Diplomacy by other means: The use of legal basis litigation as a political strategy by the European Parliament and member states

Common Market Law Review

Volumn 36, Issue 6, 1999, Pages 1243-1270

  Cullen, Holly ^a   Charlesworth, Andrew ^b  

^a DURHAM UNIVERSITY   (United Kingdom)

^b UNIVERSITY OF HULL   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0033262991     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1018797131303     Document Type: Article

References (136)

1. See e.g. Olsen, "Employment Discrimination in the New Europe: A Litigation Project for Women" (1993) 20 JLS 131.
2. Canada has probably been one of the most notable examples of this phenomenon. Examples include Attorney-General of Canada v. Attorney-General of Ontario, [1937] AC 700 (Privy Council) and Caloil v. Attorney-General of Canada [1971] S.C.R. 543 (Supreme Court of Canada).
3. Weiler, "The Transformation of Europe", 100 Yale L.J. (1990) 2403-2483.
4. However, the decision in Case 45/86, Commission v. Council, [1987] ECR 1493 paras. 5-9 suggests that the legal basis need not be expressly identified, if clearly discernible from other parts of the measure. See Bradley, "The European Court and the Legal Basis of Community Legislation" 13 EL Rev. (1988), 379 at 380.
5. Art. 10 (ex 5) EC. See Bradley, ibid., at 379.
6. Art. 7(1) (ex 4(1)) EC.
7. See Joined Cases 188-190/80, France, Italy and United Kingdom v. Commission, [1982] ECR 2545 for judicial restatement of this point.
8. It may thus be viewed in the light of the general obligation under Art. 253 (ex 190) EC to state the reasons for the adoption of a particular measure.
9. Bradley, op. cit. note 4 at 379.
10. Case 45/86, Commission v. Council, [1987] ECR 1493; C-300/89, Commission v. Council, [1991] ECR I-2867, para 10.
11. Case 165/87, Commission v. Council, [1988] ECR 5545 at 5561.
12. Case C-300/89, Commission v. Council, [1991] ECR I-2867.
13. Barents, "The Internal Market Unlimited: Some Observations on the Legal Basis of Community Legislation", 30 CML Rev., 85 at 92. He accuses the Council in particular of political misuses of legal basis choices.
14. Ibid. at 102.
15. See Boyron, "The Co-decision Procedure: Rethinking the Constitutional Fundamentals" in Craig & Harlow, Lawmaking in the European Union (Kluwer, 1998) at p. 149.
16. Indeed, even where contested measures are annulled their effects are usually conserved for reasons of legal certainty.
17. See Bradley, op. cit. note 4 supra, at 388, and the discussion of Case 8/73, HZA Bremerhaven v. Massey Ferguson, [1973] ECR 897.
18. See Dashwood, "Community Legislative Procedures in the Era of the Treaty on European Union", 19 EL Rev. (1994), 343 at 344-345.
19. E.g. the Parliament's resolution (O.J. 1985, C 262/106) relating to Case 253/84, GAEC de la Segunde, [1987] 1 ECR 123; Bradley, op. cit. supra note 4 at 390.
20. E.g. Case 45/86, Commission v. Council, [1987] ECR 1493; Case 51/87, Commission v. Council, [1988] ECR 5459.
21. Case C-300/89, Commission v. Council, [1991] ECR I-2867, annotated by Somsen, 29 CML Rev., 140-51. The Commission, supported by Parliament, brought an action for annulment of Directive 89/428/EEC on the grounds that the Council had incorrectly adopted the measure as an environmental measure under Art. 175 (ex 130s) EC instead of as an internal market measure under Art. 95 (ex 100a) EC.
22. This is rejected by at least one commentator, see Barents, op. cit. note 13.
23. Op. cit., note 21 at para 20.
24. rd ed. (Sweet & Maxwell, 1993); Emiliou "Opening Pandora's Box: The Legal Basis of Community Measures before the Court of Justice", 19 EL Rev. (1994), 488; Somsen, supra note 21 at 140. For a dissenting opinion see Barents, op. cit. supra note 13.
