European Public Law: EU Law Sources and Legislative Process

EU Law Sources

29/04/2024Look at the three documents in Moodle and try to identify the common structure of the Acts 29/04/2024

EU Law and Competences

Which fields, which issues does Eu Law regulate? EU Law production is governed by the principles of

• Conferral
• Subsidiarity

  · proportionality 29/04/2024

EU Law and Competences: Principle of Conferral

THE PRINCIPLE OF CONFERRAL: The Union acts only within the limits of the competences that EU Member States have conferred upon it in the treaties (art. 5 TEU). In principle, its competences are limited. A list of matters is provided by the TEU and we have THREE TYPES of COMPETENCES: -> exclusive -> shared -> support and coordination Division between the Union and the States, like in Federal Constitutions. Fundamental to identifiy the legal basis on which the Union legislates 29/04/2024

EU Law and Competences: Types of Competences

-> exclusive competences: the conferral to the Union is full. The States have lost the power to legiferate on these subjects. -> shared: Member States can act only if the EU has chosen not to. -> support and coordination: EU can help States through common legislation, but they have to autorize it. Heres come in to play the PRINCIPLE OF SUBSIDIARITY. It aims to ensure that decisions are taken at the closest possible level to the citizen and that constant checks are made to verify that action at the European Union (EU) level is justified in light of the possibilities available at the national, regional or local level. Specifically, it is the principle whereby the EU does not take action (except in the areas that fall within its exclusive jurisdiction), unless it is more effective than action taken at the national, regional or local level. 29/04/2024

EU Law and Competences: Principle of Proportionality

The PRINCIPLE OF PROPORTIONALITY. seeks to set actions taken by European Union (EU) institutions within specified boundaries. Under this principle, EU measures: - must be suitable to achieve the desired end; - must be necessary to achieve the desired end; and - must not impose a burden on the individual that is excessive in relation to the objective sought to be achieved (proportionality in the narrow sense). The idea is to bound EU action to give more space to States. 29/04/2024

Hierarchy in the European Legal System

Racke case; Poulsen and Diva Navigation Case C-286/90; Kadi case C-402/05 Constitutional foundations of EU system International Law Founding and Constitutive Treaties International Treaties agreed by EU International Treaties among sub- group of Member States Secondary Sources of EU

Sources of EU Law: Original Law

The Law of the Treaties that created and now regulate the general functioning of the Union and its institutions. It's a law adopted by the States, as all other international Treaties. Over time the treaties were unified and now we have two main texts: - TREATY ON THE EUROPEAN UNION (TEU: the more general, the more similar to a Constitution) -> TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (TFEU: more specifical. It identifies the fields of competence, the policies and the procedures of the organs). The last version comes from the Treaty of Lisbon of 2009. 29/04/2024

Treaties of EU Law: Constituent Treaties

The constituent Treaties of the European Legal System are the treaties which lay the foundations of European Union. They can be divided in: · Founding Treaties . Amending and supplementing Treaties: the ones which amend or supplement the former . Subsidiary Conventions: treaties which operate alongside the constituent treaties . Other treaties and agreements: treaties which are adopted by a sub-group of Member States 29/04/2024

Treaties of EU Law: Consolidated Versions

The main constituent Treaties currently "live" in the following consolidated versions: . Treaty on European Union (Consolidated version 2012): TEU . Treaty on the Functioning of the European Union (Consolidated version 2012): TFEU . Treaty establishing the European Atomic Energy Community (Consolidated version 2012): EAEC or Euratom

• Charter of Fundamental Rights of the European Union (2012): The Charter

  29/04/2024

Amending the Treaties: Procedures

The constituent treaties themselves provide for their modification or integration (amendment procedures) There are three main type of amendments: . Amending procedures (Art. 48 TEU): to modify or supplement the Constituent Treaties . Accession procedure (Art. 49, TEU): to become a new Member States · Withdraw procedure (Art. 50, TEU): to be used when a Member State decides to withdraw from the Union 29/04/2024

Amending the Treaties: Types of Procedures

The amending procedures regulated by Art. 48, TEU, are of three kind: -> 1 Ordinary procedure: Art. 48(2-5), TEU -> 2 Simplified procedures: Art. 48(6-7), TEU 29/04/2024

