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"UNITED IN DIVERSITY": THE EUROPEAN UNION IN COMPARATIVE PERSPECTIVE Judge of the European Court of Justice
I. INTRODUCTION
It is both a privilege and an honour to be received by such a prestigious organisation as the European Institute. In keeping with the mission of the European Institute to forge strong Transatlantic relations and to contribute to mutual understanding between the European Union and the United States, my objective here tonight - through the "judicial lens" of the case law of the Court of Justice - is to explore and develop what the European Union stands for - as a political entity and as a legal order. This can be seen through the core idea upon which the European Union rests: "united in diversity", which has been inscribed as the motto of the European Union in the EU Constitution.[1] This can be contrasted with the notion of "indivisible union" in the United States, as illustrated by "E pluribus unum", one of the first national mottos, indicating the integration of the American states into one united country (literally, "out of many, one").[2] This can be further evidenced by the Pledge of Allegiance (recited in unison at public events and every morning by school children throughout the US): "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all." In addition, the Preamble of the US Constitution provides: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish the Constitution for the United States of America." Indeed, the European Union and the United States embody similar underlying objectives, including:
Many of these aspects are important for demonstrating that the European Community Treaty can essentially be considered the "constitution" of the European Community in a substantive, functional sense. In fact, this was recognised now more than 20 years ago in the Court's 1986 landmark judgment in Les Verts, in which it proclaimed the Treaty "the basic constitutional charter" of the European (then Economic) Community.[3] Yet, importantly, for the European Union, it is unity in diversity, not out of it. Therefore, it is through the window of "united in diversity" that the fundamental tenets of the European Union can be brought into view and serve to illuminate vibrant comparisons with the United States. Following these remarks, the discussion is divided into 3 parts:
Taken together, all of these topics are joined under the theme of "united in diversity", evidencing both the omnipresent balance between unity and diversity in the European Union, as well as the sensitivities and challenges it presents for the achievement of its objectives. II. "UNITED IN DIVERSITY" AND THE INTERNAL MARKET A. FORGING THE INTERNAL MARKET Going back to the founding of the European (then Economic) Community with the 1957 Treaty of Rome (now approaching its 50th anniversary on 25 March 2007), European integration started with the objective to build a truly common market - that is to say, the construction and deepening of European integration through one single space without internal frontiers as defined in Article 14 EC.[4] Indeed, as much in 1957 as in 2007, the establishment of a common market constitutes "the Community's most important task".[5] As for the interplay between the internal and the common markets: On the one hand, the "internal market" has a narrower scope, focused on the "core" of the common market in terms of the elimination of obstacles to the free movement of persons, goods, services and capital, whereas the common market extends to such areas as agricultural, transport and competition. On the other, the internal market is considered to be much "more ambitious" that the common market. In line with its definition as "an area without internal frontiers", it not only sets out to achieve "open" frontiers but also affects the relevance of those frontiers, and it comprises not an "open market" but rather an "area" comprising much more than just the factors of production. Hence it was not surprising that the EU Constitution has replaced all references to "common market" with that of "internal market".[6] This is not unlike the objectives underlying the Interstate Commerce Clause of the US Constitution[7] - from the United States's progression from the Articles of Confederation to the US Constitution, this provision was intended to ensure that there would be no obstacles to trade among the several States. The Community's objective to forge an integrated single market can be seen not only from Article 95 EC - setting forth the Community's harmonisation powers[8] - but also from the fundamental freedoms ensuring free movement of goods, persons, services and capital enshrined in the Treaty. With the emphasis on "diversity", the Treaty and the Court's case law provide for certain derogations from the free movement rules such as those concerning public health and public policy, thereby permitting the Member States to protect important national interests (when adequately justified in light of the Court's requirements). Yet, aspects of "unity" also enter the equation here: the Court's decisions concerning the compatibility of national rules with free movement - similar to the "dormant commerce clause" jurisprudence of the US Supreme Court - have fundamental implications for the relationship between the Union and the Member States. This is because with the Court's finding that a particular national rule obstructs free movement, constraints are placed on the powers of the Member States to deal with national problems and the balance shifts towards the Union and away from the Member States. Framed another way: "a finding that a national measure restricts free movement empowers and requires the Community to deal with it. After such a finding, the Community legislature can and must override the decisions of national legislatures. Positive harmonization is called for. The vertical division of power in the Community is affected for the benefit of the centre."[9] This can be vividly illustrated by the impact of the Court's case law on fields considered to lie within the domain of the Member States, not the Community. B. SHAPING THE DOMAINES RÉGALIENS Indeed, through the course of the Court's case law, the application of the free movement provisions have now started to shape areas of law that were originally thought to be reserved to the Member States ("domaines régaliens"). For example, in areas such as taxation, health care and education, these were considered the "core business" of the Member States, for which the Community was not given any explicit competence. Nevertheless, with the progression of the fundamental freedoms, there has been a notable impact on the Member States. 1. Direct Taxation Surely, there are at least 100 cases in the field of direct taxation that could be used to prove this point. Thus, I would like to focus on certain recent examples taken from case law concerning physical persons (individuals), on the one hand, and legal persons (corporations or undertakings), on the other, because both aptly illustrate the impact of free movement principles on the Member States' regulation of direct taxation rules. 1) The Cadbury Schweppes case[10] proves a salient example of a direct taxation case involving national corporation tax rules. By way of a preliminary ruling from an English court, the Court was confronted with English rules on the taxation of profits of the subsidiaries of companies resident within the UK. Specifically, there was an exception to the general rule that a resident company is not taxed on the profits of the subsidiarity as they arise, meaning that the UK tax rules imposed a charge under certain conditions on the parent company for the profits earned by a subsidiarity. This exception arose in the context of tax proceedings involving two subsidiaries of Cadbury Schweppes, in which it was claimed that the English rules fell afoul of Community law. As a result, the Court was confronted with questions concerning the compatibility of the English tax system with the free movement rules. The Court opened its judgment by making clear that although direct taxation falls within the competences of the Member States, they must nevertheless exercise this competence consistently with Community law.