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FREE MOVEMENT, FEDERALISM AND INSTITUTIONAL CHOICE: A CANADA-EU COMPARISON

Published online by Cambridge University Press:  27 November 2012

Alicia Hinarejos
Alicia Hinarejos*
Affiliation:
Faculty of Law and Downing College, University of Cambridge.
*
Address for correspondence: Downing College, Cambridge CB2 1DQ. Email: [email protected].
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Abstract

Although very different in many respects, the EU and Canada nevertheless confront common problems in certain areas. One such common problem is how to manage inter-state regulatory diversity within a federal (or federal-like), multinational system. This paper compares the different ways in which the EU and Canada have chosen to address the problem of national barriers to trade within their internal markets, and the consequences of these choices. It is somewhat counterintuitive for EU lawyers that a full-fledged state may have an internal market that is less integrated than that of the EU; and yet that is the case in Canada. The comparison is illuminating as to the different possible approaches of federal polities to the problem of state regulatory choices and barriers to trade, the paramount importance of institutional choice, and the significance of historical and political circumstances.

Keywords

EU constitutionFederalisminter-state tradeCanada
Type
Articles
Information
The Cambridge Law Journal , Volume 71 , Issue 3 , November 2012 , pp. 537 - 566
Copyright
Copyright © Cambridge Law Journal and Contributors 2012

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References

1 The first round of negotiations took place in Brussels in January 2010; the latest round of negotiations took place in Ottawa in October 2011. It is expected that a trade agreement will be adopted in 2012: http://ec.europa.eu/trade/creating-opportunities/bilateral-relations/countries/canada/ (accessed July 2012). From the Canadian side, see http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/eu-ue/can-eu.aspx (accessed July 2012).

2 For an insightful and comprehensive overview of the EU and federalism, see in general R. Schuetze, “From Dual To Cooperative Federalism: The Changing Structure Of European Law” (Oxford 2009).

3 Although obviously a state, Canada has a weak national identity as opposed to, for example, the USA. This makes Canada a much more suitable term of comparison for an entity like the EU. See J.E. Fossum, “The EU-Canada Nexus: Why compare Canada and the European Union—and how?” in P.M. Crowley (ed.) Crossing the Atlantic: Comparing the European Union and Canada (London 2004).

4 Case 120/78 Rewe Zentrale v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] E.C.R. 649.

5 It is also possible to label indistinctly applicable measures as “indirectly discriminatory”, in the sense that they impose a double burden on out-of-state goods or persons (and thus have a different effect in fact).There are many different classifications of these measures and many different meanings given to “discriminatory” in the literature. See e.g. Barnard, C., The Substantive Law of the EU (Oxford 2010) 80–116Google Scholar; Bernard, N., “Discrimination and free movement in EC law” (1996) 45 I.C.L.Q. 82Google Scholar; Hilson, C., “Discrimination in Community free movement law” (1999) 24 E.L.Rev. 445Google Scholar.

6 One can either consider these measures as indirectly discriminatory because they have a different effect in fact on imported products than they do on domestic ones (the imposition of a double burden on imports), or abandon the discrimination model altogether and consider these barriers illegitimate merely on the grounds that they prevent or hinder market access (the market access model—which covers, but is potentially broader than, these “double-burden” measures). On the different meanings given to “discriminatory” in the literature, see note 5 above.

7 The free movement of goods will be used here to exemplify the basic role of the CJEU in market building; this paper does not attempt a full-fledged study of either free movement of goods or the law of the single market in general. It is with this in mind that the following general reflections are said to apply to all fundamental freedoms, across the board. This is despite the fact that the market access approach was apparent in services and persons much earlier than goods, and that the free movement of persons presents us with the added dimension of EU citizenship and its impact on the protection of fundamental rights. For general reference on all fundamental freedoms: C. Barnard, The Substantive Law of the EU, 3rd ed. (Oxford 2010); S. Weatherill, Cases and Materials on EU Law, 9th ed. (Oxford 2010).

