EU Articles:
Article 5 – establishes principle of conferral. EU only has legislative competence if the treaty
provision allows it to in that area
Article 4 – competencies that do not fall within the treaty and do not confer power onto the
EU, the power will lie with the MS
EU competencies are either; exclusive OR shared
Exclusive competence – Article 3 TFEU
Shared Competence - Article 4 TFEU
E.g., of this division in practise Commission v UK (dipped headlights)
Article 352 TFEU – flexibility clause
Where the Union have no legal basis in the treaty to base their actions on, they will need to
get unanimity from the Commission and consent from the EP to act. But it must be within
their competence to act
The consent of EP is needed as an additional safeguard
When there is no legal basis and they seek Council and EP approval, the Court must check
whether it is necessary to attain one of the objects in the treaties (Kadi)
Limits to this article = Declaration 42 attached to Treaty of Lisbon states that article 352
cannot be used to widen Union’s own powers because this would amend the treaties
Article 114 TFEU – harmonisation clause.
Refers to Article 26 TFEU – gives powers to EP and Council to adopt measures to harmonise
internal market
Principle of Subsidiarity
Article 3 – Union will only act when the objective and aim cannot be sufficiently achieved by
the MS
Concerns when the Union should use its competencies in areas of shared competence
CoJ does not place heavy hand in seeking MS to be responsible for legislative acts – they are
organs of the Union = UK v Council (event the Union whilst harmonising measures should
take minimum acts necessary)
They have been criticised for accepting justification for union acting maybe too much during
harmonisation. Article 5 of the Protocol – requires stringent test of the quality of the
justification.
Principle of Proportionality
Article 4 – content and form of union’s actions should not exceed what is necessary to
achieve objectives of Treaties
Outline in Slovakia & Hungary v Council of the EU
,3 part test in Fedesa
Assuming the Union can act in this area, what should the extent of that intervention be?
Article 28 TFEU – Union will have a customs union which shall involve the prohibition
between Member States of customs duties on imports and exports and of all
charges having equivalent effect, and the adoption of a common customs tariff in
their relations with third countries.
The customs union will cover “all trade in goods”
Article 29 TFEU – the customs union applies to both products from MS within EU and those
from third countries
Article 34 – quantitative restrictions on imports and all measures having equivalent effect
shall be prohibited between MS.
Importance of this article stated by Weatherill
Article 35 – restrictions by MS on their exports (fewer disputes about this)
Article 36 – exhaustive list of permitted exceptions that a MS can argue with
FREEDOM OF GOODS
Article 34 – quantitative restrictions on imports and all measures having equivalent effect
shall be prohibited between MS.
Importance of this article stated by Weatherill
Article 35 – restrictions by MS on their exports (fewer disputes about this)
Article 36 – exhaustive list of permitted exceptions that a MS can argue with
STEPS
What kind of measure is it?
Fiscal restrictions – article 30 TFEU and article 110 TFEU
Article 30 TFEU – custom duties of imports and exports
, Article 110 TFEU – internal taxation inside the country once product crossed border
Para 1 – discriminatory internal taxation on similar products
Para 2 – Indirectly protecting certain products over others but discriminiating products that
are in competition with one another.
CJEU developed struct effects based test – where there are no permitted exceptions if there
are fiscal restrictions.
IF NOT A FISCAL RESTRICTION:
Might come under Article 34 or 35
Qu 1
Is the restriction a measure within the scope of article 34-35? So is the free movement of
goods at stake
Define Goods
Does the measure effect the import or export?
Qu 2
Is the measure a quantitative restriction?
Defined in Geddo – measures amounting to total or partial restraint of movement
Qu 3
OR is the measure an measure having equivalent effect to a quantitative restriction?
Dassonville gives this test – if it has a restrictive impact to the trade between MS
This has broad application
It can either be distinctly applicable (unequal burden) OR indistinctly applicable (dual
burden rule)
Qu 4
Ask whether the measure is a selling arrangement under KECK
Qu 5
Can it be justified by the MS?
