The notion of implied powers must be viewed as two distinct issues. These
two issues are the existence of an implied competence and the nature of that
competence, if it exists. This distinction must be kept in mind when
analysing the case law on implied powers, although the ECJ has not used
this distinction with the greatest consistency. But it is essential to
understand the case law on implied powers, especially for analytical
purposes. Indeed, one of the reasons that make the case law on implied
competences so enigmatic is the fact that the ECJ often does not draw this
distinction very clearly.
A third issue can be added: if Community competence is not exclusive but
shared with Member State competence, is it then facultative or obligatory?
If it is facultative that means that both the Community and the Member
States have competence and that they can use them more or less
independently of each other. If it’s obligatory, the Community can only
exercise its external competence if the Member States exercise theirs. In
other terms, is the participation of both the Community and the Member
States legally possible or legally necessary?