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The Limits of Legislative Harmonization Ten Years after Tobacco Advertising: How the Court's Case Law has become a “Drafting Guide”

Published online by Cambridge University Press:  06 March 2019

Stephen Weatherill

Abstract

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Ten years have elapsed since the first Tobacco Advertising judgment, in which the Court for the first time concluded that the EU legislature had stepped beyond the limits of its competence to harmonize national laws which is granted by the Treaty. However, those subsequently seeking annulment of measures of harmonization have almost all been disappointed. This paper surveys the accumulated case law and finds that the “limits” of EU legislative competence, though of the highest constitutional significance in principle, are in practice imprecisely defined by the Treaty itself with the consequence that the legislative institutions enjoy wide discretion. The pattern has become circular: the Court presents a formula which defines the proper scope of harmonization and which sets out the control exercised by the principles of proportionality and subsidiarity, the EU legislature duly adopts the approved but reliably vague vocabulary and, provided the drafting is well-chosen, the Court has no plausible basis on which to set aside the legislative act. Case law dealing with the limits of EU competence has been converted into no more than a “drafting guide.” The paper shows how many of these deficiencies have been maintained uncritically after the reforms made by the Lisbon Treaty, even though a major part of the reform agenda initiated by the Laeken Declaration was inspired by “competence sensitivity.” Lisbon has instead put most of its reforming faith in a new recruit to competence monitoring - the national parliaments of the Member States. These new arrangements are poorly shaped at the level of detail, but the paper concludes with a largely positive assessment of the intention behind them. In particular they reveal a proper insistence on the need to supplement judicial control, which has become largely ineffective, with fresher political sensitivity to the perils of over-hasty centralization.

Type
Articles
Information
German Law Journal , Volume 12 , Issue 3 , 01 March 2011 , pp. 827 - 864
Copyright
Copyright © 2011 by German Law Journal GbR 

References

1 Case C-376/98, Germany v. Parliament and Council, 2000 E.C.R. I-8419.Google Scholar

4 E.g. Case C-155/91, Commission v. Council, 1993 E.C.R. I-939; Case C-209/97, Commission v. Council, 1999 E.C.R. I-8067.Google Scholar

5 Private litigation before a national court prompting a preliminary reference raising questions of validity was in principle possible but dauntingly difficult given the absence of any case law suggesting the likelihood of a receptive hearing in Luxembourg. Even the expression of academic disquiet was rare: for a lonely and thoughtful voice see George Close, The Legal Basis for the Consumer Protection Programme of the EEC and Priorities for Action, 8 European Law Review 8 (1983).Google Scholar

6 Germany v. Parliament and Council, supra, note 1, at para. 83.Google Scholar

7 Germany v. Parliament and Council, supra, note 1, at paras. 84, 106, 86 respectively.Google Scholar

8 Case C-58/08, Vodafone, 02 et al v. Secretary of State, judgment of 8 June 2010, paras. 32-33.Google Scholar

9 See especially Germany v. Parliament and Council, supra, note 1, at paras. 84 & 106.Google Scholar

10 Germany v. Parliament and Council, supra, note 1, at para. 107.Google Scholar

11 And it is considered in the opinion of Fennelly, A.G., Germany v. Parliament and Council, supra, note 1, at paras. 14-20, 74-77.Google Scholar

12 Cf. Seidel, Martin, Präventive Rechtsangleichumg im Bereich des gemiensamen Marktes, 41 Europarecht 25 (2006).Google Scholar

13 Cases C-154/04 & C-155/04, Alliance for Natural Health v. Secretary of State for Health, 2005 E.C.R. I-6451, at para. 30.Google Scholar

14 Case C-210/03, Swedish Match, 2004 E.C.R. I-11893, at para. 34; Cases C-154/04 & C-155/04, supra, note 13, at para. 33; Case C-380/03, Germany v. Parliament and Council, 2006 E.C.R. I-11573, at para. 43.Google Scholar

15 For an introductory survey see Vries, Sybe de, Tensions within the internal market: the Functioning of the Internal Market and the Development of Horizontal and Flanking Policies 274-297 (2006).Google Scholar

16 Case C-491/01, R v. Secretary of State ex parte BAT and Imperial Tobacco, 2002 E.C.R. I-11543.Google Scholar

17 Not so daunting once they had the vocabulary: see, supra, note 5.Google Scholar

18 R. v. Secretary of State, supra, note 16, at para. 67.Google Scholar

19 For a careful explanation see Wyatt, Derrick, Community Competence to Regulate the Internal Market, in 50 years of the European Treaties: Looking Back and Thinking Forward, 93 (Michael Dougan and Samantha Currie eds., 2009).Google Scholar

