(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

EU LawCompetenceShort

(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

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…