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Summary European Union Law - Conferral and Subsidiarity
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Comprehensive summary/essay plan on the principles of conferral and subsidiarity in EU law. This document covers the definition of both conferral and subsidiarity in EU law (under Article 5 TEU), why subsidiarity is needed, judicial control of subsidiarity (specifically the two Tobacco Advertising ...

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  • October 6, 2024
  • 5
  • 2022/2023
  • Summary

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Conferral and Subsidiarity
Subsidiarity sets up the idea that the MS and EU are rivals.
Failure of judicial control = due to the fact that subsidiarity is inherently political.
Too political for the court to adjudicate upon.
No-win situation for the Court – Craig and de Burca:
If the CJEU continues with the light touch review, will be open to the criticism that it
is effectively depriving the obligation in Article 5(3)-(4) of all content and meaning.
BUT – if the CJEU takes a more detailed look at the evidence underlying the
Commission’s claim it will have to adjudicate on what may be a complex socio-
economic calculus concerning the most effective level of government for different
regulatory tasks.
If it is too political for the courts to adjudicate upon – should be left to national parliaments.

1. What is conferral?
The Union lacks any inherent powers – only has the power granted to it by MS
through the principle of conferral.
Article 5(2) TEU – “Competences not conferred upon the Union in Treaties
remain with the Member States.”
Speaight and Hockman: to properly understand the importance of this principle, a
comparison must be drawn to a nation state.
They point out that nations do not owe their existence to any legal document;
for example, if the French Constitution were revoked, there would still exist a
nation called France.
The source of legal power for nation states is not external to the nation itself,
but rather is inherent.
Is central to the constitutional make-up of the EU.
Different subject matter of legislation falls into a ‘trilogy’ of Union
competence:
Areas where the Union has exclusive competence (Article 3(1)
TFEU), areas where there are shared competences (Article 4
TFEU), and areas where the Union has merely supporting
competence (Article 2(5)).
2. What is subsidiarity?
Defined by Article 5(3) TEU:
“Under the principle of subsidiarity, in areas which do not fall within its
exclusive competence, the Union shall act only if and in so far as the
objectives of the proposed action cannot be sufficiently achieved by the
Member States, either at central level or at regional and local level, but can
rather, by reason of the scale or effects of the proposed action, be better
achieved at Union level.”
In the context of the EU, the principle of subsidiarity serves to regulate the exercise
of the Union’s non-exclusive powers by requiring an evaluation of relative
instructional competence between the EU and MS.
It raises a key concern of federalism, “how to balance powers between the
constituting states and the constituted central authority in a multi-layered
regime” (Craig and de Burca).
The Union is only justified in exercising its powers when MS are unable to
achieve the objectives of a proposed action satisfactorily and added value can
be provided if the action is carried out at Union level.
The rationale underpinning this idea is that democracy and justice dictates that
actions should be performed at the level of government closest to the people that they
will affect, only being passed up to a higher level where necessary in the interests of
efficiency.

, Phrasing = vague.
Part of the problem.
3. Why is subsidiarity needed?
“Competence Creep”
This dependence of the EU on the conferral of power from the MS raises the
problem of EU institutions determining the extent of their own power and
what should happen if Union institutions disagree with the MS as to the
extent of their competence in a given area.
The principle of subsidiarity is needed to ensure that Union power is being channelled
in the right direction.
This is particularly prevalent in relation to Article 114 TFEU – which allows
EU institutions to harmonise the laws of the MS if divergence in that area
constitutes an obstacle to the “functioning of the internal market” (Article
114(1) TFEU).
The concern is that the EU is too readily using its power under this Article to
harmonise national laws based only the existence of a divergence of national laws
with little to no attention being given to how this will actually affect the internal
market which it purports to protect.
4. Judicial Control:
Some people are often quick to rely on the Tobacco Advertising I case to argue that
the CJEU has been vigilant in keeping the EU in check.
Applicants in this case, Germany, sought an annulment of the Tobacco
Advertising Directive which provided that all forms of advertising and
sponsorship of tobacco be banned within the Union, contending that such
Directive was outside the scope of the EU’s competence under Article 138
TFEU.
This was a landmark case – the Court accepted this argument and, for
the first time, annulled European legislation.
Court articulated expressly that the EU may only legislate on matters
within a member state’s exclusive competence under Article 114
TFEU if the measure genuinely has as its object “the improvement of
the conditions for the establishment and functioning of the internal
market”.
The power that the MS had conferred on the Union was to
ensure the free flow of goods – HOWEVER – the natural
effect of a prohibition of advertising a particular product was
the imposition of a barrier to free trade.
Prima face, therefore, this case seems a compelling basis for arguing that the
concern of ‘competence creep’ is potentially overstated and the Courts seem
willing to apply the principle of subsidiarity vigilantly.
BUT – as Weatherill points out, this case is an anomaly and if you look at the
subsequent case law, it is clear that “expansionism is very much the key trend.”
He points out that the Commission has taken the language of the judgements
of the CJEU and used them as a “drafting guide”, adopting similar language
in their proposed legislation.
This is seen most clearly in the Tobacco Advertising II decision.
This case concerned essentially the same legislation that was in issue
in the first Tobacco Advertising case, the only difference being that
this time the Union had grounded the legislation on removing
impediments to the intra-Union circulation of newspapers and
magazines which it sought to achieve through ensuring that tobacco
advertising laws were harmonised.
It is clear that the EU used the language with which the Court
adjudicated upon the legislation and previous case and framed their
arguments around that language in the second case.

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