20 Case C-210/03, Swedish Match, 2004 E.C.R. I-11893.Google Scholar

21 Swedish Match, supra, note 20, at paras. 38, 39.Google Scholar

22 O.J. 1992 L 228/24, now replaced by Directive 2001/95 O.J. 2002 L 11/4.Google Scholar

23 O.J. 2005 L 149/22.Google Scholar

24 See powerfully in this vein Wyatt, supra, note 19.Google Scholar

25 Swedish Match, supra, note 20, paras. 35-42 are the culprits.Google Scholar

26 O.J. 2009 L 286/36.Google Scholar

27 Article 4(2) Regulation 1007/2009.Google Scholar

28 Recital 9 to the Regulation.Google Scholar

29 Case T-18/10R, Inuit Tapiriit Kanatami et al v. Parliament and Council, order of 30 April 2010.Google Scholar

30 DS400, http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds400_e.htm.Google Scholar

31 Cases C-154/04 & C-155/04, Alliance for Natural Health v. Secretary of State for Health, 2005 E.C.R. I-6451.Google Scholar

32 Alliance for Natural Health, supra, note 31, at para. 37.Google Scholar

33 The legislative impulse to go further (and to address e.g. ashtrays) was not abandoned but recycled in non-binding form: see Council Recommendation on the prevention of smoking and on initiatives to improve tobacco control, O.J. 2003 L 22/31, based on Article 152(4) EC.Google Scholar

34 Case C-380/03, Germany v. Parliament and Council, 2006 E.C.R. I-11573.Google Scholar

35 Germany v. Parliament and Council, supra, note 34, at para. 80. See also Joined Cases C-465/00, C-138/01 & C-139/01, Rechnungshof v. Österreichischer Rundfunk, 2003 E.C.R. I-4989, para. 41.Google Scholar

36 Case C-359/92, Germany v. Council, 1994 E.C.R. I-3681; Case C-66/04, UK v. Parliament and Council, 2005 E.C.R. 1-10553; Case C-217/04, UK v. Parliament and Council, 2006 E.C.R. I-3771 (annotated in this vein by Vincenzo Randazzo, 44 Common Market Law Review 155 (2007). See also Robert Schütze, From Rome to Lisbon: “Executive Federalism” in the (new) European Union, 47 Common market Law Review 1385 especially 1394-96, 1406-08 (2010).Google Scholar

37 Case C-301/06, Ireland v. Parliament and Council, 2009 E.C.R. I-593.Google Scholar

38 On this aspect (and others) see Ester Herlin-Karnell, Annotation, 46 Common Market Law Review 1667 (2009).Google Scholar

39 Cases C-317/04 & C-318/04, Parliament v. Council, 2006 E.C.R. I-4721.Google Scholar

40 Parliament v. Council, supra, note 39, at para. 56.Google Scholar

41 Case C-58/08, Vodafone, 02 et al v. Secretary of State, judgment of 8 June 2010.Google Scholar

42 Regulation 2560/01 on cross-border payments in euros, O.J. 2001 L 344/13, based on Article 95 EC, requires that bank charges for cross-border payments in euro be the same as charges for payments made in euro within a Member State. Regulation 2560/01 is now replaced by Regulation 924/2009 O.J. 2009 L 266/11 but it maintains the model of legislative harmonization of private commercial practices.Google Scholar

43 Cf. Brennke, Martin, Annotation, 47 Common market Law Review 1793 especially at 1804-06 (2010). The same author pursued this interesting inquiry well in advance of the judgment: Martin Brennke, The EU Roaming Regulation and its Non-Compliance with Article 95, Beiträge zum Transnationalen Wirtschaftsrecht Heft 79 (October 2009), http://www2.jura.uni-halle.de/INSTITUT/Heft 79.pdf, last accessed 2 March 2011.Google Scholar

44 Contra Brennke id., who treats Article 114 as inadequate and argues Article 352 is the correct legal base.Google Scholar

45 Vodafone, supra, note 41, at para. 44.Google Scholar

46 The reference is specific to a political scandal of the 1960s in the UK but the phrase is apt nonetheless to pierce self-serving attitudes more generally: http://en.wikipedia.org/wiki/Mandy_Rice-Davies, last accessed 2 March 2011.Google Scholar

47 For a sustained critique, taking EU tobacco regulation as its principal case study, see, Alexander Somek, Individualism: an Essay on the Authority of the European Union (2008).Google Scholar

48 Case C-210/03, supra, note 20.Google Scholar

49 E.g. Case C-66/04, supra, note 36, at para. 45; Case C-217/04, supra, note 36, para. 43; Case C-380/03, supra, note 34, at para. 42; Case C-58/08, supra, note 41, at para. 35.Google Scholar

