W1 Competencies and Legislative Procedures

Question 1

What is the principle of conferral?

Answer 1

EU through its institutions can only exercise the powers as conferred by the treaties (silence means no power)

Question 2

Where is the principle of conferral dictated?

Answer 2

Articles 4 and 5 of TEU

Question 3

What are the categories of EU competency?

Answer 3

Exclusive competence
Shared competences

Question 4

What is exclusive competency?

Answer 4

Only the EU may legislate on this competency

Question 5

What is shared competency?

Answer 5

EU and member states both may legislate on this competency

Question 6

What is subsidiarity?

Answer 6

Generally: principal that public power be attributed to the level of gov’t that can most effectively exercise it

EU Principle: Art 1 of TEU: decisions should be taken as closely as possible to the citizen

EU in Practice: For all areas falling outside of EU’s exclusive competency, the EU will only legislate if the goal could not sufficiently be achieved by a member state due to scale or effects of the proposed action or would be better achieved by the EU

Question 7

Where is subsidiarity set out?

Answer 7

Article 5(3) of the TEU

Question 8

What is the subsidiarity test?

Answer 8

1) Does the EU have exclusive competence in this area, i.e. is it listed in Art 3 TFEU?
2) The necessity test - is it necessary for the Union to step in or are MS capable of achieving the objectives of the proposed action
3) Would the objectives be better achieved at Union level, by reason of the scale or effects of the proposed action?

Question 9

How do national Parliaments enforce subsidiarity?

Answer 9

The early warning system/ Protocol 2

Question 10

What is the early warning system?

Answer 10

When member state Parliaments receive draft legislation and have an 8-week period to produce a reasoned opinion on why the draft fails to comply with subsidiarity
Also known as Protocol 2

Question 11

What are the types of reasoned opinion resulting from the early warning system?

Answer 11

Individual opinion
Collective opinion
Special legislative opinion

Question 12

What is an individual opinion?

Answer 12

The reasoned opinion of an individual parliament or chamber

Question 13

What is the result of an individual opinion under Protocol 2?

Answer 13

EU institutions must “take account of” individual opinions but are not obliged to follow them (unless Treaty says otherwise)

Question 14

What is a collective opinion?

Answer 14

The aggregated reasoned opinions adopted by at least a third of total votes under Protocol 2 (a quarter if related to freedom, security, or justice) arguing that the proposed draft legislation does not comply with the subsidiarity test.

Question 15

What is the result of a collective opinion under Protocol 2?

Answer 15

If the threshold for a collective opinion is reached, then the draft legislation must be reviewed (but not necessarily changed)

Question 16

What is a special legislative opinion?

Answer 16

Applies when examining a Commission proposal under ordinary legislative procedure

Requires a simple majority of votes rejecting draft legislation as not complying with subsidiarity

Question 17

What is the result of a special legislative opinion under Protocol 2?

Answer 17

Commission may choose to maintain, amend, or withdraw the proposal

If they choose to maintain, they publish their own reasoned opinion in response, and the legislation is referred to the EU Parliament and Council. The legislature must then take “particular account” of the various opinions.

Then, if a simple majority in the European Parliament, or a 55% majority in Council, reject the proposal for subsidiarity non-compliance, then the proposal goes away.

Question 18

What is the time limit to challenge legislation on the basis of subsidiarity compliance?

Answer 18

8 weeks from draft publication

Question 19

Can legislation, once passed, be challenged for subsidiarity-related reasons?

Answer 19

Yes, but the Court favours a single step test: is the objective better achieved at the Union level?

Authority/examples: British American Tobacco, and Vodafone cases

Question 20

The Queen v Secretary of State for Health, ex parte British American Tobacco

Answer 20

Facts: UK-based tobacco companies challenged the applicability of an EU Directive on tobacco products, arguing it only applied to products sold in EU, not those intended for export. English court referred the case to the European Court of Justice, who decided it applied to exports as well. Tobacco companies also argued that it broke subsidiarity rules. Court ruled that subsidiarity did apply to this Directive, but test was satisfied as the objective could be better achieved at Union level.

Significance: Indirect effect of Directives - can affect products not sold in the EU.

Subsidiarity - the Union does not have exclusive competence to regulate economic activity on the internal market, therefore subsidiarity does apply and the Directive can be challenged in Court for subsidiarity. However, Court favours the single-step test.

Proportionality - Banning manufacture of non-compliant cigarettes for export only was not the only way/least intrusive way to achieve the objective (avoiding illegal trafficking of cigarettes), but it was more efficient that reinforcing import controls.

Question 21

Vodafone Ltd v Secretary of State for Business

Answer 21

Facts: Vodafone challenged the validity of an EU regulation which set maximum roaming charges in UK courts. Argued that it exceeded EU competence and violated proportionality and subsidiarity. Court held that it was compatible with EU treaties, as it encouraged cross-border communication. Subsidiarity not violated as the Regulation didn’t hinder national legislation addressing specific situations the Regulation didn’t address.

Significance: Clarified subsidiarity vs harmonization/market integration: nations can legislate for specific circumstances not covered by EU legislation. Again, Court favoured the single step subsidiarity test re: better achievement at the Union level.

