EU Institutions and Law Making

Question 1

*Opinion 2/94 Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms ECLI: EU:C:1996:140 (on the flexibility clause) (in particular for Question 1)

Answer 1

• 3. Talks about the principle of conferral; the Community is to act within the limits of the powers conferred upon it.
• The principle of conferral will not serve as a principle to widen out the scope of Community powers beyond the general framework created by the provisions of the Treaties.
• 6. As the Community law now stands, the Community has no competence to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms because no treaty confers on the Community institutions to enact rules concerning human rights or to conclude international agreements.
• Respect for human rights is a condition of the lawfulness of Community acts.
• At this point the Court looked for a relevant treaty to enact law, which it did not have a legal base.
• The court said there was no legal base + there was no treaty that said the HR could be made – so the competencies of the EU could not be expanded.
• Also looked at the flexibility clause and established that it could not be used because it is a gap filler.

Question 2

Opinion2/13 Opinion on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms. ECLI: EU:C:2014:2475 (For question 1 in particular)

Answer 2

• Members of the EU accessed (agreed) to uphold fundamental rights set out by the European Convention on Human Rights
• 6. Since the entry of the Treaty of Lisbon, it has been clear from Art 6(2) TEU that the EU has the power to accede to the ECHR, and also it has been placed under obligation by the Member States to follow that path. Hence, ever since acceding to the ECHR has had constitutional status within EU law.
• The opinion raises the following issues
- Under what conditions may the EU acced to the ECHR, and how can it guarantee that such accession will not affect the specific features of EU law, the competences of the EU and the powers of its institutions?
- Whether the competences of the EU are maintained?
o 38 Upholding the ECHR imposes restrictions on the competences of the EU.
- Whether the powers of the EU institutions remain unaffected
- Whether the specific characteristics of the EU and of EU law are preserved
- Whether the necessary arrangements have been made for the participation of the EU in the control of bodies of the ECHR
- Whether due account has been taken of the situation of Member States in relation to the ECHR
• In this topic an a big issue for discussion is whether the recognition of the jurisdiction of the ECtHR is compatible with the autonomy of EU law, and whether judicial scrutiny of the activities of the EU in the context of foreign policy meets the requirements of effective legal protection for the purposes of Articles 6 and 13 of ECHR.
• So the court concluded the EU could not sign up for HR.
• Art 6 now gave a legal base for Human Rights. (A potential base for human rights)
• Signing up to the convention would not uphold/ compatible with Art 6 TEU – legal base for Human Rights – but it cannot sign up to the convention because…
1. It will affect the characteristics of the EU’s autonomy of the Union and EU law. (The court said that if the Union signs up to the Convention will potentially bind the decisions of the Union and the European Court of Justice and the Union cannot be bound + so the Court wanted to preserved its supremacy and competence)
2. The relationship btw the ECHR and the European court of Justice
3. The court also said that signing up to the Convention will give rise to disputes (internal dispute resolution in the Union) – the Convention on Human Rights give a base to protect rights + the UK can set up higher standards if it want to so the issue – is what would happen if they both sign up for the Convention and they had different standards in Human rights.

Question 3

*Case 376/98 Germany v. Parliament and Council ECLI: EU:C:2000:544 (On Article 114 TFEU)

Answer 3

• Facts
• Facts in nutshell –
- The advertising and sponsorship regulations of tobacco products being challenged
- Directive 89/552/EEC banned all advertising and sponsorship of tobacco products in the EU
- Germany brought an action pursuant to what is now Art 263 to challenge the validity of the Directive. It contended that the Directive constituted an infringement of the principles of proportionality and subsidiarity; breach of fundamental rights; and infringed the free movement provisions as well as other procedural provisions.
- P35. TFEU 168 (public health) explicitly excluded harmonization of member state laws designed to protect and improve human health. This is because using ‘human health’ as a tittle to harmonize would fall beyond the conferred legislative competence. So the Directive would be ruled invalid.
- [101] The Directive did not ensure free movement of products, which are in conformity with its provisions.
- [110] The differences between certain regulations on tobacco advertising give rise to distortions of competition.
- Issue: Was Article 95 the proper legal basis?

• One of the grounds for its application was that Article 95 of the EU Treaty, which is the basis for acts aimed at establishing the internal market and securing its proper functioning, was not an appropriate legal basis.
• Held
• To use Article 95 as the legal basis, the Directive must contribute to the improvement of the internal market, which it does not, in particular because there were a few cross border aspects to tobacco advertising.
• The court annulled the Directive.
• The court annulled the Directive, not so much related to human health or fundamental rights, instead because it interfered with market making.
• P38 – The court does not deny that public health concerns may play a part in the shaping of harmonization legislation. Nor it is holding it impermissible to ban particular practices in pursuit of the internal market.
• The court is clear that harmonization must be tied to market making.