50 Case C-343/09, Afton Chemical Limited v. Secretary of State for Transport, judgment of 8 July 2010, at para. 33.Google Scholar

51 Case C-491/01, supra, note 16, at para. 123.Google Scholar

52 On the different contexts in which proportionality is applied see Takis Tridimas, The General Principles of EU Law Chapters 3-5 (2006).Google Scholar

53 Cases C-154/04 & C-155/04, supra, note 31, at para. 68.Google Scholar

54 For an egregious example see Case C-103/01, Commission v. Germany, 2003 E.C.R. I-5369 para. 48.Google Scholar

55 Case C-491/01, supra, note 16, at paras. 181-183.Google Scholar

56 Cf. Case C-103/01, supra, note 54, at para. 47; Cases C-154/04 & C-155/04, supra, note 31, at paras. 104-07.Google Scholar

57 Supra, note 26.Google Scholar

58 There are countless examples! See e.g. Recital 12 of Directive 2006/7 on bathing water quality, O.J. 2006 L 64/37; Recitals 6 and 10 of Directive 2000/31 on electronic commerce O.J. 2000 L 178/1; Recital 22 of Regulation 924/2009, supra, note 42. It is not only binding acts which commonly attract unsubstantiated assertion of compliance with the principles of proportionality and subsidiarity: see e.g. the Council Conclusions on the Work Plan for Culture 2011-2014, O.J. 2010 C 325/1; Council Conclusions on the role of sport as a source and a driver for active social inclusion, O.J. 2010 C 326/5.Google Scholar

59 Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405 para. 28.Google Scholar

60 The literature is vast, the concepts contested, the restraining influence of subsidiarity (if any) controversial. For helpful introductions to the debate in a European context (not necessarily using the language of subsidiarity explicitly) see e.g. Emanuela Carbonara, Barbara Luppi and Francesco Parisi, Self-Defeating Subsidiarity, 5/1 Review of Law and Economics 742 (2009); Roger Van den Bergh and Wolfgang Kerber, Mutual Recognition Revisited: Misunderstandings, Inconsistencies, and a Suggested Reinterpretation, 61/3 Kyklos 447 (2008); Deakin, Simon, Legal Diversity and Regulatory Competition: Which Model for Europe?, 12 European Law Journal 440 (2006); Snell, Jukka, Who's Got the Power? Free Movement and Allocation of Competences in EC Law, 22 Yearbook of European Law 323 (2003); Pelkmans, Jacques, Subsidiarity between Law and Economics, 1/2005 College of Europe Research Papers in Law, http://www.coleurop.be/content/studyprogrammes/law/studyprog/pdf/ResearchPaper_1_2005_Pelkmans.pdf.Google Scholar

61 Here too the literature is rich and (appropriately!) diverse: for a helpful starting-point see e.g. Peter A. Kraus, A Union of Diversity: Language, Identity and Polity-Building in Europe (2008).Google Scholar

62 Convincingly examined in this vein, albeit expecting the Court to exercise more controlling influence than does this paper, by Gareth Davies, Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time, 43 Common Market law Review 63 (2006) and by Kumm, Matthias, Constitutionalising Subsidiarity in Integrated Markets: The Case of Tobacco Regulation in the European Union, 12 European Law Journal 503 (2006). See also Gerard Conway, Conflicts of Competence Norms in EU Law and the Legal Reasoning of the ECJ, 11 German Law Journal 966 especially at 988-990 (2010); and Somek, , supra, note 47, especially Chapter 8.Google Scholar

63 Cf. emphasizing the political/ procedural character of subsidiarity Schütze, Robert, From Dual to Cooperative Federalism: The Changing Structure of European Law Chapter 5 (2009); Halberstam, Daniel, Of Power and Responsibility: The Political Morality of Federal Systems, 90 Virginia Law Review 731, especially 827-832 (2004).Google Scholar

64 Article 5 of the Protocol on the Application of the Principles of Subsidiarity and Proportionality attached to the TEU and the TFEU.Google Scholar

65 The Court of Justice, Principles of EC Law, Court Reform and Constitutional Adjudication, 15 European Business Law Review 1115, 1117 (2004).Google Scholar