8 There is however evidence that the Commission was already thinking of the potential reach of this ban to indistinctly applicable measures: Directive 70/50, OJ 1970 L13/29, Article 3. P. Craig and G. de Burca, p. 616.

9 The original provision, requiring unanimity, was Art 100 EEC (then Article 100 EC, then Art 94 EC, now Art 115 TFEU). The Single European Act created Article 100a EEC which needed and needs only QMV in Council—later Art 100a EC, then Art 95 EC, now Art 114 TFEU.

10 See e.g. Alter, K., The European Court's Political Power (Oxford 2009), 152 and ffGoogle Scholar.

11 One of the most overused terms of the discipline at the time, according to J Peterson, “The EU: Exportable Model or ‘Jagged Little Pill’?” in J.H.H. Weiler, I. Begg and J. Peterson (eds.), Integration in an Expanding European Union (Blackwell 2003) 374.

12 Case 120/78, Rewe Zentrale v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] E.C.R. 649.

13 On the significance and different interpretations of Art. 34 TFEU (Art. 30 EC at the time): M. Maduro, We, the Court (Oxford 1998).

14 The current Article 34 TFEU was held to be directly effective for the first time in Case 74/76, Ianelli & Volpi v Meroni [1977] E.C.R. 557. For more details (including the distinction between vertical and horizontal direct effect): Barnard, pp. 76–78.

15 The seed had already been planted in earlier cases: in Dassonville, where the Court already gave a potentially wide interpretation to “measures having equivalent effect to quantitative restrictions”, by stating that they included “all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade” (Case 8/74 Procurer du Roi v Dassonville [1974] E.C.R. 837, [5]) and in Van Binsbergen: Case 33/74 Van Binsbergen/Bedrijfsvereniging voor de Metaalnijverheid [1974] E.C.R. 1299. On why Cassis was far more influential than this earlier case law, see K. Alter, “The European Court's Political Power”, ch.7.

16 Following Cassis, the Commission reoriented its legislative agenda to focus on those national measures that withstood the Court of Justice's approach: Commission Communication 3 October 1980, OJ 1980 C256/02. Since Cassis, the case law of the Court of Justice has continued to evolve, seeking to refine the boundaries of Art. 34 TFEU. Important benchmarks beyond the scope of this paper are Keck and its aftermath (Joined Cases C-267 and 268/91, Keck and Mithouard [1993] E.C.R. I-6097; and e.g. Cases C-69 and 258/93 Hünermund [1993] E.C.R. I-6787; Joined Cases C-34/95, C-35/95 and C-36/95 De Agostini [1997] E.C.R. I-3843) and the more recent dominance of the market access test (Case C-110/05 Commission v Italy (trailers) [2009] E.C.R. I-519; Case C-108/09 Ker-Optika, judgment of 2 December 2010, not yet reported). On this evolution, see e.g. Weatherill, S., “After Keck: Some thoughts on how to clarify the clarification” (1996) 33 C.M.L.Rev. 885Google Scholar; Oliver, P. and Enchelmaier, S., “Free Movement of Goods: Recent Developments in the Case Law” (2007) 44 C.M.L.Rev. 649Google Scholar; Spaventa, E., “Leaving Keck behind: The free movement of goods after the rulings in Commission v Italy and Mickelsson and Roos” (2009) 34 E.L.Rev. 914Google Scholar.

17 See e.g. M. Maduro, We, the Court (Oxford 1998), 168 and ff, emphasizing the political values of Art 34 TFEU (non-discrimination, representation and solidarity) and the role of this provision as a corrector of national political processes. For similar views on the empowerment of individuals or their liberation from national democratic boundaries, see also Halberstam, D., “The Bride of Messina: Constitutionalism and Democracy in Europe” (2006) 30 E.L.Rev. 775Google Scholar. See also n. 63 below.

