As noted in your Agreed Reading List (ARL - here the pdf), at the tutorial we will focus on part IV - “Legal and Constitutional Limits on European Law Making”. In the following I wanted to provide you with some more detailed questions, which should put the questions contained in the ARL (at p. 8) on a more concrete base. So, do your reading and try to have in mind the Qs provided here as well as in the ARL. They will set a basic structure for our tutorial.
Legal limits on European lawmaking - competence
Why does it matter to the Member States and the institutions, which legal basis is to be used for a legislative measure? Does it matter to the citizens?
Try to think about who and how is represented in particular institutions: e.g.: in the Council: is it the Member States? or its governments? Does it make a difference? - Here, have in mind also ARL, Q4 (for this, I found Craig and de Búrca, 133-138 and Chalmers et al, 167-178 particularly helpful).
Considering that “powers retained by the Member States must be exercised consistently with Community law”, is there anything left for an autonomous action by a Member State? Try to find such an example; at the tutorial, we will try to identify possible ways for the Community to intervene.
Concerning the issue of EC competences in the Internal Market, you may find useful this article by Professor Wyatt: “Community Competence to Regulate the Internal Market” (no obligation to read it! just a recommendation if you want to see the cases in a mutual perspective). You do not have to read it in full; just look at the abstract and try to realize what the “competence restricting” and “competence enhancing” elements of Tobacco Advertising are. Then, you can skip to pp. 9-23 of the paper, where a superb analysis of the judgment can be found (or, alternatively, have a look at p. 22, where this section of the paper is briefly summarized). If interested, you can continue to pp. 23-40, where Wyatt analyses the subsequent case law, mentioned also in the ARL at p. 7 (Swedish Match and British American Tobacco). He shows that the Court has continuously eroded the competence restricting elements of Tobacco Advertising.
So, this is as far as the Community competence (or its absence) to regulate the Internal Market is concerned. (Have in mind ARL, Q1 here). Now, consider the difference between the EC and the EU:
How does Case C-176/03 Commission v. Council differ from the above cases? What is the difference between the issue concerning various legal bases within the EC Treaty on the one hand, and the question of a distinction between the EC and EU on the other? This is also relevant for ARL, Q5.
Constitutional limits on European lawmaking – Proportionality and Subsidiarity
The following is illustrative of the question of relevance of the principle of subsidiarity: write down “subsidiarity” in Microsoft’s Word: its dictionary does not know the expression and will want you to correct it… Do the Court and other Community institutions recognize the principle?
If you are particularly interested in subsidiarity and want to have an alternative material than reading, check out here a speech by Advocate General (and EUI Professor) Miguel Poiares Maduro at conference “Sharing Power in Europe” (you must survive first 2 minutes or so of a chairman’s organisational announcements - perhaps make a coffee in the meanwhile - and then you have Maduro there). It’s 20 minutes long and worth listening!
The following Qs are linked to ARL Qs 2 and 3:
What is the difference between the principle of attributed powers on the one hand, and the principles of subsidiarity and proportionality on the other?
What is the difference between the principle of subsidiarity and the principle of proportionality? Think about labelling requirements, e.g. health warnings against smoking: 1. Do we need the same standards for the whole EC?; 2. Once we establish that we need them, what should they say? How large should these labels be? Is 1. (“do we need it?”) detachable from the question of having the competence, i.e. concerning whether the power to set a harmonised standard has been attributed to the Community?
What can proportionality mean practically? You can consult judgments in Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others: going beyond what is necessary and Case C-310/03 Spain v Council (not on the ARL): obligation to provide some assessment of the impact of the intended legislation and its ability to achieve the aim pursued (paras. 95-137).
UPDATE: Considering ARL Q5, you may find useful this article by Nick Barber I have mentioned today at one of the tutorials: "The Constitution, the State and the European Union" (2005-2006) 8 Cambridge Yearbook of European Studies 37.
Back to main page.
Legal limits on European lawmaking - competence
Why does it matter to the Member States and the institutions, which legal basis is to be used for a legislative measure? Does it matter to the citizens?
Try to think about who and how is represented in particular institutions: e.g.: in the Council: is it the Member States? or its governments? Does it make a difference? - Here, have in mind also ARL, Q4 (for this, I found Craig and de Búrca, 133-138 and Chalmers et al, 167-178 particularly helpful).
Considering that “powers retained by the Member States must be exercised consistently with Community law”, is there anything left for an autonomous action by a Member State? Try to find such an example; at the tutorial, we will try to identify possible ways for the Community to intervene.
Concerning the issue of EC competences in the Internal Market, you may find useful this article by Professor Wyatt: “Community Competence to Regulate the Internal Market” (no obligation to read it! just a recommendation if you want to see the cases in a mutual perspective). You do not have to read it in full; just look at the abstract and try to realize what the “competence restricting” and “competence enhancing” elements of Tobacco Advertising are. Then, you can skip to pp. 9-23 of the paper, where a superb analysis of the judgment can be found (or, alternatively, have a look at p. 22, where this section of the paper is briefly summarized). If interested, you can continue to pp. 23-40, where Wyatt analyses the subsequent case law, mentioned also in the ARL at p. 7 (Swedish Match and British American Tobacco). He shows that the Court has continuously eroded the competence restricting elements of Tobacco Advertising.
So, this is as far as the Community competence (or its absence) to regulate the Internal Market is concerned. (Have in mind ARL, Q1 here). Now, consider the difference between the EC and the EU:
How does Case C-176/03 Commission v. Council differ from the above cases? What is the difference between the issue concerning various legal bases within the EC Treaty on the one hand, and the question of a distinction between the EC and EU on the other? This is also relevant for ARL, Q5.
Constitutional limits on European lawmaking – Proportionality and Subsidiarity
The following is illustrative of the question of relevance of the principle of subsidiarity: write down “subsidiarity” in Microsoft’s Word: its dictionary does not know the expression and will want you to correct it… Do the Court and other Community institutions recognize the principle?
If you are particularly interested in subsidiarity and want to have an alternative material than reading, check out here a speech by Advocate General (and EUI Professor) Miguel Poiares Maduro at conference “Sharing Power in Europe” (you must survive first 2 minutes or so of a chairman’s organisational announcements - perhaps make a coffee in the meanwhile - and then you have Maduro there). It’s 20 minutes long and worth listening!
The following Qs are linked to ARL Qs 2 and 3:
What is the difference between the principle of attributed powers on the one hand, and the principles of subsidiarity and proportionality on the other?
What is the difference between the principle of subsidiarity and the principle of proportionality? Think about labelling requirements, e.g. health warnings against smoking: 1. Do we need the same standards for the whole EC?; 2. Once we establish that we need them, what should they say? How large should these labels be? Is 1. (“do we need it?”) detachable from the question of having the competence, i.e. concerning whether the power to set a harmonised standard has been attributed to the Community?
What can proportionality mean practically? You can consult judgments in Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others: going beyond what is necessary and Case C-310/03 Spain v Council (not on the ARL): obligation to provide some assessment of the impact of the intended legislation and its ability to achieve the aim pursued (paras. 95-137).
UPDATE: Considering ARL Q5, you may find useful this article by Nick Barber I have mentioned today at one of the tutorials: "The Constitution, the State and the European Union" (2005-2006) 8 Cambridge Yearbook of European Studies 37.
Back to main page.
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