EU Law Past Paper PDF 2024/2025

Sources of EU law – Secondary law. Regulation, directives and decisions EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  EU secondary law  From the hierarchically viewpoint, secondary law is...

Sources of EU law – Secondary law. Regulation, directives and decisions EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  EU secondary law  From the hierarchically viewpoint, secondary law is – quite tautologically – subordinated to EU primary law  As the name suggests, secondary law stands at the second level of the EU’s normative system  EU secondary law is composed by the acts enacted by the EU institutions, within the limits of the powers and competences granted to them by the Treaties (principle of conferral) and in accordance with the procedures laid down in the Treaties  Secondary law derives its authority from the Treaties 1  Preliminary classifications  Codified acts (article 288 TFEU) vs. absolute (mentioned in other dispositions of the Treaties) and relative (no reference at all in the Treaties)  Binding acts vs. non binding acts  Legislative acts (article 289 TFEU) vs. non legislative acts  Main acts vs. delegated and implementing acts (articles 290-291 TFEU) 2  (a few) common features of EU secondary law  Enacting Institutions are bound by the duty to state reasons (article 296 TFEU)  Enacting Institutions are bound by the duty to individuate and indicate the legal basis (principle of conferral)  The proposal an the opinion/approval requested by the applicable procedure shall be mentioned in the act  Legislative acts (always) and non legislative acts that do not individuate their addresses (acts general in scope) shall be published in the Official Journal of the EU  Non legislative acts which are specifically addressed to one or more subjects shall be served/notified to the addresses (article 297 TFEU)  No retroactive effects (general principles of legal certainty and legitimate expectation) 3  Duty to state reasons  The duty to state reasons is mandatory for all binding acts, no exceptions (article 296 TFEU)  The enacting institutions comply with the duty if they clarify the factual and legal profiles which have made the initiative necessary and on which the envisaged act is based  There are no mandatory rules on how (i.e., according to which formalities) the duty to state reasons shall be implemented but, as a matter of principle, such requirement is respected trough the so-called recitals included in the preamble, i.e. the first part of any act of EU law  The duty to state reasons serve essentially two different, albeit connected, purposes:  allowing the Member States and the individuals to become aware of how and why one or usually more EU institution have applied the Treaties;  Allowing the ECJ and the General Court (which together form the CJEU) to perform an effective judicial review on the activities of the EU institutions  Indeed, missing or inadequate statement of reasons may lead to the annulment of the act (article 263 TFEU) and/or to the declaration of invalidity of the act (article 267 TFEU), being one of the so-called violation of essential procedural requirements (see class on the annulment procedure), i.e. one of the grounds of annulment mentioned by article 263(2) TFEU  the ECJ/General Court shall raise this ground of annulment 4 ex officio (i.e., even if the applicants did not raise it) How does a statement of reasons look? The so-called recitals (“whereas”) 5 How does a statement of reasons look? The so-called recitals (“whereas”) (2) 6 How does a statement of reasons look? The so-called recitals (“whereas”) (3) 7 How does a statement of reasons look? The so-called recitals (“whereas”) (4) 8 How does a statement of reasons look? The so-called recitals (“whereas”) (5 ) 9 How does a statement of reasons look? The so-called recitals (“whereas”) (6) 10  Legal basis As we have already seen, it is a reference to one (or more) dispositions of the Treaty on which the institutions relied in order to adopt the act in question. The indication of the legal basis serves the following purposes:  Competences of the EU (“external relevance”) = according to the principle of conferral, the EU institutions can act only if their action is provided and justified by the Treaties, i.e. if a disposition can be found in the Treaties attributing that specific power that has been exercised to the EU;  Competencies of the single institution (“internal relevance”) the division of powers among the EU institutions is also guided by the principle of conferral and io institutional balance  Procedural = different legal bases may imply different decision-making procedures to be followed in order to adopt the act, i.e., different ways of forming consensus (voting: unanimity and/or majority) around the act and/or different involvement of Parliament;  Choice and identification of the category of act = it is the legal bases that mandate which acts (e.g., regulation or directive?) can be adopted on their basis The choice of legal basis does not depend on a subjective assessment of the institutions as to the end pursued but, rather, is made on the basis of objective criteria, susceptible to judicial review, including in particular the purpose and content of the act (center of gravity and whether inapplicable dual legal basis, with the exception of CFSP where this is prohibited) 11 Legal basis (2) 12 Legal basis (3) 13 Codified acts of EU secondary law 14  Regulations  General scope = regulations apply to abstractly and objectively determined categories of recipients as a whole rather than to a defined number of recipients. In this sense, regulations affect objective situations and are typically normative in nature (also at the national level, the law is general and abstract).  