[11] Here, the English legislation involved a difference in the treatment of resident companies on the basis of the level of taxation imposed on the company in which they have a controlling stake: "Where the resident company has incorporated a CFC [controlled foreign company] in a Member State in which it is subject to a lower level of taxation within the meaning of the legislation on CFCs, the profits made by such a controlled company are, pursuant to that legislation, attributed to the resident company, which is taxed on those profits. Where, on the other hand, the controlled company has been incorporated and taxed in the United Kingdom or in a State in which it is not subject to a lower level of taxation within the meaning of that legislation, the latter is not applicable and, under the United Kingdom legislation on corporation tax, the resident company is not, in such circumstances, taxed on the profits of the controlled company."[12] As a result, this legislation created a tax disadvantage for the resident company to which the English legislation was applicable, which hindered the freedom of establishment by such companies "by dissuading them from establishing, acquiring or maintaining a subsidiary in a Member State in which the latter is subject to such a level of taxation" in violation of the Treaty rules.[13] Amidst the UK's arguments - supported by 6 Member States (Denmark, Germany, France, Portugal, Finland and Sweden) - that the English tax rules were intended to counter a specific type of tax avoidance[14], the Court proceeded to determine whether the English rules could be justified on the relevant grounds (that of prevention of wholly artificial arrangements) and if so, whether they were proportionate in relation to that objective.[15] As a result, while leaving the ultimate determination to the national court (in keeping with the division of tasks between the ECJ and the national courts under the preliminary ruling procedure), the ECJ nevertheless declared that the free movement rules (Articles 43 and 48 EC) of the Treaty "must be interpreted as precluding the inclusion in the tax base of a resident company established in a Member State of profits made by a CFC in another Member State, where those profits are subject in that State to a lower level of taxation than that applicable in the first State, unless such inclusion relates only to wholly artificial arrangements intended to escape the national tax normally payable. Accordingly, such a tax measure must not be applied where it is proven, on the basis of objective factors which are ascertainable by third parties, that despite the existence of tax motives that CFC is actually established in the host Member State and carries on genuine economic activities there."[16] 2) As for direct taxation cases concerning physical persons, the Manninen and the Schempp cases illuminate aspects of both "unity" and "diversity" in the Community legal order. The Manninen case[17] involved the compatibility of Finnish legislation on the taxation of shareholder dividends with Community law. Mr. Manninen was a Finnish national who held shares in a Swedish company quoted on the Swedish stock exchange. The dividends were already taxed in Sweden, but because such dividends, which were distributed by foreign companies to Finnish taxpayers, conferred no entitlement to a tax credit in Finland, they were subject to income tax under the Finnish tax rules. Accordingly, in proceedings with the Finnish tax commission, Mr. Manninen sought a determination whether having regard to Articles 56 and 58 EC of the Treaty (concerning the free movement of capital) dividends that he received from the Swedish company were taxable in Finland. When he was denied a tax credit in relation to these dividends, he appealed and it was in the context of those proceedings that the ECJ received a preliminary ruling request on this issue. [18] The ECJ indeed held that the Finnish legislation constituted a restriction on the free movement of capital. This was because it "has the effect of deterring fully taxable persons in Finland from investing their capital in companies established in other Member States. Such a provision also has a restrictive effect as regards companies established in other Member States, in that it constitutes an obstacle to their raising capital in Finland. Sine revenue from capital of non-Finnish origin receives less favourable tax treatment than dividends distributed by companies established in Finland, the shares of companies established in other Member States are less attractive to investors residing in Finland than shares in companies which have their seat in that Member State".[19] Despite attempts by Finland, joined by France and the UK, to justify the Finnish legislation by the need to ensure the cohesion of the tax system[20], the ECJ ruled that the Finnish legislation constituted a restriction on capital prohibited by the Treaty.[21] By comparison, the Schempp[22] case involving German tax rules concerning maintenance (alimony) payments to a former spouse demonstrates how the Community legal order allows for national "diversity" in taxation rules. Mr. Schempp, a German national resident in Germany, was paying maintenance to his former spouse who resided in Austria. He sought to deduct these maintenance payments but was refused by the German tax authorities because it had not received a certificate from the Austrian tax authorities demonstrating that the former spouse had been taxed in Austria as required under German legislation.[23] Mr. Schempp could not produce such a certificate because Austrian tax law excludes in principle the taxation of maintenance payments and does not allow them to be deducted. However, the documents in the case proved that Mr. Schempp would have been able to deduct the payments if his spouse had been a resident of Germany, since in that case, she would not have paid any tax on the maintenance (her income being less than the taxable minimum in Germany).[24] In the context of the national proceedings, Mr. Schempp considered the German legislation incompatible with Articles 12 and 18 EC (concerning non-discrimination on grounds of nationality and Union citizenship), and the German court submitted a preliminary ruling to the ECJ to this effect.[25] The ECJ found that "it is apparent that the unfavourable treatment of which Mr. Schempp complains in fact derives from the circumstance that the tax system applicable to maintenance payments in his former spouse's Member State of residence differs from that applied in his own Member State of residence."[26] However, "contrary to Mr. Schempp's claims, the payment of maintenance to a recipient resident in Germany cannot be compared to the payment of maintenance to a recipient resident in Austria. The recipient is subject in each system of those two cases, as regards taxation of the maintenance payments, to a different tax system."[27][28] Consequently, this did not constitute discrimination within the meaning of Article 12 EC. 2. Health care The viability of national health-care systems came face to face with the Community rules on free movement of services in the 2006 Watts case[29]. Mrs. Watts, a UK national, sought reimbursement from the National Health Service for the cost of hospital treatment related to a hip surgery performed in France. Despite her constant pain, Mrs. Watts had been put on a waiting list for surgery in an English hospital. Not wanting to wait, she underwent a hip replacement in France and then claimed reimbursement of these fees.