18 British North America Act of March 29, 1867, now called the Constitution Act 1867. The Statute of Westminster 1931 granted the Dominion independence. An Act of Westminster was however still necessary in order to amend the Canadian Constitution. This ended with the “patriation” of the latter in 1982: Westminster passed the Canadian Act 1982, which contained the text of the Constitution Act 1982. The latter includes, for the first time, a Charter of Rights.

19 This is not to say that the Court has not been seised by individuals; the latter were always able to challenge the validity of a measure before the Court, but this had to be done on grounds of lack of competence.

20 For a complete list, see s. 91 of the Constitution Act 1867.

21 Section 92 of the Constitution Act 1867.

22 This is, for example, the way it is done in the US, Australia, the EU and Germany.

23 The federal level is given a certain residual power with the “Peace, Order and Good Government” clause, which has been narrowly defined. On the interpretation of this clause, see P.W. Hogg, Constitutional Law of Canada (Toronto 2009), ch. 17.

24 Ironically, of course, the US system of attribution of competences led, later on, to a very strong Congress; the Canadian system has, conversely, led to a weak Parliament and very strong provinces.

25 “…[T]he method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent” K.C. Wheare, Federal Government, 3rd ed. (Oxford 1953), 10. It should be borne in mind that the Canadian federation dates back to 1867; its constitution and formal separation of powers are anchored in a classic or dual version of federalism. Another result of this rigid separation of powers is that no inter-delegation is possible: A.-G.N.S. v A.-G. Can. (Nova Scotia Inter-delegation) [1951] S.C.R. 31.

26 E.g. Scott, F.R., “Centralization and Decentralization in Canadian Federalism” (1951) 29 Canadian Bar Review 1095Google Scholar; Laskin, B., “Peace, Order and Good Government Re-Examined” (1947) 25 Canadian Bar Review 1054Google Scholar. It has been argued more recently that the decisions of the Privy Council were in tune with the political circumstances of the times, and consistent with other tendencies in Canada towards a less centralised federal system than that of the US or Australia: Hogg Constitutional Law of Canada, pp. 128-129, with further references, and Cairns, A.C., “The Judicial Committee and its Critics” (1971) 4 Canadian Journal of Political Science 301Google Scholar.

27 Termed “irreversible” by Hogg, Constitutional Law of Canada, p. 129. For a concise historical overview of Canadian federalism in the courts: G. Baier, Courts and Federalism (Vancouver 2006), 55–62. Baier notes that, since becoming the court of last resort in 1949, the Supreme Court has tempered decentralization slightly, but it has not shifted dramatically to a centralised view of federalism (pp. 58ff). See also G. Baier, “The Courts, the Division of Powers and Dispute Resolution” in H.Bakvis and G. Skogstad (eds.), Canadian Federalism: Performance, Effectiveness, Legitimacy, 2nd ed. (Don Mills Ontario, 2003), 24ff.

28 Although exclusivity is the rule, there are exceptions. There are concurrent powers in these areas: export of natural resources; old age pension and supplementary benefits; agriculture and immigration (ss. 92A, 94A and 95 of the Constitution Act 1867, respectively).

29 Hogg Constitutional Law of Canada, pp. 372–387.

30 But in the area of overlap, powers will be considered concurrent rather than exclusive: ibid., 412–413. For an argument in favour of a proportionality test within the legislative overlap, Vegh, A., “The Characterization of Barriers to Interprovincial Trade under the Canadian Constitution” (1997) 34 Osgoode Hall L.J. 355Google Scholar.

31 Often referred to as a process of “mutual modification”: W.R. Lederman, Continuing Canadian Constitutional Dilemmas (Toronto 1981), 243.

