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Conflicts of Competence Norms in EU Law and the Legal Reasoning of the ECJ

Published online by Cambridge University Press:  06 March 2019

Gerard Conway

Abstract

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Defining competences in EU law has always been problematic, notwithstanding the inclusion since the Treaty of Maastrict of the principle of conferred powers as central to the constitutional character of the EU. Under the principle of conferral, the Union only has those powers actually conferred by the Treaties. However, the concepts of a common market or of ‘ever-closer Union’ have a conceptual scope that potentially, in effect, negates the principle of conferral. This article argues that the framework of norm conflict offers conceptual insight into the dynamics of determining and limiting EU competence. In particular, it draws on the distinction between lex specialis and lex generalis to understand different ways of treating competence norms in legal reasoning. Following a discussion of the concept of competence norms, this conceptual framework is applied to two case studies: (1) on the right to strike and (2) the general law of external relations.

Type
Articles
Information
German Law Journal , Volume 11 , Issue 9 , September 2010 , pp. 966 - 1005
Copyright
Copyright © 2010 by German Law Journal GbR 

References

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112 Article 5(3) EU Treaty:Google Scholar

** “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act 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 regional level or local level, but can rather by reason of the scale or effects of the proposed action, be better achieved at Union level”.Google Scholar

** Article 5(3) TEU also refers to Protocol on the Application of the Principles of Subsidiarity and Proportionality. An equivalent clause was included in the Single European Act 1986, inserting Article 130r(4) EEC Treaty, specifically for environmental matters. See Schütze, supra note 4, 248.Google Scholar

113 See Obradovic, supra note 7, 77–78. A very large body of literature has developed on subsidiarity and the following list refers to the more frequently cited and/or more recent contributions: Theodore Schilling, Subsidiarity as a Rule and a Principle, or: Taking Subsidiarity Seriously, New York University Jean Monnet Working Paper No. 10/1995 (1995); Gráinne de Búrca, The Principle of Subsidiarity and the Court of Justice as an Institutional Actor, 36(2) Journal of Criminal Market Studies 217 (1998); Andreas F⊘llesdal, Subsidiarity and Democratic Deliberation, ARENA Working Papers No. 21/99 (1999); Antonio Estella, The EU Principle of Subsidiarity and ITS Critique (2002); Nick Barber, The Limited Modesty of Subsidiarity, 11(3) ELJ 308 (2005); Matthias Kumm, Constitutionalising Subsidiarity in Integrated Markets: the Case of Tobacco Regulation in the European Union, 12(4) ELJ 503 (2006); Davies, supra note 37; Ester Herlin-Karnell, Subsidiarity in the Area of EU Justice and Home Affairs Law – A Lost Cause?, 15(3) ELJ 351 (2009). See further references in Schütze (2009), 244, n. 7.Google Scholar

114 Case C-233/94, Germany v. European Parliament and Council, 1997 E.C.R. I-2405, paras 26–28.Google Scholar

115 Case C-103/01, Commission v. Germany, 2003 E.C.R. I-5369, paras. 46–47. Similarly, see Case C-491/01, R v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd., 2002 E.C.R. 1–11453, paras. 177–185; Case C-154/04, The Queen, on the application of Alliance for Natural Health and Nutri-Link Ltd. v. Secretary of State for Health, 2005 E.C.R. I-6451, paras. 106–108.Google Scholar

116 As noted by, e.g. Soriano, supra note 12, 331; Schütze, supra note 4, 254, describing this line of reasoning by the ECJ as an ‘ontological tautology'. This general point was made by the ECJ itself in Tobacco Advertising in relation to the scope of Community competition law, where it observed that if any potential impact on competition was enough to bring a matter within the competence of the Community, its “legislative competence would be practically unlimited”: Case 376/98, Germany v. Parliament, supra note 26, paras. 106–107. Following Case C-300/89 Commission v. Council Titanium Dioxide, 1991 E.C.R. I-2867, para. 23, the ECJ said such an impact must be ‘appreciable': Case 376/98, Germany v. Parliament, id., para. 106. The decision in Kadi seems open to the criticism of not articulating how the appreciable impact standard applied to the inclusion of sanctions against individuals under the First Pillar as an internal market issue: see, Joined Cases C-402/05 P and C-415/05 P, Kadi, supra note 32, paras. 228–231.Google Scholar

