Primacy, conferred powers and reform

Question 1

Where is the fidelity principle set out?

Answer 1

Article 4(3) TEU

It imposes institutional duties on both EU and national authorities to ensure that the EU legal system functions effectively.

Question 2

Costa v ENEL

Answer 2

established the supremacy of European Union law over the laws of its member states.

This case is additional confirmation that under Article 267 of the Treaty on the Functioning of the European Union (TFEU), a court has an obligation to refer cases that have reached the highest point of appeal in their respective country, if there is a question of the application of EU Law. Costa had reached its highest point of appeal.

An italian law was in conflict with EU law. Italian government claimed the matter was one of italian law because the legislation post-dated the EU treaty. Held: EU law has primacy.

“Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.”

Question 3

Melloni

Answer 3

Melloni was tried and convicted in absentia. Italy issued an EU arrest warrant. Spanish police detained him. The spanish constitution required a trial in person so they did not send him back.
Held: the spanish court could not impose a higher standard than set under the EU. So spanish had to send him back.

Question 4

Simmenthal

Answer 4

Every national court (no matter if it is local) must apply community law in its entirety and must set aside any provision of national law which may conflict with it.

In any national rule, even a rule which existed before member state joined EU, national courts have a duty to set it aside. The CJEU said the national court did not have to wait for a ruling.

Question 5

Filipak [2009]

Answer 5

National court had duty to set aside provisions of national law which conflict with eu law even where a national constitutional court had not yet rules on the matter. Whatever national court it is, it must apply primacy principle.

Question 6

Commission v France [1974]

Answer 6

A French law existed requiring a certain proportion of a French-flagged ship’s crew to be of French nationality
The law was not enforced, but it was causing confusion with people.

Held: it had to be repealed in breach of EU law even though it was not being enforced because Legislation could not exist or be enforceable in breach of EU law

Question 7

Factortame

Answer 7

The UK Merchant Shipping Act gave preference to UK fishing vessels. F, acting on behalf of Spanish fishermen, sought interim relief in the UK courts. Was the House of Lords empowered to grant such relief notwithstanding the expressed will of the ‘sovereign’ UK Parliament? CJEU held that it was necessary and able.

“Thus, whatever limitation of its sovereignty Parliament accepted [in 1972] was entirely voluntary.” - Lord Bridge

Question 8

Internationale Handelsgesellschaft [1970]

Answer 8

“the law stemming from the Treaty…cannot…be overridden by rules of national law….
T]he validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights [in]…the constitution of the State or the principles of a national constitutional structure.”

This was changed in Solange I

Question 9

Solange I [1974]

Answer 9

“In the hypothetical case of a conflict between Community law and… the guarantees of fundamental rights in the Constitution… the guarantee of fundamental rights in the Constitution prevails “

The FCC thus impliedly rejected the position of the doctrine of the primacy of Community law, which had first been laid down by the ECJ in the 1964 decision Costa v ENEL and then extended by it in 1970 in the Internationale Handelsgesellschaft case to cover even the fundamental constitutional norms of the Member States.

Question 10

Solange II

Answer 10

Reversed Solange I,

It said that so long as the European communities ensures effective protection of fundamental rights as against the soverign powers, which is to be regarded as similar tot he protection of fundamental rights required by the constitution, the german constitutional court will no longer exercise its jurisdiction. And it will no longer review such legislation by the standard of the fundamental rights contained in the Constitution’

Question 11

Brunner v The European Union Treaty [1994]

Answer 11

the german Constitutional Court reasserted its right to review the legitimacy of EC law

Question 12

Gauweiler v Treaty of Lisbon [2009]

Answer 12

• the Constitutional Court accepts that commitment to European integration is a constitutional requirement;
• the right to vote and the right to democratic participation is a fundamental right for German citizens – these principles are inviolable – an eternity guarantee – ultimately overrides European integration;

Question 13

Commission v France (Spanish strawberries) [1997

Answer 13

French Farmers launched a campaign targeting the imports of spanish strawberries into france – private agents blockaded these. They were private actors, however, the state, France had taken almost no action to prosecute these farmers. Commission decided that they wanted to bring a test case, whether or not states had an obligation to intervene and protect the free movement of goods. the state was playing a role because of its failure to act. France was required to adopt all appropriate measures to guarantee the scope and effect of the EU law.

