The subject of this essay is the implementation of the subsidiarity-principle in the EC's legal order. While EC-laws have supremacy over national laws and become a part of the national legal order, self-standing national laws are applicable where the EC has no legislative competence. In this aspect, the EC’s system is comparable to e.g. the German federal system. The essay shows that the EC’s legislative system balances the powers of the supranational and the national level by certain legal instruments: The principle of “limited empowerment”, the distinction between exclusive and competitive competences and the necessity of a “legal basis” for every supranational legislative act. As their justiciability is essential for the lower levels’ protection from power centralisation the Member States can litigate at the European Court of Justice against “lack of competence” when the EC meddles in affairs for which it is not empowered. The theoretical implementation as well as the – sometimes unsatisfying – practical application of these instruments is illustrated on the examples of two EC-directives on the ban of tobacco advertisements and the German litigation against them for “lack of competence”.
Table of Contents
1. Introduction
1.1. The subject
1.2. Methodology
2. Subsidiarity – how to put a principle into legislative practice
2.1. The German Model
2.2. Subsidiarity in the semi-federal system of the European Community
3. A fight for subsidiarity – the challenge of the ban on tobacco advertisement’s legal basis
3.1. The first directive
3.2. The Second Directive
3.3. What about subsidiarity now?
4. Conclusion
Objectives and Core Topics
This essay explores the implementation and practical application of the subsidiarity principle within the legal order of the European Communities (EC), contrasting it with the German federal system. The central research objective is to examine how legal instruments—specifically the principle of limited empowerment, the distinction between competences, and the requirement of a legal basis—serve to protect lower levels of governance from centralized power, using the litigation surrounding tobacco advertisement bans as a key case study.
- The conceptual framework of subsidiarity in semi-federal systems.
- The German federal model as a comparative legal benchmark.
- The use of "legal basis" as a mechanism for judicial review of EC legislation.
- Case studies of the First and Second Tobacco Advertisement Directives.
- The evolution of the ECJ’s interpretation regarding internal market harmonization versus public health protection.
Excerpt from the Book
1.1. The subject
The subject of this essay is the implementation of the subsidiarity-principle in the European Communities’ (EC) legal order. While EC’s laws have supremacy over national laws and become a part of the national legal order, self-standing national laws are applicable where the EC has no legislative competence. In this aspect, the EC’s system is comparable to e.g. the German federal system. The essay will show that the EC’s legislative system balances the powers of the supranational and the national level by certain legal instruments: The principle of “limited empowerment”, the distinction between exclusive and competitive competences and the necessity of a “legal basis” for every supranational legislative act. As their justiciability is essential for the lower levels’ protection from power centralisation (Callies, Christian, 2004 p. 5) the MS can litigate at the European Court of Justice (ECJ) “lack of competence” when the EC meddles in affairs for which it is not empowered. The theoretical implementation as well as the – sometimes unsatisfying – practical application of these instruments is illustrated on the examples of two EC-directives on the ban of tobacco advertisements and the German litigation against them for “lack of competence”.
Summary of Chapters
1. Introduction: Outlines the research focus on the subsidiarity principle within the EC legal order and defines the methodology based on comparative federalism.
2. Subsidiarity – how to put a principle into legislative practice: Analyzes the German federal model and discusses the development of the EC's semi-federal structure, highlighting key legal instruments for balancing power.
3. A fight for subsidiarity – the challenge of the ban on tobacco advertisement’s legal basis: Examines the legal disputes regarding the First and Second Tobacco Advertisement Directives, focusing on the tension between market harmonization and member state competence.
4. Conclusion: Summarizes the effectiveness of legal technicalities in practice and reflects on the potential role of national parliaments as "knights of subsidiarity" in future treaties.
Keywords
Subsidiarity, European Community, German Basic Law, Legislative Competence, Legal Basis, European Court of Justice, Tobacco Advertisement Directive, Limited Empowerment, Proportionality, Single Market, Harmonization, Semi-federalism, Judicial Review, European Law, Competence Litigation.
Frequently Asked Questions
What is the primary focus of this academic work?
This work examines the implementation of the subsidiarity principle within the European Union's legal framework, focusing on how power is balanced between supranational and national levels.
Which thematic fields are addressed in this analysis?
The core themes include comparative constitutional law, the mechanism of legislative competences, judicial control by the European Court of Justice, and the politics of European integration.
What is the central research question?
The research asks how effectively the instruments of subsidiarity—such as limited empowerment and the requirement of a legal basis—protect Member States from unauthorized expansion of EC legislative power.
Which scientific methodology is applied?
The study employs a comparative legal analysis, contrasting the German federal model with the EC's "semi-federal" system and evaluating this through specific case law.
What key aspects are covered in the main section?
The main section details the legal instruments of subsidiarity and provides a thorough legal study of the tobacco advertisement bans and the subsequent litigation at the European Court of Justice.
How would you describe the key terminology?
The work is characterized by terms related to European institutional law, federalism, and the legal constraints placed on EU legislative acts.
How does the "German Model" influence the argument?
The German model serves as a benchmark for a functioning federal system where specific legal instruments guarantee the autonomy of lower political levels against the central authority.
What did the European Court of Justice decide regarding the First Tobacco Directive?
The Court annulled the directive, ruling that it lacked an appropriate legal basis as the primary "centre of gravity" was public health rather than the promotion of the internal market.
Why was the outcome of the litigation regarding the Second Directive considered a defeat for Germany?
Although the Court maintained some legal consistency, it allowed the Second Directive to stand, effectively permitting the EC to trespass on the national domain of public health under the guise of market promotion.
What role might national parliaments play in the future?
The author suggests that national parliaments may take on a "knight of subsidiarity" role by scrutinizing draft EU legislation to prevent future overreach of EC competence.
- Quote paper
- Andrea Daniel (Author), 2009, Subsidiarity in the European Community's legal order, Munich, GRIN Verlag, https://www.grin.com/document/131594
