An investigation into the problems that have arisen with regard the use of the general powers enshrined in Article 94, 95 and the residual power in 308 EC in relation to the development of the European Community's competence.

This case concerned a Tobacco Advertising Directive which Germany sought the annulment of.  The Directive was based on internal market provisions namely, Articles 57(2), 66 and 100a so in essence ‘opened the opportunity for legal debate over whether or not the relevant legislation was validly enacted on the legal basis of Article 95’.  The impetus on the Directive was to primarily ban most types of tobacco advertising and sponsorship but due to the nature of the some of the restrictions in question; it was difficult to attribute the action to the internal market arena.  As previously discussed in order for the legislation to have been lawfully adopted ‘the Directive must have had an internal market rationale’.  The Community justified using article 95 by providing that the Directives objective was ‘to approximate the law, regulations and administrative provisions of the Member states relating to the advertising and the sponsorship of tobacco products’.  This although on the surface seeming to be a perfectly legitimate basis in which to adopt the Directive by Article 95 was challenged on the grounds that the actual content of the Directive when examined   ‘could be construed as suggesting otherwise’.  In order for the Directive to be legally sound it required both free movement measures and competition measures but on analysis the Attorney General declared that it only actually managed to satisfy one of the requirements; that of the competition aspect.  It was thought that ‘the effects of the measure in harmonising conditions of competition or facilitating trade between member states were too minor and uncertain to justify its adoption under that Treaty provision’.  In reality the Directive was more like a ‘disguised public health measure’ designed to reduce the number of smokers rather than an internal market issue   As a result this conclusion prompted the court to review the nature and use of Article 95.  The ECJ dissenting stressed that Article 95 had measures that were ‘intended to improve the conditions for the establishment and functioning of the internal market’.  As a result, Article 95 was not to be construed ‘as meaning that it vests in the Community legislature a general power to regulate the internal market’ as this would ‘not only be contrary to the express wording of the provisions... but would also be incompatible with the principle embodied in Article 3b...that the powers of the Community are limited to those specifically conferred on it’.   The court then went on further to clarify the precise nature of a measure stating that it ‘must genuinely have as its object the improvement of the conditions for the establishment and functioning of the internal market’ and that ‘if a mere finding of disparities between national rules and of the abstract risk of obstacles to the exercise fundamental freedoms or of distortions of competition liable to result therefrom were sufficient to justify the choice of Article 95 as a legal base, judicial review of compliance with the proper legal basis might be nugatory’.   It is interesting to note however that in this particular case the Directive ‘did effectively have a harmonising aim and effect – that of introducing a single law on tobacco advertising across the Community’ and consequently this would appear to exclude it from the realms of the alternative adoption method  i.e through the public health provision.  If it had not been adopted by Article 95 then it is possible that it would not have been adopted at all. The intense scrutiny by the court in this significant case, is regarded by some as being an actual reflection of ‘some anxiety on the part of the Court to protect State rights against incursion by the Community Institutions, and as an indication that the Court may, in the future, be prepared to take a more robust line when dealing with challenges to the exercise of Community competence’.     This case which ‘represents the most recent and high profile dispute over the extents and limits of EC competence’ is exemplary of the types of problems that have arisen with regard the ancillary powers.  This provision along with Article 94 has been used over a number of years ‘to introduce legislation into a variety of fields which were not in themselves listed in the Treaties as independent policy spheres until a later date’.  It was not until these policy sectors were ‘enumerated by the Single European Act and the Maastricht Treaty as independent and legitimate spheres of community action’ that discrepancies arose with regard the legal basis for implementation.  Look up

Article 308 EC

Article 308 provides that

‘if action by the community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measure’