Question 4

*Case C-491/01 R v. Secretary of State for Health, ex parte British American Tobacco and Imperial Tobacco ECLI:EU:C:2002:741

Answer 4

• Tobacco Advertising and Promotion Regulations 2004 were made with the aim of deterring the public from smoking and were not a disproportionate restriction under Art 10 of the Convention.

• Facts
• The claimants were five companies involved in the tobacco industry.
• Cs applied for judicial review to challenge the lawfulness of the limitations placed by the 2004 Regulations on the basis that the restrictions imposed were in breach of Art 10 of the Convention since they went beyond the legitimate aim of preventing children being influenced and sought to deter adults buying cigarettes.
• They contended that the Regulations were in breach of Art 10 because they were disproportionate to the aim of promoting health as they allowed so limited an amount of advertising so as to impair the ‘very essence’ of commercial free speech.
• Held
• Application refused.
• S.2 of the Tobacco Advertising and Promotion Act 2002 imposes an overall ban on tobacco advertising, to which the regulations allow a limited exception.
• The proportionality of the regulation had to be judged in context that the protection of health was a far-reaching social policy.
• C’s contention that the true objective of the regulations was the prohibition of advertising to children was rejected.
• The aim of the regime was much wider than the protection of children and was sufficiently important to justify limiting a fundamental right.
• The measures proposed by the Regulations were rationally connected with the objective and were proportionate to meet the objective of promoting health restricting tobacco advertising.
• Remember the Directive 98/43 was annulled in case 376/98 and replaced by Directive 2001/37.
• The Directive was based on Article 95 EC, predecessor to Art 114.
• The Directive was put to the test and survived.
• Comment by the judge:
• These regulations were made with the aim of preserving public health.

Question 5

*Case C-210/03 R v. Secretary of State for Health, ex parte Swedish Match ECLI: EU:C:2004:802

Answer 5

• Tobacco advertising was challenged – the Directive survived.

• Held
• The court ruled that the presence of public health considerations as a ‘decisive factor’ was not sufficient to ban the advertisement of tobacco.
• The Court allowed a margin of discretion to the legislature in choosing the level of intensity at which to pitch its harmonized measures of market regulation. Provided that the measures ‘be intended to improve the conditions for the establishment and functioning of the internal market and must genuinely have that object, actually contributing to the elimination of obstacles to the free movement of goods or to the freedom to provide services, or to the removal of distortions of competitions’.

Question 6

Case C-380/03 Germany v. Parliament and Council ECLI: EU:C:2006:772

Answer 6

• The tobacco Advertising Directive annulled in case the Directive 2003/33 replaced 376/98, the Directive was also challenged but the Court found it valid.
• It set out the legal test:
- [37] Disparities between national rules are not sufficient to justify recourse to Art 95 EC. Instead, the differences must obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market.
- [38] Recurring to Art 95 EC as a legal basis if the emergence of the obstacles rose can be dealt with or prevented.
- [39] The Community legislature cannot be prevented from relying on Art 95 EC as a legal basis on the grounds that public health protection is a decisive factor on the choices to be made.
- [40] In achieving harmonization, a high level of protection of human health should be guaranteed.
- [41] Art 95 EC in compliance with Art 95(3) EC will provide appropriate measures to authorize the Community legislature to intervene by adopting appropriate and proportionate measures when a member state’s product will be prevented from moving freely within the Community.
- [42] By using the words ‘‘measures for the approximation’ in Article 95 EC,’ it was intended to confer on the Community legislature discretion, depending on the general context and specific circumstances of the matter to be harmonized.
- [43] ‘Depending on the circumstances, those measures may require all Member States to authorize the marketing of the product or products concerned, subjecting such an obligation of authorization to certain condition…’

Question 7

Notes

Answer 7

1) Why is it important to establish the correct legal base of a particular piece of EU legislation?
¬ Look at the relevant opinions.
¬ Both opinions are about the EU’s competency to sign up for the convention on Human rights
¬ The result in both opinions was the same.

Legal base = the EU has to look at the treaties to see if an appropriate treaty will allow it to legislate and that comes to the point of whether we have conferred powers or not.
So the EU will have to identify the relevant treaties to create legislation – so related to conferred powers.
If the wrong legal base is chosen then it could be partially in valid and invalid.
There is not balance of powers. Base on the Court giving its judgment.

