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Legal And Constitional Limit Notes

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EU Law

Competence

Short

Models of Integration

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Art 2(1) - exclusive competence (dual federalism)

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Art 2(2) - shared competence (co-op federalism)

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Art 2(3)-(5) - no legislative competence but primacy if conflict arises Competence Creep

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Art A TEU - tension: EU integration v preservation of nat. identity & autonomy

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Art 4 TEU - more explicit on preserving nat. autonomy/deference to nat. authorities Remit of Legal Authority

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Doctrine of conferred powers (Art 5(1))

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Flexibility provision (Art 352(1)) - potential to be used for creating a gapless system of competencies... how far it will go depends on ECJ interpretation. If too wide, it leaves areas excluded from Treaty at risk of intrusion.

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Signs of safeguarding nat. constit. identities ? Germany: 352(1) is wide, if used, will require approval of Parl. chambers + can't be used in central areas of crim. law, social policy, religion Limits of EU law making

1. Competence - does Comm. have legal basis to act? (Art 5(1) + Art 362(1))

2. Subsidiarity & proportionality - exercise of those powers (Art 5(3) + 5(4)) Legal

1. Is Comm. legislator acting within its competence ? must identify specific legal basis for the action in Treaty
? Technique of attribution highly specific & though some bases (e.g. Art 114 TFEU) are open ended & broad, yet not completely uncontrolled

2. Has it acted on correct legal basis?
? Dir. went outside Art 114 ('internal market') into 'public health regulation' = no correct legal basis o Germany v Parl. & Commission - Tobacco Ad Dir. under Art 114 imposed complete ban on advertising & sponsorship of tobacco products in EC. ECJ: designed to regulate public health, not promote operation of IM = void. Harmonising IM measures must be market making. Art 114 Threshold a. obstacles to trade b. appreciable distortions of competition c. how will proposed measure address these
? Comm. drew up a narrower ban = valid, even though incidentally harmonised public health laws too o Tobacco Advertising II-Comm. followed guidance, narrower, not blanket, ban = Art 114 valid legal basis. Incidental harmonisation of public health laws permissible, since market making measure.
? Weatherhill: expansionism is the key trend. Legislative competence ltd in principle but broad in practice
? If Dir. meets 114 threshold, even though public health considerations are "decisive matter", it has a correct legal basis o Swedish Match - Labelling Dir. under 114 prohibited marketing tobacco for oral use; Swed. Company wanted to export to UK, where banned (Sw. had exception) - unsuccessful challenge. ECJ: when ban was introduced, some MS already legislated + public health concerns suggested more will legislate, so eventually would distort competition/impact free movement of goods. Dir. introduced to eliminate these likely risks.
? If Dir. meets 114 threshold, reliance on health concerns doesn't deprive it from valid legal basis o Alliance for Natural Health - different food supplement laws = clear distortion of IM which Dir. eliminates. Need direct effect on functioning of IM, not mere finding of disparities, like in Tobacco I.
? Weatherhill: competence conferred isn't static - depends on nat. reg. practices + reported impact on economic operators. Relatively easy for Comm. to manipulate threshold criteria, relatively hard for ECJ to obtain independent evidence of the impact.
? If Dir. meets 114 threshold, Comm. legislature can rely on it, even for consumer protection o Vodafone - roaming reg. capping charges imposed by mob. phone operators on consumers for roaming services within EU argued by Vod. to be invalid b/c no correct legal basis + disproportionate + offend subsidiarity. AG Maduro didn't think 114 threshold met but ECJ did. ECJ: Reg. adopted in response to likelihood of diverging price control measures = classic preventative harmonisation & improvement of IM conditions.
? Weatherhill: court decided the case by ref to EU institutions own observations & attachments to measure - failed to be an outside observed but instead aligned itself with institutions whose acts were being challenged by C.
= In practice, case law on competency has become a drafting guide for legislature which now finds it all too easy to ensure compliance in a manner unreviewable in practice... Constitutional

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