Europe after Maastricht : interim report : report, together with the Proceedings of Committee, Minutes of Evidence, and Appendices : first report [of the] Foreign Affairs Committee.

  • Great Britain. Parliament. House of Commons. Foreign Affairs Committee.
Date:
1992
Catalogue details

Licence: Open Government Licence

Credit: Europe after Maastricht : interim report : report, together with the Proceedings of Committee, Minutes of Evidence, and Appendices : first report [of the] Foreign Affairs Committee. Source: Wellcome Collection.

    79/96 (page 63)
    — acontribution to education and training of quality and to the flowering of the cultures of the Member States (Article 3(p)); — a contribution to the strengthening of consumer protection (Article 3(s)—although the Community has been pursuing policies in the field of consumer protection already—and — measures in the sphere of energy, civil protection and tourism (Article 3(t)). 6. Article 3(h) includes a provision that is already elsewhere in the Treaty, which provides for the approximation of the laws of Member States to the extent required for the proper functioning of the common market. The ambit of this provision will become much wider when the Community’s objectives are widened as provided for by Article 2 of the amended Treaty and the activities of the Community are increased as provided for by in Article 3. 7. Finally, in the context of the Community’s powers, one should not overlook Article 235 of the Treaty which, both in its pre-existing form and as amended, provides that: If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures. 8. Important Community Directives have been adopted on the basis of Article 235, notably in the field of the environment. Examples include Council Directive 76/160 concerning the quality of bathing water (OJ 1976 L31/1) and Council Directive 80/778 relating to the quality of water intended for human con- sumption (OJ 1980 L299/11). Article 235 has also been used as the basis for the merger control regula- tion, Council Regulation 4064/89 on the control of concentration between undertakings (OJ 1990 L257/14), and in the social field as the basis for Council Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (1979 OJ L3/24). 9. Measures taken under Article 235 require unanimity. So do Council measures to harmonise laws of the Member States—being laws that directly affect the establishment or functioning of the common mar- ket (see Article 100). However, Article 100a, which was introduced into the existing Treaty by the Single European Act, provides for an exception to Article 100. Article 100a enables the Council to take har- monising measures that have as their object the establishment and functioning of the internal market by qualified majority voting rather than by unanimity. The internal market is defined in Article 7a of the amended Treaty as “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”. However fiscal provi- sions, provisions relating to the free movement of persons and those relating to the rights and interests of employed persons that have as their object the establishment and functioning of the internal market still require unanimity. And where a measure is adopted under Article 100a by qualified majority, Member States retain a qualified right to apply national provisions in so far as such provisions are justified on certain specified “non-economic” grounds (public morality, public policy, public security; the protection of health and life of humans, animals and plants; the protection of national treasures; the protection of industrial and commercial property; the protection of the environment; and the protection of the working environment) and the Commission verifies that the national provisions are not a means of arbitrary dis- crimination or a disguised restriction on trade between Member States and accordingly confirms them. 10. In all the new areas where competence has been given to the Community by virtue of Article 3 of the Treaty, other than in the field of industrial policy (see Article 130(3), the voting in the Council is by qualified majority, save where the Council wishes to overturn the European Parliament’s rejection of the Council’s common position or to amend the European Parliament’s amendments to the Council’s com- mon position, being amendments that have been endorsed by the Commission, (see Article 189c of the amended Treaty). THE SCOPE OF ARTICLE 3B 11. The first sentence of Article 3b merely confirms the fact that the Community has no sovereign powers of its own but relies on powers having been assigned to it, pursuant to the Treaty, by the Member States. 12. The second sentence of Article 3b contains the heart of the subsidiarity principle. The first point to note is that it applies only to areas outside the exclusive competence of the Community. For example, the Community has exclusive competence in the field of external trade (Article 113). In other areas of Community activity the Community is deemed to have exclusive competence when it adopts rules for a particular sector in the sense that Member States are thereafter under an obligation to refrain from tak- ing any measures which might undermine or create exceptions to the common rules laid down by the Community. This principle is well established in the case law of the Court of Justice see, for example, Case 177/78 Pigs and Bacon Commission v. McCarren [1979] ECR 2161. The areas where the Community has exclusive competence are therefore quite extensive.