Subsidiarity

key point of Tobacco Advertising I?

a measure adopted under article 114 must genuinely have as its object the improvement of the conditions for establishment + functioning of the internal market and the distortion of competition it purports to eliminate must be appreciable

facts of Tobacco Advertising I?

• the Tobacco Advertising Directive was adopted under what is now article 114 TFEU

• the preamble stated that the differences in national laws leads to barriers to movement of the products which serve as media

• article 3(1) of the Directive provided that all forms of advertising and sponsorship of tobacco be banned within the Union

• Germany sought its annulment, arguing that the Directive was not really designed to promote the operation of the internal market but to regulate public health, which is a field of supporting competence under Article 138 TFEU

what was held in Tobacco Advertising I?

the Directive was annulled

• the mere finding of disparities between national rules and abstract risk of obstacles to freedoms or distortion of competition could not justify the use of article 114 as legal basis

• in examining the lawfulness of a directive under article 114 the court is required to determine whether the distortion of competition which the measure purports to eliminate is appreciable

• the directive prohibited not only media that is tradeable (newspapers + magazines) between countries but also media that is not: posters, parasols, and ashtrays

key point of Case C-210/03 Swedish Match?

the use of article 114 TFEU to harmonise laws as to prevent future disparities in nation rules is legitimate if the emergence of disparities is likely

facts of Swedish Match?

• Swedish Match challenged the ban of snus in the EU and failed before

• now it sought to challenge the prohibition again in light of scientific developments

• one ground of challenge was whether what is now article 114 TFEU is the approp legal basis for the directive

key point of Cases C-154/04 & C-155/04 Alliance for Natural Health?

the principle of subsidiarity is met for any measure that properly makes use of article 114 as the harmonisation of national rules cannot be achieved by MS action

facts of cases C-154/04 & C-155/04 Alliance for Natural Health?

• the directive in question harmonised national rules governing supplement foods containing concentrated sources of nutrients on the basis of legislative diversity harming the internal market

• Cs argued that the directive interfered with powers of MS in the area of health, social and economic policy and that the MS are best placed to determine the public health reqs which would be a barrier to the free marketing food supplements in their respective markets

what was held in cases C-154/04 & C-155/04 Alliance for Natural Health?

• subsidiarity applies where Community leg makes use of article 114 in as much as that provision does not give it exclusive competence to regulate economic activity in the internal market but only a competence for improving the conditions for functioning of the internal market

• given that removal of barriers resulting from divergent national rules cannot be achieved by MS action, the principle of subsidiarity is met

key point of Tobacco Advertising II?

upheld the validity of the revised directive on tobacco advertising under article 114, confirming the EU’s competence to legislate for market harmonisation even where public health is the primary motivation, provided the measure is approp + proportionate

facts of Tobacco Advertising II?

• the annulled directive was replaced by a new directive that was more narrowly drawn, focusing on advertising in the press and sporting events

• the directive was again challenged by the German gov

what was held in Tobacco Advertising II?

• the replacement directive was valid

• given the obligation of ensuring a high level of human health protection, the directive is proportionate

key point of C-58/08 Vodafone?

to be proportionate, a measure must not be manifestly inapprop to achieve its objective

facts of Case C-158/08 Vodafone?

• a regulation adopted on the basis of article 114 capped the retail and wholesale charges roaming services on public mobile networks for voice calls between MS

• Vodafone and other phone companies challenged the regulation on the following grounds:

> it lacked legal basis under article 114

> it was disprop as it was not confined to imposing ceilings for the wholesale charge but also retail charges

what was held in Vodafone?

• the regulation was upheld - it was competent, proportionate, and fulfilled the principle of subsidiarity

• the criterion is not whether the measure is the only or best possible measure, but whether it is manifestly inappropriate having regard to the objective

• any measure reducing only retail charges would disrupt the smooth functioning of the Community-wide roaming market

key point of T-526/10 Inuit Tapiriit Kanatami et al v Commission?

the EU may adopt restrictive measures under article 114 TFEU that effectively close large segments of a market, provided the objective is market-making and the measure is proportionate in that context - even where non-economic considerations like animal welfare are decisive

facts of Inuit Tapiriit Kanatami v Commission?

• a regulation established harmonised rules on the sale of seal products, restricting such products that result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence

• the Inuit applied for interim suspension of the measure

what was held in Inuit Tapiriit Kanatami v Commission?

• the application was rejected for want of urgency

• although the market shuts down a large part of the seal product market, it is within the logic of article 114

• one bans unsafe products of part of a scheme to secure free movement of safe products

• although the decisive factor was animal welfare combined with the preservation of Inuit culture, this is compatible with article 114 as long as market making is achieved

Weatherill: the limits of EU leg competence, though of the highest const significance in principle, are in practice ________________________________________________

imprecisely defined by the Treaty itself w/ the consequence that the leg institutions enjoy wide discretion

Weatherill: the EU may only intervene to cure diversity between nat laws where ________________________________________________

that diversity is shown to be harmful to the achievement of the EU’s internal market

why does Weatherill argue that the judgment in Swedish Match is unsatisfactory?

it seems to be a free-standing ban on snus - and to permit such a free-standing ban seems to contradict the Court’s refusal to accept the suppression of advertising on ashtrays and parasols in the 1st Tobacco Advertising case

Weatherill: subsidiarity has been all but _________________________________

neutered as a basis for judicial intervention

Wyatt: the claim of the ECJ in Tobacco Advertising that _____________________________________________________________________ does not withstand critical examination

the Community institutions lack a general competence to regulate the internal market

which elements of the Tobacco Advertising judgment does Wyatt argue are competence-restricting?

• obstacles to trade could be addressed by removal of the obstacles, but not by a ban on the subject matter of the trade

• harmonisation could only be justified by distortions of competition if those distortions were appreciable

• in principle all provisions of a contested internal measure must contribute to the internal market aims of the measure in question

what element of the Tobacco Advertising judgment does Wyatt argue is competence-enhancing?

• the proposition that a measure which makes some contribution to the internal market may be adopted as an internal market measure even if its main aim is in public health protection, despite the fact that harmonisation of public health reqs is in principles ruled out by the Treaty

key point of Case C-547/14 Philip Morris?

measures that only partially harmonise national rules are competent under Article 114 TFEU

facts of Case C-547/14 Philip Morris?

• a directive standardised the packaging of cigarettes and permitted MS to introduce further reqs beyond the directive

• Philip Morris and British American Tobacco sought judicial review

what was held in Philip Morris?

• the directive was valid

> it fell within 114 - there were disparities in the national rules, which were likely to increase in the absence of action

• the directive met the principle of subsidiarity:

> it had 2 objectives -

1. facilitate functioning of the internal market for tobacco

2. ensuring protection of human health esp for the young

> even if the 2nd objective could be better achieved at state level, it would create divergences that would defeat the 1st objective

who argues that subsidiarity is ill-suited for the task of contained Community competences and protecting national powers?

Davies

what does subsidiarity require?

the Community to refrain from action where the goals of that action could be better achieved by MS

what does Davies argue is the central flaw of subsidiarity?

instead of providing a method to balance between MS and Community interests, it assumed the Community goals, privileges their achievement absolutely, and simply asks who should be the one to do the implementing work

• thus subsidiarity may protect the rights of MS to be co-opted by the Community to do its work, but it does not protect their right to do their own work

• e.g. biggest obstacle to moving abroad is language - so the Treaty would provide a prima facie basis for harmonisation of this

> subsidiarity provides no reason not to legislate to make English the language of the EU