32 International/interprovincial trade and general trade and commerce affecting Canada as a whole are the two legs of the federal trade and commerce power, identified in Parsons: Citizen's Insurance Company of Canada v Parsons (1881) 7 App. Cas. 96. The second leg was ignored until 1949, and given a narrow interpretation thereafter. A five-part test has been defined: federal action must be in the form of a general regulatory scheme; it must be enforced by a regulatory agency; it must regulate trade and commerce as a whole, not a specific industry; it must be something that the provinces are not able to do jointly or separately; and it must be the case that failure to include one or more provinces would jeopardise the whole scheme. For further details: Baier Courts and Federalism, pp. 143ff.

33 Cases where the province regulates marketing are less clear-cut: where the province has adopted a measure setting up a marketing board controlling the conditions under which a particular product is sold within the province, the measure will be deemed ultra vires if it seems to regulate and not merely affect the entrance of out-of-province goods into the provincial market. AG Manitoba v Manitoba Egg and Poultry Association [1971] S.C.R. 689; Burns Foods Ltd. et al. v Attorney General for Manitoba et al. [1975] 1 S.C.R. 494. In both of these cases, the marketing board had been set up to protect the local procedures' interests and was controlled by them.

34 There is no federal power to create any national product standards for the sake of uniformity; there are some federal product standards in order to avoid a health and safety risk that has been considered worrying enough to allow Parliament to use its criminal law competence (The Food and Drugs Act). Parliament has been able to regulate, for example, that all products have to be labeled in English and French; it has also banned the use of some dangerous substances. Apart from these basic health and safety requirements, provinces are free to introduce any other labeling requirements (as long as they comply with federal intellectual property laws) or composition requirements.

35 See Labatt Breweries of Canada Ltd. v Attorney General of Canada [1980] 1 S.C.R. 914 for an example of a failed federal attempt at regulating product requirements (in this case, for light beer and its labelling) at the central level in order to avoid obstacles to trade because of diverse provincial regulation. Unsurprisingly, this was held to be outside Parliament's competence.

36 Gold Seal Ltd. v Attorney-General for Alberta (1921) 62 S.C.R. 424, per Anglin J., at p. 466; and per Duff J., at p. 456.

37 Canadian Egg Marketing Agency v Richardson [1998] 3 S.C.R. 157, para 63.

38 Proposals were made to strengthen s. 121 in the Charlottetown round of constitutional negotiations, making it more similar to the EU Treaty provisions and potentially imposing a duty of mutual recognition on the provinces. These proposals were part of a failed, wider attempt to reform Canadian federalism: see section 5(d), “Political Tensions”. Swinton, K, “Courting our Way to Economic Integration: Judicial Review and the Canadian Economic Constitution” (1995) 25 Canadian Business L.J. 280, 288–293Google Scholar; F. Vaillancourt, “Canada's Internal Markets. Legal, Economic and Political Aspects” in J. Pelkmans, D. Hanf & M. Chang (eds), The EU Internal Market in Comparative Perspective (Brussels 2008), 281, 299–301.

39 Rand J., concurring in Murphy v Canadian Pacific Railway Co. [1958] S.C.R. 626 at p. 642.

40 Canadian Egg Marketing Agency v Richardson [1998] 3 S.C.R. 157, per McLachlin J. dissenting, para. 123; Murphy v Canadian Pacific Railway Co. [1958] S.C.R. 626, at p. 642 per Rand J.; Reference re Agricultural Products Marketing Ac. [1978] 2 S.C.R. 1198, at p. 1268 per Laskin C.J. interpreting s. 121.

41 On mobility rights in Canada, see generally de Mestral, A. & Winter, J. “Mobility Rights in the European Union and Canada” (2001) 46 McGill L.J. 979Google Scholar; Choudhry, S., “Strengthening the Economic Union: the Charter and the Agreement on Internal Trade” (2002) 12 Constitutional Forum 52Google Scholar; Swinton, K., “Courting our Way to Economic Integration: Judicial Review and the Canadian Economic Constitution” (1995) 25 Canadian Business L.J. 280Google Scholar.