This was an example of the duty of fidelity

Question 14

Berlusconi

Answer 14

There are 3 duties on national court to enforce the fidelity principle

1) They must ensure that rules are effective and do not make it practically impossible or difficult to impose the rule
2) A penalty is dissuasive to prevent the individual
3) A penalty is proportionate for attaining legitimate goals.

• A penalty has to be effective, dissuasive and proportionate.

Question 15

Doctrine of pre-emption

Answer 15

once the Union wholly occupies a field of competence under its conferred powers - whether it is an area of exclusive or shared competence – the Member States are pre-empted from acting in that area.

Question 16

Commission v UK (dim-dip lights) [1988]

Answer 16

Total pre-emption. Test case brought by commission brought against member state, this concerned a British rule that cars can only be driven on the road if they were equipped with dim-dip lights. The EU had already adopted a directive on motor lighting, this directive did not adopt the requirement for dim dip headlights, it said that any car that complied with the requirements in the directive could be driven in the EU. The Court of Justice found that the British rule went against the rule of pre-emption. They held that as there was a directive which exhaustively regulated the area by EU law, member states were prohibited from imposing additional requirements on motor vehicle lighting.
This makes sense for uniformity. Within the context of the single market, the maintenance of differing national regimes can lead to distortions of competition and trade restrictions, with the consequences that the harmonisation process would be robbed of its effect.

Question 17

Deponiezweckverband Eiterköpfe [2005]

Answer 17

a landfill operator was refused permission to fill two sites with waste as it exceeded German limits on the proportion of organic waste that could be disposed of in landfill sites. By contrast, the directive set limits only for biodegradable organic waste. The operator argued that the national law was therefore unlawful. The Court of Justice disagreed and stated that the German legislation pursued the same objective as the directive, namely, the limitation of waste going to landfill. Insofar as it set limits for a wider range of waste, it was not stringent than the EU directive and was, therefore permissible. This was a 2005 case whereas the commission v UK case was a 1988 case therefore EU has relaxed a bit.

Question 18

Commission v Germany (wild birds) [1991]

Answer 18

Directive which required member states to desigate the most suitable habitats in their terrorotu for certain speciies of wild birds. Once designated these habitats were to be preserved and appropriate steps taken to prevent their deteroration. The directive envisaged no circumstances in which measures could be taken to reduce the ssize of the protected areas, and no provision for minimum harmonisation, as the directive was based on the 352 TFEU, the flexibility provision. Germany visted to build a dyke actoss one of its designated areasfor good ecological reasons. Despite there being no provision, the court held that could reduce the protected are because, exceptionally there was in this case a general interest which was superior to that represented in the Directive. The court rules that the dyke could be built but must involve the smallest disruption possible.

Question 19

Parliament v Council (Lomé) [1994

Answer 19

‘[Art 13(2) TEU] provides that each [Union] institution shall act within the limits of the powers conferred on it by the [Treaties]. Its main objective is to define the constitutional position of the [Union] institutions vis-à-vis that of the Member States. It makes it clear that the [Union] institutions do not have inherent powers but only those which, expressly or by implication, are conferred upon them by the [Treaties]. Powers which are not thus conferred lie with the Member States.’

Question 20

Parliament v Council (linguistic diversity) [1999]

Answer 20

the choice of legal basis for a measure must be based on objective factors which are amenable to judicial review. Those factors include the particular aim and content of the measure’. The EU institution, the union and parliament when adopting the legislative act must set out the factors of legal basis used, in particular the aim ad content of the measure. This is important to establish whether the measure is lawful but also it Is important because the legal basis will determine the procedure which is to be followed in order to adopted the legislation. If Court of justice thinks there is no legal basis it must hold that it is void or if a case has been referred by a national court regarding legality of a measure, they can also bring a procedure, then it can be found invalid (reference from national court)
Quite often a measure if linked to two areas of the treaty, it could be that it is an environmental measure but it also fulfils objective of alternation market, this gives it two legal bases.

Question 21

Commission v Council (titanium dioxide) [1991]

Answer 21

Concerned a proposal to reduce pollution cause by titanium dioxide, question, was the correct legal basis used? The council had adopted the measure under 191 as an environmental protection directive, however, not only was it there to reduce pollution but also ensure fair competition in the titanium dioxide industry. Had it been given legal basis by article 114 and 352 TFEU which is a general legal basis not specific it would have had better legal basis. The court held that the choice of legal basis must concern factors subjected to judicial review. In this case there was an equally valid case to be adopted under either provisions, in these circumstances it was appropriate to use the aims to increase the use of the EU Parliament.