25. rd ed. (Sweet & Maxwell, 1993); Emiliou "Opening Pandora's Box: The Legal Basis of Community Measures before the Court of Justice", 19 EL Rev. (1994), 488; Somsen, supra note 21 at 140. For a dissenting opinion see Barents, op. cit. supra note 13.
26. Barents, ibid. at 108.
27. Case 70/88, Parliament v. Council (Chernobyl case), [1990] ECR I-2041 (preliminary decision) & [1991] ECR I-4529 (main decision); Bebr, 28 CML Rev., 663-680.
28. Case C-155/91, Commission v. Council, [1993] ECR I-939; Wachsmann, 30 CML Rev., 1051-1065 and Case C-187/93, Parliament v. Council, [1994] ECR I-2857.
29. Case C-155/91, Commission v. Council, ibid., para 19; Case C-187/93, Parliament v. Council, ibid. para 25.
30. See Geradin "The Legal Basis of the Waste Directive", 18 EL Rev. (1993), 418 at 424.
31. Barents, op. cit.supra note 13 at 108.
32. See Case 45/86, Commission v. Council, cited note 20.
33. Case C-295/90, Parliament v. Council, [1992] ECR I-4193; O'Leary, 30 CML Rev., 639-651.
34. Case C-271/94, Parliament v. Council, [1996] ECR I-1689; Barents, 33 CML Rev., 1273-1277.
35. Case C-22/96, Parliament v. Council, [1998] ECR I-3231.
36. [1996] ECR I-1195; Cremona, 34 CML Rev., 389-399.
37. Council Decision 93/323/EEC of 10 May 1993 concerning the conclusion of an Agreement in the form of a Memorandum of Understanding between the European Economic Community and the United States of America on government procurement, O.J. 1993, L 125/1; and Council Decision 93/324/EEC of 10 May 1993 concerning the extension of the benefit of the provisions of Directive 90/531/EEC in respect of the United States of America, O.J. 1993, L 125/54.
38. Council Directive 90/531/EEC of 17 Sept. 1990, O.J. 1990, L 297/1.
39. Op. cit. at note 35, per A.G. Tesauro at para 10.
40. Ibid., per A.G. Tesauro at paras. 11-13
41. See Halford, "Public Procurement and Community External Relations", 21 EL Rev. (1996) 478, for further discussion of this point.
42. Which in Opinion 1/94, [1994] ECR I-5267, para 53, it had decided were the only services that fell within Art. 133 (ex 113) EC.
43. [1994] ECR I-625; Barents, 32 CML Rev., 249-255.
44. Financial Regulation 91/491/EEC of 29 July 1991, O.J. 1991, L 266/1.
45. Case C-316/91, op. cit., note 42 at para 8. See also Case 22/70, Commission v. Council, [1971] ECR 263, at para 42.
46. Case C-316/91, ibid. at para 9.
47. Case 138/79, Roquette Freres v. Council, [1980] ECR 3333, at para 33, and Case 139/79, Maizena v. Council, [1980] ECR 3393, at para 34.
48. Art. 127 of the Financial Regulation of the Council of 21 Dec. 1977 applicable to the general budget of the European Communities, O.J. 1977, L 356/1; updated text published in O.J. 1991, C 80/1.
49. Internal Agreement 91/401 on the financing and administration of Community aid under the Fourth ACP-EEC Convention.
50. [1997] ECR I-5303.
51. Council Decision No 95/184/EC of 22 May 1995 amending Decision No. 3092/94/EC introducing a Community system of information on home and leisure accidents, O.J. 1995, L 120/36.
52. Decision No. 3092/94/EC of the European Parliament and of the Council of 7 Dec. 1994, O.J. 1994, L 331/1.
53. Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, O.J. 1994, C 241/21.
54. The transitional period between signature of the Treaty of Accession and its entry into force.
55. Case C-259/95, op. cit., note 49 at para 22.
56. Ibid., at para 25.
57. Judgment of 23 Feb. 1999, nyr.
58. Council Decision 96/664/EC of 21 Nov. 1996 on the adoption of a multiannual programme to promote linguistic diversity of the Community in the information society, O.J. 1996, L 306/40.
59. O.J. 1996, C 364/11.
60. Ibid., at para 43.
61. Which if interpreted strictly, would mean that the Parliament had not established the necessary criteria for standing.
62. Op. cit., note 56 at para 26.
63. Ibid., at para 34.
64. Judgment of 25 Feb. 1999, nyr. This was a judgment of the Fifth Chamber, whereas the judgment in Case C-42/97 was a judgment of the Full Court.