It has ‘served as a residual power to fill a particular kind of gap in the system of enumerated powers’.  This article has the broadest scope in relation to the implementation of policy legislation.  Having been regarded at first as an ‘exceptional power’ it has actually been instrumental in the legislative development of numerous policy areas that the Treaty has failed to provide for. It was of fundamental importance in the creation of the Customs Union and more recently in relation to the Economic and Monetary Union where it has been used as the legal basis for ‘the enactment of a regulation on certain provisions relating to the introduction if the euro’.   The Community has some objectives that have a rather ambiguous meaning.  These provisions being general in nature allow the Commission to implement measures to achieve the requisite objective even without having the express implementing powers.  Whereas article 94 relates to the approximation of provisions which directly affect the establishment or functioning of the Common Market,…article 308 is drafted as an exceptional measure which may only be used when the Treaty has not provided the necessary powers’.  Although classed as being quite distinct they both contain functional competences.  That is instead of being ‘defined in terms of a particular sector… they are defined in terms of cross-sectoral policy objective to be achieved which is, essentially, the establishment and functioning of the internal market’.    As earlier mentioned the ambiguity surrounding the Treaty objectives and the European Court of Justices’s ‘purposive mode of interpreting Community aims’ has meant that the Council has had a relatively uninterrupted reign with regards the implementation of directives under this article.  The nature of the Article has however been reviewed in Opinion 2/94 which concerned the possible accession of the EC to the European Convention on Human Rights and its legality.  The ECJ insisted that Article 308 could not ‘serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole’.  This statement, although meant as reassurance to the ever prominent ‘concern, in particular amongst the Lander, that this article was used by the Council as a basis for surreptitious erosion of member state powers’, does not conclusively allay the general fears of some of the member states ‘who suspect the Community of being a Triffid, quietly gaining strength in order to gobble up everything that gives substance to our sense of having national identities’.  This uncertainty enveloping the issue of the Communities competence has been addressed in the German Constitutional Court where in the Brunner opinion, where it was warned that on the interpretation of a Treaty provision if it was given a wide meaning which meant that it enlarged the powers of the community then the ‘exercise of those powers would not produce consequences binding within the German legal order’.  This view seems to be partially echoed by the Højesteret in its Maastricht judgement.

Clearer delimitation of Community powers

The extensive use of the harmonising powers contained in the afore mentioned articles and the preceding jurisprudential changes within the ECJ and national courts has prompted many calls for a clearer delimitation of powers.  The competence system has by some been labelled as having ‘flexible and plastic qualities’ due to its lack of significant qualitative limits and democratic control. This desire for clarification and possibly reform has been one of the main focuses in the post-Nice and post Laeken agenda .  In the Laeken Declaration the question was posed of whether or not ‘Articles 95 and 308 of the treaty be reviewed... in light of the “acquis jurisprudential”?’  It is thought by some that this reference to ‘aquis jurisprudential’ has been prompted by the courts findings of ultra vires on two recent occasions; namely in opinion 2/94 and the tobacco Directive case.  Overall however the overriding view prominent in Laeken was that although Articles 95 and 308 enabled the European Community to ‘react to fresh challenges’, they did so in a manner that allowed for the ‘creeping expansion’ of the Communities competence which in some situations could be viewed as being detrimental to the interests of the member states.  Some would even suggest that ‘the EU competence system is one that facilitates the development of further material cooperation when there is sufficient political will’.  The lack of scrutiny on this  prominent political will could be said to have been a contributory factor in the confusion surrounding the Community’s competence as has been witnessed in numerous occasions where the states, often being the same political actors have subsequently agreed to ‘adopt action at EU level in the zones they have chosen expressly to exclude’.   In other words, ‘competence expansion truly resides in the collection of sufficient political will’and ‘where there is a sufficient political will, there is a (legal) way’.

Subsidiarity as a restriction on the ancillary powers

The Community Article 5 EC states that

‘in areas which do not fall within its exclusive competence, the community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community’.