• Legal base/ constitutional basis = A set of fundamental principles or established precedents according to which a state or other organization is governed.
a) Working backwards to understand this definition:
b) The Treaties of the European Union are a set of international treaties between the EU member states which set out the EU’s constitutional basis
c) EU law is a body of treaties and legislation, such as Regulations and Directives, which have direct or indirect effect on the laws of European Union member states.
• All EU legislation must be based on appropriate treaty provision

• P42 Establishing the correct legal base of a particular piece of EU legislation is important because a choice needs to be made between competing legal bases in the Treaties where they engage in different procedures where one procedure may be less influential.
• So far I know 2 legal bases Art 95 EC and Art 352 TFEU which, cannot be used where there is a more specific legal base available.
a. In what ways has the Court of Justice contributed to the balance of powers between institutions in cases on this question?
• The Court of Justice has been very careful in balancing the powers between member states and the EU.
• For example in the 376/98 case = Germany v Parliament and Council, where the validity of Directive 89/552 EEC was challenged by Germany on various grounds. The Directive banned the advertising of Tobacco.
• The Court balanced the powers by annulling the Directive, not necessarily on all the ground posed by Germany, but on the grounds that it restricted market making.
• The Court found a balance between Germany’s grounds and what the Directive did to the Community. The Directive did not contribute to the improvement of the internal market hence it was annulled.
b. Has the Treaty of Lisbon reduced the importance of legal base?
• No.
• Legal base: All EU legislation must be based on an appropriate treaty provision.
- Art 5 EC – Community must act within the powers conferred by the Treaties.
- Art 7(1) – Each institution must act within powers conferred by Treaties.
• The absence of an adequate legal base in the Treaty means that MS ‘retain competence’ and the Community is not competent to act.
• In general, any act adopted in areas where the Community is not competent may be annulled as an invalid trespass onto national competence – Advocate General Jacobs Parliament v Council.

• The main changed introduced by Lisbon was that most of the treaties + are based on the ordinary legal procedure leading to the point of a qualifying majority voting.
http://www.thestudentroom.co.uk/wiki/Revision:Competence_and_Legal_Basis
c. To what extent have reforms to Articles 114 and 352 TFEU mitigated concerns identified in the Laeken declaration?
The Lisbon Treaty: Law, Politics and Treaty Reform P188 by Paul Craig.
• ‘Creeping competence’ competence that come up from general principles.

• Art 352 TFEU reforms – ‘requires unanimity in the Council which will not be easy to achieve in a Union of 27 members. It now demands consent from the European Parliament, and national parliaments to use the provision.
• ‘The Lisbon Treaty will’ do little if anything to alleviate problems of ‘competence creep’ this is the flexibility clause.
• Art 114 – successor to Art 95 EC, it replicates it.
• ‘Concerns about over-extensive use of legislative competence arose because it was felt that the EU was too readily assuming power to harmonize national laws based on mere national divergence…’ Used in regards to promoting the internal market.
• The main change was that Art 114 is now based on the ordinary legislative procedure.
• Democratic deficit – think of it how this is lacked in relation to individuals and the MS.
• To create more democracy + transparency in the EU
• The Laeken Declaration also mentions when MS can act + competencies.

LAEKEN DECLARATION
Part 1 – where is the EU now
-	Balance of power
-	Democracy closer to its citizens
-	Globalization
Part 2 - problems
-	Terrorism
-	Democracy improvement (for example in elections such as the Commission) + to increase the role of national parliaments (for example in the subsidiarity part in the treaty of Lisbon)
-	 Also talks about having a constitution for its citizens

Tips for reading: what is the person arguing + how is the person constructing his argument + do you agree.
HABERMAS ARTICLE -