65. Council Regulation of 17 Feb. 1997 amending Regulation (EEC) No. 3528/86 on the protection of the Community's forests against atmospheric pollution, O.J. 1997, L 51/9; Council Regulation of 17 Feb. 1997 amending Regulation (EEC) No. 2158/92 on protection of the Community's forests against fire, O.J. 1997, L 51/11. op. cit., note 63.
66. Ibid., at para 20.
67. Ibid., at para 12.
68. Ibid., at para 14.
69. Ibid., at para 21.
70. Ibid., at para 14.
71. Weiler, "The Transformation of Europe", op. cit. note 3.
72. McGlynn, in "An Exercise in Futility: The Practical Effects of the Social Policy Opt-out" (1998) 49 NILQ 60, discusses the ineffectiveness of the UK's opt-out from the development of social policy.
73. Weiler, "The Transformation of Europe", op. cit. note 3.
74. Opinion 2/94, Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I-1759
75. Opinion 2/94, ibid. at para 30.
76. It found that accession to the ECHR was of constitutional significance, and therefore could not be done on the basis of the Treaty as written: ibid. at paras. 34-35 of the Opinion.
77. Op. cit., supra note 17.
78. [1996] ECR I-5755, annotated by Ellis in 34 CML Rev., 1049-1060.
79. Directive 93/104/EC, O.J. 1993, L 307/20.
80. Fitzpatrick, "Straining the Definition of Health and Safety?" 26 ILJ (1997) 115, at 116-117.
81. Joined Cases C-157 & C-180/96, [1998] ECR I-2211
82. Case 68/86, UK v. Council (Re agricultural hormones), [1988] ECR 855; Case 131/86, UK v. Council, [1988] ECR 905.
83. Di Martino, "Megatrends in Working Time", 5 JESP (1995), 235.
84. Ibid.; see also Hydén, "Working Environment" in Bruun, Flodgren, Halvorsen, Hydén and Nielsen, The Nordic Labour Relations Model: Labour Law and Trade Unions in the Nordic Countries - Today and Tomorrow (Aldershot: Dartmouth, 1992) p. 132.
85. Ibid.; see also Hydén, "Working Environment" in Bruun, Flodgren, Halvorsen, Hydén and Nielsen, The Nordic Labour Relations Model: Labour Law and Trade Unions in the Nordic Countries - Today and Tomorrow (Aldershot: Dartmouth, 1992) p. 132.
86. The idea of the working environment represents a development of the law of occupational health and safety beyond physical hazards to include psycho-social conditions of the workplace, Hydén, ibid., at p. 133, and p. 139-140.
87. Ibid., at p. 134-136.
88. Furthermore, since Art. 138 (ex 118a) uses both "working environment" and "health and safety", the intent is ambiguous.
89. Ehlermann in "The Internal Market Following the Single European Act", 24 CML Rev., 361 at 302, has argued that the "working environment" and "health and safety" have the same meaning.
90. It relied on the wide definition of health set out in the constitution of the World Health Organization, a document to which all Member States were signatories, and to which the Commission had referred in its original proposal. Cf. para 15 of the judgment: "a state of complete physical, mental and social well-being that does not consist only in the absence of illness or infirmity".
91. However, it is also arguable that the Court's interpretation did some damage to the language of the Article, making the phrase "working environment" redundant.
92. [1996] ECR I-6177. Annotated by Peers in 34 CML Rev., 539-555.
93. Peers, op. cit., 539.
94. O.J. 1994, L 223/23.
95. Peers, op. cit. supra note 90.
96. Both the A.G. and the Court distinguished between treaties with substantive human rights obligations and treaties with human rights clauses which are ancillary or corollary to the main objectives of the Treaty. See paras. 14-29 of the decision, and per A.G. La Pergola paras. 22-29. Only if human rights had constituted a specific field of co-operation would another legal basis have been necessary.
97. Ibid., at paras. 23-26 of the decision.
98. Peers, op. cit. supra note 91, at 554.
99. [1997] ECR I-2405. Annotated by Roth in 35 CML Rev., 459-479.
