You have recently been elected MEP for South-Central

You have late been elected MEP for South-Central Suburbia and are acute to advance EC statute law on compulsory physical instruction categories in schools throughout the European Union to battle the lifting incidence of child fleshiness. The manager of the European Child Welfare Organisation ( ECWO ) has advised you that there are certain legal and institutional factors which make the chance of any such statute law far from certain. What are these factors, and what would be your ensuing program of action?

Essay Outline

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  • Stairss already taken by the Community in this country
  • Stairss being taken by the Member States


  • Principle of conferral
  • Scope of Treaty Articles
  • Shared Competence
  • Implied powers
  • Article 308 EC


Duty to Give Reasons


Essay Plan


The EU has already taken stairss in the country of childhood fleshiness. Europa, the official portal to the policies and activities of the European Union has a page dedicated to “Obesity, nutrition and physical activity.” This page contains the decisions of the Employment, Social Policy and Health and Consumer Affairs Council, published on 3 June 2005 which contains the findings of committee’s survey into the issue of fleshiness. The Commission besides published a Green Paper on 8 December 2005 entitled “Promoting healthy diets and physical activity: a European dimension for the bar of corpulence, fleshiness and chronic diseases.” Section V.3. of the Paper focuses specifically on kids and immature people.

The Commission’s scrutiny shows that childhood fleshiness is a quickly increasing job in the EU, and that more and more Member States are taking action to battle it. Examples include the national schemes against fleshiness of Ireland and Spain, France’s four twelvemonth national healthy nutrition program, the proposals approved by the parliament of Slovenian in March 2005, and the UK’s 2004 White Paper on fleshiness.


However, merely because statute law in a given country is necessary or desirable, is non plenty of itself to let the EU to take action. In order for the Community to move in any country it must hold competency to make so. This is because the Community has no general or built-in competency, but must move within the bounds of the power delegated to it by the Member States in the Treaties. This is known as the principal of conferral. There are four troubles with competency.

  1. There may be disagreement about the range of a pact article. This job was illustrated inWorking Time Directiveinstance ( Case C-84/94 ) .
  2. Competence may be shared. This can do differences over who has competency to move in a certain country. This particularly becomes an issue in visible radiation of the rule of subordinateness, which is discussed below.
  3. The range of implied powers can do trouble. There is a narrow definition as outlined by Hartly ( 1998 ) , and a broader definition that has been given support by the ECJ ( Cases 281, 283-285, 287/85 ) .
  4. The range of Article 308 EC. This is a general proviso that can give the Community wide legislative powers where such action‘should turn out necessary’ .This proviso has been the cause of much argument and contention ( Weiler, 1991 ) .

Harmonizing to the Commission ( Greenpaper, paragraph 1.3 ) competency in the country of childhood fleshiness is granted under Article 152 EC on public wellness. This Article provides for shared competency of the Community with the Member States and hence, raises the issues noted in paragraph B above.


Another cardinal rule of Community jurisprudence devising is the rule of subordinateness. This is closely linked to the inquiry of competency. Under Article 5 EC,‘In countries which do non fall within its sole competency, the Community shall take action, in conformity with te rule of subordinateness, merely if and in so far as the aims of the proposed action can non be sufficiently achieved by the Member States.’As we have seen above, Article 152 provides for shared Community competency and this means that subordinateness applies.

Subsidiarity includes three chief thoughts. The first is that the Community should merely take action if the aims of such action can non be sufficiently achieved by the Member States themselves. The 2nd is that there must besides be grounds that the Community can break accomplish the aim. Third, when the Community does move, it must non travel beyond what is necessary to accomplish the aim stated in the Treaty ( Craig and De Burca, 2003: 137 ) .

When suggesting new statute law, the Commission must explicate how the subordinateness rule is being met, the Parliament must Council must besides subject justifications for legislative proposals on the footing of subordinateness. These procedural precautions mean that it is really improbable that statute law is passed by the Community without a important sum of attending being paid to the demands of subordinateness ( De Burca, 1999 ) . These processs are policed by the ECJ.

Duty to give grounds

Another country similar to subordinateness is the responsibility placed on the Community legislative assembly to give grounds for all Acts of the Apostless. This responsibility is contained in Article 253 EC. The demand in Article 253 applies to ordinances, directives or determinations, being passed by any combination of the Council, Commission and Parliament. This is said to do the determination doing procedure more transparent, and besides assists the ECJ when measuring whether steps adopted are proportionate, have a steadfast legal footing, and comply with the subordinateness rule ( Case 24/62 ) . The responsibility to give grounds hence supports the rules of subordinateness and conferral by doing it easier for the ECJ to govern on new statute law ( Case 45/86 ) .


Looking at the principals of conferral and subordinateness, every bit good as the responsibility to give grounds, might make troubles for statute law in this country. Because this is an country of shared competency, any legislative action on the portion of the Community would hold to demo that the Community degree was the appropriate degree on which to take action. However, as seen in the debut, the Member States are already get downing to undertake this issue and it is to early to state whether or non their national steps will be effectual or non.

The class of action that I would be tempted to take would be one of easing cooperation. If any Community statute law were to be appropriate, this would be entirely to ease the sharing of cognition and experience between the Member States and help Member States in implementing their ain national schemes. Comprehensive Community level statute law on this issue would non be recommended.


Online Beginnings Portal,“Obesity, Nutrition and Physical Activity,available online at & lt ; hypertext transfer protocol: // & gt ; accessed 12/01/07

Commission Green Paper,“Promoting healthy diets and physical activity: a European dimension for the bar of corpulence, fleshiness and chronic diseases, ”available online at & lt ; hypertext transfer protocol: // & gt ; accessed 12/01/07

Irish National Strategy against Obesity, available online at & lt ; hypertext transfer protocol: // & gt ; accessed 12/01/07

Spanish National Strategy against Obesity, available online at & lt ; hypertext transfer protocol: // & gt ; accessed 12/01/07

Four Year National Healthy Nutrtition Plan of France, available online at & lt ; hypertext transfer protocol: // & gt ; accessed 12/01/07

Proposal of the Parliament of Slovenia, March 2005, available online at & lt ; hypertext transfer protocol: // & gt ; accessed 12/01/07

UK White Paper on Childhood Obesity 2004, available at & lt ; hypertext transfer protocol: // CONTENT_ID=4094550 & A ; chk=aN5Cor & gt ; accessed 12/01/07

EC Treaty, available at hypertext transfer protocol: //, accessed 13/07/06

Text Books and Journal Articles

De Burca, G. ,Reappraising Subsidiarity’s Significance after Amsterdam,Jean Monnet Working Paper 7/1999

Weiler, J. ,The Transformation of Europe,( 1991 ) 100 Yale LJ 2403, 2445-6

Craig, P. , and De Burca, G. ,EU Law,2003, Oxford University Press, Oxford

Case Law

Case C-84/94,United Kingdom V Council[ 1996 ] ECR I-5755

Cases 281, 283-285, 287/85,Germany v Commission[ 1987 ] ECR 3203

Case 24/62,Germany v Commission,[ 1963 ] ECR 63, 69

Case 45/86,Commission V Council[ 1987 ] ECR 1493

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