• Says the solution – like the Laeken declaration he recognises these is a democratic declaration and must have a democratic solution.
• Problems: Lack of accountability + Lip service to democracy + tries to argue that if the citizens participate in decision making then political accountability will be allocated rather than what the EU is atm which is ‘supranational’
• The EU has tried to solve the economic problems by saying they were trying to solve it individually
• His measures were shorter.
• Austerity measures which try to manage the financial crisis the EU is taking various budgetary measures/ procedure/ discipline to correct the financial crisis/ But can only take you so far and this measures of austerity damages the social cohesion of the member states.
• It also offers packages that lead to growth/ productivity.
• Says member states should not become federal (says that member states should continue to act as safeguards to democratic freedom)
  2) Read carefully Case C-376/98 and consider the following questions:
  (a) what do you think was the real purpose of Directive 98/43? Could that objective be achieved within the framework of the Treaty?
  ¬ Read the relevant case 376/98 – (part I)
  ¬ Know a little bit about the Directive + what it is + what it is doing in the case + what measures it is introducing + basis of its reasoning + be able to compare the judgment to the BAT case and compare to 380/ case (part II)
  ¬ You must link these cases.
• I think the real purpose of the Directive was to protect human health.
• Within the framework of this treaty it could not be achieved because the treaty damaged market growth and the distribution of tobacco in the Community market – hence the Court annulled the Directive + thereby not protecting human health.
• Exemption that could exist was communication btw professionals + the point of sale. Otherwise promoting tobacco was prohibited.
• Art 114 – allows for approximations of law – s/para 3 says that the community must take at high basis health considerations.
• The Directive did not have the genuine objective of promoting the internal market.
• The court said that the banned did not contribute to the free movement of goods. All it is doing is telling us about banning the advertising but it does not mention what the effect would be in the internal market.

(b) What was the decision of the Court, and what was the basis of its reasoning?

• The Court annulled the Directive.
• The basis of its reasoning were that the Directive must contribute to the improvement of the internal market – and it did not by preventing the advertising of tobacco.

(c) What can we learn from this judgment about Court’s view of both the nature of the internal market and the relationship between the EU and its Member States?
• From this judgment the Court places a high value on the internal market even above human health. This is because the internal market was of the main reasons for the MS to come together and form the EU.
• Hence, the relationship between the MS and the EU is of a conferred power one. The EU has been given powers to act by the MS.
(d) Who won and who lost as a result of this ruling, in your opinion?
• In my opinion, none lost.
• Germany brought an action against the Directive for various reasons including the protection of human health. The main one being a restriction to market growth. So, all member states won in the sense that they can continue to advertise tobacco and distribute it freely.
(e) In the light of this case, if when the Member States wish to legislate in a particular area, what key considerations should they reflect upon?
• They should reflect upon the impact their legislation will have to the internal market and respect the Supremacy of EU law.
• The Court set out a legal test in the case 380/03 Germany v Parliament and Council.

• The Tobacco Advertising Directive had been annulled and replaced. The new Directive was equally challenged. However, the Directive was found to be valid based on the introduced test:
- [37] Disparities between national rules are not sufficient to justify recourse to Art 95 EC. Instead, the differences must obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market.
- [38] Recurring to Art 95 EC as a legal basis if the emergence of the obstacles rose can be dealt with or prevented.
- [39] The Community legislature cannot be prevented from relying on Art 95 EC as a legal basis on the grounds that public health protection is a decisive factor on the choices to be made.
- [40] In achieving harmonization, a high level of protection of human health should be guaranteed.
- [41] Art 95 EC in compliance with Art 95(3) EC will provide appropriate measures to authorize the Community legislature to intervene by adopting appropriate and proportionate measures when a member state’s product will be prevented from moving freely within the Community.
- [42] By using the words ‘‘measures for the approximation’ in Article 95 EC,’ it was intended to confer on the Community legislature discretion, depending on the general context and specific circumstances of the matter to be harmonized.
- [43] ‘Depending on the circumstances, those measures may require all Member States to authorize the marketing of the product or products concerned, subjecting such an obligation of authorization to certain condition…’
(f) Compare the outcome in this case with that in Case C- 491/01. What was the key difference between these cases?
• The Directive 2001/37 that replaced 98/43 survived based on the test set out in the judgment.

• Held
• Application refused.
• S.2 of the Tobacco Advertising and Promotion Act 2002 imposes an overall ban on tobacco advertising, to which the regulations allow a limited exception.
• The proportionality of the regulation had to be judged in context that the protection of health was a far-reaching social policy.
• C’s contention that the true objective of the regulations was the prohibition of advertising to children was rejected.
• The aim of the regime was much wider than the protection of children and was sufficiently important to justify limiting a fundamental right.
• The measures proposed by the Regulations were rationally connected with the objective and were proportionate to meet the objective of promoting health restricting tobacco advertising.
• Remember the Directive 98/43 was annulled in case 376/98 and replaced by Directive 2001/37.
• The Directive was based on Article 95 EC, predecessor to Art 114.
• The Directive was put to the test and survived.
• The prohibition in this case was regarding manufacturing and labelling the products – the Germany case deals with the advertising of them.

