tag:blogger.com,1999:blog-8704899696538705849.post2459356447703044154..comments2024-03-28T02:32:17.979-07:00Comments on EU Law Analysis: The Brexit deal - Council legal service opinion Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-8704899696538705849.post-23425613498116478782022-09-29T01:01:40.156-07:002022-09-29T01:01:40.156-07:00This comment has been removed by a blog administrator.John Carlhttps://www.blogger.com/profile/11624406547585027938noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-14866652514863477842022-09-11T23:02:22.274-07:002022-09-11T23:02:22.274-07:00This comment has been removed by a blog administrator.mohsinkhatrihttps://www.blogger.com/profile/10727947497509096131noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-15551687815869866162022-07-26T03:37:45.411-07:002022-07-26T03:37:45.411-07:00This comment has been removed by a blog administrator.Sarah Jordanhttps://www.blogger.com/profile/08754675116616804039noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-23999953785931671132021-05-09T16:07:34.348-07:002021-05-09T16:07:34.348-07:00If you are referring to the possibility for Member...If you are referring to the possibility for Member States to set higher standards than EU law, that is only relevant where the EU has exercised its competence to set standards in the first place. The words "to the extent that" obviously also cover situations where the EU has not exercised its competence at all, therefore Article 2 is not "false". Also where the EU sets minimum standards, Member States are obliged to give effect to them, so their competence to set *lower* standards *is* impacted by the exercise of the EU's competence. Their competence to set higher standards is not. There is no sense in which Article 2 is "false" here either. And as a general point, claiming that Treaty Articles are "false" is not a very persuasive argument. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-79052582535883625242021-01-29T22:26:50.481-08:002021-01-29T22:26:50.481-08:00Article 2 says that in areas of shared competence ...Article 2 says that in areas of shared competence "The Member States shall exercise their competence to the extent that the Union has not exercised its competence". This is false. Arts 153, 169, 193 show that MS competence may be exercised whether or not the Union has exercised its competence. Article 2 says "The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence". This is false. Arts 153, 169 and 193 show that MS competence may be exercised before or after the Union has ceased to exercise its competence. None of this is covered by the words "to the extent that" Art 2(2).Mark Foxhttps://www.blogger.com/profile/14527528576031001370noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-35865191499313111332021-01-28T09:56:42.608-08:002021-01-28T09:56:42.608-08:00All this is covered by the words "to the exte...All this is covered by the words "to the extent that" in Art 2(2) - which logically refers not only to cases where the EU chooses to only partly harmonise an area of law which it *could* have harmonised fully, but also areas where it only partly harmonised an area of law because it could *not* legally harmonise it fully. None of the examples of the EU being constrained to set minimum standards is relevant to the EU/UK treaty; so it follows that the choice to use the EU only to sign up to the treaty is an unproblematic decision about how to exercise shared competence in this case. This is not "now" being used as a new approach to external relations - the case law referred to in the legal opinion had already followed this approach to external relations. Member State competence is only "excluded" here to the extent that its exercise would conflict with the EU's exercise of its powers - entirely as Article 2(2) provides. <br /><br />The "rule of law" isn't a magical phrase that trumps proper legal analysis. Just because somebody has a different interpretation of the law, it does not follow that the "rule of law" is threatened. This is an "everyone who disagrees with me is a Nazi" level of argument. Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-88818215499017594582021-01-28T08:59:44.013-08:002021-01-28T08:59:44.013-08:00"Article 2(6) states that the details of comp..."Article 2(6) states that the details of competences are further set out in the rest of the Treaties" - indeed they are, and (see 153(4) etc) in a way that contradicts the inaccurately binary formula in Art 2(2).<br /><br />"Your claim about the meaning of 'co-existence' ignores not only the clear wording of Art 2(2)" - yes it does, but Art 153(4) etc equally ignore the clear wording of Art 2(2). Because Art 2(2) mis-states the true nature of shared competence in areas where the EU may set only minimum standards.<br /><br />"The Treaty provisions you refer to specify that the EU sets only minimum standards in certain areas - but in each case Member States' higher standards must also be 'compatible with the Treaties'." Agreed, but this does not mean that MS are deprived of competence in the way that Art 2(2) claims. Unless you think free movement law entails exclusive EU competence because obstacles to interState trade have to be compatible with the Treaties, ie justified.