42 Winner v S.M.T. (Eastern) [1951] S.C.R. 887 per Rand J. at 919–920.

43 Canadian Egg Marketing Agency v Richardson [1998] 3 S.C.R. 157. See Choudhry, “Strengthening the Economic Union”, pp. 55ff.

44 It has been argued that, in Black, the court had opened the door to considering dual-burden rules as indirectly discriminatory in the future: Choudhry, “Strengthening the Economic Union”, pp. 54ff. In later case-law, however, the Court has adopted a narrow definition of “discriminatory measures” for the purposes of defining the scope of s.6 (2) of the Charter. Canadian Egg Marketing Agency v Richardson [1998] 3 S.C.R. 157. See Choudhry, ibid. at p. 56, and Swinton, K., “Courting our Way to Economic Integration” (1995) 25 Canadian Business L.J. 280, 284Google Scholar.

45 For empirical evidence, see Vaillancourt, “Canada's Internal Markets. Legal, Economic and Political Aspects”, p. 281, with further references. Statistical data compiled by Statistics Canada on interprovincial flows available here: http://www.ait-aci.ca/en/progress/flow_en.xls (accessed Nov. 2010).

46 This was corroborated in a 1999 Quebec court decision on Quebec's competence to require all margarine sold in the province to be colourless (contrary to all other provinces): UL Canada Inc. c. Québec (Procureur général) [1999] R.J.Q. 1720 (C.S.). The judgment was appealed to the Quebec Court of Appeal and, finally, to the Supreme Court. None of them disagreed with the first court's categorization of the AIT: UL Canada Inc. v Quebec (Attorney General) [2005] 1 S.C.R. 143, 2005 SCC 10. (Appeal from a judgment of the Quebec Court of Appeal [2003] R.J.Q. 2729, 234 D.L.R. (4th) 398, 10 Admin. L.R. (4th) 36, [2003] Q.J. No. 13505 (QL)).

47 These intergovernmental agreements, negotiated and adopted by the executives, appeared as a way to “make federalism work”, since amending the Constitution was seen as unfeasible. Baier, Courts and Federalism, pp. 11ff.

48 Legitimate objectives include public security and safety, public order, protection of human, animal or plant life or health, protection of the environment, consumer protection, protection of the health and well-being of workers and affirmative action programs.

49 The sectoral chapters cover: procurement, investment, labour mobility, consumer-related measures and standards, agricultural and food goods, alcoholic beverages, natural resources processing, energy, communications, transportation, environmental protection.

50 On what has been achieved from the entering into force of the AIT until September 2010: http://www.ait-aci.ca/en/progress/progress_en.pdf (accessed Nov. 2010).

51 For a summary of all disputes from the entering into force of the AIT until September 2010: http://www.ait-aci.ca/en/dispute/summary_en.pdf (accessed Nov. 2010).

52 Quebec dairy farmers are an important lobby within the province, and the Quebec ban on yellow margarine would seek to protect the sales of butter. See e.g. Vaillancourt, “Canada's Internal Markets. Legal, Economic and Political Aspects”, pp. 291–292.

53 UL Canada Inc. c Québec (Procureur général) [1999] R.J.Q. 1720 (C.S.). The judgment was appealed to the Quebec Court of Appeal and, finally, to the Supreme Court. None of them disagreed with the first court's decision: UL Canada Inc. v Quebec (Attorney General), note 46 above.

54 The first one was in 1997/98, and the claim was brought by Unilever and the province of Ontario. In 2003/04, Alberta brought again the same complaint against Quebec. For a summary of all disputes from the entering into force of the AIT until September 2010: http://www.ait-aci.ca/en/dispute/summary_en.pdf (accessed Nov. 2010).

55 For a classic critique, see e.g. R. Howse, “Between Anarchy and the Rule of Law: Dispute Settlement and Related Implementation Issues in the Agreement on Internal Trade” in M.J. Trebilcock and D. Schwanen (eds.), Getting There: An Assessment of the Agreement on Internal Trade (Howe Institute, Toronto, 1995). But for a positive appraisal, see M. Macdonald, “The Agreement on Internal Trade: Trade-Offs for Economic Union and Federalism” in H. Bakvis and G Skogstad (eds.), Canadian Federalism, ch. 8.