Amending the Treaties: Ordinary Procedure

The ordinary procedures to amend the Treaties is regulated by Art. 48(2-5), TEU, and concerns key amendments made to the Treaties, such as increasing or reducing the competences of the EU. It works as follows: 1) Any EU country's national government, the European Parliament or the Commission may submit to the Council a proposal to amend the Treaties. The Council submits these proposals to the European Council (national Parliaments also being notified) 2) If the European Council adopts a positive decision: a Convention composed of representatives of national Parliaments, of EU countries' Heads of State or Government, of the European Parliament and of the Commission is convened. The Convention examines the proposals for amendments and adopts decisions by consensus 3) A Conference of representatives of the governments of EU countries is then convened by the President of the Council with a view to adopting by common accord the amendments to the treaties. The changes come into force only after they have been ratified by all EU countries 29/04/2024

Amending the Treaties: First Simplified Procedure

The Treaty of Lisbon creates a simplified procedure for the amendment of the EU's internal policies and actions (for example, agriculture and fisheries, internal market, border controls, economic and monetary policy), i.e. the Third part of TFEU (Art. 48(6), TEU). The competences of the EU, however, may not be extended by means of a simplified revision procedure. The objective is to facilitate further European integration in these areas This procedure avoids the need to convene a European Convention and an Intergovernmental Conference. It is commonly known as Simplified Procedure and works as follows: 1) Any EU country's national government, the European Parliament or the Commission may submit to the Council a proposal to amend the Treaties 2) The European Council adopts the amendment acting by unanimity having consulted the Commission, the European Parliament, and the European Central Bank if the amendment concerns monetary matters 3) Amendments to the Treaties only enter into force if they have been approved (not ratified) by all EU countries. Following the 2008 banking crisis, the simplified procedure was used to allow the creation of the European Stability Mechanism (ESM). The European Council's decision of 25 March 2011 adds a third paragraph to Article 136 of the TFEU which reads as follows "the Member States whose currency is the euro may establish a stability mechanism" but "the granting of any required financial assistance under the mechanism will be made subject to strict conditionality" 29/04/2024

Amending the Treaties: Second Simplified Procedure (Passerelle Clauses)

Passerelle clauses are the second simplified amendment procedure which notably concerns the normative procedures The general passerelle clause (Article 48(7) TEU) concerns the 2 following cases:

• Where the Treaties provide that an act is to be adopted by the Council acting unanimously, the European Council may adopt a Decision authorizing the Council to act by qualified majority. This possibility does not extend to decisions regarding military implications and those in the area of defense
• Where the Treaties provide that an act is to be adopted by a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such an act in accordance with the ordinary legislative procedure (including Parliament)

  In both cases, the European Council must act unanimously after obtaining the consent of the EP. Furthermore, each national Parliament has the right to object and prevents the general passerelle clause from being activated 29/04/2024

Amending the Treaties: Limits to Amendments

Following ECJ in Kadi case (C-402/05, paras 285), we may say that there are a special "super category" of legal norms inside the Constituent Treaties (see also ECJ, Opinions no. 1/91, paras 72-72 and no. 1/00, para 5). These norms are referred by the ECJ as "Constitutional principles" or "the principles enshrined as a foundation of the Union". This judicial precedent concerns primarily the relationship between International Law and EU law. However, the reasons adopted by the Court may be extended to the relationship between Primary Sources in the EU legal System. We may therefore claim that such a Constitutional principles (like liberty, democracy and respect for human rights and fundamental freedoms) cannot be amended and repealed with an amending procedure -> in constitutional national orders is the same: founding principles theory. 29/04/2024

EU Secondary Law

-> Derivative or Secondary Law It is the stricto sensu European Law: it is not a Law adopted by the States, but a Law adopted directly from the European institution. We have five types of Act that EU could adopt. The first three are binding, the others not (art. 288 TFUE): -> Regulations Directives Decisions -> Recommendations -> Opinions 29/04/2024

Secondary EU Law: Article 288 TFEU

Art. 288 TFEU contains a short statement of the main contents each act is supposed to have: . A Regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States . A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods . A Decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them 29/04/2024