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Flashcards in EU Law - Harmonisation Deck (207):
1

Article 4(1) and 5(2) TFEU

Political desire to emphasise limited nature of EU power and functions

2

What case was the first to apply subsidiarity to Article 114 TFEU?

Ex p BAT

3

What does Weatherill note about the 'objective' assessment of the EU court on impact of regulatory diversity?

Unavoidably tied to what Members say of it and what they are likely to do

4

Compassion in World Farming judgment

UK couldn't stop export to lower standard countries

5

'Yellow card' procedure under Protocol 2 Article 7 TFEU

Reasoned opinions of non-compliance make up 1/3 of Members, draft act must be reviewed

6

Why does Weatherill believe positive integration through H is needed?

To remove lawful trade barriers covered by, for example, the derogations in Article 36 and Cassis

7

Who argued Articles 114 & 5 are the foundational stones of market building and thus should always pre-empt Member action

Weatherill

8

Compassion in World Farming general

Fattening calves

9

Prevedi on new approach

Impermissible delegation of power to private bodies

10

Article 290 TFEU

Governs delegated acts

11

what regulation Intends to enhance confidence in genuine equivalence of conformity assessment testing?

RAMS Regulation

12

Buet general

Door stop sales, contracts away from business premises

13

Why was the lack of transparency in the directive in question in Alliance for natural Health not sufficient?

General duty of the commission to act transparently

14

Give at least two disadvantages of EH

Can take years to negotiate, inflexible and conservative once adopted due to unanimous voting and eliminates national experimentation

15

Vodaphone general

Roaming prices

16

Why are the RAMS Regulations important?

Mutual recognition means host has to assume certificates by notified body in one state are equivalent to theirs - need to enhance confidence that this is true

17

What other factors does Dougan argue MH requires account to be taken of?

Extended membership to other nations, and institutional changes favouring supranational rather than intergovernmental style of decision-making

18

Measures adopted by Commission to ensure uniform conditions for legislative act.

Implementing acts

19

What case stressed that 'Minimum' does not mean 'lowest common denominator'

Working Standards

20

What does Weatherill say of the basic aim of Lisbon reforms?

to maximise opportunity for dialogue about EU legislative practice, and for voice of national Ps to be heard more effectively

21

Burrows on new approach

Decision-making is slow, lacks transparency and risks diluting pre-existing national standards

22

What two situations did the court give for use of Article 114 in TA1?

Distortions in competition and obstacles to trade

23

Swedish Match

Allowed a total ban on marketing of X product in a Directive

24

What is an example of a new approach Directive?

Toy Safety Directive

25

Why did the legislator not want to base the measure in TA1 on Article 168 TFEU?

Soft law

26

Give at least two advantages of new approach to H

Less costly, more efficient as industry have direct knowledge, quicker to adopt

27

Protocol 2 Article 7 TFEU

'Yellow card' - reasoned opinions of non-compliance make up 1/3 requires review - and 'orange card' - Commission need to explain maintenance

28

What case suggested paragraph 4 does not require unanimity of opinion on public risk, nor new/different scientific evidence?

Denmark v Commission

29

Who said MH is particularly important in welfare-oriented areas?

Barnard

30

What two cases show hybrid harmonisation?

Gallaher and Compassion in World Farming

31

Waste Directive

Need more than an incidental harmonising effect

32

Dehousse on new approach

Questions if Meroni conditions for delegated legislation are satisfied - balance between too detailed (traditional) and not enough (incompatible with Court guidelines)

33

Crespelle general

Bovine semen

34

What two clauses would one find in a measure for exhaustive harmonisation?

FM and exclusivity clause

35

What is negative integration?

Rendering national laws inapplicable

36

What is minimum harmonisation?

Directive sets a floor standard - stricter measures can be justified by MR (Cassis) or Article 36

37

Need more than an incidental harmonising effect to rely on Article 114

Waste Directive

38

Land Oberösterreichh v Commission general

GMO

39

What does Dougan argue about when Community makes no particular provision to govern relationship between FM and harmonisation?