Treaty based justifications – article 36; include public morality, policy, security, protection of
health and life of animals, humans and plants, national treasures, industrial or commercial
value
OR court developed – because public interest overrides them
Which must be proportionate and necessary
They do not have a closed list
Article 5 – establishes principle of conferral. EU only has legislative competence if the treaty
provision allows it to in that area
Article 4 – competencies that do not fall within the treaty and do not confer power onto the
EU, the power will lie with the MS
EU competencies are either; exclusive OR shared
Exclusive competence – Article 3 TFEU
Shared Competence - Article 4 TFEU
E.g., of this division in practise Commission v UK (dipped headlights)
Article 352 TFEU – flexibility clause
Where the Union have no legal basis in the treaty to base their actions on, they will need to
get unanimity from the Commission and consent from the EP to act. But it must be within
their competence to act
The consent of EP is needed as an additional safeguard
When there is no legal basis and they seek Council and EP approval, the Court must check
whether it is necessary to attain one of the objects in the treaties (Kadi)
Limits to this article = Declaration 42 attached to Treaty of Lisbon states that article 352
cannot be used to widen Union’s own powers because this would amend the treaties
Article 114 TFEU – harmonisation clause.
Refers to Article 26 TFEU – gives powers to EP and Council to adopt measures to harmonise
internal market
Principle of Subsidiarity
Article 3 – Union will only act when the objective and aim cannot be sufficiently achieved by
the MS
Concerns when the Union should use its competencies in areas of shared competence
CoJ does not place heavy hand in seeking MS to be responsible for legislative acts – they are
organs of the Union = UK v Council (event the Union whilst harmonising measures should
take minimum acts necessary)
They have been criticised for accepting justification for union acting maybe too much during
harmonisation. Article 5 of the Protocol – requires stringent test of the quality of the
justification.
Principle of Proportionality
Article 4 – content and form of union’s actions should not exceed what is necessary to
achieve objectives of Treaties
Outline in Slovakia & Hungary v Council of the EU
,3 part test in Fedesa
Assuming the Union can act in this area, what should the extent of that intervention be?
Article 28 TFEU – Union will have a customs union which shall involve the prohibition
between Member States of customs duties on imports and exports and of all
charges having equivalent effect, and the adoption of a common customs tariff in
their relations with third countries.
The customs union will cover “all trade in goods”
Article 29 TFEU – the customs union applies to both products from MS within EU and those
from third countries
Article 34 – quantitative restrictions on imports and all measures having equivalent effect
shall be prohibited between MS.
Importance of this article stated by Weatherill
Article 35 – restrictions by MS on their exports (fewer disputes about this)
Article 36 – exhaustive list of permitted exceptions that a MS can argue with
FREEDOM OF GOODS
Article 34 – quantitative restrictions on imports and all measures having equivalent effect
shall be prohibited between MS.
Importance of this article stated by Weatherill
Article 35 – restrictions by MS on their exports (fewer disputes about this)
Article 36 – exhaustive list of permitted exceptions that a MS can argue with
STEPS
What kind of measure is it?
Fiscal restrictions – article 30 TFEU and article 110 TFEU
Article 30 TFEU – custom duties of imports and exports
, Article 110 TFEU – internal taxation inside the country once product crossed border
Para 1 – discriminatory internal taxation on similar products
Para 2 – Indirectly protecting certain products over others but discriminiating products that
are in competition with one another.
CJEU developed struct effects based test – where there are no permitted exceptions if there
are fiscal restrictions.
IF NOT A FISCAL RESTRICTION:
Might come under Article 34 or 35
Qu 1
Is the restriction a measure within the scope of article 34-35? So is the free movement of
goods at stake
Define Goods
Does the measure effect the import or export?
Qu 2
Is the measure a quantitative restriction?
Defined in Geddo – measures amounting to total or partial restraint of movement
Qu 3
OR is the measure an measure having equivalent effect to a quantitative restriction?
Dassonville gives this test – if it has a restrictive impact to the trade between MS
This has broad application
It can either be distinctly applicable (unequal burden) OR indistinctly applicable (dual
burden rule)
Qu 4
Ask whether the measure is a selling arrangement under KECK
Qu 5
Can it be justified by the MS?
Treaty based justifications – article 36; include public morality, policy, security, protection of
health and life of animals, humans and plants, national treasures, industrial or commercial
value
OR court developed – because public interest overrides them
Which must be proportionate and necessary
They do not have a closed list
