#3518 - Legal And Constitional Limit - European Law

Models of Integration

• Art 2(1) – exclusive competence (dual federalism)

• Art 2(2) – shared competence (co-op federalism)

• Art 2(3)-(5) – no legislative competence but primacy if conflict arises

Competence Creep

• Art A TEU – tension: EU integration v preservation of nat. identity & autonomy

• Art 4 TEU – more explicit on preserving nat. autonomy/deference to nat. authorities

Remit of Legal Authority

• Doctrine of conferred powers (Art 5(1))

• Flexibility provision (Art 352(1)) - potential to be used for creating a gapless system of competencies... how far it will go depends on ECJ interpretation. If too wide, it leaves areas excluded from Treaty at risk of intrusion.

• Signs of safeguarding nat. constit. identities Germany: 352(1) is wide, if used, will require approval of Parl. chambers + can’t be used in central areas of crim. law, social policy, religion

Limits of EU law making

1. Competence – does Comm. have legal basis to act? (Art 5(1) + Art 362(1))

2. Subsidiarity & proportionality – exercise of those powers (Art 5(3) + 5(4))

Legal

1. Is Comm. legislator acting within its competence must identify specific legal basis for the action in Treaty

• Technique of attribution highly specific & though some bases (e.g. Art 114 TFEU) are open ended & broad, yet not completely uncontrolled

2. Has it acted on correct legal basis?

• Dir. went outside Art 114 (‘internal market’) into ‘public health regulation’ = no correct legal basis

• Germany v Parl. & Commission – Tobacco Ad Dir. under Art 114 imposed complete ban on advertising & sponsorship of tobacco products in EC. ECJ: designed to regulate public health, not promote operation of IM = void. Harmonising IM measures must be market making.

Art 114 Threshold

1. obstacles to trade

2. appreciable distortions of competition

3. how will proposed measure address these

• Comm. drew up a narrower ban = valid, even though incidentally harmonised public health laws too

• Tobacco Advertising II–Comm. followed guidance, narrower, not blanket, ban = Art 114 valid legal basis. Incidental harmonisation of public health laws permissible, since market making measure.

• Weatherhill: expansionism is the key trend. Legislative competence ltd in principle but broad in practice

• If Dir. meets 114 threshold, even though public health considerations are “decisive matter”, it has a correct legal basis

• Swedish Match – Labelling Dir. under 114 prohibited marketing tobacco for oral use; Swed. Company wanted to export to UK, where banned (Sw. had exception) - unsuccessful challenge. ECJ: when ban was introduced, some MS already legislated + public health concerns suggested more will legislate, so eventually would distort competition/impact free movement of goods. Dir. introduced to eliminate these likely risks.

• If Dir. meets 114 threshold, reliance on health concerns doesn’t deprive it from valid legal basis

• Alliance for Natural Health – different food supplement laws = clear distortion of IM which Dir. eliminates. Need direct effect on functioning of IM, not mere finding of disparities, like in Tobacco I.

• Weatherhill: competence conferred isn’t static – depends on nat. reg. practices + reported impact on economic operators. Relatively easy for Comm. to manipulate threshold criteria, relatively hard for ECJ to obtain independent evidence of the impact.

• If Dir. meets 114 threshold, Comm. legislature can rely on it, even for consumer protection

• Vodafone – roaming reg. capping charges imposed by mob. phone operators on consumers for roaming services within EU argued by Vod. to be invalid b/c no correct legal basis + disproportionate + offend subsidiarity. AG Maduro didn’t think 114 threshold met but ECJ did. ECJ: Reg. adopted in response to likelihood of diverging price control measures = classic preventative harmonisation & improvement of IM conditions.

• Weatherhill: court decided the case by ref to EU institutions own observations & attachments to measure – failed to be an outside observed but instead aligned itself with institutions whose acts were being challenged by C.

• In practice, case law on competency has become a drafting guide for legislature which now finds it all too easy to ensure compliance in a manner unreviewable in practice...