<br /><br />"And the obvious a contrario implication of these provisions is that where the EU is *not* constrained to set minimum standards in areas of shared competence, it has a choice to harmonise the law fully." Yes, agreed, and in those instances Art 2(2) is accurate. But Art 2(2) is not accurate where the EU may set only minimum standards because in those cases MS may act (by setting stricter rules) even where the EU has also acted.<br /><br />So - big picture - Art 2(2) overstates the exclusion of MS competence once the EU has acted, and that is now being used in external relations law to exclude MS competence in areas where internally they remain competent. It's politically convenient, but it's storing up trouble if you believe in the rule of law<br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-6703361166045023772021-01-28T07:56:47.430-08:002021-01-28T07:56:47.430-08:00Article 2(6) states that the details of competence...Article 2(6) states that the details of competences are further set out in the rest of the Treaties. Your claim about the meaning of 'co-existence' ignores not only the clear wording of Art 2(2) but extensive case law dating back 50 years to ERTA. The Treaty provisions you refer to specify that the EU sets only minimum standards in certain areas - but in each case Member States' higher standards must also be 'compatible with the Treaties'. Obviously Member States must also *comply* with the minimum standards, so they are constrained in that sense too. And the obvious a contrario implication of these provisions is that where the EU is *not* constrained to set minimum standards in areas of shared competence, it has a choice to harmonise the law fully - having an even greater impact on Member States until, as Article 2(2) specifies, the EU ceases to exercise that competence.Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-74251730503864078312021-01-28T07:56:10.283-08:002021-01-28T07:56:10.283-08:00This comment has been removed by the author.Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-7793319786875603952021-01-28T07:32:00.533-08:002021-01-28T07:32:00.533-08:00Art 2(2) is clearly an inaccurate description of t...Art 2(2) is clearly an inaccurate description of the nature of shared competence. Look at Arts 153(4), 169(4), 193. Exercise of EU competence does not displace exercise of MS competence, it co-exists with it. And this is why permitting an agreement covering areas of shared competence to be concluded exclusively by the EU subverts the structure of the TreatyAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-30086993387547168682021-01-28T07:05:25.249-08:002021-01-28T07:05:25.249-08:00This is a misconception of what the legal service ...This is a misconception of what the legal service and the CJEU have said, and what the Treaties provide for. Article 2(2) TFEU includes this rule as part of the definition of shared competence: "The Member States shall exercise their competence to the extent that the Union has not exercised its competence." This is residual, ie it applies to the extent that the EU has not exercised its competence; so the exercise of EU competence displaces the Member States' exercise of theirs. The external version of this rule appears in Article 3(2) TFEU - "The Union shall also have exclusive competence for the conclusion of an international agreement...in so far as its conclusion may affect common rules or alter their scope." <br /><br />The nature of shared competence is that the Member States within the EU can choose to let the EU act as regards those competences, or reserve them for Member States' use; but if they choose to let the EU act then it constrains what the Member States can do in those areas. Your conception is that 'shared' competences somehow remain with the Member States even after Member States choose to let the EU act in those areas. But Article 2(2) TFEU specifies that this only happens to the extent to which the EU has ceased to exercise those shared competences: "The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence."Steve Peershttps://www.blogger.com/profile/05869161329197244113noreply@blogger.comtag:blogger.com,1999:blog-8704899696538705849.post-68151287322434704232021-01-28T02:57:58.827-08:002021-01-28T02:57:58.827-08:00Shared competences belong to both the EU and the M...Shared competences belong to both the EU and the MS. The MS, in ratifying the Treaty, have not agreed that these competences belong exclusively with the EU. But here the Council - not the MS acting through domestic political processes, but rather the MS acting through the EU - has decided to treat these competences as exclusive to the EU. I know the Court says that is lawful. But that does not make it correct. The Council has here adjusted the EU system from within, changing the allocation of competences - a clear violation of the principle that the EU's competences are defined and limited by the Treaty and can be changed only by the MS revising the Treaty and securing ratification according to domestic constitutional requirementsAnonymousnoreply@blogger.com