[30] When her application was denied, Mrs. Watts appealed the ruling and hence by way of preliminary ruling from an English court, this case confronted the Court with issues - along the lines of previous rulings in this area (Kohll, Smits and Peerbooms and Müller-Fauré[31] - regarding patient mobility in the Community and under what conditions patients were entitled under the free movement rules (as well as the relevant Community legislation[32]) to receive medical treatment in other States and to be reimbursed for that treatment by their national health care insurance schemes.[33] In relevant part, the ECJ ruled that the system of prior authorisation at issue in the instant case "deters, or even prevents, the patients concerned from applying to providers of hospital services established in another Member State and constitutes, both for those patients and for service providers, an obstacle to the freedom to provide services".[34] The Court then proceeded to assess whether the English restrictions could be justified on the grounds of "the risk of seriously undermining the financial balance of a social security system" and "the objective of maintaining a balanced and medical and hospital service" and related public health considerations.[35] In doing so, the ECJ remained cognizant of national considerations concerning the planning of health care services, thereby finding that the free movement rules did not preclude prior authorisation for medical services provided that they were justified in the light of those overriding considerations and that they satisfied the requirement of proportionality.[36] Consequently, the ECJ declared: Article 49 EC applies where a person whose state of health necessitates hospital treatment goes to another Member State and there receives such treatment for consideration, there being no need to determine whether the provision of hospital treatment within the national health service with which that person is registered is in itself a service within the meaning of the Treaty provisions on the freedom to provide services. Article 49 EC must be interpreted as meaning that it does not preclude reimbursement of the cost of hospital treatment to be provided in another Member State from being made subject to the grant of prior authorisation by the competent institution. A refusal to grant prior authorisation cannot be based merely on the existence of waiting lists intended to enable the supply of hospital care to be planned and managed on the basis of predetermined general clinical priorities, without carrying out an objective medical assessment of the patient's medical condition, the history and probable course of his illness, the degree of pain he is in and/or the nature of his disability at the time when the request for authorisation was made or renewed. Where the delay arising from such waiting lists appears to exceed an acceptable time having regard to an objective medical assessment of the abovementioned circumstances, the competent institution may not refuse the authorisation sought on the grounds of the existence of those waiting lists, an alleged distortion of the normal order of priorities linked to the relative urgency of the cases to be treated, the fact that the hospital treatment provided under the national system in question is free of charge, the obligation to make available specific funds to reimburse the cost of treatment to be provided in another Member State and/or a comparison between the cost of that treatment and that of equivalent treatment in the competent Member State.[37] In the aftermath of this case, spurred by the Court's case law, the Commission launched a consultation on health-care services, and certain EU health ministers (Belgium, France and Luxembourg) have voiced the hope that work could begin on a proposal for legislation on health-care services and patient mobility as well as on patients' rights to information. 3. Education Education is another area evidencing the delicate interplay between the free movement rules and national legislation. The Commission v. Austria[38] case was an infringement proceeding brought by the Commission against Austria due to Austrian legislation governing access to higher education, which imposed conditions on holders of secondary education diplomas in other Member states that were different from those imposed on holders of Austrian diplomas. Indicative of sensitivities brought to light by this case, Austria argued that "the academic recognition of diplomas for the purposes of commencing or pursuing higher education or other training does not fall within the scope of the Treaty."[39] In response, the Court recalled its 1985 judgment in Case 293/83 Gravier [1985] E.C.R. 503, whereby the Court held that the conditions of access to vocational training fell within the scope of the Treaty and stressed that both higher education and university education constitute vocational training.[40] It then assessed the Austrian legislation, which required students who obtained their secondary education diploma in Member States other than Austria and wanted to study in Austria to produce that diploma and to prove that they fulfill the conditions of access to higher or university education in the State where they obtained that diploma (such as by showing success in an entrance examination or obtaining sufficient grades).[41] The Court found that such legislation put students in other Member States at a disadvantage, since "they cannot gain access to Austrian higher education under the same conditions as holders of the equivalent Austrian diploma"[42], thereby running afoul of the principle of equal treatment under Article 12 EC. Moreover, the Court underscored that "[t]he opportunities offered by the Treaty relating to free movement are not fully effective if a person is penalised merely for using them. That consideration is particularly important in the field of education in view of the aims pursued by Article 3(1)(q) and the second indent of Article 149(2) EC, namely encouraging the mobility of students and teachers."[43] The Court dismissed Austria's attempt to justify the legislation on several grounds including the safeguarding of the homogeneity of the Austrian higher or university education[44] and ruled that Austria had failed to fulfil its obligations under Articles 12, 149 and 150 EC.[45] Similarly, Bidar[46] concerned national rules on student loans and maintenance, which came face to face with the Treaty rules on non-discrimination and citizenship. By way of a preliminary ruling from the High Court of Justice of England and Wales, the Court was essentially confronted with the question whether financial assistance granted to students for maintenance costs, whether in the form of grants or loans, fell inside the scope of the EC Treaty pursuant to Article 12 EC (prohibiting discrimination on grounds of nationality) and Article 18 EC (concerning Union citizenship). Mr. Bidar was a French national who came to the United Kingdom to accompany his mother who was to undergo medical treatment there, whereupon he completed his secondary education. However, upon starting a course in economics at University College in London, Mr. Bidar applied for financial assistance to cover his maintenance costs in the form of a student loan. He was denied this assistance on the grounds that he must be settled in the UK as required by national law. Hence he argued that this constituted discrimination on the grounds of nationality prohibited under Article 12 EC[47]. The ECJ, reading Article 12 EC in conjunction with the provisions of the Treaty on Union citizenship, stressed that in line with previous case law a citizen of the EU lawfully resident in the host Member State can rely on Article 12 EC in all situations falling within the scope ratione materiae of Community law, including those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the right to move and reside within the territory of the Member States as conferred by Article 18 EC.