56 This is not the first amendment to the AIT, of course. The latest Protocol of October 7, 2009 (concerning the dispute settlement mechanism) is the Tenth Protocol of Amendment. The parties signed both the Tenth and the Ninth Protocol (on the labour mobility chapter) in January 2009. The Ministers declared that the reforms would come into force “upon execution by all ministers responsible for internal trade once duly authorised by [their] respective governments”. The declaration is available here: http://www.ait-aci.ca/en/progress/fmm_en.pdf (accessed Nov. 2010).

57 See e.g. the work of the Canadian Standards Association, a membership-based private association that works towards developing standards across different market sectors.

58 Swinton, “Courting our Way to Economic Integration”, p. 292.

59 On the institutional choices underlying different interpretations of Art. 34 TFEU (Art. 30 EC at the time) and, by extension, the single market provisions: see Maduro, We, the Court. On institutional choice analysis or comparative institutional analysis more generally, see N.K. Komesar, Imperfect Alternatives. Choosing Institutions in Law, Economics, and Public Policy (Chicago 1994).

60 The Commission reoriented its legislative agenda following the Cassis decision: Commission Communication 3 October 1980, OJ 1980 C256/02.

61 The legitimacy problems of constitutional adjudication—most notably, the counter-majoritarian difficulty—are well known and have long been the focus of academic discussion in the US. For two recent and compelling overviews from opposite standpoints and further references, see: Waldron, J., “The Core of the Case against Judicial Review” (2006) Yale L.J. 1346CrossRefGoogle Scholar; Fallon, R., “The Core of an Uneasy Case for Judicial Review” (2008) 121 Harvard L.Rev. 1693Google Scholar. There is a long tradition of challenging constitutional review in the US, contrary to what happens in Europe—see, for example, M. Tushnet, Taking the Constitution away from the Courts (Princeton 1999); R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, Mass. 2004). Judicial review has often been defended on substantive or procedural conceptions of minority protection: Dworkin, R., Taking Rights Seriously (London 1977)Google Scholar; Ely, J.H., Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass. 1981Google Scholar).At any rate, the classic counter-majoritarian argument against constitutional adjudication apply to the Court's role as a protector of individual rights, and as a federal court that has to enforce the vertical distribution of powers: Stone, A., “Judicial Review without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review” (2008) 28 O.J.L.S. 1Google Scholar.

62 Generally, it may be said that the Court of Justice does not enjoy the same social legitimacy that national constitutional courts do in Europe. A. Hinarejos, Judicial Control in the European Union. Reforming Jurisdiction in the Intergovernmental Pillars (Oxford 2009), ch.1 (esp. pp. 10–12).

63 Maduro, for example, argued that the adoption of each possible reading of what is nowadays Art. 34 TFEU would have led to a different institutional choice (the national legislature, the EC legislature, the Court). His comparative institutional analysis aimed to show, at the time, that the Court was the institution that was best placed to, to some extent, take control of this cornerstone of the single market: this allowed this provision (and by extension, much of EC law) to become more than a neo-liberal tool of deregulation. Instead, it gained a new legitimacy as a tool that corrects the national political process by defending the rights of out-of-state actors, whose choices are not represented in such process. See generally Maduro, We, the Court: pp. 168ff, the author emphasises the political values of Art 34 TFEU (non-discrimination, representation and solidarity) and the role of this provision as a corrector of national political processes. For similar views on the empowerment of individuals or their liberation from national democratic boundaries, see also Halberstam, D., “The Bride of Messina” (2006) 30 E.L.Rev. 775Google Scholar.

64 On what has been achieved from the entering into force of the AIT until September 2010: http://www.ait-aci.ca/en/progress/progress_en.pdf (accessed Nov. 2010).