117 Estella, supra note 113, 114–115.Google Scholar

118 See, e.g. Craig, supra note 37, 426–427.Google Scholar

119 Kumm, supra note 113. See also Davies, supra note 37, 76–77, noting that the Commission's application of subsidiarity does not give any explicit consideration to national autonomy.Google Scholar

120 Kumm, supra note 113, 524.Google Scholar

121 Id., 520.Google Scholar

122 See generally, recently, e.g. Anthony Giddens, Patrick Diamond & Roger Liddle, Global Europe Social Europe (2006); Brian Bercusson, European Labour Law (2nd ed. 2009), 5–12; Christian Joerges & Florian Rödl, Informal Politics, Formalised Law and the ‘Social Deficit’ of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval, 15(1) ELJ 1–2 (2009), describing ‘Social Europe’ as “the ensemble of European social and labour law and policy and social rights…. A wide and opaque field…”.Google Scholar

123 See Case 80/70, Defrenne v. Belgian State ('Defrenne I'), 1971 E.C.R. 1-445; Case 43/75, Defrenne v. SABENA (‘Defrenne II'), 1976 E.C.R. 455; Case 149/77, Defrenne v. SABENA, 1978 E.C.R. 1365 ('Defrenne III') interpreting Article 119EEC Treaty (now Article 157 TFEU).Google Scholar

124 Case C-438/05, The International Transport Workers’ Federation and The Finnish Seamen's Union v. Viking Line ABP and Oil Viking Line Eesti, 2007 E.C.R. I-10779. The facts concerned collective action taken by a Finnish trade union and by the International transport Workers’ Federation against a Finnish ferry operator, which reflagged a vessel from Finland to Estonia in order to reduce labour costs. The ECJ held that whether such a restriction on the freedom to provide services could be justified in the circumstances was matter for the national court (id., para. 81 onwards) according to the test established in previous caselaw for such restrictions (id., para. 75).Google Scholar

125 Case C-341/05, Laval un Partneri Ltd. v. Svenska Byggnadsarbetareföbundet, 2007 E.C.R. I-11767. The facts concerned collective action taken by a Swedish trade union against a Latvian company, which had a Swedish subsidiary to which workers were posted to provide a building service in Sweden, in an attempt by the trade union to enforce the provision of a Swedish collective agreement concerning minimum pay. For academic discussion of Viking and Laval, see, e.g. Anne C.L. Davies, One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ, 37(2) Industrial Law Journal 126 (2008); Alicia Hinarejos, Laval and Viking: The Right to Collective Action versus EU Fundamental Freedoms, 8(4) Human Rights Law Review 714 (2008); Norbert Reich, Free Movement v. Social Rights in an Enlarged Union – The Laval and Viking Case before the ECJ, 9(2) GLJ 125–161 (2008); Rebecca Zahn, The Viking and Laval Cases in the Context of European Enlargement, 3 Web Journal of Current Legal Issues (2008); and from a constitutional perspective, Joerges & Rödl, supra note 122.Google Scholar

126 The scope of free movement has also recently become a point of contention in the context of the rights of spouses of EU citizens from third countries: see, e.g. Steve Peers, Free Movement, Immigration Control and Constitutional Conflict, 5(2) European Constitutional Law Review 173 (2009).Google Scholar

127 Case C-438/05, Viking, supra note 124, paras. 39–40. See also the Opinion of Advocate General Maduro in Viking, at paras. 23–28; Case C-341/05, Laval, supra note 125, paras. 87–88.Google Scholar

128 Case 376/98, Germany v. Parliament, supra note 26, paras. 106–107. See, e.g. Dougan, supra note 7, 654, referring to the ‘new judicial wind’ on competence issues in light of Tobacco Advertising. Google Scholar

129 Case C-376/98, Germany v. Parliament and Council, supra note 26, para. 66.Google Scholar

130 Criticising the vagueness of the ECJ criteria in Laval and Viking, see Zahn, supra note 124.Google Scholar

131 Case C-341/05, Laval, supra note 125, para. 70.Google Scholar

132 Case C-341/05, Laval, id, the EG held that free movement principles might legitimately be restricted by the fundamental right to strike (para. 57), but that “… however, as regards the specific obligations, linked to signature of the collective agreement for the building sector, which the trade unions seek to impose on undertakings established in other Member States by way of collective action such as that at issue in the case in the main proceedings, the obstacle which that collective actions forms cannot be justified with regard to such an objective” (para 108). When such an objective could have justifying force is unclear. Compared to Viking, the ECJ decision in Laval seems to leave national courts with less autonomy or discretion in balancing the free movement principle with legitimate exceptions (e.g. compare para. 65 in Viking). Google Scholar