[48] Accordingly, the ECJ ruled that "assistance, whether in the form of subsidised loans or of grants, provided to students lawfully resident in the host Member State to cover their maintenance costs falls within the scope of application of the Treaty for the purposes of discrimination laid down in the first paragraph of Article 12 EC."[49] Moreover, in its assessment of the English legislation at issue in the case, the ECJ found that the national requirements "risk placing at a disadvantage primarily nationals of other Member States. Both the condition requiring an applicant for that assistance to be settled in the United Kingdom and that requiring him to have resided there prior to his studies are likely to be more easily satisfied by United Kingdom nationals."[50] The UK put forward several arguments attempting to justify the legislation on grounds that it was legitimate for a Member State "to ensure that the contribution made by parents or students through taxation is or will be sufficient to justify the provision of subsidised loans" and "to require a genuine link between the host claiming assistance to cover his maintenance costs and the employment market."[51] In response, the Court put forward a balanced answer. It ruled that "although the Member States must, in the organisation and application of their social assistance systems, show a certain degree of financial solidarity with nationals of other Member States, it is permissible for a Member State to ensure that the grant of assistance to cover the maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State. In the case of assistance covering the maintenance costs of students, it is thus legitimate for a Member State to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that State."[52] This could be established by the finding that a student has resided in the host Member State for a certain length of time.[53] However, the Court cautioned: "a Member State cannot, however, require the students concerned to establish a link with its employment market. Since the knowledge acquired by a student in the course of his higher education does not in general assign him to a particular geographical employment market, the situation of a student who applies for assistance to cover his maintenance costs is not comparable to that of an applicant for a tideover allowance granted to young persons seeking their first job or for a jobseeker's allowance."[54] Ultimately, the Court concluded that Article 12 EC precluded national legislation (such as the UK legislation at issue) "which grants students the right to assistance covering their maintenance costs only if they are settled in the host Member State, while precluding a national of another Member State from obtaining the status of settled person as a student even if that national is lawfully resident and has received a substantial part of his secondary education in the host Member State and has consequently established a genuine link with the society of that State."[55] Taking a "comparative leap" to the United States, American case law concerning student mobility provides fruitful reflection. This is because it is well-accepted in the US that public universities may charge significantly higher tuitions for out-of-state residents than for in-state residents. Indeed, "[t]the US Supreme Court has repeatedly held that a distinction between residents and non-residents for the purposes of tuition does not violate equal protection nor chills the right to travel. It pursues, instead, legitimate state goals, such as the one of making sure that state resources are primarily reserved for those who made a contribution to state wealth."[56] For example, in the landmark case of Vlandis v. Kline[57], the US Supreme Court upheld a State's right to impose different tuitions on in-state and out-of-state residents: "We fully recognize that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right to its own bona fide residents to attend such institutions on a preferential tuition basis."[58] (This was so, even though it should be noted that in this case, the US Supreme Court struck down a state statute that imposed an irrebutable presumption once a student was classified as a non-resident for tuition purposes for the entire period of attendance as violative of due process). This would certainly be treated very differently if transplanted to the European context ! However, the foregoing case law on the internal market freedoms does not stand alone. There are other areas in which the achievement of the Community's objectives have spurred sensitivity due to the impact on competences held by the Member States, such as in the fields of criminal law and public health, as witnessed by 2 recent examples. 1) First, in the case of Commission v. Council[59] concerning "environmental crimes", the Court upheld the effective enforcement of the Community's objectives in environmental protection through the use of criminal sanctions. At issue in the case was Council Framework Decision 2003/80/JHA on the protection of the environment through criminal law[60], which had been adopted in the context of the relevant provisions of Title IV concerning Police and Judicial Cooperation in Criminal Matters in the third pillar. The Commission lodged an action for annulment on the grounds that the correct legal basis for the measure should have been Article 175 EC concerning the Community's environmental competence in the first Community pillar and as such had submitted a proposal for a Directive on those grounds.[61] In response, the Court began by recognising that: "As a general rule, neither criminal law nor the rules of criminal procedure fall within the Community's competence."[62] However, that "does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective."[63] On that basis, the Court ruled that "on account of both their aim and their content, Articles 1 to 7 of the framework decision have as their main purpose the protection of the environment and they could have been properly adopted on the basis of Article 175 EC."[64] Thus, the Court held that the framework decision, being indivisible, infringed Article 47 EU because it encroached on the powers that Article 175 EC conferred on the Community[65], and it annulled the measure.[66] As a result, this case constitutes a salient example of a Member State domain being "bent" in favour of the Community's environmental objectives conferred upon it under the Treaty. As an aside, in the aftermath of this case, taking heed of the Court's judgment, the Commission resubmitted another proposal for a draft directive obliging Member States to consider criminal sanctions for environmental crimes, which is intended to replace the annulled Framework decision. 2) Second, the interface between the Member State's public health competence and the Community's objectives for the establishment and functioning of the internal market under Article 95 EC[67] were recently demonstrated by Germany v. European Parliament and Council, known as the "Tobacco Advertising II" case.[68] As is well-known, it was in relation to Article 95 EC that the ECJ for the first time struck down a Community measure, the Tobacco Advertising Directive[69], as beyond the Community's competence in the first Tobacco Advertising case.[70] In that case, the Court emphasized that Article 95 EC did not confer on the Community legislature "a general power to regulate the internal market"[71] and set forth the conditions that must be satisfied for recourse to Article 95 EC[72]. In doing so, however, the Court made clear that, provided that these conditions were satisfied, the Community legislator was not prevented by relying on Article 95 EC on the ground that public health protection was a "decisive factor in the choices to be made".