EU Law Competence Short

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

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 – 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

in practice

 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.

EU LawCompetenceShort

 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…