65 It is also highly unlikely that they will be strictly monitored by an arbitration panel.

66 See e.g. G. Di Giacomo, “The Democratic Content of Intergovernmental Agreements in Canada” (2005) SIPP Public Policy Paper 38, available at: http://www.uregina.ca/sipp/documents/pdf/PPP38_%20DiGiacomo.pdf (accessed Nov. 2010).

67 Which are therefore only “exclusive” in the sense that legislative intervention by the EU is precluded. In Salzmann, the Court stated that “although the legal regime applicable to property ownership is a field of competence reserved for the Member States under Article 222 of the EC Treaty (now Article 295 EC), it is not exempted from the fundamental rules of the Treaty”. Case C-300/01 Salzmann [2003] E.C.R. I-4899 [39]. It is possible to find further examples of the Court's approach in the fields of social security, taxation, sport, etc. Cases C-372/04 Watts [2006] E.C.R. I-4325 and C-512/03 Blanckaert [2005] E.C.R. I-7685 on social security; C-446/03 Marks & Spencer [2005] E.C.R. I-10837 on taxation; C-415/93 Bosman [1995] E.C.R. I-4921 on sport. For two recent and notorious examples of this reasoning, see also Cases C-438/05 The International Transport Workers' Federation and The Finnish Seamen's Union [2007] E.C.R. I-10779; C-341/05 Laval un Partneri [2007] E.C.R. I-11767.

68 To the contrary, the EU Treaties take a different approach by listing only EU competences, the bulk of which is shared between the EU and the Member States, and leaving all other powers with the Member States. The principle of subsidiarity is, in theory, the tool to help us decide when it should be the EU or the Member States that exercise one of the shared competences. In general, the EU system of attribution of competences seems to aspire less to a clear-cut separation than the Canadian system does. See generally R Schütze, “From Dual to Cooperative Federalism” (n 2).

69 G. Baiers, “The EU's Constitutional Treaty: Federalism and Intergovernmental Relations—Lessons from Canada” (2005) 15 Regional & Federal Studies 205, 208. Tushnet also gives a clear explanation of this phenomenon: M. Tushnet, “Judicial Enforcement of Federalist-Based Constitutional Limitations: Some Skeptical Comparative Observations” (2007–08) 57 Emory L.J. 135, 140. Note that Tushnet's general conclusion, however, is that constitutional language alone cannot account for the very different approaches to competence taken by the US Supreme Court and the Supreme Court of Canada.

70 This is in keeping with the classic federal notion of single ownership of fields (see note 25 above). It should be borne in mind that the Canadian federation dates back to 1867; its constitution and formal separation of powers are anchored in a classic or dual version of federalism.

71 This is not to say that individuals had no access to the Court before the adoption of the Charter. Individuals were always able to challenge the validity of a measure before the Court, but this had to be done on grounds of lack of competence.

72 Canadian Egg Marketing Agency v Richardson [1998] 3 S.C.R. 157. See Choudhry, note 43 above, pp. 55ff.

73 The Privy Council has been traditionally criticised for its disregard for what seemed to be the intent of the constitutional drafters (to create a strong central government): see references in note 26 above. It has been argued more recently that the decisions of the Privy Council were in tune with the political circumstances of the times, and consistent with other tendencies in Canada towards a less centralised federal system than that of the US or Australia: Hogg Constitutional Law of Canada, pp. 128–129, with further references, and Cairns, A.C., “The Judicial Committee and its Critics” (1971) 4 Canadian Journal of Political Science 301Google Scholar.

74 Termed “irreversible” by Hogg, Constitutional Law of Canada, p. 129. For a concise historical overview of Canadian federalism in the courts: Baier, Courts and Federalism, pp. 55–62. Baier notes that, since becoming the court of last resort in 1949, the Supreme Court has tempered decentralization slightly, but it has not shifted dramatically to a centralised view of federalism (pp. 58ff). See also Baier, “The Courts, the Division of Powers and Dispute Resolution,” pp. 24ff.