[73] Hence in the recently delivered Tobacco Advertising II judgment, the ECJ was confronted with the "sequel" to this case[74] concerning Directive 2003/33/EC on the approximation of the laws of the Member States relating to the advertising and sponsorship of tobacco products[75] - which had been enacted under the very same Treaty provisions as the previous directive annulled in the Tobacco Advertising[76] judgment. Here, Germany argued that certain provisions of the Directive (Articles 3 and 4 concerning press and radio advertising) should be annulled principally on the grounds that Article 95 EC was not the proper legal basis and that the Directive was adopted in contravention of Article 152(4)(c), which expressly prohibited approximation of national legislation in the field of public health.[77] This time, in contrast to the first Tobacco Advertising case, the ECJ upheld the legal basis of the measure under Article 95 EC. The Court took care to reiterate the requisite conditions concerning the use of Article 95 EC set down in the case law[78] and found them to be satisfied in the instant case.[79] The Court confirmed both the existence of obstacles to the free movement of goods and services and appreciable distortions of competition, which "warranted intervention by the Community legislature on the basis of Article 95 EC"[80], and that the contested provisions of the directive were "in fact designed to eliminate or prevent" them.[81] Furthermore, as regards the Germany's contention in relation to public health, the Court reiterated that "it is settled case law that, provided that the conditions for recourse to Article 95 EC as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that public health protection is a decisive factor in the choices to be made."[82] In other words, "[w]hile it is true that Article 152(4)(c) EC excludes any harmonisation of laws and regulations of the Member States designed to protect and improve human health, that provision does not mean, however, that harmonising measures adopted on the basis of other provisions of the Treaty cannot have any impact on the protection of human health."[83] Casting a "comparative eye" to the United States, similar tensions are present in relation to Congress's power under the Interstate Commerce Clause - as evidenced by the prominent cases of United States v. Lopez[84], United States v. Morrison[85] and Gonzales v. Raich[86] - which highlight difficulties in drawing lines as to how far into State or local issues Congress can reach. In United States v. Lopez, the Court (in an opinion by Chief Justice Rehnquist) struck down the Gun-Free School Zones Act of 1990 making it a federal offense for any individual knowingly to possess a firearm in a school zone as exceeding Congress's authority under the Interstate Commerce Clause, since the possession of a gun in a local school zone was not an economic activity that "substantially affected" interstate commerce. In United States v. Morrison, the Court (in another opinion by Chief Justice Rehnquist) struck down civil remedy provisions of the Violence Against Women Act (VAWA), as exceeding Congress's authority under the Interstate Commerce Clause and the enforcement clause of the Fourteenth Amendment.[87] In Gonzales v. Raich, by contrast, the Court (in an opinion by Justice Stevens) upheld provisions of the Federal Controlled Substances Act (CSA) criminalising the manufacture, distribution and possession of marijuana to intrastate growers and users of marijuana for medical purposes as within Congress's authority under the Interstate Commerce Clause. In fact, with particular regard to the issue of tobacco advertising in the United States, the US Supreme Court's 2002 opinion in Lorillard Tobacco Co. v. Reilly[88] provides striking reflection. In this case, the Court ruled, among other things, that state (Massachusetts) regulations governing outdoor and point-of-sale cigarette advertising were preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA)[89], which is a federal statute similar to the Tobacco Advertising Directive.[90] Hence this case stands as a salient example of the extent of federal power in this area, which proves to be of great relevance for the scope of the Community's power under the Tobacco Advertising Directive vis-à-vis the Member States. III. "UNITED IN DIVERSITY" AND FUNDAMENTAL RIGHTS In view of the foregoing remarks, one might think that this illustrates the existence of core elements of federalism in the European Union and the melding into an "indivisible union" as is known in the United States. However, this is not the case as seen through the lens of "united in diversity" in the European legal order. This is aptly demonstrated by the viability of Article 6(3) EU, which explicitly states: "The Union shall respect the national identities of its Member States." This provision is further elaborated in Article I-5(1) of the EU Constitution: "The Union shall respect the equality of Member States before the Constitution as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security." This can be shown by the Court's case law professing respect for the Member States' constitutional structures and traditions in various areas of Community law.[91] In particular, the EU system for the protection of fundamental rights is a vibrant field for demonstrating the EU's respect for the national identities and constitutional traditions of the Member States. For one thing, the constitutional traditions shared by the Member States form a fundamental component "built into" the Union regime for the protection of fundamental rights, as set forth by the Treaty. Article 6(2) EU provides that: "The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms . . . and as they result from the constitutional traditions common to the Member States, as general principles of Community law." Article 6(1) EU further states: "The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States." For another thing, as recognised by the recent Omega case[92], the European Union allows for "unity in diversity" when it comes to fundamental rights standards. This was the famous "laserdrome killing" case. At issue was the German installation known as the "laserdrome" in which parties could "play at killing" by use of sub-machine-gun-type laser targeting devices and sensory tags placed on clothing worn by participants.[93] Prompted by public opposition, the German authorities issued an order against Omega forbidding it to operate the game because it was considered "a danger to public order, since the acts of simulated homicide and the trivilisation of violence thereby engendered were contrary to fundamental values prevailing in public opinion."[94] By way of a preliminary ruling, the referring German court considered it correct that this "simulated killing" constituted an affront to human dignity, a concept enshrined in Paragraph 1(1) of the German Basic (Constitutional) Law. As it explained, human dignity was a "cardinal constitutional principle" that could not be waived in the context of entertainment.[95] However, the German court was uncertain whether this was contrary to the Community rules on the freedom to provide services and free movement of goods and therefore submitted a preliminary ruling request to the ECJ. The ECJ began by underscoring that "according to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures, and that, for that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The European Convention on Human Rights and Fundamental Freedoms has special significance in that respect."