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)

EU LawCompetenceShort

 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

 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.