Question 22

UK v Council (Working Time Directive) [1996]

Answer 22

Situation where directive had been adopted which provided for quality voting in the council for measures to improve health and safety of workers in their environment. Here a member state had been outvoted and used an annulment action, after they had lost politically they sought to legally challenge it. They held that the article used was too limited. The commission and council argued that it was based on a broad view that workers who had rest would suffer less accidents. UK argued that this was not permitted under article 114 because this article does not concern protection of measures this is a harmonisation measure. Article 115 would protect this but would require unanimity (UK could have exercised its veto). By using article 153, the eu had subverted the UK’s veto. The court of justice took the view that they were entitled to choose a more specific basis and they could justify it. Whereas the general provisions are only general and residual, you only use it if there is a less specific duty.
If it is a more specific measure then they are more favoured.

Question 23

Germany v Parliament and Council (Directive 98/43 on Tobacco Advertising) [2000]

Answer 23

this is the leading case in interpreting article 114

A directive intended to address distortions in the internal markets which arose because some member states had banned tobacco markets or restricted it, this meant that there were different rules. The argument put forward by the directive was that the laws on tobacco advertising varied from state to state, which resulted in obstacles to free movement. Germany was against tobacco advertising directive thought it was a misuse of 114, to what extent could article 114 be used for this type of measure. Objections: these distortions are minor. In addition, there were some obstacles to movement resulting from different advertising law, but the directive went beyond addressing these and banned advertising in context where it was not obvious that this made any contributions to interstate trade, e.g. it was unclear in what way banning tobacco in cinemas would make any kind of movement easier. Held: if there were genuine distortions and the directive targeted that marketing functioning objective and necessary to put forward the directive then it is legitimate. But there is no general power to regulate the market. Before this case it was questioned, but now there has to be verifiable evidence of distortions in market OR a potential obstacle in market but this had to be likely to emerge. On the evidence, there was not enough verifiable evidence and in particular, the directive was getting round a problem, getting around article 168 TFEU on public health, does not allow for harmonisation measures to be adopted on public health. Only way such a measure can be adopted is if it also satisfied internal market objective and if it does, then it can be justified on grounds of public health 114(3). The directive had been annulled in first case. However, in the Tabaco Advertising 2 case the commission were pit through the case again, but the court was then satisfied that there was a genuine need, and the focus was on the internal market.

The COJ proves a framework of legal principle which defined the scope of article 114:

1) Provides that a measure does in fact contribute to free movement or undistorted competition, it is not rendered invalid because it also contributes to public health.

Question 24

R v Secretary of State for Health, ex parte BAT and Imperial Tobacco (Directive 2001/37 on Tobacco Manufacture, Presentation and Sale) [2002]

Answer 24

the court was satisfied that the directive was clear addressing fact of differences in the market and the measure would clearly achieve a high level of health protection.

Question 25

Germany v Parliament and Council [2006] (Directive 2003/33 on Tobacco Advertising) ECR I-11573 (Tobacco Advertising II)

Answer 25

COJ held directive to be valid. This time it only concerned itself to interstate trade. Held: it is possible to harmonise public health matter under Article 114 TEU provided that this is genuine internal market regulation.

Question 26

Case C-210/03 R v Secretary of State for Health, ex parte Swedish Match AB (Article 8 of Directive 2001/37 – tobacco for oral use), [2004]

Answer 26

Concerned a directive for banning tabacoo chewing in that country. They disagreed saying a ban on a product did not contribute to the internal market. The COJ disagreed, pointing out that without the directive it was very likely that states would adopt different laws on the product, creating obstacles to trade. A pre-emptive approach was taken.

Question 27

Vodafone [2010]

Answer 27

Against the challenges of Vodafone that the directive on imposing limits on roaming charges on phones in Europe was valid. There were different roaming charges in every state. Court was satisfied that it was necessary to have this measure and full the protection of the consumer (article 114). COJ found that it was likely that individual member states would regulate such charges in the future, creating distortions of competition, and therefore pre-emptive harmonisation could be adopted using Article 114.