[96] Specifically as regards to the right to human dignity, the Court made clear that "the Community legal order undeniably strives to ensure respect for human dignity as a general principle of law. There can therefore be no doubt that the objective of protecting human dignity is compatible with Community law".[97] And "[s]ince both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty such as the freedom to provide services."[98] Then the Court declared: "It is not indispensable in that respect for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected. On the contrary, as is apparent from well-established case-law subsequent to Schindler, the need for, and proportionality of, the provisions adopted are not excluded merely because one Member State has chosen a system of protection different from that adopted by another State."[99] As regards the Germany's actions in this case, "the prohibition on the commercial exploitation of games involving the simulation of acts of violence against persons, in particular the representation of acts of homicide, corresponds to the level of protection of human dignity which the national constitution seeks to guarantee in the territory of the Federal Republic of Germany. It should also be noted that, by prohibiting only the variant of the laser game the object of which is to fire on human targets and thus ‘play at killing' people, the contested order did not go beyond what is necessary in order to attain the objective pursued by the competent national authorities."[100] As a result, the Court held: "Community law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason of the fact that that activity is an affront to human dignity."[101] IV. "UNITED IN DIVERSITY" AND THE SECOND AND THIRD PILLARS OF THE EUROPEAN UNION In the EU, the second and third pillars concerning Common Foreign and Security Policy (CFSP) and the third pillar concerning Police and Judicial Cooperation in Criminal Matters (PJCCM) constitute specific fields of activity for the European Union. They are non-Community policies that fall outside the Community sphere of competence and hence the Community (supranational) method. This may be explained by the high sensitivities of the Member States in these areas involving security, defense and criminal matters. Therefore, at present, European integration in these areas is still growing and developing. And as will be seen, the EU Constitution exacts important changes to both these areas, which further evidence both "unity" and "diversity" components of the European Union. A. THE SECOND PILLAR OF CFSP 1. Present framework Briefly speaking, as framed by the EU Treaty, CFSP covers "all questions relating to the security of the Union".[102] It is in this field, for instance, that Member States are to consult one another on any matter of foreign and security policy of general interest[103], and the Council concludes international agreements with third countries and international organisations.[104] In essence, it constitutes the Union's objectives for a "common" policy in foreign and security policy among the Member States. At the same time, however, there are important elements of "diversity" to be found in the structure of the CFSP through the EU's allowance for differentiated participation. For example, as set forth in the EU Treaty, CFSP is to respect the obligations of the Member States under NATO (North Atlantic Treaty Organisation). And at the same time, the policy of the Union must not prejudice the specific character of the security and defence policy of certain Member States.[105] In fact, the CFSP decision-making procedures allow Member States to make a formal declaration that they abstain from a given vote and then they are not obligated to apply the relevant decision. By way of protocol, for instance, Denmark does not participate in the elaboration and implementation of the decisions and actions of the Union that have defence implications. In addition, the Treaties allow the Member States to engage in "enhanced cooperation" between two or more Member States on a bilateral level provided that such cooperation does not counter to the Union's objectives under CFSP, thereby allowing some, but not all, Member States to move forward in certain fields. At present, such enhanced cooperation is not allowed for matters having military or defence implications[106]; however, the EU Constitution exacts notable changes in this regard.[107] 2. EU Constitution Taking a broad overview, the EU Constitution first and foremost merges Community and Union action into a single European Union, thereby eliminating the present three-pillar structure. Thus, the former second pillar would be encompassed within Title V of Part III of the Constitution entitled "The Union's External Action"[108]. In addition to CFSP, this section also includes provisions having general application as to Union's external action, Common Foreign and Defence Policy, Common Commercial Policy, Cooperation with third countries and humanitarian aid, restrictive measures, international agreement, the Union's relations with international organisations and third countries and Union delegations, and the implementation of the "solidarity" clause"[109]. Hence with the integration of CFSP into the Union framework, it "cannot be classified as purely intergovernmental anymore".[110] In addition, there are various attempts in the EU Constitution to ensure greater consistency of the Union's external action, especially with the creation of the Union Minister for Foreign Affairs, which has been considered "[t]he most striking amendment which the EU Constitution contemplates making to the existing framework".[111] The Union Minister would be appointed by the European Council (acting by a qualified majority) with the agreement of the President of the Commission. The Union Minister for Foreign Affairs shall conduct the Union's CFSP. By his or her proposals, the Minister shall contribute to the development of that policy, which he or she will carry out as mandated by the Council. As Vice-President of the Commission, as well as presiding over the Foreign Affairs Council, the Union Minister will seek to ensure the consistency of the Union's external action as a whole.[112] Finally, as alluded to above, the EU Constitution makes important changes to the rules on enhanced cooperation. Notably, Member States would no longer be prevented from establishing enhanced cooperation in the field of military affairs and defence. The EU Constitution even goes so far as to organise a form of enhanced cooperation by setting out the conditions for "permanent structured cooperation" between Member States in the context of "the progressive framing of a common Union defence policy"[113]. This means that for those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to carrying out the most demanding missions in the field, the EU Constitution establishes the framework for "permanent structured cooperation" by way of a Protocol annexed to the Constitution, which sets forth the commitments in terms of military capabilities required of Member States wishing to participate in this specific type of enhanced cooperation.[114] As a result, these components of enhanced cooperation exhibit attributes of flexibility and a "multi-speed Europe", further ingraining both "unity" and "diversity" in the Union. B. THE THIRD PILLAR OF PJCCM 1. Present framework As glimpsed by the "environmental crimes" case discussed above, the third pillar of Police and Judicial Cooperation in Criminal Matters is generally directed towards the prevention and fight against crime, organised or otherwise, including in particular terrorism, human trafficking and offences against children, illicit drug and arms trafficking, corruption and fraud.