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The essay will look at Treaty Articles 3 and 26 of the TOFU, it will then examine integration, competence and harmonistic and why those laments are significant elements for forming an internal market. It will study the case Tobacco Advertising (Case C-376/98, Germany v European Parliament and Council [2000] and the developments since the case for the European Unions Internal Market.
Article 26(2) of the TOFU states; ‘The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treatise’s and article 3 of the Treaty states that the Union will establish an internal market. The benefits of free read in an internal market are summarized as follows free trade allows for specialization, specialization leads to comparative advantage and comparative advantage leads to economies of scale which maximize consumer welfare and ensure the most effective use of world-wide resources’. There have been different levels of intensity of market integration, and each one introduced in their own right, as a way of trying to end up with a full union’. The different states of integration are as follows; Free trade area (FAT)- Member States will remove all impediments to free movement of goods among themselves but each state retains the autonomy to jugulate its trading relations with non-member states. Customs Union (CUE)- FAT plus common external policy in respect of non-member state for example a single customs tariff. Common Market (CM)- CUE plus the free movement of persons, services and capital.
Monetary Union (MO)- CM plus single currency. Economic Union- MUM plus single monetary and fiscal; policy controlled by a central authority. Political Union (PU)- Economic Union plus a central authority sets not only monetary and fiscal policies but it also responsible to a central parliament with the sovereignty of a nations government. Then lastly having integrated all the above stages this would hopefully end up as a full union which would include the complete unification of the economies involved and a common policy on matters such as social security and income tax. By the sass’s ‘Euro-sclerosis’ had set in and the failings of the common market were very apparent. It was a period of stagnation of European Integration as The Judgment Of The Court Of Justice In Tobacco Advertising By Hannah_Ramada Commission Jacques Dolores responded to Euro-sclerosis with ambitious plans for a Single Market, plans were set out in the Commission White Paper; ‘Completing the Internal Market’. The White Paper outlined three obstacles which needed to be overcome in order to complete the notion of a single market; physical, technical and fiscal barriers to trade.
The White Paper identified 300 measures necessary to achieve the single market and the Single European Act 1986 came into force on 1st July 1987 and provided the means to achieve the objectives set out in the White Paper. The SEA contained procedures designed to facilitate legislation in order to complete the internal market. It introduced two major legislative innovations for the single market found in Articles 26 and 114 of the TOFU.
Article 26 obligation states; 26(1) the Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties’, 26(2) states ‘The internal market shall comprise an area without internal frontiers in which the free movement of goods, services and capita; is ensured with the provisions if the Treaties’ and 26(3) states; the Council, on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all sectors concerned’. The deadline 31st December 1992 had en dropped by Article 26(1), this shows recognition by the Commission that the internal market is not static but is evolving and that it could not be considered ‘completed’ by a particular date. Regarding the legal effect of Article 26, in an early working paper for the Intergovernmental Conference in the lead up to the SEA the Commission had intended that Article 14 (predecessor of Article 26) was to have direct effect and proposed that ‘if national rules on free movement were not removed by the agreed date, then they would automatically be recognized as equivalent’. This tuned the Intergovernmental Conference and the Commission was forced to modify their suggestions, the Member States attached a Declaration to Article 14 CE so as to make clear that the 31st December 1992 deadline did not create automatic legal effect. There was a recurrence of the Court to grant Direct Effect in the case Wickedness 1999.
Mr.. Wickedness, a Dutch national, is accused of having refused, when entering the Netherlands through Rotterdam airport on 17 December 1993, to present and hand over his passport to the national police officer responsible for border controls and to establish his nationality by other means, Mr.. Wickedness accepts the facts on which the prosecution is based. However, he denies that he has committed an offence. Mr.. Wickedness accepts the facts on which the prosecution is based.
However, he denies that he has committed an offence. Mr.. Wickedness appealed against that decision. The internal market shall comprise an area without is ensured in accordance with the provisions of this Treaty. ‘ Article AAA of the Treaty provides: Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid own in this Treaty and by the measures adopted to give it effect.
Mr.. Wickedness argues that, since 1 January 1993, the end of the period expiring on 31 December 1992, Article AAA of the Treaty has direct effect and that the Member States no longer amendment, Article 3(1)(c) CE] and Article AAA of the Treaty entail a complete transfer of competences to the Community.
The Court observes that the internal market is to comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty. It cannot be interpreted as meaning that, in the absence of measures adopted by the Council before 31 December 1992 requiring the Member States to abolish controls of persons at the internal frontiers of the Community, that obligation automatically arises from expiry of that period.
Member States retain the right to carry out identity checks at the internal frontiers of the Community, requiring persons to present a valid identity card or passport, in order to be able to establish whether the person concerned is a national of a Member State, thus having the right to move freely within the territory of the Member States, or a national of a non- ember country, not having that right.. However, Member States may not lay down a penalty so disproportionate as to create an obstacle to the free movement of persons, such as a term of imprisonment.
The Judgment of the case stated that Whether or not a citizen of the European Union, under threat of criminal penalties, to establish his nationality upon his entry into the territory of that Member State by an internal frontier of the Community, provided that the penalties applicable are comparable to those which apply to similar national infringements and are not disproportionate, thus creating an obstacle to the free movement of persons’.
The SEA introduced a new legal basis under Art 114 TOFU which laid out qualified majority voting when ‘enacting measures for the approximation of Member States’, laws which have as their object the establishment and functioning of the internal market’, this new article meant that for the first time, harmonistic measures could be voted on by qualified majority voting. Article 114 provides that ‘save where otherwise provided for in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article 26.