66 Case 6/64, Costa v. ENEL, 1964 E.C.R. 585, Case 26/62, Van Gend en Loos, 1963 E.C.R. 1.Google Scholar

67 Opinion 1/91, Draft Treaty on the establishment of a European Economic Area, 1991 E.C.R. I-6079.Google Scholar

68 Case C-376/98, supra, note 1, at para. 99.Google Scholar

69 Id., para. 16.Google Scholar

70 Case C-491/01, supra, note 16.Google Scholar

71 Case C-210/03, supra, note 20.Google Scholar

72 Cases C-154/04 & C-155/04, supra, note 31.Google Scholar

73 Case C-380/03, supra, note 34.Google Scholar

74 For analysis with rich bibliography see Armin von Bogdandy & Jürgen Bast, The Federal Order of Competences, in Principles of European Constitutional Law, 275 (Armin Von Bogdandy & Jürgen Bast eds., 2010), noting that preoccupation with matters of competence is a relatively recent phenomenon in EU scholarship. For comment on the adjustments planned by the Treaty establishing a Constitution which were left largely unchanged in subsequent wrangling, see Paul Craig, Competence: Clarity, Conferral, Containment and Consideration, 29 European Law Review 323 (2004); Weatherill, Stephen, Better Competence Monitoring, 30 European Law Review 23 (2005); Nettesheim, Martin, Die Kompetenzordnung im Vertrag über eine Verfassung für Europa, 39 Europarecht 511 (2004); Constantinesco, Vlad, Les competences et le principle de subsidianté, 41(2) Revue Trimistrielle de Droit Européen 305 (2005). On aspects of the debate even in advance of the Treaty establishing a Constitution see Ingolf Pernice, Rethinking the methods of Dividing and Controlling the Competences of the Union, in The Treaty of Nice and Beyond: Enlargement and Constitutional Reform, 121 (Mads Andenas and John Usher eds., 2003).Google Scholar

75 Case C-58/08, supra, note 41.Google Scholar

76 See Wyatt, , supra, note 19, finding the case law to disclose both competence-restricting and competence-enhancing elements, the latter steadily eroding the former.Google Scholar

77 On the several ideas aired and largely rejected in the debate over the last decade, see Stephen Weatherill, Competence Creep and Competence Control, 23 Yearbook of European Law 1 (2004); Bermann, George, Competences of the Union, in European Union Law for the 21st Century, Volume 1, 65, (Takis Tridimas and Paolisa Nebbia eds., 2004). For pioneering anxieties, see Joseph Weiler, The European Union belongs to its Citizens: Three Immodest Proposals, 22 European Law Review 150 (1997).Google Scholar

78 Cf. Pollack, Mark, Creeping Competence: The Expanding Agenda of the European Community, 14 Journal of Public Policy 95 (1994); Weatherill, , supra, note 77.Google Scholar

79 Case C-376/98, supra, note 1.Google Scholar

80 Case C-372/04 2006 E.C.R. I-4325.Google Scholar

81 Case C-438/05 2007 E.C.R. I-10779.Google Scholar

82 Case C-144/04 2005 E.C.R. I-9981.Google Scholar

83 On this, and more generally, see Martin Gennart, Les Parlements Nationaux dans le Traité de Lisbonne: Evolution ou Révolution, 46/ 1 – 2 Cahiers de Droit Europeen 17 (2010).Google Scholar

84 See Derrick Wyatt, Could a Yellow Card for National Parliaments strengthen Judicial as well as Political Policing of Subsidiarity?, 2 Croatian Yearbook of European Law and Policy 1 (2006): this concerns procedures foreseen by the Treaty establishing a Constitution but applies mutatis mutandis to the finally agreed version.Google Scholar

85 Cf. Gennart, supra, note 83, especially at p. 46.Google Scholar

86 Anne Peters, European Democracy after the 2003 Convention, 41 Common market Law Review 37, especially at 62 (2004). See on this and more generally Adam Cygan, The Role of National Parliaments in the EU's New Constitutional Order, in European Union Law for the 21st Century, Volume 1, 153, (Takis Tridimas and Paolisa Nebbia eds., 2004); Cygan, Adam, The Parliamentarisation of EU Decision-Making? The Impact of the Treaty of Lisbon on National Parliaments, 36 European Law Review (forthcoming, 2012).Google Scholar

87 E.g. Thorlakson, Lori, Building Firewalls or Floodgates? Constitutional Design for the European Union, 44 Journal of Common Market Studies 139 (2006); Swenden, Wifried, Is the European Union in need of a Competence Catalogue? Insights from Comparative Federalism, 42 Journal of Common Market Studies 371 (2004). For general EU/ US comparisons, see Kalypso Nicolaïdis and Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (2001).Google Scholar

