(2) Political

(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

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(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

 2 purposes

(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

 Test

(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 =

reg. void.

(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)

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 Dual aspect

(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

(1) Legal

 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

automatically satisfied!

 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.