General
When establishing the relationship between Community law and its members, it is essential to establish exactly where the demarcation of powers lies between them. At a relatively early stage of its case law, the Court of Justice had confirmed that the Community had acquired ‘real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community’.1 The question then arises as to whether this transfer of powers
1 Case 6/64, Costa v ENEL [1964] ECR 585 at 593.
entails that the Community has acquired exclusive jurisdiction in the policy areas covered by the Treaties. The answer to this question is supplied by the ECJ case law, which has conferred on the Community exclusive powers, concurrent powers and parallel powers in relation to the national authorities.
Whether an area will fall under either of these powers will depend not only on the substantive provisions of the Treaty, but also on the whole of its scheme.2 Exclusive jurisdiction
The areas in which the Community has acquired exclusive jurisdiction are those for which it emerges from the express wording of the Treaty provisions, or from their context, that the latter fully intended to confer on the Community full and definitive powers, whilst at the same time excluding any possibility of unilateral action by the Member States, even before the Community institutions have used these powers by adopting the appropriate provisions.3
Hitherto, the Court has claimed exclusive jurisdiction for the Community in a number of areas. Thus in its Local Cost Standard Opinion,4the Court held that the common commercial policy was a matter in which the Community only could act, to the exclusion of any concurrent actions on the part of the Member States. In another ruling,5it held that the Community had exclusive jurisdiction to become a party to an international Convention on the Protection of Nuclear Materials, not only because of its international legal personality, but also because of the objectives of the Euratom Treaty.6 In Kramer,7 the Court ruled that policy on maritime resource conservation was also a matter for which the Community had exclusive responsibility.
The existence of areas falling within the exclusive jurisdiction of Community action gives rise to the question as to what happens if the Community has failed to adopt the required measures in this area. On this issue, the Court has ruled that the transfer of powers to the Community in these areas was complete and definitive, and could neither entail the return of these areas to the jurisdiction of the Member States nor give the latter the freedom to act unilaterally.8 If the Community institution in question had failed to act, the Member States’
authorities could proceed to take the necessary measures, but only on a
2 Case 22/70, Commission v Council [1971] ECR 263 at 274.
3 Constantinho and Dony, 1995, p 22.
4 Opinion 1/75, [1975] ECR 1355 at 1363; see also Case 41/76, Donckerwolcke v Procureur de la République [1976] ECR 1921 at 1936; Case 179/78, Procureur de la République v Rivoira [1979]
ECR 1147.
5 Ruling 1/78, [1978] ECR 2151.
6 Lasok, 6th edn, 1994, p 61.
7 Cases 3, 4 and 6/76 [1976] ECR 1279 at 1308.
8 Case 804/79, Commission v United Kingdom [1981] ECR 1045 at 1073.
temporary basis, and after having consulted, and obtained the consent of, the Commission. The question as to what areas fall within the exclusive jurisdiction of the Community is a particularly important one when it comes to determining the field of application of the subsidiarity principle. This will be returned to later (below, p 112 et seq).
Concurrent jurisdiction
For a long time, the Eastern European countries refused to recognise the Community as an international legal personality. For relations with these areas, the Community and the Member States were said to have ‘concurrent jurisdiction’. This kind of jurisdiction was always regarded as exceptional and transitory.9 There are also a number of areas which have not been specifically allocated to Community jurisdiction by the Treaty, but which are potential areas of Community responsibility. Until such time as the Community institutions adopt legislation in this field, the Member States have concurrent jurisdiction in it. Even here, the Member States’ powers are not unlimited, as they may not infringe the Community rules on discrimination, or detract from the principle of the free movement of goods, persons, services and capital.10A good example of this is those areas of company law which have not yet been harmonised by Community law (and for which there exist a number of drafts which, for one reason and another, have failed to be adopted, below, p 205). As the pace of European integration increases, these areas are becoming increasingly rare.
In 1998, the Court of Justice added a new dimension to the issue of concurrent jurisdiction when it ruled that it was entitled to reply to a preliminary question referred by a domestic court on the interpretation of a rule contained in the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) – even though questions relating to the Agreement largely came within the jurisdiction of the Member States.11The national court had referred a question on the interpretation of Article 50 thereof, under which the judicial authorities of the contracting parties were to be empowered to order the adoption of provisional measures to protect the interests of those holding the rights to a trade mark under the legislation of the said parties. The ECJ observed that the EU was also a party to the TRIPS Agreement, and where a provision was to be applied to situations covered by both national and Community law, it was certainly in the interest of the EU to ensure uniform interpretation, regardless of the circumstances in which the provision was to apply.
9 Lasok and Cairns, 1984, p 227.
10 Constantinho and Dony, 1995, pp 23–24.
11 Case C-53/96, Hermès International v FHT Marketing Choice [1998] ECR I-3603.
Parallel jurisdiction
These are areas in which Community law is complementary to national law.
Thus EU competition law only prohibits abuse of dominant position where it is
‘incompatible with the common market and in so far as it may affect trade between Member States’ (Article 82 (ex Art 86) EC Treaty). Therefore firms which merely account for a substantial share of the national market are not covered by Article 86. The national authorities may exercise their parallel jurisdiction in relation to the anti-competitive behaviour of such companies.
Demarcation disputes
The Court of Justice has sometimes been called upon to adjudicate in disputes concerning the demarcation of national and Community jurisdiction. In Germany v Parliament and Council,12 the applicant sought to obtain the annulment of a directive aiming to harmonise Member States’ legislation on advertising and sponsorship of tobacco products. The Court annulled the entire directive on the grounds that the Community law-making authorities had not been empowered to adopt it. One of the reasons for this was the fact that the first indent of Article 152(4) (ex Art 129) EC Treaty ruled out any harmonisation of laws and regulations of the Member States designed to improve and protect public health. The Court conceded that this provision did not mean that harmonisation measures adopted on the basis of other Treaty provisions could not have an impact on the protection of human health; however, the purpose of resorting to other Treaty articles was not to circumvent the first indent of Article 152(4).