Internal Market Competence

Question 1

Art 114(1) TFEU (3)

Answer 1

Ordinary legislative procedure
May be used for any legal measure
Doesn’t allow creation of measures in the fields of fiscal provisions, free movement of persons or relating to rights and interest of employed persons

Question 2

Art 115 TFEU (3)

Answer 2

Special legislative procedure; consultation with parliament and unanimity in council
Only allows creation of directives
No restrictions on use

Question 3

Choice of legal basis

____ took a ____ interpretation of the scope of ____ ____ to ____ ____

Answer 3

CJEU took a broad interpretation of the scope of EU competence to harmonise laws

Question 4

CJEU took a broad interpretation of the scope of EU competence to harmonise laws case

Answer 4

Titanium Dioxide (1991)

Question 5

Titanium Dioxide (1991)

Answer 5

Held directive should be based on Art 114 alone

Question 6

CJEU later moved to stricter interpretation case

Answer 6

Waste Directive (1993)

Question 7

Waste Directive (1993)

Answer 7

Directive based on Art 192 TFEU

Question 8

Tobacco Advertising (2000)

Answer 8

Directive based on Art 114 TFEU 
Art 168(5) allowed EU to pass measures to protect health but excluded harmonisation 
Art 114 couldn’t be used to evade Art 168(5) restrictions

Question 9

Art 114 can be lawfully used as a legal basis when…(2)

Tobacco advertising

Answer 9

Measures eliminate obstacles to the exercise of free movement which are likely to arise from diverse national laws
Measures eliminate appreciable distortions of competition likely to result from such disparities

Question 10

Likely obstacles to free movement of print media

Tobacco advertising

Answer 10

Art 114 valid here

Question 11

Can’t rely on art 114 in case of obstacles which have only a remote effect on free movement (2)
Tobacco adveritising

Answer 11

No evidence of likely obstacles in connection with static advertising media
But the directive didn’t ensure free movement of products which complied with its provisions

Question 12

The elimination of appreciable distortions of competition (3)
Tobacco advertising

Answer 12

No appreciable distortions as regards tobacco advertising
Ban on tobacco sponsorship in some MS and not others did lead to some appreciable distortion of competition in relation to sports events
But this didn’t justify an outright ban (proportionality)

Question 13

Tobacco Advertising II (2006) (2)

Answer 13

Art 114 was valid legal basis to adopt Directive 2003/33/EC

Directive includes free movement clause to prevent obstacles to free movement and distortions of competition

Question 14

BAT/ Imperial Tobacco (2002) (4)

Answer 14

EU passed Directive 2001/37/EC
Art 114 was valid legal basis as Directive contained free movement provision
Art 114 doesn’t provide exclusive competence to EU to regulate internal market - shared competence so S principle applies
Here, EU action more effective than MS so no breach of S

Question 15

Swedish Match AB (2004) (2)

Answer 15

Directive 200/37/EC banned selling snus in UK
Where EU was aiming to prevent obstacles to trade under Art 114, appropriate measures could include “prohibiting the marketing of a product”

Question 16

Vodafone (2010)(4)

Answer 16

Under Art 114, EU passed Regulations 717/2007
Challenged for breach of S
Held; if MS chose to regulate charges themselves, this could distort competition
EU action was necessary under Art 114 to prevent these disruption so no breach

Question 17

Philip Morris Brands (2016) (5)

Answer 17

Directive 2014/40/EU puts strict standards on tobacco ads
Art 24(2) of Dir allows MS to add more requirements
If MS could add requirements in any area, harmonisation would be undermined and would be incompatible with Art 114
Art 24(2) had to be interpreted as allowing MS to add requirements to aspects not covered by Dir
Principle of S satisfied

Question 18

Problem of competence creep (2)

Answer 18

Harmonisation in one area generally leads to it being necessary in other areas
EU harmonisation can prevent MS ability to amend

Question 19

Wyatt (2009)

Answer 19

Evaluates Tobacco Advertising

Question 20

Wyatt (2009) competence enhancing element

Answer 20

Measure can be adopted under Art 114 even if key aim is actually connected to another objective e.g. public health

Question 21

Wyatt (2009) competence restricting elements (3)

Answer 21

Obstacles to trade addressed by removal of obstacles, not bad on trade
Harmonisation could only be justified by removing appreciable distortions of competition
All provisions in an internal market measure must contribute to internal market aims

Question 22

Weatherill (2011) (2)

Answer 22

Art 114 cases haven’t placed any real limits on use of Art 114
CJEU provides EU legislature with indication of type of vocabulary it expects to see when justifying a choice of competence

Question 23

Oberg (2017)

Answer 23

When considering principle of subsidiarity, CJEU is too accepting of impact assessments which have been prepared by the EU to justify the EUs case