Constitutional

1. Proportionality (Art 5(4)) – places legal limits on EU law making powers by requiring content + form of measure not to exceed what’s necessary to achieve Treaty objectives

• 2 purposes

1. controls extent to which Comm. authority can override MS interests

2. limits leeway of MS to derogate from fundamental rules under the guise of public interests

• Test

1. Is measure suitable to achieving objective sought?

2. Does it impose fewest constraints?

3. Is it proportionate to end sought?

• Flexible – applied w/varying degrees of intensity, depending on: right claimed + objective + relative expertise of MS & Comm. More deferential in policy, economics, less in fundamental rights and civil liberties

• Tridimas: enables ECJ to review equality + merits, to some extent. Potentially strongest ground of review but depends on its willingness to apply it with requisite degree of stringency. Not strict/uniform test- varying degrees of judicial scrunity depending on context. But not applied w/same degree of stringency to Comm. & MS!

• Types of challenges where PP may be used against Comm.

1. Comm. action infringing rights – intense scrutiny

2. Comm. action imposing penalties – ECJ likely to be searching b/c of potential to infringe personal liberties + can strike down w/out invalidating whole admin policy. Claim re: excessive penalties.

• Atalanta – Comm. imposed same penalty on MS for non implementation, regardless of circumstances. MS implemented but didn’t submit docs. ECJ: absolute nature of penalty = disproportionate; must take into acc gravity of breach + degree of fault

3. Comm. action imposing charges

• Bella-Muhle–Comm. imposed on animal feed producers obl. to use skimmed milk instead of soya, despite 3X the price, b/c wanted to reduce milk surplus. ECJ: burden disproportionate = reg. void.

4. Comm. action involving use of discretionary powers – only invalid if manifestly disproportionate

• Zaninotto – Comm. imposed Reg. to remove wine surplus using hectare basis instead of end of year stocks; burden on wine makers who didn’t overproduce; ECJ: legality affected only if measure manifestly disproportionate (beyond what’s necessary). Not satisfied on facts.

• Not a Wednesbury unreasonableness test less exacting...

2. Subsidiarity (Art 5(3)) – in areas other than exclusive competence, Comm. will act only if objectives can’t be sufficiently achieved by MS + can achieve them better by reason of scale & effects

• Basic idea – public powers should be located at lowest tier of govt. for effective exercise + brings decision making process closer to the citizen (addresses DD argument)

• Dual aspect

1. Union will act only if objective can’t be sufficiently achieved by MS

2. Object can better be achieved by Comm. b/c of scale & effects = essentially, comparative efficiency (is 27 better than one & vice versa). Logic: comparative federalism.

• Very centralising – can almost always argue in favour of Comm. action b/c generates economies of scale + avoids problems of alignment & coordination

• Compensating institutional innovations

1. EU Constit. Court – made up of senior MS constit judges; would have authority & competence to really police EU power (Wyatt)

2. Chamber of nat. parliaments to assess Union legislative proposals b/d they become law (Joseph Weiler) –incorporated into Lisbon to some extent

• while Lisbon didn’t establish Constit Council for EU, the early-warning system for subsidiarity brought about the emergence of a sort of Council of State in the form of nat. parliaments exercising advisory role in EU legislative process. Several EU MS have such a council which checks domestic bills b/f they’re introduced in Parl., and this could well become a recognisable role model for parliaments still struggling to define their proper role in EU. Scrutiny should then focus on lawfulness & admissibility of legislation, rather than its political desirability. (Kiiver)

3. If ECJ finds engaging in substantive review hard, should at least police the quality of justification offered by Comm. legislature

• Essentially, it’s a question of who is better equipped to deal with a matter = sets up the debate, provides no answers

1. Legal

• Substantive – no obl. on Comm. to show why its action is betterthan MS

• Working Time Directive– UK unsuccessfully argued Comm. failed to consider appropriateness + show MS action wouldn’t be better; ECJ: once Council found it necessary to improve the level of protection by harmonising, this presupposes Comm. action (subs. not a separate plea!)

• Questionable: suggests where Comm. finds harmonisation necessary, subs. is automatically satisfied!

• Procedural – duty on Comm. to give reasons why complies w/subs. but no express reference

• Deposit Guarantee Directive – scheme to protect depositors introduced by Dir. challenged for failure to...