133 Case C-67/96, Albany, 1999 E.C.R. I-5751, paras. 59–64. The facts concerned a collective agreement between organisations representing employers and workers setting up a sectoral pension fund to which affiliation was made compulsory.Google Scholar

134 See para. 27 of the Opinion of Advocate General Maduro.Google Scholar

135 For a broad view as to the scope of Article 81 EC Treaty, suggesting that factors other than purely economic in the narrow sense should be considered relevant, see Whish, Richard, Competition Law (5th ed. 2003), 152–155.Google Scholar

136 See, e. g. Joerges & Rödl, supra note 122, 17–18, criticising the decision on this ground and noting that Advocate General Mengozzi negated too the effects of Article 137(5) ECT.Google Scholar

137 Joerges & Rödl, supra note 122, 18.Google Scholar

138 Currently, Article 153(5) TFEU (ex Article 137(5) ECT) states that “The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.”Google Scholar

139 Joerges & Rödl, supra note 122, 15, and referring to “European usurpation of Member States’ labour constitutions”.Google Scholar

140 Another significant effect of Laval and Viking was to extend horizontal direct effect to trade unions: see ibid, 13–15; Hinarejos, supra note 125, 722.Google Scholar

141 This section is concerned with external relations arising from what was previously the Community Pillar, rather than with the CFSP. For recent discussion of the boundary line between the CFSP and general external relations pursuant to the common market, see e.g. Eisenhut, supra note 42; Herlin-Karnell, supra note 113.Google Scholar

142 Case 22/70, ERTA, supra note 33, paras. 17–19, 28–31. The Court also held in ERTA that the implied external competence entailed by the doctrine of parallelism could arise where the Community had not yet exercised any internal competence if Member State action could place in jeopardy or undermine the Community objective sought to be attained, although it seemed to place more weight on the latter requirement in Opinion 1/94 Re WTO Agreement, 1994 E.C.R. I 5267.Google Scholar

143 Case 22/70, ERTA, supra note 33, paras. 12,17.Google Scholar

144 Id., para. 11.Google Scholar

145 See, e.g. the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Stanislav Galic, IT-98-29-T, Trial Chamber I, 5th December 2003, para. 91. See also Brunno Simma & Dirk Pulkowski, Of Planets and the Universe: Self-contained Regimes in International Law, 17(3) European Journal of International Law 483, 505, 507 (2006).Google Scholar

146 Mitchelde S.-O.-L'E. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy 103–115 (2004).Google Scholar

147 See, e.g. Dashwood, supra note 42, 357.Google Scholar

148 See generally Bruno de Witte, Rules of Change in International Law: How Special is the European Community?, 25 Netherlands Yearbook of International Law 299 (1994).Google Scholar

149 Cases 3, 4 & 6/76, Kramer, 1976 E.C.R. 1279.Google Scholar

150 Opinion 1/76Re Draft Agreement Establishing a Laying-up Fund for Inland Waterway Vessels, 1977 E.C.R. 741.Google Scholar

151 Opinion 1/94 Re WTO Agreement, supra note 142, at paras. 85–86.Google Scholar

152 Opinion 2/91 Re Convention No. 170 International Labour Organisation on Safety in the Use of Chemicals at Work, 1993 E.C.R. I-1061, para. 25.Google Scholar

153 See, e.g. Craig, supra note 37, 412.Google Scholar

154 Case C-467/98, Commission v. Germany, 2002 E.C.R. I-9855. See Craig, supra note 37, 414–415.Google Scholar

155 Opinion 1/91 Re European Economic Area Agreement I, 1991 E.C.R. 6079.Google Scholar

156 Id., at 6081–6082.Google Scholar

157 Jo Shaw, European Union Legal Studies in Crisis? Towards a New Dynamic, 16(2) OJLS 231, 239 (1996).Google Scholar

158 Valentin Constantinesco, The ECJ as Law-maker: Praeter aut Contra Legem?, in Judicial Review in European Law: Essays in Honour of Lord Slynn, 79 (David O'Keeffe & Antonio Bavasso eds., 2001).Google Scholar

