EUROPEAN UNION LAW
W.B. Fisch Winter 2006
Assignment #5

Ch. 4. THE SPHERE OF COMMUNITY LAW AND POLICY

  • Goals and mechanisms (Art. 2): The purposes ("objectives") of the EC
    • policy goals: progressive expansion
      • EEC/SEA (1987): "...to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it"
      • Maastricht (1993): "... [activities], sustainable and non-inflationary growth respecting the environment, a high degree of convergence of economic performance, a high level of employment and of social protection, the raising of the standard of living and quality of life, and economic and social solidarity among Member States"
      • Amsterdam (1999): "...[activities], a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States"
    • mechanisms: “[achieve these goals] by...”
      • establishing a common market (EEC)
      • establishing an economic and monetary union (Maastricht) (supersedes "approximation of economic policies of Member States")
      • implementing common policies or activities referred to in Articles 3 and 4
  • Activities (art. 3)
    • operate in a fashion similar to the enumeration of powers in US Const. Art. I, including the level of generality
    • each post-EEC revision (SEA, Maastricht, Amsterdam) has expanded the list
    • however, unlike the US Art. I, each is given greater substantive and procedural definition in subsequent titles of the treaty
  • Delimitation of Competences under the Constitution, 2004 Supp pp. 46-50

A. Implied Powers

  • EEC Art. 308, p. 106: analogous to US Art. I §8 "necessary and proper"?
  • implication of power from purposes of treaty: Fédéchar, p. 107 (1956)
  • SPAIN V. COUNCIL, p. 108 (1995)
  • Constitution would require assent of Parliament for exercise, and subject it to subsidiarity monitoring

B. Internal Affairs

  • KNOORS, p. 111 (1979): to what extent can a Dutch national invoke the protection of an EC law (here a directive) as against his own government?
    • who are the intended beneficiaries of the EC legislation?
    • does the applicant here meet those criteria?
    • does the application present a risk of evading Dutch internal regulatory policies?
  • Bekaert, n. 1 p. 113 (1988): French nat'l challenges French permit requirement
    • does EC art. 43 (right of establishment) even purport to apply?
  • Aubertin, n. 3 p. 113-4 (1995): when do Community human rights principles apply to MS acts, such that the ECJ will review such acts?

C. Preemption of Member State Law

  • WILHELM V. BUNDESKARTELLAMT, p. 115 (1969).
    • May MS and EC antitrust cases concerning the same conduct run parallel?
    • If they conflict or interfere with each other, which one prevails?
    • How does one determine whether the proceedings are not compatible? Specifically, is there anything about multiple sanctions for the same conduct, one imposed by the MS and the other imposed by the EC?
  • PIGS MARKETING BOARD V. REDMOND, p. 118 (1978)
    • Does the court hold that the MS action is inherently incompatible with the EC regulations on the same subject?
    • How does this alleged conflict between MS and EC actions differ from that involved in Wilhelm?
  • Bussone, n. 1 p. 119 (1978): what criterion could be used for the reasonableness of a fee for a required label?
  • COMMISSION V. BELGIUM, 2004 Supp p. 52 (2002): how did the EU’s competence over “open skies” agreements get to be exclusive, if “air transportation” generally isn’t?

D. Subsidiarity

  • What is the "principle of subsidiarity"? Compare TEU art. 1, 2d par (Supp. p. 423) with EC 5 2d par. (Supp. p. 301) and the "Subsidiarity Protocol" of 1996-7, CB p. 122
  • Is it a concept on the basis of which the Court can strike down a Community act?
    • GERMANY V. PARLIAMENT AND COUNCIL, p. 123 (1997):
      • does the Court give the Council the benefit of the doubt on whether EC action is actually needed?
      • why was the attack based on the duty to provide reasons?
    • UK v. Council, n. 1 p. 124 (1996)
      • can you explain exactly what role subsidiarity played in the UK complaint?
      • did the Court "sidestep" the issue?
    • Netherlands v. Parliament and Council, n. 2 p. 124 (2001): conclusory recitals in the preamble are sufficient, at least where the issue is debatable?
  • Tobacco Directive, 2004 Supp p. 57 (2002), and Exclusivity Clause, 2004 Supp p. 59 (2003) and questions p.61
  • Subsidiarity in the Constitution, Supp. pp. 61-3

 

E. Flexibility and "Closer Cooperation"