Question 22

Facts: Vodafone challenged the validity of an EU regulation which set maximum roaming charges in UK courts. Argued that it exceeded EU competence and violated proportionality and subsidiarity. Court held that it was compatible with EU treaties, as it encouraged cross-border communication. Subsidiarity not violated as the Regulation didn’t hinder national legislation addressing specific situations the Regulation didn’t address.

Significance: Clarified subsidiarity vs harmonization/market integration: nations can legislate for specific circumstances not covered by EU legislation. Again, Court favoured the single step subsidiarity test re: better achievement at the Union level.

Answer 22

Vodafone Ltd v Secretary of State for Business

Question 23

Facts: UK-based tobacco companies challenged the applicability of an EU Directive on tobacco products, arguing it only applied to products sold in EU, not those intended for export. English court referred the case to the European Court of Justice, who decided it applied to exports as well. Tobacco companies also argued that it broke subsidiarity rules. Court ruled that subsidiarity did apply to this Directive, but test was satisfied as the objective could be better achieved at Union level.

Significance: Indirect effect of Directives - can affect products not sold in the EU.

Subsidiarity - the Union does not have exclusive competence to regulate economic activity on the internal market, therefore subsidiarity does apply and the Directive can be challenged in Court for subsidiarity. However, Court favours the single-step test.

Proportionality - Banning manufacture of non-compliant cigarettes for export only was not the only way/least intrusive way to achieve the objective (avoiding illegal trafficking of cigarettes), but it was more efficient that reinforcing import controls.

Answer 23

The Queen v Secretary of State for Health, ex parte British American Tobacco

Question 24

What is proportionality?

Answer 24

The content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

Question 25

Where is proportionality laid out?

Answer 25

Art 5(4) of the TEU

Question 26

When legislation is challenged on proportionality, what test is applied?

Answer 26

1) The measure adopted doesn’t have to be the best possible measure. Only breaches proportionality if it is “manifestly inappropriate having regard to the objective”.

2) Legislature must base its choice on objective criteria and evaluate whether the objective justifies substantial economic consequences

Authority: Vodafone v Secretary of State for Business.

Question 27

What is the flexibility clause?

Answer 27

Provides a legal basis for measures which are aligned to the Treaty objectives but for which the Treaties do not explicitly confer the necessary powers onto the Union.

It allows the EU to legislate on matters which are not explicitly within its competency (shared or otherwise).

Question 28

Where is the flexibility clause laid out?

Answer 28

Article 352 TFEU

Question 29

What is the hierarchy of norms?

Answer 29

The hierarchy of different types of legislation. For the EU:
Primary law: Treaties and the Charter of Fundamental Rights
Secondary law: Acts based directly on the Treaty, including Union legislation
“Lowest” laws: Delegating/implementing acts - must comply with the enabling provision of the secondary law

Question 30

What compels the European Commission to propose legislation?

Answer 30

Policy direction set by European Council
European Parliament, by majority, can request proposal
Citizen’s Initiative

Question 31

What is the Citizen’s Initiative?

Answer 31

Process through which ordinary citizens of the EU can invite the Commission to submit a legislative proposal

Question 32

Where is the Citizen’s Initiative laid out?

Answer 32

Art 11(4) TEU

Question 33

What are the requirements for a Citizen’s Initiative?

Answer 33

One million citizens, from at least 7 different MS, with a minimum number of signatories from each.

Question 34

Where is the ordinary legislative procedure laid out?

Answer 34

Art 294 TFEU

Question 35

What is the ordinary legislative procedure?

Answer 35

1) Commission submits a proposal, which may be amended at any time during the procedure until the Council acts
2) Generally the proposal has three readings, including Council’s position, Parliament’s amendments, and the joint text
3) Parliament and Council agree on the text (several methods)

Question 36

What are the types of Legal Acts?

Answer 36

Regulation, Directive, Decision

Question 37

Where are the types of Legal Acts laid out?

Answer 37

Art 288 TFEU

Question 38

What is a regulation?

Answer 38

Legislation which is binding and directly applicable across all Member States, requiring no implementing measures.

Question 39

What is a directive?

Answer 39

Legislation which is binding as to the result to be achieved, but requires implementing measures. Its form and method of implementation is up to the MS’ discretion, but must be implemented by a deadline set by the EU. It may be generally applicable or addressed to specific MS.

Question 40

What is a decision?

Answer 40

Legislation which is addressed to specific parties. It is immediately binding with direct effect to the specified parties, requires no implementing measures. Addressees are notified.

Question 41

What is a recommendation?

Answer 41

Non-binding, however national courts are obliged to take recommendations into consideration

Question 42

What is an opinion?

Answer 42

Non-binding, however breach of an opinion of an institution can justify annulment of the breaching act. Similarly, if the Court provides an opinion on compatibility of international agreements, then that is binding (if opinion is that it’s incompatible, then the agreement must be abandonned or renegotiated).

Question 43

What is a delegated act?

Answer 43

Some legislation may delegate powers to the Commission to supplement or amend non-essential elements of the original legislation. (i.e. secondary legislation)

Question 44

What is an implementing act?

Answer 44

Apply to areas requiring uniform application (e.g. agriculture). Allows the Commission to provide further detail relating to the content of the (primary) legislative act, to ensure uniform implementation in all Member States.

Question 45

Where is a delegated act defined?

Answer 45

Art 290 TFEU

Question 46

Where is an implementing act defined?

Answer 46

Art 291 TFEU