Cases (1): Integration; Institutions; law-making limits Flashcards
Tobacco Advertising (I) [2000]
Held: A directive which banned the adverisiting of tobacco products, adopted pursuant to article 114 TFEU (thus for the aim of establishing or ensuring the functioning of the internal market) was held to ultra vires.
Reasoning
- Banning tobacco products went beyond the scope of Article 114 b/c its object was not the establishment and functioning of the internal market:
- Banning the product entirely does not expedite trade in the good/service but eliminates it entirely.
Key point: EU does not have a general competence to regulate the internal market
Swedish Match [2004]
Held: A directive which banned the maketing of tobacco products for oral use, adopted pursuant to Atricle 114 TFEU (harmonising for IM) was within the scope of A.114.
Reasoning
- Although public health considerations were a decisive factor in the adoption of the measure, the condition for applying A.114 were satisfied because the main objective of the Directive was to correctly remove obstacles to trade.
Alliance for Natural Health [2005]
Held: Directive adopted pursuant to A.114 which prohibited the marketing of supplements containing vitamins and minerals which were not on a list of approved substances was valid.
Reasoning
-
Competences
- Removing barriers to trade and ensuring high level of human health protection were within the EC’s competence.
- The aim of imporving the internal market need only be one of multiple aims of the act; and need not be the main aim.
-
Subsidiarity
- The objective could be best achieved at community level since allowing MSs to regulate themsleves would perpetuate the uncoordinated development of national rules and obstacles.
-
Proportionality
- The directive was a proprotionate response to the ancillary objective of the ‘protection of human health’.
Bosman [1995]
Held: Footballer who were no longer under contract should be allowed to move to any club in any member state as to stipulate otherwise would be in contravention of Article 45 (freedom of Movement)
Analysis
- Shows the breadth of the EU’s ‘limited competences’
- Even though at this point sport was not mentioned in any of the Treaties, the Court held that since sport had signifcant economic features it fell within the EU’s competences - begs the question: since many activities have an economic element to them, what activities don’t fall within the EU’s competences.
Inuit v. Commission [2013]
Facts: Commission Regulation adopted which harmonized rules in the seal market. Adopted on the basis of Article 114 TFEU. Another Regulation was adopted by Commission which laid down rules for the implementation of the first Reg.
Issues: whether the first Regulation was valid.
Held: The Regulation was valid because it harmonized the rules and prevented the disturbance of the internal market in relation to seal products. Protecting animal welfare was an incidental aim to that of improving the internal market.
Philip Morris v. Secretary of State for Health [2016]
Facts: Question of the legality of the 2014 Tobacco Products Directive asked by UKHC using the Prelimnary Reference Procedure.
Issues:
- Was the Article 24(2) of the directive valid under A.114 TFEU - since it permitted MSs to maintain/introduce further requirements on packaging in addition to those set out in the directive, and thus acting against harmonisation and not imporving the internal market
- Were the additional packaging requirement relating (including a ban on factual information about the risks of smoking that was deemed capable of misleading consumers about the risk of smoking) disproportionate to the objective of the protection of human health.
Held:
- (1) partial harmonisation still contributed to internal market; (2) provision were proportional to both internal market and public health aims.
Atalanta [1979]
Summary:
ECJ held that provision of a community Regulation concerned with storage aid of pig meat, which stipulated that the security would be forfeited if obligations imposed by the storage contract were not fulfilled, were disproportionate because they did not enable the penalty to be made commensurate with the seriousness of the contractual breach. It was disproportionate that any/all contractual breaches led to the forfeit of security.
Galileo Zaninotto v Ispettorato Centrale [1998]
Compulsory distillation scheme for wine producers was proportionate to the objective of reducing the surplus of table wine on the market.
N.b. introduced the less intense proportionality test of ‘manifestly inappropriate’ (c.f. the Bela test of ‘strictly necessary)
Bela-Mühle [1977]
Obligation on animal feed producers to purchase skimmed milk rather than soya amounted to charge (due to skimmed milk being 3x more expensive.
This charge/penalty was subsequently deemed invalid for disproportinliaty since it was not ‘strictly necessary’’ to achieve the objective of the CAP scheme
N.b. High intesntity proportinoality test applied to charges/penalties (c.f. less intense review of discretionary/policy choices (e.g.) Galileo.
et al, ex p ABNA [2005]
Summary: EU measure requiring composition of animal foodstuffs to be disclosed was manifestly disproprotionate to the aim of protecting health pursuant to Article 152(4)(b) EC)
Reasoning: It needlessly infringed the economic interests of the manufacturers. It would have been sufficient to indicate a range for the components involved, rather than requiring the manufacturers to disclose their trade secrets.
N.b. Rare instance of EU measure (r.e. animal foodstuffs) being found to be manifestly disproportionate.
Vodafone [2010]
Summart: Harmonisation on rules governing phone network charges was valid. (Act was not ‘manifestly inappropriate’, thus was proportionate)
Analysis: In Vodafone, the Court made it very clear that when the operation of the internal market is at issue, then only through EU legislative action will its integrity be preserved. Based on this reasoning, it would appear to leave very little opportunity for Member States to legislate. Also seems to almost guarantee a finding that the measure passed subsidiarity and proportionality
Germany v Parliament (Deposit Guarantee Directive) [1997]
Summary: The ECJ held that the duty to give reasons (under the principle of subsidiarity) did not require that Community measures contain an express reference to the subsidiarity principle. It was sufficient that the recitals made it clear why the Community institutions believed that the aims of the measure could best be attained by Community action.
British American Tobacco [2002]
Directive harmonising tobacco rules was valid – did not infringe subsidiarity because harmonisation is (almost always) more effectively undertaken at a supranational level than individual MS level.
AvestaPolarit Chrome Oy [2003]
Summary: Directive imposing waste management/classification scheme was compatible with principle of subsidiarity.
Reasoning: It allowed MS retain the option of management of categories where Community rules had not been adopted.
Czech Republic v Parliament and Council [2019]
Summary: Directive restricting possession of firearms for all EU citizens was within the scope of the EU’s competence to regulate the internal market under Article 114 TFEU
Reasoning: Internal market considerations (viz. harmonistion of firearms rules) were the predominant objective - and the pursuit of safety (a general interest which the Treaties empower the EU to take into account) can legitimately impact the content of the restrcitions. Thus it did have competence ban EU citizens from possessing semi-automatic weapons.