75 Old Art. 2 EEC/EC. Nowadays, market-building appears in Art. 3 TEU, as part (albeit a very significant one) of a more comprehensive mission statement.

76 And even outside the federal powers to legislate, the federal government's expansive powers to tax and spend have resulted in enormous federal influence even in areas of provincial jurisdiction: Swinton, K., “Federalism under Fire: The Role of the Supreme Court in Canada” (1992) 55 Law and Contemporary Problems 121,124CrossRefGoogle Scholar.

77 Weiler, J.H.H., The Constitution of Europe (Cambridge 1999), 59Google Scholar.

78 It is of course true that in Cassis and such cases, the ECJ took some control away from Member States by making them accept the product standards from another Member State. But the fact that these matters were declared within the sphere of EC competence meant that Member States could endeavour to adopt harmonised standards under Art. 95 EC if they preferred.

79 It is not my intention to suggest that this “still being in control anyway” is the only reason that we have the approach that we have nowadays to competence attribution in the EU, but that it may have been one of several reasons at least in the beginning.

80 Cameron, D. and Simeon, R., “Intergovernmental Relations in Canada: The Emergence of Collaborative Federalism” (2002) 32 Publius: The Journal of Federalism 49, 51Google Scholar.

81 Ibid.

82 In 1930, the Prime Ministers of the UK and all the dominions agreed that the UK Parliament would only adopt a statute applying to a dominion if requested by the latter.

83 But the Supreme Court ruled that the provinces did not have a power of veto over the process: Re Objection by Quebec to Resolution to Amend the Constitution [1982] 2 S.C.R. 793.

84 Especially through the new Charter of Rights, which introduced new restrictions on the powers of the provinces. In particular, the Charter restricted the power of Quebec to, for example, implement French language policy. See Hogg, pp. 73–74.

85 The referendum took place in May 20, 1980. The “no” won with a vote of 59.5 per cent against a vote of 40.5 per cent.

86 For a seminal benchmark of the academic debate at the time: M.J. Trebilcock, J.R.S. Prichard, T.J. Courchen, J. Walley (eds.) Federalism and the Canadian Economic Union (Toronto 1983).

87 This was corroborated in a 1999 Quebec court decision on Quebec's competence to require all margarine sold in the province to be colourless (contrary to all other provinces): UL Canada Inc. c Québec (Procureur général, [1999] R.J.Q. 1720 (C.S.). For the appeal in this case, see note 46 above.

88 Cooperative and executive are defining features of Canadian federalism: Baier Courts and Federalism, p. 11; the AIT as a perfect example of both, p. 148.

89 The second Quebec referendum took place in October 30, 1995. The result was closer than in 1980: the proposal was defeated by 50.6 per cent to 49.4 per cent.

90 Cohen, D., “The Internal Trade Agreement: Furthering the Canadian Economic Disunion?” (1995) 25 Canadian Business L.J. 257, 261Google Scholar.

91 Macdonald, “The Agreement on Internal Trade: Trade-Offs for Economic Union and Federalism”, note 55 above, p. 142. According to Macdonald, the symbolic importance of the AIT also had consequences for its content: “federalism was in need of a victory—any victory”, which meant that the parties were less likely to press for specific and strong rules. The result was a non-binding and very general political document (p. 143).

92 Section 121, for one, would have been widened to include a potential duty of mutual recognition among the provinces: Swinton, “Courting our Way to Economic Integration”, pp. 288–293; Vaillancourt, “Canada's Internal Markets. Legal, Economic and Political Aspects”, pp. 299–301.

93 Many would say that, even if the threat of dismantlement were the same, what is at stake is more in the case of a federal state created in 1867 than in the case of an entity like the European Union.

94 Dashwood's now classic definition: Dashwood, A.A., “States in the European Union” (1998) 23 E.L.Rev. 201Google Scholar.