Direct applicability = regulations enter into the national legal systems without the need for regulatory intervention by the Member States and are capable of directly creating active (rights) or passive (obligations) subjective legal positions in the hands of the addressees  Entirely binding = they are binding in all their elements, so that the addressees are obliged to give them full and complete implementation. The Member States cannot make oppositions and reservations at the time of their adoption. INSTRUMENT OF UNIFORMATION: REGULATIONS 15 REPLACE NATIONAL LAW  General Scope  A regulation applies to objectively determined situations, implies legal effects for categories of persons considered in a general and abstract manner, and affects the plaintiff solely in view of her status as a seller of raw beet sugar, without any other specification  The qualification of an act as a regulation is not diminished where it is possible to determine, with greater or lesser precision, the number or even the identity of the addressees at a given time, provided that the quality of the addressee depends on an objective situation in law or in fact, defined by the act in relation to its purpose.  Moreover, the fact that a rule may have different concrete effects for different addressees does not conflict with its character as a regulation, where that situation is objectively determined (Zuckerfabrik 16 case, 6/68, judgement of 11 July 1968).  General scope (2) Between 2000 and 2001, a number of EU regulations established sanctions against certain individuals with established links to Al Qaeda (as today with the so-called oligarchs in the context of the Ukrainian crisis). One of the annexes to one of these regulations specifically lists the individuals against whom such restrictive measures applied  Distinction between regulations and decisions = the distinguishing criteria must be sought in the general or individual scope of the act in question. The essential characteristic of the decision consists in the limitation of the addressees to whom it is directed, whereas the regulation, which is essentially normative in nature, is applicable to situations objectively considered, entailing legal effects with respect to categories of persons considered abstractly and as a whole.  According to the ECJ, the contested regulation unquestionably has a general scope, since it prohibits any person from making capital or economic resources available to certain persons. The fact that such persons are specifically designated in Annex I to that regulation, so that it appears that the latter is of direct and individual concern to them, within the meaning of the fourth paragraph of Article 230 EC, in no way affects the generality of that prohibition, which applies erga omnes, as is clear in particular from Article 11, under the terms of which the contested regulation applies: - within the territory of the Community, including its airspace; - on board all aircraft and vessels under the jurisdiction of a Member State; - to all nationals of a Member State elsewhere; - to all legal persons, groups or entities incorporated or constituted 17 in accordance with the law of a Member State; (case Yusuf, T-306/01, 21 September 2005).  General Scope (3) Bottom line:  An act to be a regulation shall not necessarily cover the entire EU territory or all Member states  However, category of recipients shall be identified abstractly and as a whole  Recipients may be identifiable, but only in abstract, due to their objective factual and legal situation 18  Direct applicability  The effects of the regulations are produced directly and automatically in national legal systems regardless of any implementing and/or regulatory activity at the domestic level  Therefore, there is no need for any adaptation and/or transposition activity of the regulations within each member state  On the contrary, the Court of Justice has ruled that this is not only unnecessary but also prohibited = any national act of transposition would be incompatible with EU law (why? see next slide)  Regulations (as a source) are by definition capable of producing direct effects within the legal orders of Member States:  if they meet the relevant requirements, their provisions can therefore be invoked by individuals as the basis of their claims before national courts19in the same way as an act of domestic law.  Direct applicability (2)  «regulations are, as such, directly applicable in all member states and come into force solely by virtue of their publication in the official journal of the communities, as from the date specified in them, or in the absence thereof, as from the date provided in the treaty. consequently, all methods of implementation are contrary to the treaty which would have the result of creating an obstacle to the direct effect of community regulations and of jeopardizing their simultaneous and uniform application in the whole of the community” (Commissione c. Italia, case 39/72, 7 febbraio 1973).  «Member States are under an obligation not to introduce any measure which might affect the jurisdiction of the court to pronounce on any question involving the interpretation of community law or the validity of an act of the institutions of the community, which means that no procedure is permissible whereby the community nature of a legal rule is concealed from 20 those subject to it» (case Variola, 34/73)  Binding in their entirety  Member states cannot leave unapplied any disposition of a regulation, even if that regulation's provision is not complete and self-sufficient  Member states may not limit the scope of a regulation or make its effectiveness subject to conditions not provided directly by the regulation itself  Member states may not introduce exceptions not covered by the regulation itself  «it cannot be accepted that a member state should apply in an incomplete or selective manner provisions of a community regulation so as to render abortive certain aspects of community legislation which it has opposed or which it considers contrary to its national interests» (Commission c. Italy, case 39/72, judgement 7 february 1973) 21  Directives  No general scope = unlike regulations, directives are binding only for the Member state or states to which they are addressed (in practice, directives apply to all states)  mandatory effects limited to the result to be achieved = they bind the Member states as to the result to be achieved but leave them free to define the means  Biphasic regulatory structure = (i) identification of the objectives to be achieved at the supranational level and (ii) choice of means to achieve those objectives at the national level by act of transposition or transposition  No direct effects = directives by their very nature cannot produce direct effects since the production of obligations and rights for subjects of the national legal systems is subject to the adoption of national measures of transposition (exception: only vertical direct effect, in specific cases: i.e., in case of non- or imperfect transposition and after the deadline has expired - see lecture on direct effects) INSTRUMENT OF HARMONIZATION OF NATIONAL LAWS 22  Duty to transpose  Time limit = The obligation to must be fulfilled within the time limit set by the directive itself, normally two years  Modalities = The discretion accorded to Member states in choosing the forms and means of implementation is not unlimited (quite the contrary, actually). The instruments chosen by the national legislature must be suitable for producing the results sought by means of the directive and must meet the requirements of clarity and certainty of the legal situations sought by the directive  no administrative measures = the Court has found implementing measures of an administrative nature, such as circulars and resolutions, to be insufficient because they are always amendable and lack adequate publicity.  So-called detailed (or self-executing) directives = detailed directives, which leave no room for Member states’ discretion as to how and when to achieve the prescribed result, are very common in practice; they have raised doubts about their legitimacy with respect to EU law in cases where the manner in which the institution's powers are exercised is limited to the adoption of directives and not also regulations: 23  Duty of standstill  As mentioned, Member states have a deadline at their disposal to transpose directives and adapt domestic law to their content  Until the deadline expires, even if it has not yet transposed, the member state is not (yet) in breach of Union law if it has not transposed the directive  it follows, inter alia, that before the expiration of the deadline, the question of whether the rule of the directive has direct (vertical) effect cannot even arise  But beware, there could be a general principle of EU law dealing with the same topic of the directive that could have not only vertical but also horizontal effect and may lead somehow to the applicability of the directive even before the end of the transposition period (see Mangold case, Case C-144/04)  In any case, in the period between its entry into force and even before the deadline for implementation expires, the directive already obliges States to behave in good faith in any case, refraining from adopting provisions that could seriously jeopardize the result prescribed by the directive (Inter-Environnement Wallonie, causa C-129/96, sentenza 18 dicembre 1997, punti 45-50)  Application of the principle of loyal cooperation 24  Decisions  No general scope (⍯ by regulations) = a decision as a rule (but see next slide) identifies its addressees in specifically designated entities, which may be  Member states (e.g., Commission decisions on state aid)  Natural or legal persons (e.g., Commission decisions in the filed of competition law)  Mandatory character (= to regulations)  Direct effects = decisions have the capacity to create active or passive subjective legal positions directly in the hands of the addressees, without the need for regulatory intervention by the Member States (especially when addressed to individuals)  Notification and/or publication in the OJEU = a decision must be notified to its addressees (if designated) and only from that moment it can produce its effects and become enforceable against them.  