EU competencies and conditions for law making
card procedure is inadequate since national parliaments don't have the final say on whether a proposal of EU legislation should be withdrawn. e.g.
. For example, a proposal for the revision of the Posted Workers Directive in 2014 remained despite being given a yellow card
Articles 2-6 TFEU explains the areas in which the EU has the competence to act. Which act provides the 3 conditions which the EU has to comply if it wants to adopt legislation?
Article 5
British American Tobacco
BAT challenged the validity of a new EU directive on tobacco products (production). aim of the directive: on internal market measures and a common commercial policy basis BAT argued that the EU rules were in breach of the principle of subsidiarity, as the MS could have adopted their own rules on this topic. Held: act was valid. the measure was genuinely intended to improve conditions for the internal market since it wanted to establish uniformity of packaging for diff MS
def democratic deficit
Democratic deficit is a term used by people who argue that the EU institutions and their decision-making procedures suffer from a lack of democracy and seem inaccessible to the ordinary citizen due to their complexity
Who judges whether an EU act complies with the principles of subsidiarity? do they give to much discretion to EU acts - who is it better placed with?
ECJ reviews the principle of subsidiarity. ECJ gave too much discretion to EU legislation e.g. British American Tobacco
yellow card procedure
If 1/3 of the votes no the Commission has to review the proposal.
Which academic said: since subsidiarity is viewed as a 'political' principle it seems more appropriate for it to be dealt with by political institutions as the ECJ has limited knowledge on how to enforce it
Peters
which academic argued that giving national parliaments the power to issue orange and yellow cards, helped decrease the democratic deficit and increase accountability?
Tans -
Fedesa
The EU had adopted a directive which banned the use of certain substances, which contained a particular kind of hormones, in livestock. claimants argued that the directive failed proportionality test Held: only granted marginal review of proportionality. the claim of disproportionality was rejected as the ECJ gave a wide margin of discretion to EU legislation.
What is the legal basis test? Can the EU decide itself how far the competencies reach?
The legal basis determines the content of the EU act. if the EU wants to rely on a particular legal basis, it will have to show that the EU act is in line with the legal basis. • EU doesn't have the power itself to decide how far the competencies reach. The legal basis is an objective test, select the basis by looking at the aim of what the EU is trying to measure and the content of the measure. If the Court of Justice reaches the conclusion that the wrong legal basis has been selected, the EU measure is void and will be annulled by the Court. The Court of Justice usually gives the EU legislature a certain margin of discretion in deciding which legal basis should be chosen for a particular EU act.
principle of conferral
The principle of conferral EU shall act only within the limits of the competences conferred upon it by the MS (if not the act will be declared invalid). Competences not conferred upon the EU in the Treaties remain with the MS.
E.g. of the EU using the incorrect legal basis
Tobacco Advertising case - EU legislation that banned advertising of tobacco. Claimed the aim was to improve internal marketof MS. Germany argued that its legal basis was to to improve public health (which the EU had no power to do) Held: EU had to show that the directive really improved the functioning of the internal market (this failed). Thus it did not actually improve the free movement of goods - also if they ban advertising completely it will actually damage the market
principle of proportionality
Under the principle of proportionality, the content of EU action shall not exceed what is necessary to achieve the objectives of the Treaties.
3 conditions which the EU has to comply if it wants to adopt legislation?
a. The principle of conferral b. The principle of subsidiarity c. The principle of proportionality
The principle of subsidiarity
areas which do not fall within its exclusive competence, shall act only if the MS cannot fulfil the objectives and it would be better achieved by the EU.
if there is dual legal basis the EU can still adopt both, if they have diff legislative procedures the EU will have to make a choice for one legal basis by determining the ________________ of the measure
centre of gravity - what is the primary aim of the measure?
National parliaments have limited power in regards to the principle of proportionality as ex parte __________ - __________ stated that they need to show evidence to claim a directive is not proportional
ex parte Seymour-Smith This gives the ECJ leeway to disregard national parliaments as they tend to be more lenient towards EU legislation.
Orange card procedure
f half say no it means European parliament and council have to vote on the issue of whether the principle of subsidiarity is met
Only the ECJ can review the principle of proportionality, not the MS. How has this been mitigated?
increased powers given to national parliaments by the Treaty of Lisbon (2009) gives national parliaments the right to review subsidiarity and they vote on whether it complies with the principle. This uses the yellow and orange card procedure.
argument: red card procedure is not necessary
national gov have more power in practice than appear to do in principle. e.g in Monti II Regulation. Even though the Commission maintained that the proposal did not breach the subsidiarity principle, it decided to withdraw it. Yellow card procedure only been used 3 times, so has significance
According to the principle of conferral, the EU has to act in accordance to the legal basis of the EU act. This suggests whether the EU should use a _______ or _________ legislative procedure
ordinary or legislative
Under the principle of subsidiarity, how does the EU adopt legislation?
proving that the issue is something that affects more than one MS (trans-boundary nature test) and action at a higher level is necessary to resolve it (economies of scale)
e..g. of case that shows that national parliaments would not be more objective in reviewing proportionality than the ECJ as politicians are likely to be influenced by their voters and political opportunism (Peters)
solange I -demonstrated that whoever reviews proportionality considers their own ulterior motives in their judgment. For example, the ECJ tried to facilitate European integration (by finding the measure proportional) whereas the German court trying to gain national autonomy (by claiming the measure was disproportional).
what are the 3 limbs of the proportionality test?
suitability test necessity test proportionality stage = achieved the Court finds that the measure is suitable and necessary. Even if this is the case, the Court can still do a balancing of the interests that are involved. Has the EU struck the right balance between these interests and is the measure not excessively burdensome for those who are affected by it?
red card procedure?
there is no red-card procedure. The national parliaments do not have the final say on whether a proposal for EU legislation should be withdrawn for non-compliance with the principle of subsidiarity. There is pressure on the EU to introduce a red-card procedure and it was agreed as part of the pre-Brexit negotiations
suitability test
whenever EU adopts legislation is has to be suitable to achieve the aim.
necessity test
whether the measure is really necessary and whether the EU could not have chosen a less restrictive measure
briefly state 3 types of EU competences
• Exclusive competences (Article 3 TFEU): where Member States have given all the power to act to the EU (only one who can adopt legislation • Shared competences (Article 4 TFEU): both the EU and the Member States have the competence to act, so long as EU has not acted in that area yet • Coordinating/supporting competences (Articles 5 and 6 TFEU): the EU does not have the power to adopt rules which replace national rules
EU has a democratic deficit
• National parliaments are side-lined because of international legislation • If you compare the EU with the Member States, you are likely to find the EU less democratic and has less accountability. However, EU more democratic than other international organisations. • Some nations have disproportionate influence on voting • Lack of recognition of who the representatives are • Ministers aren't directly elected in some member states • No red card procedure - so national parliaments don't have a real veto over legislation
e EU does NOT have a democratic deficit
• The European Commission is not elected but it is fully accountable to the European Parliament and may be asked to resign if the European Parliament votes on a motion of censure • The individual accountability of Commissioners is ensured through its President. • The European Parliament can put pressure on the President to ask one of the Commissioners to resign - so there are checks in place • ("MEPs") are directly accountable to the EU citizens; we vote in elections for the European Parliament and in doing so we are supposed to pass a judgment on what the MEPs have done in the last couple of years • European council - held accountable by the heads of state. Head of state democratically elected • EU member states are represented in the Council of Ministers. • Orange and yellow card procedure - national parliament has control over subsidiarity principle
