European Law and the Principle of Conferral

The Principle of Conferral is a fundamental principle of European Union law as stipulated in Article TEU 5(1) its limits of Union competences are governed by the principle of conferral According to this principle, the EU is a union of member states, and all its competences are voluntarily conferred on it by its member states. The EU has no competences by right, and thus any areas of policy not explicitly agreed in treaties by all member states remain the domain of the member states. This principle has always underpinned the European Union, but it was explicitly specified for the first time in the failed Treaty establishing a Constitution for Europe and carried over into its replacement, the Treaty on the Functioning of the European Union.

2) After the treaty of constitutional treaty was rejected in France and Holland in 2005 because the union was taken too much power than it meant to be, and also lacks accountability, transparency and clear cut division of competences in the union, this was carried over in to the treaty of Lisbon. Art 4 and 5 TEU provides the principles of competence, fidelity, conferral, subsidiarity and proportionality. And Art 2-6 TFEU provide further details about the categories and areas of union competence and the division of competences. Art 5(1) TEU provides that the limit of union competences are governed by the principle of conferral, and that the use of union competences are governed by the principle of subsidiarity under Art 5(3) and proportionality under Art 5(2) which are both concerned with the exercise of powers and rely on protocol 2 for definition, and the union acts are open to possible challenges if breached proportionality. Art 3 TFEU sets out the exclusive competences for example, e.g. customs duties, in which member states cannot act at all, Art 4TFEU sets out the areas of shared and concurrent competences, whereby the member states may act if the EU has not yet aced or has ceased to act, And Art 6 TFEU provides competences for the EU to act in support of the member states own actions only.

3) Whereas a major inter­Institutional function is the law­creation process with, in essence, the Commission proposing legislation and, eventually, the Council having the responsibility for enacting it, disputes between these institutions have arisen when the Commission proposed the measure, a Directive, say, should be based on a particular Treaty Article – i.e., a particular legal basis ­ but the Council then enacted it under a different Article and, perhaps, a different legal basis. With reference to such a situation, Shaw has expressed the opinion that: “In so far as disputes exist between the Community’s more and less supranational institutions (e.g. between the Commission and the Council), disputes between the institutions may also conceal an element of dispute between the interests of the Member States and those of the Community.”

The basic principle underpinning legal base was expressed in Case 45/86, Commission v. Council (Generalised Tariff Preferences) where the ECJ expressed the opinion that: the choice of a legal basis for a measure may not depend simply on an institution’s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review. In October 2000, in Case C­376/98, Federal Republic of Germany v. European Parliament and Council, the ECJ annulled Council Directive 98/43, which aimed to ban totally the sponsorship and advertising of tobacco, on the grounds that the Treaty articles on which it was based – ‘old’ Arts.100a(1), 57(2) and 66EC were not suited to the objectives of the Directive. 4) Issues decided by the Court;

A) To annul Articles 3 and 4 of Directive 2003/33/EC concerning in particular the prohibition of advertising and sponsorship of tobacco products in the printed press and broadcasting. B) Article 95 of the EC Treaty, which is the basis for acts aimed at establishing the internal market and securing its proper functioning, was not an appropriate legal basis as the purpose of the articles was in fact to protect human health. What argument did Germany put forward?

A) Prohibitions provided for in the Directive and contested by Germany are disproportionate. B) Infringement of the fundamental right to freedom of the press and freedom of opinion. What was the reasoning of the court?

A) The Court cited its settled case law concerning recourse to Article 95 EC. That Article is the appropriate legal basis where there are differences between Member State provisions which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market, and a possible legal basis for measures to prevent the emergence of future obstacles to trade resulting from differences in the way national laws have developed. B) The Court stated that the term “printed publications” covers only such publications as newspapers, periodicals and magazines, and not bulletins produced by local associations, programmes for cultural events, posters, telephone directories, etc.

C) It noted the existence of disparities between national laws on the advertising of tobacco products in the press and in broadcasting and considered that there was a significant risk that these disparities would increase. It concluded that intervention by the Community legislature was therefore justified. D) As long as the conditions for recourse to Article 95 EC as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made. The Court stressed the connection with public health protection, with reference to the first subparagraph of Article 152(1) EC, which provides that a high level of human health protection is to be ensured in the definition and implementation of all Community policies and activities, and Article 95(3) EC, which requires that, in achieving harmonisation, a high level of protection of human health should be guaranteed. Conclusion of the Court

The Court rejected the argument that the prohibitions provided for in the Directive and contested by Germany are disproportionate. In this connection the Court found that the Community legislature could not have exempted local or regional publications from the prohibition on advertising of tobacco products, as such an exception would have rendered the field of application of the prohibition unsure and uncertain. Regarding the alleged infringement of the fundamental right to freedom of the press and freedom of opinion, the Court found that the prohibitions do not impair freedom of journalistic expression and do not exceed the limits of the discretion accorded to the Community legislature.

5) The doctrine of the implied power developed by the European Court of Justice with origins from the Single European Act (SEA) and the Treaties of Maastricht, Amsterdam and Nice, expands the scope of competences which held that the Union had powers not only expressly laid down in the Treaty but also to be implied from express provisions. An example is where the Union can enter international commitments, whenever it has the power to attain an objective within the Union. Another extension of competences comes in via Article 352 (1) TFEU, which states: ‘If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.’ In Case 8/55 Fédération charbonnière de Belgique (implied powers; official fixing of prices of Belgian coal, Application for the annulment of Decision no 22/55 of the High Authority of 28 May 1955 and of certain Decisions of the High Authority resulting from its letter of 28 May1955 to the government of the Kingdom of Belgium concerning the adjustment of the equalization system

6) Art. 352 TFEU states that the Lisbon Treaty will keep and extend the flexibility clause to allow flexible adjustments of EU competence in relation to all the objectives of the Union. It permits the EU to decide in areas not covered specifically by the treaties. The old flexibility clause (Nice Treaty Art. 308) and (Treaty of Rome it was numbered Art. 235). TEC could only be used in connection with the common/internal market. The new clause can be used in all areas of competence of the European Union. The EU can in theory only make decisions if there is a specific legal basis for doing so in the treaties. This is called the principle of conferred powers but Art 352 permits the EU to decide in areas not covered specifically by the treaties. Decision of the court in Case 45/86 Commission and Council

1) Declares void Council Regulation no 3599/85 of 17 December 1985 applying generalized tariff preferences for 1986 in respect of certain industrial products originating in developing countries and Council Regulation no 3600/85 of 17 December 1985 applying generalized tariff preferences for 1986 to textile products originating in developing countries (Official Journal 1985, l*352, pages 1 and 107 respectively) (2) Declares that the effects of the annulled Regulations are to be regarded as definitive (3) Orders the Council to pay the costs.