Societal interests underlying development of Community have no place in derogations which appears 'contrary to the contemporary spirit of the integration project'

40

Article 291 TFEU

Governs implementing acts

41

How did Weatherill describe the issues to do with harmonisation?

They are 'yesterday's issues and they are tomorrow's too'

42

Article TFEU

Principle of conferral - union competence is limited by conferral, and powers are governed by subsidiarity and proportionality

43

What are the three areas not subject to QMV under Article 114 TFEU?

'Fiscal provisions, free movement of persons and rights and interests of employed persons'

44

What does Slot argue about when Community makes no particular provision to govern relationship between FM and harmonisation?

More stringent rules apply to importers and domestic goods, although mutual recognition may not be available in addition to derogations to justify obstacles to FM because they are only available in the 'absence of common rules'

45

Give an example of positive integration

EU level legislation - Directives, Regulations and Decisions

46

Give at least three disadvantages of new approach to H

Technocratic form of governance, may reduce consumer protection, decision-making is slow, impermissible delegation and democratic unaccountability

47

Land Oberösterreichh v Commission judgment

'Specific' means 'unusual', not 'unique', and Austria still failed. No guidance on threshold. Highlighted how new measures are more likely to jeopardise harmonisation

48

What did Pelkmans say specifically of the new approach?

combines total H with flexible approach to means of the objective, providing greater coherent and leads to better conveyance between EU H and EU standardisation

49

Weatherill on TA1 legislative discretion

Solely a 'glimpse of a moment of legislative laziness'

50

Paragraph 4 Article 114

Maintenance of national provision because of Article 36 or protection of environment or working environment

51

What case showed the courts stating paragraph 4 should be narrowly interpreted?

France v Commission

52

Who highlighted a harmonising measure has never been found to violate either proportionality or subsidiarity

Weatherill

53

Gallaher general

Tobacco labelling, 4% 6%

54

TA2 judgment

More discretion to EU legislator - allow Article 114 base even if public health is a 'decisive factor' in the measure

55

Positive legislative power to establish/ensure functioning of internal market by approximating national laws

Article 114 TFEU

56

What are the four fundamental principles of NEW APPROACH to H

Limited to adoption of essential safety requirements, technical specifications by private bodies, these are voluntary and those complying with specifications are presumed to comply with 'essential requirements' in the Directive

57

Measures adopted by Commission to supplement non-essential elements of legislative acts

Delegated acts

58

What did the Court say about the existence of Article 168 in TA1?

It did not preclude a measure under 114 having an impact on public health, but still had to be for the internal market

59

Ex p Hedley Lomas judgment

EU stated Members 'must rely on trust in each other to carry out inspections', and stated how mere infringement may be a 'sufficiently serious breach' for state liability if Member had little or no discretion

60

Article 114 TFEU

Positive legislative power to establish/ensure functioning of internal market by approximating national laws

61

France v Commission on paragraph 4

Should be narrowly interpreted as challenging a fundamental Treaty objective - a single internal market

62

what does protocol 1 TFEU attempt to achieve?

Ex ante control by national parliaments as opposed to ex post review by courts

63

What two advantages does Weatherill find in Lisbon reforms?

Raising the profile of national-level political processes and making divide between Brussels and national political life thinner

64

How does Weatherill criticise the Court in Vodaphone?

Court found confirmation of the likelihood of the development of divergent national law from the Commission itself, whose choice was being challenged

65

What shows the courts being aware of the pre-emptive effect of exhaustive harmonisation, and consequently checking if there is EH?

Crespelle

66

Article 1(1) TFEU

Members are the source of competences conferred on the Union

67

Barnard on MH

MH is particularly important in welfare-oriented areas which merely interface with, rather than serve, the economic demands of the market

68

Directive 2015/412 of EU P

Allows restrictions/prohibitions on GMOs as long as in conformity with 'Union law, reasoned, proportional and non-discriminatory'

69

What two cases show a total ban may be allowed under Article 114?

Swedish Match and TA2

70

what are two additional elements to new approach?