88 For relevant documentation see http://ec.europa.eu/enterprise/policies/better-regulation/index_en.htm, last accessed 2 March 2011. The Commission publishes an annual report on “Better Lawmaking” pursuant to the Protocol on the application of the principles of subsidiarity and proportionality. The report on 2006 was the last to cover not only subsidiarity and proportionality but also improving the quality of the regulatory environment: “Better Lawmaking 2006,” COM (2007) 286, 6 June 2007. Beginning in 2007 the coverage has been split between a “Report on Subsidiarity and Proportionality,” e.g. the report covering 2009 is COM (2010) 547, 8 October 2010, and a separate strategic review of Better Regulation, now to be transformed into Smart Regulation: see Commission Communication “Smart Regulation in the European Union” (COM (2010) 543, 8 October 2010). “Intelligent” would be a more elegant word in English and is indeed the chosen word in the French and German texts - “smart” betrays a strong background American influence. See generally Stephen Weatherill (ed.), Better Regulation (2007); Claudio Radaelli and Fabrizio De Francesco, Regulatory Quality in Europe: Concepts, Measures, and Policy Processes (2007).Google Scholar

89 Cf. the sustained critique in this vein offered by Somek, supra, note 47.Google Scholar

90 See Weatherill, Stephen, Competence and Legitimacy, in The Outer Limits of European Union Law, 17, (Catherine Barnard and Okeoghene Odudu eds., 2009).Google Scholar

91 On the progress of the matter at the Convention see Weatherill, , supra, note 74.Google Scholar

92 E.g. Cases 8/73, Hauptzollamt Bremerhaven v. Massey-Ferguson, 1973 E.C.R. 897; Case 45/86, Commission v. Council, 1987 E.C.R. 1493; Case C-350/92, Spain v. Council, 1995 E.C.R. I-1985.Google Scholar

93 Judgment of 12 October 1993, 2 BvR 2134/92, 2 BvR 2159/92, BVerfGE 89, 144 (Brunner v. European Union Treaty).Google Scholar

94 Judgment of the Second Senate of 30 June 2009 – 2 BvE 2/08.Google Scholar

95 Cf. Kiiver, Philip, The Lisbon Judgment of the German Constitutional Court: A Court-Ordered Strengthening of the National Legislature in the EU, 16 European Law Journal 578 (2010).Google Scholar

96 See especially, but not only, para. 362.Google Scholar

97 Case C-491/01, supra, note 16: paragraph 184 cross-refers to paragraphs 122 to 141.Google Scholar

98 On the composition and progress of the Working Groups see Weatherill, supra, note 74.Google Scholar

99 O.J. 2010 C 340/9, at para 4.4.Google Scholar

100 For a helpfully nuanced discussion see Auel, Katrin, Democratic Accountability and National Parliaments: Redefining the Impact of Parliamentary Scrutiny in EU Affairs, 13 European Law Journal 487 (2007). For a skeptical view of the value of national Parliaments in this area see Philip Kiiver, The National Parliaments in the European Union – a Critical View on EU Constitution-Building (2006).Google Scholar

101 Case C-343/09, supra, note 50 (where there was such departure, adequately explained); Case C-58/08, supra, note 41 (where there was no departure).Google Scholar

102 Cf. Wyatt, , supra, note 84.Google Scholar

103 On emergent practice even pre-Lisbon see Commission Report on Better Lawmaking 2006, COM (2007) 286, 6 June 2007, pages 8-9; see also the (short) report of the Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC), O.J. 2007 OJ C 206/7, section 2. The Commission Report on Subsidiarity and Proportionality covering 2009 (COM (2010) 547, 8 October 2010) also contains brief mention of pre-Lisbon practice (para. 3.2) and promises an overview of post-Lisbon co-operation with national Parliaments in the following year's report (para. 5).Google Scholar

104 545 U.S. 1 (2005).Google Scholar

105 545 U.S. 1, supra, note 104, Majority Opinion pages 16, 19, 24, 28, 30.Google Scholar

106 545 U.S. 1, supra, note 104, pages 17-18.Google Scholar

107 Supra, note 31.Google Scholar

108 Supra, note 20.Google Scholar

109 514 U.S. 549 (1995).Google Scholar

110 529 U.S. 598 (2000).Google Scholar

111 529 U.S. 598, supra, note 110, the quotes are from pages 2, 4, 4, 4 & 6, and 5 respectively.Google Scholar

112 529 U.S. 598, supra, note 110, page 6.Google Scholar

113 529 U.S. 598, supra, note 110, pages 13 and 17 respectively.Google Scholar

114 Innocent Europeans should be aware that although the phrase “states’ rights” seems to capture rather well the intent behind controlling the limits of the competence of the central authorities (federal or EU), for Americans it carries echoes of the struggle by Southern states to protect slavery and, later, racial segregation in the name of state autonomy.Google Scholar