Week 3 Flashcards
Harmonisation and Derogations
Traditional Approach
- Each national act calls for a
harmonisation act - Detailed harmonisation &
cumbersome procedure - Technical specifications
included in legislative acts - Few powers delegated to
the Commission - Unanimity
- Vertical legislation
New Approach
- Distinction between essential to harmonise and what may be left to m.r.ii. 2. Legislative acts restricted to essential health and safety requirements
- Eur. standardisation bodies & presumption of conformity [week 4]
- More powers delegated to the Commission +
comitology [week 5] v. - SEA: QMV
- Horizontal legislation
In the case Commission v. France (Wood working machines), what was the problem?
- It demonstrates the divergent objectives of national legislation.
- France and Germany follow different approaches.
What is “harmonisation”?
Is the creation of rules by means of an EU act which aim or result in changing or supplementing of national legislation for a common purpose.
When EU law is no making a really impact into national law, there is technical no harmonisation.
What is “indirect harmonisation”?
The harmonisation is not limited to internal market. There is also indirect harmonisation:
- Individual measures concerning specific products (C-359/92 Germany v Council)
- Establishing authorisation procedures (Smoke Flavourings)
- Setting up agencies (ENISA, ESMA, [Week 5])
What are the limits for “harmonisation”?
Art. 2 (5) TFEU establishes that in case of supporting competences of MS, there is no harmonisation.
The internal market is a shared competence. MS can only act if the EU is not acting. MS cannot regulate that field anymore, unless they are implementing EU Law or EU decides to stop their competence.
What are the models of harmonisation?
- Total or exhaustive harmonisation
- Optional harmonisation
- Partial harmonisation
- Minimum harmonisation
What are the characteristics of Art. 114?
It needs:
1. Save where otherwise provided in the Treaties
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social
Committee
3. Adopt the measures for the
approximation (harmonisation)
4. For the establishment and functioning of the internal market.
When can I use Art. 114? 3 Steps.
- Difference between national laws.
- There is and obstacle to the exercise of the four freedoms or distortion of competition (art. 114 serves to eliminate
obstacles/distortions: thin line positive/negative integration.
- Appreciable
- Actual or potential. Must be likely and measure must be specific. - Absence of more specific legal basis.
What can EU adopt under Art. 114?
- The EU can adopt measures under Article 114 TFEU to eliminate obstacles to trade and distortion of competition within the internal market.
What are the limits of Art. 114?
- Cannot be used to harmonise areas when EU lacks of competence.
- The aim is harmonisation. Cannot be incidental.
- Respect fundamental Rights
- Must respect the p. of conferral, subsidiarity (MS cannot do it better), proportionality.
- EU cannot create an area.
How does the Art. 114 apply?
- QMV
- Discretion: Tobacco Advertising II: The EU has discretion in how it applies this power, but it cannot use Art. 114 for objectives unrelated to the internal market (e.g., purely public health goals).
- High level of protection: High level of protection of health, safety, environment, and consumer.
- Some areas excluded: Fiscal matters, free movement of persons, rights, and interests of employed persons → politically sensitive
Art. 114 TFEU as general competence to legislate?
Complementary Roles: Article 114 is the primary legal basis for internal market measures, while Article 352 serves as a fallback if Article 114 (or any other article) cannot be used.
Article 352 is generally considered only when Article 114 or another specific legal basis cannot justify the action.
What are the “Derogations mechanisms” in EU Internal Market?
- Opt-outs
Art. 114(4) and (5) TFEU - Safeguard clauses
Based on Art. 114(10)
What a MS must do if want to utilize the derogation mechanisms?
The MS must notify the European Commission and prove that maintaining the provisions is compatible with EU law and proportionate to the objective.
What are opt-outs?
Art. 114 (4) allows MS to maintain existing national provisions that deviate from a harmonized EU measure.
Art. 114 (5) allows MS to introduce new national provisions after an EU harmonization measure has been adopted.
Opt-outs are often planned or structural, allowing national rules to coexist with harmonized EU laws under certain conditions.
What is the scope to invoke opt-outs?
- Ratione personae
- Ratione Materiae
- Ratione Temporis
Describe the scope to invoke an opt-out
1. Ratione personae
2. Ratione Materiae
3. Ratione Temporis
- Ratione personae
Who can use opt-outs. All MS have the right to request an opt-out, even if they agreed to the adoption of the harmonized EU measure.
- Ratione Materiae
Are only applicable to EU legislation adopted on the basis of Article 114(1) TFEU. (i) Legislative acts or (ii) delegated or implementing acts.
- Ratione Temporis.
When opt-outs can be used. After the harmonized measure is adopted.
What are the conditions to invoke opt-outs?
For Art. 114 (4) (mantain national rules):
- MS must provide scientific evidence to justify maintaining pre-existing national measures.
For Art. 114 (5) (introduce new legislation)
- MS must be based on new scientific evidence.
What are the control mechanisms for opt-outs?
Opt outs must be justified, proportionate, and do not undermine the internal market.
- Role of the European Commission (Article 114(6)). It evaluates whether the justification aligns with EU law, including the principles of proportionality and non-discrimination.
- Practice of Discussion. Dialogue Among Member States.
- Burden of Proof
- Scientific evidence
- Legal or policy arguments
What are the limits for opt-outs?
- Proportionality: suitable, necessary, no less restrictive alternative should be available.
- Non-discrimination: cannot result in arbitrary discrimination.
- Must not constitute a disguised restriction on trade
- Must not create obstacles to the proper functioning of the internal market.
What are the “safeguard clauses”?
Are provisions in EU legislation that allow MS to temporarily derogate from EU rules in response to exceptional circumstances, such as threats to public health, safety, or the environment.
Safeguard clauses address unexpected emergencies and are inherently temporary.
What is the legal basis for “safeguard clauses”?
Art. 114 (10) allowing Member States to take urgent measures when they face specific risks or emergencies.
Measures must be notified to the European Commission, which reviews their legality and necessity
When Safeguard Clauses Apply?
- Non-economic reasons (e.g., public health, public policy) under Article 36 TFEU.
- Sudden and unforeseen risks:
Examples include threats to human health or safety caused by a product that technically complies with EU legislation.
What they adress?
Temporary measures:
- Designed to address risks in the short term while the issue is assessed and resolved.
- Example: Temporarily removing dangerous products from the market.
How do they Work?
1. Process
2. Outcome
Process:
- The MS takes safeguard measures and immediately informs the European Commission and other MS.
- These measures trigger an EU control procedure, often involving comitology (decision-making by committees)
Outcome:
-If the Commission agrees, the measure can remain in force.
- If the Commission finds the measure unjustified, it can require the MS to withdraw it.
- Safeguard clauses may prompt the revision of harmonization measures to address the identified risk.
What are the Emergency Clauses?
Emergency clauses allow the European Commission to take immediate action when risks are evident, centralizing the decision-making process.
How the mad cow disease is related to the emergency clauses?
The BSE crisis (mad cow disease) demonstrated the need for EU-wide responses to crises, leading to a preference for emergency clauses over MS-initiated safeguard measures.
What is the difference between safeguard clauses and emergency clauses?
Safeguard clauses: MS can invoke safeguard clauses autonomously and act immediately when they identify a risk (e.g., health risks related to a product). Action is preemptive but requires post-hoc Commission approval.
Emergency clauses: Emergency clauses are invoked when a risk is widespread or urgent, and the EU needs to act swiftly. Action is often reactive to address immediate crises.