[115] As a result of such policies, the EU has brought the Member States' criminal laws closer together through the alignment of national criminal provisions. "coordination" vs. "harmonisation" of criminal law: where necessary, the Union is to bring the Member States' criminal provisions into line with each other, e.g., through the establishment of minimum rules relating to the elements and penalties in the fields of organised crime, terrorism and illicit drug trafficking pursuant to Article 31(e) EU. For example, following the terrorist attacks of September 11th, the Council adopted measures to ensure that any assistance to acts of terrorism would be criminal offences.[116] 2. EU Constitution Even more so than in the second pillar of CFSP, the EU Constitution exacts great changes with regard to the third pillar, further evidencing both attributes of "unity" and "diversity". Starting with the merger of the Community and the EU, the supranational Community method now extends to the third pillar. The former third pillar would be united along with current Community competences found in Chapter IV of the EC Treaty concerning visas, asylum, immigration and other policies related to free movement of persons and police and judicial cooperation civil matters under the rubric of the Union's establishment of an "area of freedom, security and justice". Indeed, the importance of the "area of freedom, security and justice" is shown by its placement upfront in one of the first provisions of the EU Constitution alongside the Union's internal market objectives. Article I-3(2) provides: "The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, and an internal market where competition is free and undistorted."[117] Moreover, on the substantive level, the EU Constitution extends the Union's powers to take action in the criminal field, explicitly conferring on the Union "a fully-fledged competence" to establish rules and procedures designed to secure the recognition of judgments and judicial decisions and the cooperation among national authorities throughout the Union.[118] The Union has been given competence to establish minimum rules concerning the mutual admissibility of evidence, the rights of individuals in criminal procedure, the rights of victims of crime, and other specific aspects of criminal procedure, but importantly:
In particular, the EU Constitution would enable the Union to establish minimum rules on the definition of criminal offences and sanctions in the area of "particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or form a special need to combat them on a common basis".[121] These areas of crime are terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.[122] At the same time, however, it is provided that where a Member State considers that such a measure "would affect fundamental aspects of its criminal justice system", it can request that it be referred to the European Council for discussion (in accordance with a special "alarm bell" procedure).[123] As an aside, it is often with regard to these serious crimes that the role of the European Public Prosecutor is mentioned. Under Article III-274, the EU Constitution provides for the establishment of a European Public Prosecutor's Office in order to combat crimes affecting the Union's financial interests. It will be responsible for investigating, prosecuting, and bringing to judgment the perpetrators of offences against the Union's financial interests and their accomplices. In relation to these offences, the European Public Prosecutor will act as prosecutor in the competent courts of the Member States. V. CONCLUSION In view of foregoing discussion, it may be said that the European Union is constantly proving its "added value" to the Member States and to the citizens of Europe. This can be seen by the fundamental principles of conferred powers and subsidiarity in the EU. (1) For one thing, there is the functional nature of Community legal order designed by Treaty, which is unlike US Constitution: Here, the system of conferred competences means that the Community is given competences to achieve certain objectives as set down in the Treaties. Article 5 EC provides: "The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned therein."[124] Or as stated in the very first provision of the EU Constitution: "Reflecting the will of the citizens and States of the Europe to build a common future, this Constitution establishes the European Union, on which the Member States confer competences to attain objectives they have in common."[125] (2) For another thing, this coincides with the principle of subsidiarity, which seeks to ensure the most appropriate level for action. The second paragraph of Article 5 provides: "In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community."[126] Tenets of subsidiarity are also found in the EU Treaty, which states: "This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and asclosely as possible to the citizen."[127] In short, "united in diversity" continues to lie at the heart of European integration because "far from negating Member State identities and specificities, [it] organizes their coexistence . . . through the pooling together of their resources to pursue goals of common interest."[128] In this way, through its various forms - whether in the core area of the internal market, the protection of fundamental rights or the three-pillar structure - "united in diversity" accommodates the needs, traditions and values of the Member States so as to make the European Union a highly resilient and functioning political entity and legal order. * All views expressed herein are personal to the author. [1] See Article I-8 of the Treaty establishing a Constitution for Europe, Dec. 16, 2004, 2004 O.J. (C 310) 1 [hereinafter EU Constitution]. [2] The Continental Congress approved this motto for the Great Seal in 1782, along with two other mottos: "Annuit Coeptis" (the beginning is approved) and "Novus Ordo Seclorum" (a new order of the ages) as the official national mottos of the United States. However, in 1956, "E pluribus unum" was replaced by "In God We Trust" as the national motto. Nevertheless, it is still printed on U.S. currency. [3] Case 294/83 Parti écologiste "Les Verts" v. European Parliament [1986] E.C.R. 1339, para. 23. [4] Article 14(2) EC 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 this Treaty." [5] KOEN LENAERTS & PIET VAN NUFFEL, CONSTITUTIONAL LAW OF THE EUROPEAN UNION § 5-071, at 139 (Robert Bray ed., 2d ed. 2005). [6] See id. §5-072 -§ 5-082, at 139-147. [7] U.S. Const. art. 1, § 8, cl. 3: "The Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." [8] In relevant part, Article 95 EC provides for "the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market." [9] Jukka Snell, Who's Got the Power? Free Movement and Allocation of Competences in EC Law, 22 Y.B. EUR. L. 323, 324 (2003) (also examining the implications for the horizontal division of power in the Community). [10] Case C-196/04 Cadbury Schweppes plc and Cadbury Schweppes Overseas Ltd. v. Commissioners of Inland Revenue, judgment of 12 September 2006, not yet reported. [11] Id. at para. 40. [12] Id. at para. 44. [13] Id. at para. 46. [14] Id. at para. 48. [15] Id. at paras. 51-57. [16] Id. at para. 75. [17] Case C-319/02 Manninen [2004] E.C.R. I-7477. [18] Id. at paras. 12-17. [19] Id. at paras. 22-23 (citations omitted). [20] See id. at paras. 40-54. [21] Id. at para. 55. [22] Case C-403/03 Schempp v. Finanzamt München V [2005] E.C.R. I-6421. [23] Id. at paras. 7-8. [24] Id. at para. 9. [25] Id. at paras. 10-11. [26] Id. at para. 32. [27] Id. at para. 35. [28] Id. at para. 36. The ECJ also found that the Geman legislation did not violate Article 18 EC: see id. at paras. 43-47. [29] Case C-372/04 The Queen, on the application of: Yvonne Watts v. Bedford Primary Care Trust and Secretary of State for Health ("Watts") [2006] E.C.R. I-4325. [30] Id. at paras. 