Question 28

Inuit Tapiriit Kanatami

Answer 28

ITK represented communities invoved in seal hunting, because it was an action for annulment brought by private parties it went to the general court first. The rational for the measure was that several countries had banned these seal products for animal welfare. EU wanted to band this in order to harmonise the market and ensure animal welfare. Interestingly, article 114 does not mention animal welfare. So long as the measure is necessary for achieving the internal market objective it is fine. Held: it was an objective and it can be a decisive factor as was the health was in the Tobacco cases. The Court of justice upheld the decision. Held: if the regulation was just to protect seals, then however worthy, it should not have been based on article 114. However, it was accepted that it was a legitimate internal measure. Some member states had strong ethics on it whereas others did not, this resulted in a divided internal market. A bann therefore contributed to free trade, because it helped ensure that all produts on sale in the internal market could be sold throughout the market.

Question 29

Smoke Flavour

Answer 29

Concerned british passion for chemically flavoured potato crisps, some varieties of flavouring swere to be banned under EU food safety rules. The british claimed that the procedure lacked a legal basis. The regulation was based on article 114

Question 30

Parliament v Council [1998]

Answer 30

The use of Article 308 EC as the legal basis for a measure was justified only where no other Treaty provision gave the Community institutions the necessary power to adopt the measure in question. The Court of Justice annulled a Council Decision, on a Community contribution for telematic interchange of data based on Article 308 EC because a more precise legal basis was available, Art 155 EC [now Art 171 TFEU] providing for measures to ensure the interoperability of trans-European networks.
According to Advocate General La Pergola:
‘[Article 308 EC] is a residuary provision, to which recourse can only be made in the absence of more specific enabling provisions.’

The old provision could only be justified where no other treaty provision gave the EU no other legal basis. Only then a decision can be adopted using a specific legal basis.
The council had used article 352 to adopted a measure. Parliament under this position is under a weak provision, whereas the legal basis that could have been used provides for a stronger European Parliament.

Question 31

UK v Council (Working Time)

Answer 31

‘… it is the responsibility of the Council, under [Art 153 TFEU], to adopt minimum requirements so as to contribute, through harmonisation, to achieving the objective of raising the level of health and safety protection of workers which … is primarily the responsibility of the Member States. Once the Council has found it necessary to improve the existing level of protection as regards the health and safety of workers and to harmonise the conditions in this area while maintaining the improvements made, achievement of that objective through the imposition of minimum requirements necessarily presupposes Community-wide action, which otherwise … leaves the enactment of the detailed implementing provisions largely to the Member States’

Question 32

Germany v European Parliament and Council (Deposit-guarantee Schemes) [1997]

Answer 32

• directive required all credit institutions to have guaranteed schemes for depositors if they ran into difficulties. Germany said that they have an effective system of self-regulations, all the banks comply with the provisions and there is no need for directive. They argued that the measure did not give sufficient reasons and under article 296 did not satisfy and that to scrap an effective scheme they wanted to know why a binding union scheme was necessary. However, they said the aims were to protect the consumer and it was an internal market. It indicated that there were reasons for the measure. The judgement suggests that the procedural requirements will be met even where there is no evidence to suppose that the institutions actually considered where the measure satisfied the principle of subsidiarity

Question 33

Netherlands v European Parliament and Council (Biotechnology Patents Directive) [2001]

Answer 33

dutch government challenged a directive because the directive provided few reasons why its objectives were better realised at EU level. Held: the objective pursued by the Directive could not be achieved by action taken by member states alone. Given the scale and immediate effects, the objective would be better achieved by the Community.

Question 34

R v MAFF, ex parte Fedesa [1990]

Answer 34

three-part test to see if legislation achieves proportionality:

1. Is the measure suitable to achieve a legitimate aim?
2. Is the measure necessary to achieve that aim? They spoke about how the council committed no “manifest error”. This test that EU measure will only be disproportionate if the action is “manifestly inappropriate” is a weak one
3. Does the measure have an excessive effect on the applicant’s interests?
   This was a directive which prohibited use of 5 hormonal substances in livestock farming. It was argued that it was disproportionate.

Question 35

Case C-210/03 R v Secretary of State for Health, ex parte Swedish Match AB (Article 8 of Directive 2001/37 – tobacco for oral use),

Answer 35

Concerned a directive for banning tabacoo chewing in that country. They disagreed saying a ban on a product did not contribute to the internal market. The COJ disagreed, pointing out that without the directive it was very likely that states would adopt different laws on the product, creating obstacles to trade. A pre-emptive approach was taken.