Members can contest adequacy of standards and they have to take all appropriate enforcement measures to ensure conforming products are removed

71

What case enforced Members 'must rely on trust in each other to carry out inspections' when there is exhaustive harmonisation?

Ex p Hedley Lomas

72

RAMS Regulation

Intend to enhance confidence in genuine equivalence of conformity assessment testing

73

TA2 wording

Relied on 'constitutionally approved' vocab from TA2, highlighting drafting exercise argument of Weatherill

74

What case shows the procedural rule determining choice of legal basis rather than substantive content?

Titanium Dioxide

75

What case shows a measure which was above the floor of the Directive but also clearly below the ceiling of the Treaty

Ex p Buet

76

Ex p BAT on elimination of obstacles

Couldn't prevent sale/import/use of products copying with Directive due to FM clause, so did improve functioning of internal market and thus Article 114 basis was justified

77

What are the three private bodies providing technical specifications?

CEN, CENELEC and ETSI

78

Buet on when Community makes no provision to govern relationship between FM and H

More stringent rules can, in principle, be applied to imports and justified by MRs

79

Alliance for Natural Health judgment

'Transparency of a black box' was not sufficient to invalidate the Directives two-stage approach of harmonisation due to a general duty of the commission to act transparently

80

What is the voting system under Article 114 TFEU?

No veto capacity - qualified majority vote and ordinary legislative procedure through Article 294 TFEU, subject to three exceptions

81

Weatherill on Dip Dim

courts look to purpose of Directive to ascertain Member competence to legislate, arguing Articles 114 & 5 are the foundational stones of market building and thus should always pre-empt Member action

82

What does the Toy Safety Directive highlight?

Affixing CE mark is a self-declaration of compliance, not a guarantee, both through 'EC-type examined' assessment and standards by CEN/CENELEC

83

Outcome in TA1

Struck down the entire Directiv

84

What case affirmed the legitimate right of Members to put 'clear blue water' between the Community and the domestic legal order?

Safety Hi-Tech v S&T; also UK v Council on 'minimum' not meaning 'minimalist'

85

Name the four types of harmonisation

Exhaustive, minimum, optional and hybrid

86

What is hybrid harmonisation an example of?

Reverse discrimination

87

What are the two limits on legislative discretion in principle

Proportionality and subsidiarity

88

What is an advantage of non-legislative acts?

Allows reconciliation of effectiveness and flexibility with need to consider the power of Unions' institutions

89

what is an example of a move to supranational decision-making in the Community?

Tendency to replace unanimity with majority voting in council

90

what did the Laeken Declaration suggest?

That Article 352 and Article 114 be coupled in appreciation of the perils of 'competence creep'

91

Who gave a dual aim of H?

Weatherill

92

Why is it hard to justify opt-outs from a harmonisation measure according to the Commission?

Unlikely to accept it for fear of damaging 'the unity of the internal market'

93

Ex p Hedley Lomas general

Sheep, export

94

Denmark v Commission

Inherent uncertainty on public risk means divergent assessments can be made without needing to be based on new or different scientific evidence

95

What case suggested new measures are more likely to jeopardise harmonisation under paragraph 5?

Land Oberösterreichh v Commission

96

ex p BAT on distortions

indissociable linked objectives may allow multiple legal bases

97

Weatherill on 'orange card' procedure under Protocol 2 Article 7 TFEU

Has 'real political pressure that will be damaging'

98

TA2 comparison with TA1

Directive based on what Court said would have been allowed under TA1 - much narrower but Court gave more discretion to EU legislator

99

Name at least two advantages of hybrid harmonisation

Members can experiment and no dual regulatory burden

100

If there is a more specific Treaty provision, the measure must not be founded on Article 114

Commission v Council (VAT)

101

Osterreichischer Rundfunk

Allowed a wholly internal situation to use Article 114

102

What do the Commission argue in response to Prevedi's criticism?

No delegation as voluntary standards and thus they stand independent of EU

103

Give an example of negative integration

Articles 34 - 36

104

Give an example of an indirect harmonisation case concerning measures affecting the conduct of parties?