24-32. [31] Case C-158/96 Kohll [1998] E.C.R. I-1931; Case C-157/99 Smits and Peerbooms [2001] E.C.R. I-5473; and Case C-385/99 Müller-Fauré and van Riet [2003] E.C.R. I-4509. [32] Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1997, [1997] O.J. L 28/1. [33] Case C-372/04 Watts, para. 80; Opinion of Advocate General Geelhoed in Case C-372/04 Watts, para. 1. [34] Case C-372/04 Watts, para. 98. [35] Id. at paras. 103-105. [36] Id. at paras. 108-114. [37] Id. at para. 149. [38] Case C-147/03 Commission v. Austria [2005] E.C.R. I-5969. [39] Id. at para. 30. [40] Id. at paras. 32-33. [41] Id. at para. 42. [42] Id. at para. 46. [43] Id. at para. 44 (citations omitted). [44] See id. at paras. 60-66. There were further asserted justifications based on preventing abuse of Community law, see id. at paras. 67-70, and on international conventions, see id. at paras. 71-74. [45] Id. at para. 75. [46] Case C-209/03 The Queen on the application of Dany Bidar v. London Borough of Ealing and Secretary of State for Education ("Bidar") [2005] E.C.R. I-2119. [47] Id. at paras. 20-23. [48] Id. at paras. 31-33. [49] Id. at para. 48. [50] Id. at para. 53. [51] Id. at para. 55. [52] Id. at paras. 56-57 (citations omitted). [53] Id. at para. 59. [54] Id. at para. 58 (citations omitted). [55] Id. at para. 63. [56] Francesca Strumia, Citizenship and Free Movement: European and American Features of a Judicial Formula for Increased Comity, 12 COL. J. EUR. L. 713, 741 (Summer 2006). [57] 412 U.S. 441 (1973). [58] Vlandis v. Kline, 412 U.S. at 452-453. [59] Case C-176/03 Commission v. Council [2005] E.C.R. I-7879. [60] [2003] O.J. L 29/55. [61] Id. at para. 11. [62] Id. at para. 47. [63] Id. at para. 48. [64] Id. at para. 51. [65] Id. at para. 53. [66] Id. at para. 55. [67] For the text of this provision, see supra note 8. [68] Case C-380/03 Germany v. European Parliament and Council ("Tobacco Advertising II"), judgment of 12 December 2006, not yet reported. [69] Directive 98/43/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, [1998] O.J. L 213/9. [70] Case C-376/98 Germany v. European Parliament and Council ("Tobacco Advertising") [2000] E.C.R. I-8419. [71] Tobacco Advertising, para. 83. [72] See Tobacco Advertising, paras. 81-88. For detailed discussion, see Kathleen Gutman, Case Note, Case C-66/04, Smoke Flavorings; Case C-436/03, SCE; & Case C-217/04, ENISA, 13 COL. J. EUR. L. 147 (Winter 2006/2007). [73] Tobacco Advertising, para. 88. This would be reiterated in subsequent cases. See, e.g., Case C-491/01 The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd. and Imperial Tobacco Ltd. ("BAT") [2002] E.C.R. I-11453, para. 62; Case C-434/02 Arnold André [2004] E.C.R. I-11825, para. 32; Case C-210/03 Swedish Match [2004] E.C.R. I-11893, para. 31; Joined Cases C-154/04 and C-155/04 The Queen, on the application of: Alliance for Natural Health and Others v. Secretary of State for Health and Others ("Alliance for Natural Health") [2005] E.C.R. I-6451, para. 30. [74] Case C-380/03 Germany v. European Parliament and Council ("Tobacco Advertising II")), judgment of 12 December 2006, not yet reported; Opinion of Advocate General Léger in Tobacco Advertising II, para. 2. [75] Directive 2003/33/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, [2003] O.J. L 152/16; corrigendum, [2004] O.J. L 67/34. [76] See supra note 70. [77] Case C-380/03 Tobacco Advertising II, para. 16. In the alternative, Germany asserted that the Directive violated the duty to state reasons under Article 253 EC, the rules governing the co-decision procedure under Article 251 EC and the principle of proportionality under the third paragraph of Article 5 EC. [78] See id. at paras. 36-43. [79] See id. at paras. 45-88. [80] Id. at para. 68. [81] Id. at para. 69. [82] Id. at para. 68. [83] Id. at para. 95. [84] 514 U.S. 549 (1995). [85] 529 U.S. 598 (2000). [86] 545 U.S. 1 (2005). [87] Section 5 of the Fourteenth Amendment states that Congress may "‘enforce' by ‘appropriate legislation' the constitutional guarantee that no State shall deprive any person of ‘life, liberty or property, without due process of law,' nor deny any person ‘equal protection of the laws.'" [88] 533 U.S. 525 (2001). [89] 15 U.S.C § 1331 et seq. (2000). [90] In this case, the Court further ruled that state regulations prohibiting outdoor advertising of smokeless tobacco or cigars within 1,000 feet of school or playground and indoor, point-of-sale advertising of smokeless tobacco and cigars lower than 5 feet from the floor of retail establishments located within 1,000 feet of school or playground violated the First Amendment of the US Constitution. However, regulations requiring retailers to place tobacco products behind counters and requiring customers to have contact with a salesperson before they are able to handle such products did not violate the First Amendment. Compare the ECJ's discussion of the fundamental right of expression set down in Article 10 of the ECHR in relation to the second Tobacco Advertising Directive, in which the Court found that the journalistic freedom of expression was not impaired. See Case C-380/03 Tobacco Advertising II, paras. 153-157. [91] See, e.g., Case C-88/03 Portugal v. Commission, judgment of 6 September 2006, not yet reported; Case C-145/04 United Kingdom v. Spain, judgment of 12 September 2006, not yet reported; Case C-300/04 Eman v. Sevinger, judgment of 12 September 2006, not yet reported. [92] Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn [2004] E.C.R. I-9609. [93] Id. at paras. 3-5. [94] Id. at paras. 4, 7. [95] Id. at paras. 11-12. [96] Id. at para. 33 (citations omitted). [97] Id. at para. 34. [98] Id. at para. 35. [99] Id. at paras. 37-38. [100] Id. at para. 39. [101] Id. at para. 41. [102] Article 17(1), first subpara., EU. [103] See Article 16 EU. [104] LENAERTS & VAN NUFFEL, supra note 5, § 6-004, at 327. [105] See Article 17(1), second subpara., EU (emphasis added). [106] See Articles 27a - 27e EU. [107] LENAERTS & VAN NUFFEL, supra note 5, § 6-004 - § 6-005, at 326-327. [108] See Articles III-292 - Articles III-329 of the EU Constitution. [109] Article III-329(1) of the EU Constitution provides: "Should a Member State be the object of a terrorist attack or the victim of a national or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council." [110] Koen Lenaerts, The Constitution for Europe: Fiction or Reality, 11 COL. J. EUR. L. 465, 473 (Summer 2005). [111] LENAERTS & VAN NUFFEL, supra note 5, § 20-044, at 870. [112] See further Lenaerts, supra note 110, at 475. [113] Article I-41(2), first subpara., EU Constitution. [114] See LENAERTS & VAN NUFFEL, supra note 5, § 20-046, at 872-873. [115] Id. § 6-006 - § 6-007, at 328-329 [116] Id. § 6-010, at 333-334. [117] Article I-3(2) EU Constitution. [118] LENAERTS & VAN NUFFEL, supra note 5, § 6-015, at 336. [119] Article III-270(2) EU Constitution. [120] Article III-270(2), third subpara., EU Constitution. [121] Article III-271(1), first subpara., EU Constitution. [122] Article III-271(1), second subpara., EU Constitution. [123] Article III-271(3)-(4) EU Constitution. [124] With specific regard to the European institutions, see also Article 7 EC ("Each institution shall act within the limits of the powers conferred upon it by this Treaty."); Article 5 EU ("The European Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors shall exercise their powers under the conditions and for the purposes provided for, on the one hand, by the provisions of the Treaties establishing the European Communities and of the subsequent Treaties and Acts modifying and supplementing them and, on the other hand, by the other provisions of the Treaty."). [125] Article I-1(1) EU Constitution (emphasis added). [126] Subsidiarity is applicable in areas of Union (not just Community) action. See Article 2 EU. [127] Article 1, second para., EU (emphasis added). [128] Lenaerts, supra note 110, at 479. |
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