Single European Act

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Brasserie de Peche

Facts: The brewery BdP was disallowed from exporting beer to Germany due to German Reinheitsgebot (“purity law”) this purity law was later found to be in violation of Union law. BdP sued for the damage during the years where it was prevented from exporting.

Ruling: ECJ judged that there is a state liability for damages caused by violation of Union law caused by legislative power.

Kobler

Facts: Mr. Kobler, an Austrian University professor, claimed that he had suffered losses due to the final instances failure to refer a question of interpretation of Union law to the ECJ, and sued for damages,

Ruling: The ECJ judged that there is a state liability for damages caused by the judiciary.

As we can see just from these few examples, there has been a strong tendency of interpreting Union law as directly applicable to the citizen and making sure that their rights as granted by Union law are ensured even in the case of MS failure to provide them.

The main mechanisms can be summarized as: primacy of Union law, direct effect, direct application of directives under certain circumstances, and state liability.

It should be mentioned that the jurisprudence of the ECJ has also been met with substantial criticism. It might be regarded as going beyond law interpretation to law making in particular German constitutional court has been critical of the ECJ’s practice (of the controversial Mangold case) in this regard.

C.

The division of powers between the EU and the member states is governed by the principle of conferral of powers. The Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein (Art 5(2) TEU). Competences not conferred upon the Union in the Treaties remain with the Member states (Art 4(1) TEU), Art 5(2) TEU).

Union competence differs based on areas, as defined in Art 2 TEU the Union has exclusive competence in some areas (listed in Art. 3 TFEU), such as the customs union, monetary policy for the Member States who use the EURO as their currency, and the common commercial policy in these areas, ONLY the Union may legislate and adopt legally binding acts (The Member States may only do this if empowered by the Union or for the implementation of Union Acts.)

In other areas, the Union and the MS share the competence (Art. 2(2) TFEU), Art. 4 TFEU, for instance the internal market, environment, transport and energy. In these areas the Member States shall exercise their competence to the extent that the Union has not exercised its competence.

In certain areas, the Union shall have competence to support, coordinate or supplement the actions of the Member States, without super ceding their competence, (Art. 2(5) TFEU, Art. 6 TFEU). These areas include industry, culture, education, etc.

Special provisions apply for the Common Foreign and Security Policy (Art. 2(4) TFEU, Art. 24 TEU).

The principle of conferral regulates the competences of the Union. It should be noted that the competences may be exercised only as necessary to attain Union objectives Art 5(2) TEU). The Unions institutions shall only act within the limits of the powers conferred on them (Art 13(2) TEU)

This is also the doctrine of implied powers to be considered in this regard. Necessary external competences of the Union can be inferred from internal competences. This was judged on by the ECJ in the ERTA and Kramer cases, which established that the EU has Treaty making capacity even though this is not provided in the Treaties.

There is also a flexibility clause (Art. 352 TFEU) which provides for union action that is necessary to obtain one of its objectives in the absence of specific provisions in the Treaties. (For instance the Union environmental policy stated out as a flexibility clause measure.)

The excuse of Union powers is governed by the principle of subsidiarity (Art 5(3) TEU) and the principle of proportionality (Art. 5(4) TEU).

Subsidiarity means that in areas where the Union does not have exclusive competences, it may act only if and in so far as the objectives cannot be sufficiently achieved by the Member States.

Proportionality means that content form of Union action shall not exceed what is necessary to achieve the objective.

The Subsidiarity and proportionality principle is to be applied by all the institutions of the Union (Art 5(3) and 5(4) TEU).

National Parliaments ensure compliance with the principle of subsidiarity in accordance with the protocol on the application of the principles of subsidiarity and proportionality (Art 126 TEU, Protocol 2)

Lack of observance of these principles can be ground for the annulment procedure (Art. 263 TFEU).

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