Vodaphone

105

What has been the outcome of Land Oberösterreichh v Commission?

Backlash of Members and Directive 2015/412 of European P

106

TA1 on elimination of obstacles

Both actual AND future obstacles where emergence is 'likely', but need to be appreciable

107

What are the two limits on Article 114 TFEU?

Residual legal basis - more specific Treaty provision blocks Article 114 - and measures must be for harmonisation

108

Who called the new approach to H 'Qualitatively an enormous improvement over the traditional approach'

Pelkmans

109

Alliance for Natural Health general

Vitamins - maximum

110

what case gave two situations when the legislator could rely on Article 114?

TA1

111

Why does Dougan accept neither Slot nor Bernard's view of when community makes no provision for relationship between FM and H?

'Unduly restrictive in its conception of Member' discretion, and lacking persuasive legal authority

112

Titanium Dioxide judgment analysis

Allowed procedural rule to determine choice of legal basis rather than substantive content by noting environmental and health matters were a burden on undertakings, and thus should be founded on Article 114

113

What are the two ways to work out the type of harmonisation?

Look to legal basis, then interpret the text if legal basis fails

114

What does Dougan argue about widespread MH?

Legal expression of fundamental tensions in Community's evolution

115

Ex p BAT on subsidiarity

First case to apply it to Article 114 TFEU (then 95 TEU)

116

Single European Act 1986

Constitutionalised the use of minimum H Directives

117

What is exhaustive harmonisation?

Completely prevents reliance on FM exceptions - Members are pre-empted

118

Working Standards case on MH

'Minimum' does not mean 'lowest common denominator'

119

Lidl v Nemzeti

No derogation from Toy Safety Directive - no additional procedures can be required to multiply the number of people required to affix CE marking

120

Why does Dougan emphasise that national measures obstructing trade remain contrary to community law regardless of MH?

'Protectionism is still protectionism' despite MH clause

121

What does Weatherill call TA1, perhaps sceptically?

'Constitutionally vital principle of conferral'

122

What case stated how mere infringement may be a 'sufficiently serious breach' for state liability if Member had little or no discretion

Ex p Hedley Lomas

123

Why does Weatherill criticise the decoupling of subsidiarity and proportionality?

Two are so closely intertwined that only including subsidiarity in the review process risks 'triggering unhelpful demarcation disputes'

124

Alliance for Natural Health on proportionality

Court allowed legislator could 'reasonably take the view' that positive lists were needed over negative lists to achieve internal market

125

What case shows the factors taken into account for paragraph 4?

Germany's Pharmacovigilance Provisions (2002)

126

What is optional harmonisation?

When there is FM but no exclusivity clause

127

What are two examples Dougan gives for the move towards advancing social welfare in the Community rather than seeking economic expansion?

Horizontal expansion and significance of diversity requires account to be taken of other factors too

128

'orange card' procedure under Protocol 2 Article 7 TFEU

Commission have to explain maintenance of the proposal after it being reviewed by virtue of a yellow card

129

Who argued Vodaphone fails to explore if Article 114 conditions are met when there is a deficiency in the internal market that national measures are unlikely to resolve due to a lack of incentive

Weatherill

130

What are the two pillars upon which EU internal market is built?

Negative integration and positive integration

131

Ex p BAT on proportionality

Measures need to be 'manifestly inappropriate' before disproportionatee - 'broad discretion' in areas of 'political, economic and social choices'

132

What is the outcome of optional harmonisation?

Manufacturer can choose, when in the local market, whether to match national or EU standard

133

Paragraph 5 Article 114

Introducing a national provision 'based on new scientific evidence' on protection of environment or working environment 'on grounds of a problem specific to that Member' arising after adoption of H measure

134

Germany's Pharmacovigilance Provisions (2002)

Particular concern for burdens placed on traders and relevance of choices by other Members when deciding

135

What is an example of finding MH implicitly in measures?

