Wilfried Erbguth, Mathias Schubert
Europäisches Raumordnungsrecht: Neue Regelungskompetenzen der EU im Gefolge des Vertrages von Lissabon?
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The limits of EU competences are governed by the principle of conferral. Under this principle, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein (Art. 5 para. 1 TEU). That means legislative competence in the field of spatial planning can only be based upon an accordant provision in the Treaties allowing binding regulations for Spatial Planning in the Member States. The European Treaties do not provide any Union competence that would empower the EU to release binding acts addressed to the Member States: Neither Art. 192 para. 1 TFEU nor Art. 192 para. 2 no. b first indent TFEU would allow for secondary legislation in the field of spatial planning. Art. 192 Para. 2 no. b first indent TFEU, authorising the adoption of measures affecting town and country planning in accordance with a special legislative procedure, refers to the Union policy on the environment but not to specific measures directly targeting spatial planning. The Lisbon Treaty did not expand the Union competences in the field of spatial planning, particularly not with regard to the explicit incorporation of »territorial cohesion« as an objective and area of shared competence. In consideration of the genesis of the objective »territorial cohesion« and its meaning within European Structural Policy, it cannot be approved that territorial cohesion and spatial planning are partially congruent. The concept of spatial planning differs from the perception of spatial resp. territorial development but conforms to the definition of spatial planning as defined by the German Raumordnungsgesetz. According to Art. 4 para. 1 and Art. 5 para. 2 TEU, the competence for both legislation on and implementation of spatial planning remains with the Member States.