Publication in the OJEU-which is not, therefore, a condition of enforceability-is reserved, in practice, only for the most relevant decisions. Publication is, on the other hand, required with regard to decisions that do not designate addressees. 25  General applicability?  Until the Treaty of Lisbon, the only possibility envisaged by the Treaty was that decision could only be addressed to specific addresses, so that the decision was, in essence, the equivalent of an administrative act at the domestic level.  The decision, therefore, identified its addressees who were specifically designated subjects.  However, with the Lisbon Treaty, Article 288 TFEU was amended and now it provides that a decision “if it designates addressees, it shall be binding only on those addressees"  After Lisbon, therefore, decisions can also be general in scope (otherwise, the “if” would not make sense)  This development means that an act whose original nature was distinctly individual now has a double possible valence, being able to have general scope or individual scope.  General decisions include those taken by the European Council as part of the simplified Treaty revision procedures, i.e., the one by which the same institution determines the composition of the European Parliament or the list of Council formations, those for the opening of negotiations for international agreements 26  Codified acts not binding Recommendations Common features  are normally adopted when the institutions (i) do  Initiative = the power to adopt them is granted to all not have the power to adopt binding acts and (ii) institutions and, in particular, to the Commission, to which Article 17 TEU grants this power in areas defined by the consider that there is no reason to adopt binding Treaty and when it itself deems it necessary. rules;  They guide national courts = although lacking binding  are addressed to Member States and contain a force, they entail an obligation for national courts to take call to comply with a certain behauvior. them into account when interpreting national rules or other binding acts of the Union; Opinions  No review of legitimacy = their lack of binding effect  are used by the institutions or other bodies of the removes them from review of legitimacy, but not from EU to make known their views on a particular interpretation by the European courts (see the different literal tenor of Articles 263 TFEU(1) and 276 TFEU, matter; respectively:  therefore, they serve a guidance function without  Legitimate expectations = engender in the recipient a any obligation to comply with it. legitimate expectation as to the propriety of the conduct suggested or prescribed by them. 27  Non standard acts (relative and absolute) Relative (mentioned in the Treaty, but not in Art. 288 TFEU)  internal regulations = (arts. 232, 235 n. 3, 240 n. 3, 249 n. 1 TFEU), with effect normally confined to internal relations within the institutions; they can ground the annulment of an act adopted by an institution in violation of their content for breach of their substantive form  general programs = originally adopted by the Council and aimed at the removal of restrictions on establishment and freedom to provide services  Approval of the budget by the EP president (Art. 314(9) TFEU);  preparatory acts = e.g., Commission proposals  measures adopted by the Council, provided for in Title V, Chapter 2 of the TFEU, regarding policies on border controls, asylum, immigration. 28  Non standard acts (relative and absolute) Absolute (acts, sometimes even binding, not provided for in the Treaty but arising in practice )  decisions of the Council that are binding and of general application and (i) authorize the Commission to negotiate agreements or approve their conclusion, (ii) affect the functioning of the organization of the Union (e.g., decisions on the appointment of persons, staffing of the institutions), (iii) deal with Community funds and programs (cf. the decision establishing the Court of First Instance No. 591 of October 24, 1988, in OJEC L 319 of November 25, 1988).  Interinstitutional agreements = between Council, Commission and Parliament (e.g., on budgetary discipline of Oct. 29, 1993, in OJEC C 331, Dec. 7, 1993, replaced by that of May 6, 1999, in OJEC C 172, June 18, 1999);  Council resolutions = non-binding but used, e.g., to make explicit the institution's viewpoint on issues pertaining to specific areas of Union action;  Commission communications = of the (i) informational type, if intended to feed the dialogue between institutions in anticipation of the adoption of regulatory acts; (ii) decisional, whereby the Commission exercises even discretionary decision-making power, such as in competition and state aid matters; and finally (iii) interpretative, whereby states and operators are made aware of their rights and obligations under EU law;  joint statements = of the Parliament, Council and Commission, which are non-binding and political in nature, clarify the position of the institutions on key issues, such as, for example, the budget procedure and fundamental rights  statements for the Council minutes = may accompany the drafting of an act and be taken into account in order to clarify the scope of a provision of secondary legislation  so-called administrative agreements = entered into by the Commission with third States and often not even published. 29  Grazie dell’attenzione! - domande? AVV. LUCA CALZOLARI, LL.M, PH.D [email protected] 30