Gallaher - 'at least' 4%

136

Weatherill on Vodaphone

It fails to explore if Article 114 conditions are met when there is a deficiency in the internal market that national measures are unlikely to resolve due to a lack of incentive

137

Vodaphone judgment

Union-wide maximum roaming prices through EU legislation to forestall action by Members liable to cause distortion

138

Buet judgment

Breached Article 34 but justification through MR of consumer protection

139

What case supports Bernard's version of when Community makes no provision for relationship between FM and H?

Gourmettiere Van den Burg

140

Give two advantages of exhaustive harmonisation

Clear level playing field and accommodates diversity through opt-outs, derogations etc.

141

Who highlights the basic aim of Lisbon reforms as being to maximise opportunity for dialogue about EU legislative practice, and for voice of national Ps to be heard more effectively?

Weatherill

142

Give at least two cases on delegation measures

Smoke Flavourings; Alliance for Natural Health; UK v EU P and Council (ENISA)

143

Smoke Flavourings judgment

Rejected that Article 114 does not apply to indirect harmonisation by conferring tasks on bodies/establishing authorisation procedures

144

What is an advantage of optional harmonisation?

Avoids disrupting existing markets

145

What Council Resolution brought in the 'new approach' to H?

Council Resolution 1985

146

Scharpf on hybrid harmonisation

Higher standards can show superior quality - 'California effect'

147

what AG in Alliance for Natural Health said the Directive had the 'transparency of a black box'?

AG Geelhoed

148

What case supports Slot's version of when Community makes no provision for relationship between FM and H?

Buet

149

What is the problem with optional harmonisation?

Problems with trade of non-conforming products

150

What are the two opt-outs from Article 114?

Paragraph 4 and Paragraph 5

151

TA2 general facts

Ban of almost all non-static tobacco adverts and all forms of tobacco radio ads/sponsorship. FM clause included.

152

Gallaher judgment

UK couldn't keep 4% complying products out

153

TA1 and TA2 on minimum harmonisation

Examples of MHD under Articles 114-115 TFEU despite no express clause

154

UK v EU P and Council (ENISA) judgemtn

Can use Article 114 to create legal forms helping smooth functioning of the internal market but not about harmonisation per se

155

What article insists on the importance of both negative and positive integration?

Article 3(3) TEU

156

What effect do directives under the new approach have?

horizontal effect - applying throughout industry rather than to specific grounds within an industry

157

Who highlighted courts view subsidiarity as more of a political principle?

Barnard

158

Gourmettiere Van den Burg when Community makes no provision to govern relationship between FM and H

More stringent rules only apply to domestic goods/services - hierarchy of provisions where some allow rules to apply to both and some don't

159

What two academics criticise legislative discretion in principle?

Weatherill and Barnard

160

TA1 on distortions

Incompatible with Article 5(2) conferral to use Article 114 to eliminate the 'smallest distortions' - advantages on profits/sales to foreign traders were 'remote and indirect' so no appreciable distortion

161

Crespelle judgment

Allowed to rely on Article 36 - courts check total harmonisation due to pre-emptive effect to ascertain if there was room for Member to legislate

162

What is the EU internal market built on?

Two pillars

163

What case Rejected that Article 114 does not apply to indirect harmonisation by conferring tasks on bodies/establishing authorisation procedures

Smoke Flavourings

164

Name two important Lisbon reforms

Article 1(1) and Article 4(1)/5(2)

165

Barnard on Titanium Dioxide

May have disguised policy preference for Article 114 when it required greater EU P involvement

166

Was there an FM clause in TA1?

NO

167

What does Weatherill warn against and why?

'Competence creep' - puts EU legitimacy at stake and causes growing anxiety as to discounting of local preferences

168

Protocol 1 of TFEU

Allows applications for non-compliance with subsidiarity by Members

169

Paragraph 6 Article 114

Commission have 6 months to approve/reject national provisions or they are deemed to be approved

170

Dip Dim judgment

Inability of the UK to impose additional safety standards due to exhaustive harmonisation

171

TA1 general

TV without frontiers

172

What was the argument in TA1?