 The Subsidiarity principle generally ‘acts as a principle of political restraint in the EU in that it requires that proposed actions falling under the sphere of shared powers must be those which cannot be achieved by member states alone, or can be better achieved by the Community’.      Technically, it founds a competence on the lower level of government’ for the achievement of objectives which member states cannot ultimately achieve.   It’s intention is to regulate the lawfulness of the exercise of community competence but its interpretation has caused problems.  The term was introduced in the European Parliament’s Draft Treaty on European Union in 1984 and had also become familiar in the context of the 1989 Social charter.  Art 5 EC repeats more generally what had been stated with regard to environmental competence by art 130r(4) EEC (repealed at Maastricht).   Theodor Schilling questions the actual ability of this provision to act as a competent restrictive measure.  He believes that ‘the subsidiarity principle as laid down in article 5 must be considered, in spite of its name, as a rule’ that is not very well-defined or clear cut.  John Usher echoes this view by stating that the rule ‘was not a straightforward rule which a national court, or even the European Court, could apply directly, but essentially a question of policy for the Council’.  This prompts the question of its actual value in  relation to the system.

Reform?

Various suggestions for reform have been put forward and as previously mentioned the question has been expressly put on the post-Nice and post-Laeken agenda.  The German Lander in particular has expressed the greatest desire for a clearer delimitation of powers and has put forward the suggestion of a Kompetenzkatalog which would categorise the community’s competence.  This although seeming to be ‘a perfectly understandable and reasonable endeavour’, has not been widely supported.  This formal approach of delimiting power although perfectly reasonable could not accommodate the complexity of the delimitation issues.  A vertical redistribution of competencies such as the Kompetenzkatalog that ultimately fixes the areas in which the EU may (or may not legislate) ignore both the dynamics of the European integration process and the horizontal distribution of competencies in European decision-making.  Furthermore, such a system could only command support ‘within a federal system in which there is an overall sense of constitutional unity and mutual trust between the various parts which would make the legal solution a plausible one’.  As it stands ‘public opinion has...gradually come to perceive the competence system as expanding in an unconditional and almost unstoppable fashion’ which has created a certain degree of insecurity amongst many in the European citizens.  The sense of unity and identity is much more contingent and less stable than within a settled federal state polity.  The formalisation of the competence agenda may not be an entirely desirable way of restructuring the system but as Yiannos Tolias puts forward, it could actually  be advantageous to adapt this idea where the Treaty would be drafted as a ‘Constitutional Treaty which should be short, comprehensible and clear, including a more precise clarification of the division of competence between the Community, the Member States and their subdivisions’ with ‘a mechanism which provides a controlled form of flexibility’

In their paper on the problems that were outlined in the Post-Nice agenda, T. Borzel and T. Risse  believe that clarification of the ‘vertical division of powers between the EU and the member states’ is required in order for the member states to be able to ‘define core areas of exclusive national competencies’. They suggest that particular emphasis should be placed on ‘how the EU and the member states should exercise their shared competencies’ rather than whether and what should be legislated for.  In discussion they believe that the legislative activities of the two levels should be guided by two principles and state that ‘while European action should preserve the autonomy of the member states, national measures must be Community friendly in the sense of the already existing “duty of sincere cooperation”.  Although many different proposals have been put forward there is an overwhelming support for clarification of ‘what currently exists rather than redrawing the boundaries’.  The approach that seemed to be adopted in the Laeken Declaration was the desire for ‘greater precision and greater clarification in the division of powers (which necessarily entails some degree of change), rather than in favour of making very substantial amendments to the existing policy competences of the EC and EU’.  

Conclusion

From this discussion it is evident that a conflict exists ‘between on the one hand the need for a uniform and dynamic evolutionary Community and on the other, the need for certainty and protection of national constitutional guarantees within the Members states’.  Although the ECJ as exemplified in the Tobacco Directive case ‘does sanction unduly extensive interpretations of the powers of the Union upheld by the Union’s political institutions’ it may be that its role is of only a limited effect in relation to the clarification of the Community’s spiralling competence problem.  The ‘system is complex and peculiar in many respects’ so judicial intervention cannot be expected to make an overly radical difference.  Alan Dashwood believes ‘it is neither wise nor right to treat the Community like a tender plant that must be left alone in the dark to achieve its natural growth’ but on the other hand it is unadvisable to move the Community forward in a manner that is inconsistent with the original aims of the European Union.  It is axiomatic that the clearer delimitation of the Community powers is achieved but  I believe that this can only be possible by the clarification and elaboration of present legislative material rather than the radical movement towards formalisation.

 

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