100. O.J. 1994, L 135/5.
101. Barents, op. cit.supra note 13, at 101.
102. Ibid., at para 16 of the judgment.
103. requiring Member States to set up compulsory deposit-guarantee schemes so that the absence of depositor protection would no longer justify impeding the establishment of credit institutions established in other Member States. Cf. paras. 17-19 of the judgment.
104. A.G. Léger rejected the idea that the exception in Art. 95(2) (ex 100a(2)) EC could be treated as a principle from which Art. 138 (ex 118a) EC was a derogation. In his opinion, Art. 138 (ex 118a) EC had to be taken on its own, as part of the Chapter on social policy in the Treaty, rather than as part of the regime of general harmonization set out in Art. 95 (ex 100a) EC, an argument which the Court accepted. Cf. paras. 38, 82-84, of the Opinion and paras. 12 and 27 of the judgment.
105. Ibid., at paras. 22 and 30 of the judgment.
106. Ibid., per A.G. Léger at paras. 54-56, and at para 17 of the judgment.
107. COM (93) 435 final.
108. The Amsterdam Treaty provided for such a specific legal base, Art. 137 EC (ex Art. 118 as amended by the Treaty of Amsterdam).
109. Vousden, "Social Exclusion and Gender in the EU", 18 JSWFL (1996) 243 at 252.
110. Case C-106/96, UK v. Commission, [1998] ECR I-2729. Annotation by Hervey, in this Review at 1079-1090.
111. Ibid., at paras. 22 and 26-28 of the decision.
112. Ibid., at para 34 of the decision.
113. nd ed. (Oxford: OUP, 1998), at pp. 124-129.
114. Op. cit.note 97.
115. Art. 5 (ex 3b) EC provides that subsidiarity only applies where the Community and the Member States share concurrent powers.
116. Op. cit. note 97 per A.G. Léger at paras. 87-90.
117. Ibid., at para 26 of the judgment.
118. "[A]ll policy functions which can be carried out at national level without adverse repercussions should remain within the competence of Member States" - HM Treasury statement, quoted by Teasdale, "Subsidiarity in Post-Maastricht Europe" (1993) Political Quarterly, 187.
119. Case C-84/94, UK v. Council, op. cit. note 77 per A.G. Léger at para 126.
120. Ibid. per A.G. Léger at paras. 129-131.
121. Ibid., at para 47 of the judgment.
122. Fitzpatrick, op. cit. supra note 79, at p. 121, concludes that subsidiarity may be more significant for regulations than for directives.
123. Case C-268/94, Portugal v. Council, op. cit. note 90, per A.G. La Pergola at para 20.
124. Ibid.
125. See Case 26/62, Van Gend en Loos, [1963] ECR 1; Case 6/64, Costa v. ENEL, [1964] ECR 585.
126. On the distinction between national and international manifestations of sovereignty, see MacCormick, "Beyond the Sovereign State", 56 MLR (1993) 1-18.
127. Opinion 1/94 of 15 Nov. 1994, [1994] ECR I-5267.
128. McGlynn, op. cit. supra note 71.
129. Such measures were adopted pending the ratification of the Treaty of Amsterdam, which brings the Social Policy Agreement into the main body of the EC Treaty.
130. E.g. see MacCormick, op. cit. note 124.
131. Barents, op. cit. supra note 13.
132. Art. 153 EC (ex Art. 129a as amended by the Treaty of Amsterdam).
133. Ibid., at pp. 100-102.
134. Ibid. Barents focused on the practice of the Council rather than the Court in rejecting the centre of gravity theory in favour of effective free choice, possibly because the number of legal basis challenges was still relatively small in the early 1990s, when this argument was made. It is impossible to determine, in the absence of challenge to the legal basis, whether the legal basis was correct or whether all the parties involved agreed to the use of a basis despite suspicions that it may not have been the correct one.
135. O.J. 1998, L 213/13.
136. See, in another context the discussion of the connection of the legal and political spheres, in Hunt, "The Court of Justice as a Policy Actor: The Case of the Acquired Rights Directive", 18 Legal Studies (1998), 336.