It was about protection of health, not the internal market, so should have been based on Article 168 TFEU

173

What academic suggested Higher standards can show superior quality - 'California effect' in hybrid harmonisation?

Scharpf

174

Pelkmans on new approach

'Qualitatively an enormous improvement over the traditional approach'

175

Ex p BAT general

Snuff

176

what is the twofold obligation under TA2?

Allow complying goods to be freely imported and marketed, and prohibit the sale of non-complying goods, even when wholly internal

177

Give two types of indirect harmonisation

Delegation measures and measures affecting the conduct of parties

178

Weatherill on proportionality and subsidiarity

Case law is a 'drafting guide' - now attach Recitals to STATE compliance with both

179

Safety Hi-Techn v S&T

'High standards' by Community does not mean 'highest possible' standards

180

Commission v Council (VAT)

If there is a more specific Treaty provision, the measure must not be founded on Article 114

181

Who said H is the 'perfect example of the triumph of centralised rule-making over local autonomy'

Weatherill

182

Com (2002) 760

Hard to justify opt-out as they fear damaging 'the unity of the internal market'

183

Who emphasises that national measures obstructing trade remain contrary to community law regardless of MH?

Dougan

184

What are implementing acts?

Measures adopted by Commission to ensure uniform conditions for legislative act. Parent act gives Commission implementing powers and outlines procedure of Commission (advisory or examination)

185

What does Dougan highlight about the test for legal basis when determining type of H?

Serious problems for legal certainty as the only way to know if a measure has been adopted under the right Article is to ask the court

186

What does Weatherill argue about case law on H and legislator impact?

It has given the legislator a 'drafting guide' enabling them to comply with the principle of conferral through wording

187

TA2 on absolute prohibitions

Allowed under Article 114 despite the fact it actually eliminates the market

188

What does Dougan believe widespread MH shows in particular about tensions within the Community?

Move to advancement of social welfare through equal competence rather than economic expansion through trade liberalisation, and trend towards toleration of diversity

189

What is a disadvantage of Gourmettiere Van den Burg case?

Very uncertain test without guidance

190

Barnard on subsidiarity

Courts view it as more of a political than legal principle, and thus focus solely on procedural aspects, not substantive reasons

191

What case highlighted the legislator has a 'broad discretion' with regard to proportionality on sensitive areas like politics and economy?

Ex p BAT

192

How does Weatherill criticise H?

The 'perfect example of the triumph of centralised rule-making over local autonomy'

193

What are delegated acts

Measures adopted by Commission to supplement non-essential elements of legislative acts

194

What is the dual aim of H according to Weatherill?

To protect the citizen and to facilitate free trade

195

Under what article is the voting and legislative procedure for Article 114 TFEU?

Article 294 TFEU

196

What article of which treaty describes the principle of conferral?

Article 5 TFEU

197

Give one disadvantage of hybrid harmonisation

Risk a minimum rule becoming a maximum rule

198

What is hybrid harmonisation

Both exhaustive and minimum in a single instrument - former for imported and latter for domestic

199

Titanium Dioxide on distortions of competition

Both actual AND potential distortions, and need to be appreciable

200

What case suggested one Can use Article 114 to create legal forms helping smooth functioning of the internal market but not about harmonisation per se

UK v EU P and Council (ENISA)

201

What are the private bodies for technical specifications made up of?

Standards body of each Members

202

Who suggested the judgement in Titanium may have disguised a policy preference for Article 114 when it requires greater EU P involvement?

Barnard

203

Which case Allowed a wholly internal situation to use Article 114

Osterreichischer Rundfunk

204

What does MH allow according to Dougan?

Members to retain a greater degree of control over policy-making prerogatives

205

What act constitutionalised the use of minimum harmonisation?

Single European Act 1986

206

What does Bernard argue about when Community makes no particular provision to govern relationship between FM and harmonisation?

Extend principle of MR and reverse discrimination so more stringent applies only to domestic goods/services

207

What case highlights that it is incompatible with Article 5(2) conferral to use Article 114 to eliminate the 'smallest distortions'?

TA1

Decks in Law Second Year Class (74):