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Flashcards in FMG III - Harmonisation Deck (14)
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Art.5 TEU

This sets out the principle of conferral - EU can only legislate on areas that it has been explicitly conferred competence over by all 28 MS


Art.114 TFEU

This provides a legal basis for the EU to take positive steps to achieve the attainment of the single market - i.e. to adopt measures that harmonise MS regulatory rules


Art.114(1) TFEU

This provides that the European Parliament may adopt measures for the approximation of national laws/regulations which have as their object the establishment and function of the internal market.

BUT, this power is only conferred 'save otherwise in the Treaty' - so EU can only rely on Art.114 as its legal basis for adopting harmonisation measures where there is no other legal basis in the Treaty


Tobacco Advertising I

EU directive banned tobacco advertising from sponsoring events, e.g. F1. Germany argued that the directive was not a harmonisation measure and thus the wrong legal basis was used, as this measure could NOT be adopted under Art.114 TFEU.

CJEU effectively made a compromise - it said that just because Art.168 confers limited competence on public health grounds, this does not mean that measures under Art.114 cannot be adopted if public health is a part of the aim etc.

But the CJEU did say that Art.114 cannot be used to circumvent the exclusion of harmonisation for public health matters under Art.168 - so the entire directive was nullified because an invalid legal basis had been used by the EU - cannot adopt public health harmonisation measures under Art.114 due to the principle of conferral.

CJEU stated that Art.114 can be used in 2 situations:
1) Approximating regulatory laws across MS to eliminate obstacles to the fundamental freedoms of the EU
2) Where the measure removes distortions of competition arising from diverse national rules


Titanium Dioxide

EU can adopt measures under Art.114 TFEU to address POTENTIAL distortions of competition - so there does not need to be a definitive distortion of competition for the EU to adopt a harmonisation measure under Art.114, it is sufficient that there is a potential distortion


Tobacco Advertising II

After the directive was nullified in its entirety in Tobacco Advertising I for not being adopted on a valid legal basis, the EU adopted a new and more tailored measures under Art.114 TFEU to restrict tobacco advertising across the MS.

CJEU upheld the new measure and held that the EU cannot be prevented from relying on Art.114 where public health protection is even a decisive factor in adopting the measure, and in this case the new directive provisions were PRIMARILY designed to eliminate FMG obstacles - therefore adopted on valid legal basis.

So even where the EU has other important objectives in passing the harmonisation measure under Art.114, provided its primary purpose is to eliminate FMG obstacles, it is a valid measure under Art.114


Hedley Lomas

UK prohibited export of live sheep to Spain under Art.36 TFEU protection of animal life and under the mandatory requirement of animal welfare.

CJEU held that the UK could NOT invoke Art.36 to justify this trade restriction because the relevant EU directive had exhaustively harmonised respect for animal welfare.

If the EU adopts an exhaustive harmonisation measure under Art.114 TFEU, then MS cannot justify restrictions that go against that harmonisation measure apart from those in paragraphs 4 and 5 of Art.114 - so cannot use the traditional justifications.



Minimum harmonisation measures are more commonly adopted under Art.114 TFEU - the EU measure sets out the minimum standards that must be complied with by the MS, and then each MS is free to set a higher standard on THEIR OWN goods and services if they wish.

In Gallaher, the EU directive set a minimum harmonisation measure which required that at least 4% of cigarette packaging had warning labels. UK passed a law which required 4% for imported cigarettes, and a higher level of 6% for domestic tobacco companies - CJEU held that the UK was entitled to adopt this measure under EU law because they complied with the minimum harmonisation standards and then are free to set higher standards for domestic tobacco producers if they wish.

CJEU conceded that this was discriminatory towards UK producers, but as it was a case of reverse discrimination it was up to the MS and not within the court's jurisdiction to regulate.

If a MS wants to also set higher standards than the minimum for imported goods as well as domestic goods, it must justify this restriction under Art.36 TFEU or MR (also para 4 and 5 Art.114 - but more restrictive so focus on this afterwards).


How to Decide What Type of Harmonisation Measure

Need to identify what the legal basis of the measure is - Art.5 TEU sets out the principle of conferral.

If it is just a general harmonisation measure and no other clear legal basis, then it will have been adopted under Art.114 TFEU - look at whether the Q suggests exhaustive (have to comply with EU's standards, apart from exceptions in paras 4 and 5), or minimum (can set higher standards for domestic products, apart from exceptions in paras 4 and 5).

If it relates to another Treaty provision/competence, then look at this Treaty Article to see what harmonisation measures can be adopted on this basis. E.g. Art.193 TFEU deals with environment - EU can ONLY adopt minimum harmonisation measures for the environment.


Exceptions to Harmonisation Measures

Exceptions to harmonisation measures (so for adopting more restrictive measures e.g. by MS) are found under Art.114 paragraphs 4 and 5 - these are the only provisions that can justify exceptions to harmonisation measures under Art.114. So DO NOT use Art.36/mandatory requirements here.

Paragraph 4 deals with pre-existing measures that do not comply with the harmonisation measure - i.e. where the harmonisation measure comes AFTER.

Paragraph 5 deals with newly introduced measures that do not comply with the harmonisation measure - i.e. where the harmonisation measure comes BEFORE.

The justifications under paragraphs 4 include all those under Art.36 TFEU and two mandatory requirements: protection of the environment and protection of the working environment.

Para 5 is more restrictive to newly adopted measures - only applies to protection of environment and protection of working environment, AND the MS must demonstrate that it is based on new scientific evidence that there is a particular risk SPECIFIC TO THAT MS! So two further requirements under paragraph 5:

1) Measure based on new scientific evidence
2) Problem specific to that MS


Austria v Commission

Austrian regional govt banned cultivation and imports of GM crops on ground that they were dangerous to the ecosystem of that region. EU exhaustive harmonisation measure meant that Austria had to rely on Art.114 paragraph 5 to justify the rule.

CJEU held that the European Commission in rejecting their use of Art.114 para 5 was correct - CJEU interpreted specific to mean anything unique OR unusual to that particular MS.

CJEU rejected Austria's use of para 5 for two reasons:
1) They did not provide sufficient new scientific evidence that the measure posed a serious enough risk to justify the restriction
2) The Austrian regional govt. did NOT demonstrate that the risk of GM crops was unique or unusual to that particular region.

In response to the outcry by MS about them not having the ability to introduce restrictive measures, EU introduced a new exception under Art.26(b) of GM crops directive


New Approach to Harmonisation

EU adopts measures which set out broadly defined objectives to be achieved in terms of harmonising regulatory standards - 'essential requirements'. So these set out the framework objective to be achieved by the harmonisation process.

These are then built on by private standards adopted by CEN - technocratic body comprising standardisation committees for particular industries. The industries further define what requirements must be met by producers across the EU MS - compliance with these private standards is voluntary but confers a presumption of conformity with directives.

So note that compliance with the CEN standards is NOT strictly necessary - manufacturers can seek to persuade the EU that their own standards are sufficient. But, compliance with CEN's set standards gives rise to a presumption of compliance with the directive.



Germany challenged the adequacy of safety standards of toys set out by CEN, arguing that they failed to account for the risks when children play with such toys. So they mainly challenged the decisions taken by the technocratic body - argued that they did not set adequate standards.

CJEU held that the standards were adequate to meet the broad objectives laid down by the harmonising directive, and therefore Germany's challenge failed.



Non-compliance with minimum harmonisation measures can be justified under traditional FMG exceptions (Art.36 and MR) in addition to paras 4 and 5 Art.114 TFEU