Friday, May 4, 2012

Commission v. Council (Titanium Dioxide) case brief

Commission v. Council (Titanium Dioxide) [1991] ECR I-2867

Legal Basis - there can be more than one.
Environmental or harmonization law?
TFEU 114: Parliament and Council, after consulting the economic and social committee, can adopt measures for the approximation or provisions which have their object as establishment and functioning of the internal market.
Environmental law?  Council can act by itself.
-Is the law being challenged?  
1.  Two possible reasons for the law?  (i.e., environmental + market regulation?)
2.  There can be many reasons why there is a law (multiple basis → what is the primary basis and what is the incidental effect?)
3.  Object, aim, purpose → Look at law; words; preamble; phrases, etc.
FACTS:  1989: Council by unanimous vote enacted a directive harmonizing rules on reduction of pollution caused by titanium dioxide waste which authorized council alone to adopt environmental legislation.
-Commission/Parliament challenged legality of directive on ground that Council should have acted under TFEU 114, which at the time called for cooperation procedure with qualified majority voting.
ANALYSIS:  Choice of legal basis for measure must be based on objective factors, which include aim and content of measure.
-Directive has two-fold aim: elimination of pollution and to improve conditions of competition in that industry - Environmental protection + improvement of conditions of competition.
-Increase the involvement of Parliament in the legislative process.    
-Participation reflects a fundamental democratic principle that the peoples should take   part in the exercise of power through the intermediary of a representative assembly.  
-The contested measure should have been based on TFEU 95.  

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