to the residual provisions.^[2] This means that “no core activity of state function could be seen any longer as still constitutionally immune from Community action... but also that no sphere of the material competence could be excluded from the Community acting under Article 235”^[3].

Changes in the Lisbon Treaty addressing the issue of 'competence creep'

First, the Lisbon Treaty aims to re-organise the Treaty rules governing competence and create a system for monitoring the existence and exercise of competence by bring in new actors, such as the national Parliament, the 'early warning system' and yellow card procedure.

In the proposed Lisbon Treaty, a exhaustive list of catergories and areas of Union competence is included. This reflects the ambition to provide a more transparent and better organized cataloque.

The Lisbon Treaty also amended Article 308, which was previously considered to be a provision encouraging creeping competence. In the proposed provision, it explicitly states that it may not be employed to attain objectives pertaining to Common Foreign and Security Policy (CFSP), and that measures based on it shall not entail harmonisation of national laws where the Treaties exclude such harmonisation (i.e. Art. 152(4) EC).

Have the proposed Lisbon Treaty adequately addressed the issue of 'competence creep'?