- Two further observations before leaving this area
- 1No hard and fast line can be drawn between extreme difficulty and impossibility. Between the two there is an area where the internal and external moralities meet! – Dentist Calgary NW
- 2. Our notions of what is in fact impossible may be determined by presuppositions about the nature of man, and they can change. (Today like this, tomorrow like that)-
- Seems least suited to formalization in a constitutional restriction. E.g no constitution would say that no law should be changed more than once a year.
- When Madison defended the ban on non retroactive laws impairing obligation of contract, he used language more apt for describing evil of frequent change rather than retro laws:
(2) Political – Sponsored by Notary Public blog
Treaty of Amsterdam Protocol (1997) – Comm. must justify new proposals in light of subs. +
Council & EP to consider them (explanatory memorandum + annual report on subs.)
Lisbon Treaty – new resp. to nat. parliaments to send reasoned opinion on whether measure complies
w/subs. when suspect that EU legislator has exceeded powers (Art 12 TEU + Protocol on Role of Nat.
(i) Yellow Card – 1/3 votes against = drafting institution must review
(ii) Orange Card – majority vote against = Comm. must review amend, withdraw, maintain (if
latter, justify compliance with subs.); if 55% against, possible block by EP/Council
(iii) Red Card – rejected from Lisbon (would’ve given veto power on majority basis)
Intervention remains thin in practice – high threshold!
Arguments against subsidiarity
(i) Primarily political pr. – dual test can always be interpreted in favour of Union action
should instead ask if objectives of proposed action can only be achieved at EU level; if answer
is no, action to be taken by MS instead – would serve to distinguish b/w measures which will
produce EU outcome from those which must (Wyatt)
(ii) Too vague to be legally effective – treated as procedural mantra rather than constitutional tool
(iii) Proportionality is best tool for solving competency problems–subs. central flaw is that it
prioritizes Union goals as absolute and then proceeds to ask how best to achieve them/who
should do the implementing work. Doesn’t
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
(i) controls extent to which Comm. authority can override MS interests
(ii) limits leeway of MS to derogate from fundamental rules under the guise of public interests
(i) Is measure suitable to achieving objective sought?
(ii) Does it impose fewest constraints?
(iii) 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.
(i) Comm. action infringing rights – intense scrutiny
(ii) 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.
o 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
(iii) Comm. action imposing charges
o 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 =
(iv) Comm. action involving use of discretionary powers – only invalid if manifestly disproportionate
o 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)
(i) Union will act only if objective can’t be sufficiently achieved by MS
(ii) 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
(i) EU Constit. Court – made up of senior MS constit judges; would have authority & competence to
really police EU power (Wyatt)
(ii) 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)
(iii) 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
Substantive – no obl. on Comm. to show why its action is betterthan MS
o 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
Procedural – duty on Comm. to give reasons why complies w/subs. but no express reference
o Deposit Guarantee Directive – scheme to protect depositors introduced by Dir. challenged for
failure to substantiate compatibility w/subsidiarity; ECJ: Dir. makes clear this is minimum harmonisation, thus aim is best achieved @ Comm. level + MS action to date unsuccessful. Check out https://www.abogadosdeaccidentesflorida.com
2 stages: ECJ finds legal basis under Art 5(1) + assumes 5(3) is satisfied
o Ex parte BAT – Tobacco Labelling Dir. argued to be contrary to subsidiarity. Weatherhill: ECJ’s stance less robust than expected – gives impression ?that once it’s determined Comm. has acted on valid legal basis, its political decision to exercise that competence becomes immune to judicial subversion. SO: Art 5(1) has teeth, Art 5(3) doesn’t,
Art 5(4) betrays slightly milder judicial anxiety to avoid usurping legislative role.
MS retain authority to legislate until Comm. has adopted specific rules o Avesta Polarit – re Waste Dir.; in areas outside of exclusive competence, Comm. can legislate only & in so far as by reason of scale & effects it’s better placed to achieve objective + MS can’t sufficiently achieve it. Can’t go outside what’s necessary to achieve Treaty objectives.