159 See generally Karen Alter, Who are “Masters of the Treaties”? European Governments and the European Court of Justice, 52(1) International Oraganization 121 (1998).Google Scholar

160 Opinion 1/03 Re Lugano Convention, 2006 E.C.R. I–1145, paras. 124–126.Google Scholar

161 1950, ETS no. 05.Google Scholar

162 Opinion 2/94, supra note 15, para. 30.Google Scholar

163 Schütze, supra note 4, 142.Google Scholar

164 Stephen Weatherill, Activism and Restraint in the European Court of Justice, in Asserting Jurisdiction: International and European Legal Perspectives, 255, 271 (Patrick Capps, Malcolm Evans & Stratos Konstadinidis eds., 2003).Google Scholar

165 Craig, supra note 37, 408. The question has been superseded by Treaty amendment, with Article 6(2) TEU (post-Lisbon) providing for EU accession to the ECHR.Google Scholar

166 Opinion 1/94 Re WTO Agreement, supra note 142.Google Scholar

167 Id., para. 46.Google Scholar

168 Schütze, supra note 4, 172.Google Scholar

169 2001 E.C.R. I–9713. On the facts, the EG in effect applied lex specialis, holding that the environmental provisions of the EC Treaty related to the primary purpose of the international treaty in dispute and thus (ex) Article 175 ECT was the correct legal basis.Google Scholar

170 Id., para. 23.Google Scholar

171 Case C-459/03, European Commission v. Ireland (‘MOX Plant'), 2006 E.C.R. 1–4635. For discussion, see Cardwell, Paul James, Who Decides? The ECJ Judgment on Jurisdiction in the MOX Plant Dispute, 19(1) Journal of Environmental Law 121 (2006); Nicholas Lavranos, The MOX Plant and IJzeren Rijn Disputes: Which Court Is the Supreme Arbiter?, 19(1) Leiden Journal of International Law 223 (2006); Cesare PR. Romano, ‘(Case Note) Case C-459/03, Commission of the European Communities v. Ireland', 101(1) American Journal of International Law 171 (2007).Google Scholar

172 December 1982, 1833 UNTS 396.Google Scholar

173 Case C-459/03, MOXPIant, supra note 171, para. 154.Google Scholar

174 See id., para. 130.Google Scholar

175 In response to Ireland's argument that recourse to UNCLOS could be construed as a method of settlement within the scope of Article 292, the EG simply observed “an international agreement such as the Convention cannot affect the exclusive jurisdiction of the Court”: id., para. 132.Google Scholar

176 See Soriano, supra note 12, 331, noting with reference to the overall approach of the ECJ to competence (in its interpretation of Articles 95 and 308 ECT and of the subsidiarity principle), “The consequences for member states’ defence of their political interest could not be more negative…”.Google Scholar

177 The ECJ simply declared the risk to the Community order to be ‘manifest’ even though Ireland had offered an assurance that it would not seek to litigate any provisions of Community law in an arbitral tribunal: Case C-459/03, MOX Plant, supra note 171, para. 154–156. On the latter point, the Advocate General offered somewhat more explicit reasoning, suggesting the fact that provisions of Community law coincided with international rules that Ireland had asked to be adjudicated by a tribunal was enough to breach Article 292 ECT: see Opinion of Advocate General Maduro, 18th January 2006, para. 51. This line of reasoning, however, has potentially very extensive implications on a broad reading: any rule of international law that coincides with EU law cannot be litigated by a Member State before an international court or tribunal.Google Scholar

178 Opinion 1/03Re Lugano Convention, supra note 157.Google Scholar

179 Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1988, 28 ILM 620 (1989).Google Scholar

180 Opinion 1/03, supra note 157, paras. 150–173.Google Scholar

181 Thalia Kruger, Opinion 1/03, Competence of the Community to conclude the new Lugano Convention on the Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 12 Columbia Journal of European Law 189, 198–199 (2006–2007).Google Scholar

182 Obradovic, supra note 7, 84–85; Soriano, supra note 12, 333.Google Scholar

183 On the application of Article 308 ECT in this more specific sense, see Schütze, supra note 4, 136–137.Google Scholar

184 Dashwood (2004), supra note 42, 380.Google Scholar