3) What are the key elements of the Court’s application of proportionality review as manifested in by its reasoning in Cases C-491/01 ex parte BAT and C-210/03 R v. Secretary of State for Health, ex parte Swedish Match.
¬ Look at the proportionality reasons given in the BAT case + know what the Court’s contribution was.
• Based in proportionality the court will allow a margin of discretion to the legislature in choosing the level of intensity at which to pitch its harmonized measures of market regulation. Provided that the measures eliminate obstacles to allow the free movement of goods.

• Directive
• 3 aspects being challenged – (complete ban on cigarettes that did not state what their yield was + the cigarettes had to show the level of toxins + ban on descriptions so in terms of what the cigarettes were like mild etc.) misleading so the court wanted to ban them
• Court held that the Directive did not ban proportionality.
• Issues: Whether the MS was attaining its objectives + does the measure used is accepted = measure of proportionality used.
• Discretion when exercising proportionality = the Community legislature must be given a broad discretion because of the complex economical and political context and the test is whether it is manifestly inappropriate (a high threshold).
• BAT suggested border controls – the court did not accept border controls because these would not be effective to control the distribution –
• You must know proportionality in the case + the differences with the others.

• Swedish Match –
• The Directive already had a complete ban.
• Again the court held that the measure was not disproportionate.
• Arguments put forward and rejected:
1. The availability of scientific evidence available and health risks posed by tobacco
2. As part of decision-making the EU is required to protect human health.

4) ‘The requirements of subsidiarity and proportionality together comprise a significant, necessary and sufficient restriction upon the exercise of EU competence, effectively mitigating concerns regarding ‘democratic deficit’ in the EU.’

Discuss with reference to the EU’s case law.
¬ Democratic deficit = look at the Davies article.
Points to cover:
1. Define subsidiarity and proportionality with reference to Art 5 + case law
2. Define what a democratic deficit is = which you can look at in 2 ways – in relation to individuals and citizens so legislation in their behalf + member states and how legislative powers are used.

• When talking about subsidiarity talk about the article and the Protocol because this is a change.
• You must comment on whether they are significant, necessary and sufficient.
• Art by Snell v Davies.

Start by:

1. EU law competencies have started over time – contrast with the fact that proportionality and subsidiarity have not expanded – Davis art says why they are insufficient. This is because it is hard to define them then it is hard to apply them
2. Snell says that not only are they vague + so if we do not know what proportionality + subsidiarity are in context then they become blurred
3. If you agree that they are necessary but insufficient you can look at possible solutions to make proportionality and subsidiarity more sufficient and more robust.
4. Look at the impact assessment – risk/ impact assessment because we know what it is but we do not know how to assess it. To know how to increase those principles assessment is key.

• Principle of subsidiarity = the EU may only act when it can better achieve an objective that the MS would not be able to achieve on its own.
• Proportionality = the law is being interpreted in a fair and just way to assess the balance between restrictions imposed.
Chap 2 –key points
• In 1950 the three founding treaties were agreed.
• The treaty of Paris came into force in 1952 and established the European Coal and Steel Community (ECSC).
• The other two treaties of Rome came into force in 1958 and established EUTATOM, The European Atomic Energy Community, and the EEC, The European Economic Community.
• The six original parties were France, Germany, Luxemburg, Belgium, the Netherlands and Italy.
• Then the SEA 1986 revised all the treaties motivated to complete the internal market by 1992.
• The ECSC unlike the EURATOM and the EEC contained a life span of 50 years. So it reached its life span by 2002.
• The Amsterdam treaty entered in force in 1999 and retained the over-all three-pillar structure. Of the Union.
• The treaty of Nice also respected the three-pillar structure whilst amending a number of detailed provisions.
• In 2009 the treaty of Lisbon entered in force and the three-pillar structure was abandoned. The EC was re-named EU law.
• Hence, the EU post-Lisbon is based on two treaties the TEU and the TFEU.
• The legal provisions in the TFEU are primarily concerned to eliminate barriers to trade between Member States and to establish an internal market. The constitutional principles are also based upon this objective of achieving an internal market.
• International Fruit Company v Commission –
- In this case, a measure was labelled a regulation. The applicant company argued that in reality it was a set of decisions.
- The court’s examination of the substance of the measure led it to agree with the applicant
- The court insisted that the different acts available to the institution are distinguishable on the basis of their nature, and not their form.

……….. continue chap 2

Chap 3 – The Nature of Union Law: Supremacy
• Costa v Enel
- The States have transferred their powers to the Community; they have limited their sovereignty rights within a limited field .