The European Parliament and the Council, shall acting n accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, adopt the measures for the approximation, of the provisions laid down by law, regulation or administrative action, in Member States which have as their object the establishing and functioning of the internal market. There are four limits to the use of Treaty Article 1 14, first, ‘resort to Article 114 can be made where no other specific legal basis applies and secondly the ‘use of Article 114 is that measures adopted under Article 114 must be fore approximation of laws (harmonistic). Therefore measures which do not harmonize cannot be adopted under Article 114. The Union adopted numerous directives under Article 1 14, one regulation tobacco advertising will be outlined demonstrating the problems which it has generated.
Thirdly it cannot be used to adopt fiscal measures, or measures relating to the free movement of persons or measures relating to rights and interests of employed persons, as these are seen as matters which are too sensitive to be subject to qualified majority voting. In those cases Article 115 can be used. 8 The fourth limit are those laid out in the tobacco advertising case.
There was a sense that the legal basis laid out in Article 114 and 115 were being used as a general legislative competence, and that the conferral principle was being honored in the breach required unanimity voting in Council, so a Member State who objected could veto the measure, but it became more serious in light of Article 114 which required qualified majority voting. This issue came to a head in the Tobacco Advertising 1 case, it was concerned with the successful challenge by Germany to the Unions competence to adopt the Tobacco Advertising Directive 98/43.
The directive banned tobacco advertising and sports sponsorship by tobacco companies and was adopted under Article 114 and Article 168(5) excluded EX. Competence to harmonies, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may also adopt incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonistic of the laws and regulations of the Member States’. 9 The court agreed and said ‘other Treaty Articles could not be used as a legal basis in order to circumvent the express exclusion of harmonistic laid down in Article 168(5) TOFU.
The Court made no further reference to the public health provision after implying that the directive may be a disguised health measure, instead it focused on when Article 114 could be used to adopt EX. Legislation, the Court stated hat measures in Article 114 are intended to improve conditions for the establishment and functioning of the Internal Market… To construe that Article as meaning that it vests in the Union legislature a general power to regulate the internal marker would be incompatible with the principle embodied in Article 5(1) TOFU that the powers of the Union are limited to those specifically conferred on it’. 10 This was significant as the Court recognized the principle of conferral, and the Court stated that if a measure adopted on the basis of Article 114 it must have a genuine object to improve the conditions of the establishment and functioning of the Internal Market.
Where a union measure had genuine intent to improve the conditions of the establishment and functioning of the Internal Market and had that effect then Article 114 could be used in the following conditions, where legislation contributes to the elimination of likely obstacles to the exercise of fundamental freedoms, and where the legislation contributes to the removal of appreciable distortions of competition which are likely to arise from the diverse national rules. 11 The EX. Does not have the rower to regulate the advertising agencies and producers of media which is established in Member States as the effects of the competition would be ‘remote and indirect’. Article 114 however can be used to harmonize national rules concerning sports sponsorship by tobacco companies ‘prohibiting sponsorship in some Member States and authorizing it in others caused certain sports events to be moved, affecting conditions do competition’ it Justified an EX. Measure adopted under Article 114 but did not have an outright ban on advertising proposed by the directive. 13 In judgment of the Tobacco Advertising 376/98 the EX. Stated that Article 95 (now 114 TOFU) cannot be constructed as conferring upon the community a general power to regulate the Internal Market. Measures that the Community legislature adopts under establishment and functioning of the internal market and must be designed to remove genuine obstacles to free movement or distortions of competition. The judgment goes a step further by challenging the community institutions in the exercise of their core economic functions; it is not strictly a question of lack of competence but of the community overstepping the mark.
The EX. May intervene to cure diversity between national laws only where that diversity is shown to be harmful to the achievement of the Else’s Internal Market’. 14 The directive 98/34 did not cross the threshold and was therefore annulled. Since Tobacco Advertising 1, followed two other cases and directives. Tobacco Advertising 2 case reaffirmed the principle in Tobacco Advertising 1 and replaced the directive found in Tobacco Advertising 1 with the directive 2003/33, it aimed to harmonize national laws governing tobacco advertising and sponsorship and the CE] upheld it. Germany wanted to annul articles which prohibit the advertising of tobacco products in the press, printed publication, information society services and radio broadcasts.
It also wanted to annul articles which prohibit sponsorship of radio programs by tobacco companies, and claimed that the provisions could not be adopted on the basis of Article 95(114) because neither of them contribute to eliminating obstacles to the free movement of goods or removing distortions of competitions. The Court however stated, at this time there were infant disparities between national laws on advertising and sponsorship of abbacy products which did in fact impede on the free movement of goods and freedom to provide services, which created a risk of distortion of competition. ‘The conditions for recourse to Article 95(114) CE as a legal basis easer fulfilled, the community legislature cannot be presented from relying on that legal basis on the grounds that public health protection is a decisive fact or in the choices to be made’. 5 The Court found the challenged directive valid. The case ex apart BAT and Imperial Tobacco (tobacco Labeling’) [2002] and the directive 2001/73 also reaffirms he principle from Tobacco Advertising one case. Swedish Match like BAT involved an attack on Directive 201/37, a particular provision of it states that Member States are to prohibit the placing n the market of tobacco for oral use, targeting suns which is sold loose or in small sachets and intended for oral use. Swedish producer of suns was unable to sell the product anywhere in the EX. Expect in Sweden where a exception contained in a Swedish act of accession protected it from the ban.