EU Law Competence Short
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
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 – See the Abogados de accidentes blog
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
o 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
a. obstacles to trade
b. appreciable distortions of competition
c. how will proposed measure address these
Comm. drew up a narrower ban = valid, even though incidentally harmonised public health laws too
o 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
If Dir. meets 114 threshold, even though public health considerations are “decisive matter”, it has a
correct legal basis
o 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
o 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
o 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…
The 2012 act however reverses the previous policy implemented by the 1979 act, which now requires the keeper to rectify errors in the register. “Inaccuracy” is now defined (Section 65),
However this is limited to cases of manifest inaccuracy. Manifest is not defined within the act, which is therefore at the discretion of the keeper. Based on the Act’s Explanatory Notes, this appears intentional: providing the Keeper flexibility in respect of what qualifies here and adapt to individual circumstances, as well as judicially-induced changes to property law concepts. As such, Section 80 demonstrates the 2012 Act’s emphasis on reconciling registration rules and property law.
It is accepted that test for rectification requires a high evidential standard and that any such successful application will require a declarator from the courts as stated by Limor Wolfe discussing the new reform on Harper Macleod LLP blog. Further to this is has been stated that the new legislation will increase transparency of land ownership and correct the unfairness of the so-called ‘Midas Touch’. According to Professor Stewart Brymer. The key difference is there is as stated above a greater onus on the Keeper to rectify any mistakes in the register. The Midas touch or the Alice effect as coined by Kenneth Swinton allude to the point the register is in fact always correct.
However there can be only two types of inaccuracy Bijural or an actual inaccuracy. Not all inaccuracies affect the substance of a right. Minor clerical errors are not uncommon. Thus a real burden might be mistranscribed; or the address or occupation of the registered owner might be incorrect; or there might be a, generally trivial, typing error. This would be known as an actual inaccuracy. A bijural inaccuracy effectively now under the 2012 act strikes equilibrium between land registration and the scots law of property which effectively realigns the law of land registration with the scots law of property as previously stated. This effectively dilutes the Midas touch, which has been controversial as previously mentioned.
Section 9 (3) 1979 Act states that if rectification would prejudice a proprietor in possession, the keeper may only exercise his power to rectify in particular circumstances, for example, where there the inaccuracy has been caused wholly or substantially by the fraud and carelessness of the proprietor in possession. However, proprietor in possession is not defined in the 1979 Act. In Kaur v Singh, it was stated that ‘proprietor’ was to be given its ordinary meaning: the proprietor is the holder of a primary real right. That is to say that the proprietor is the owner of land or a tenant on a long lease of greater than twenty years as such a tenant has his own title sheet. Regarding possession, it was held in Kaur that in order to be a proprietor in possession, actual possession rather than a simple legal interest was required. However, under the 2012 Act, the test of proprietor in possession does not exist.
Rectification was set out in section 9 of the 1979 act, however the definition of inaccuracy has been singled out as being impractical and too vague.
There was no clear definition within the act as to what amounts to an inaccuracy in relation to rectification of title. Rectification is predicated on an inaccuracy, however there is no definition in statue of what an inaccuracy amounts to which was pointed out by Gretton in 1986.This is further evidenced in Brookfield Developments Ltd against The Keeper of the Registers of Scotland 1989 in which a wide of definition of inaccuracy was held. This illustrates there was no set definition.
Arguably the most significant feature of the Land Register 1979 act was that once the title is registered the keeper would refuse to rectify any mistakes in this record against a proprietor in possession except in the cases of fraud or manifest error of that proprietor. Per S 9(3) the power of the keeper to rectify any changes to the register was severely limited. It has been known for someone with no rightful claim to an area of land to take advantage of the keeper’s position by taking claim over the land, which makes rectification impossible. However as seen in Dougbar Properties Ltd v Keeper of the Registers of Scotland 1999 the keeper can rectify as in this case the inaccuracy was the fault of the keeper per S9(1) the keeper was entitled to alter the registration, The only available remedy is compensation by the keeper for their mistake, however this is not always deemed satisfactory by the party which has lost out. Not only is the 1979 Act deficient in matters of policy, but also, notoriously, it fails to provide answers even to quite straightforward questions according to Kenneth Reid.
Further to this the act has been as described in Short’s Trustees against The keeper by Lord Jauncey of tullichettle : stated that “nobody could accuse the act of being well drafted, Further to this Lord Keith of Kinkel said that the act was “obscure and difficult to understand” This is was down to the urgency in which the legislation pushed through at the time. There have been clearly issues with how it has been implemented and interpretated as evidenced.