Primary and Secondary Sources of EU Law PDF

European Union Law LAW 1024 Sources of EU Law Outline of Topic (Covered over next 4 classes) Primary and secondary sources of EU law The principles governing the adoption of EU legislation Th...

European Union Law LAW 1024 Sources of EU Law Outline of Topic (Covered over next 4 classes) Primary and secondary sources of EU law The principles governing the adoption of EU legislation The ‘method’ for adopting EU legislation EU Membership and ‘Brexit’ Part 1 – Primary and Secondary Sources of EU Law  Primary sources of EU law Supplementary sources of EU law and International Law as a Source of EU Law  Secondary sources of EU law  The hierarchy of EU law norms  Primary sources Founding Treaties and their successive modifications of EU law Charter of fundamental rights of the EU (I) General principles of EU law Primary sources of EU law (II) I. Founding Treaties and Treaties and Acts completing or amending the founding Treaties The Treaty on European Union (TEU) Treaty on the Functioning of the European Union (TFEU) o Including 37 Protocols and 2 Annexes (art. 51 TEU) Examples: Protocol no. 2 on the application of the principles of subsidiarity and proportionality, Protocol no. 35 on [former] article 40.3.3 of the Constitution of Ireland o Including 65 non-binding Declarations Example: Declaration (61) by the Republic of Poland on the Charter of Fundamental Rights of the European Union  The EU is founded on the TEU and TFEU (art. 1 TEU, third indent) II. Charter of fundamental rights of the EU (art. 6(1) TEU) III. General principles of EU law developed in the case-law of the CJEU Fundamental rights (art. 6(3) TEU) Primary sources of EU law (III)  Treaty Establishing the European Atomic Energy Community (Euratom) Accession Treaties: https://eur-lex.europa.eu/collection/eu-law/treaties/treaties-accessi on.html Primary sources of EU law (IV)  The EU Treaties An imperfect ‘functional’ division (Robert Schütze)  Structure of the EU Treaties TEU o Title I – Common Provisions o Title II – Democratic Principles o Title III – Institutions o Title IV – Enhanced Cooperation o Title V – External Action, and CFSP o Title VI – Final Provisions (art. 47: the legal personality of the EU; art. 48: the procedures for revising the Treaties; art. 49: EU membership (accession conditions and procedure); art. 50: withdrawal from the Union) How to find (and read) the EU Treaties https://european-union-law.schutze.eu/chapter/appendix-how-to-study-european-law/how-to-find-the-eu- treaties/ Primary sources of EU law (IV)  Structure of the EU Treaties TFEU o Part I – Principles o Part II – (EU) Citizenship (and Non-discrimination) o Part III – Union (Internal) Policies o Part IV – Overseas Associations o Part V – External Action o Part VI – Institutions and Finances o Part VII – General and Final Provisions (Example: art. 341 TFEU on the seat of the EU institutions)  Primary sources of EU law (V)  The Nature of Primary Law: Is it Constitutional Law? A debated question Three perspectives/criteria (Robert Schütze) 1) Descriptive: EU primary law provides for a set of institutions that govern the EU political society 2) Formal: EU Treaties are at the top of the EU hierarchy of norms 3) Liberal (political sense) and democratic: rule of law; ‘separation’ (balance) of powers; representative democracy; respect for fundamental rights  Position of the CJEU Judgment of the Court of 23 April 1986, Parti Ecologistes Les Verts vs European Parliament, 294/83 (ECLI:EU:C:1986:166), para. 23. Opinion of the Court of 14 December 1991 on the Draft agreement relating to the creation of the European Economic Area, Opinion 1/91 (EU:C:1991:490), para. 21. Judgment of the Court, Kadi I, 3 September 2008, Joined Cases C-402/05 P and C- 415/05 P, (EU:C:2008:461), para. 81. Primacy of Primary Law over Secondary Law: art. 263(2) TFEU – jurisdiction of CJEU ‘…[T]he European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.’ Les Verts v European Parliament, 294/83, para. 23  Supplementary sources of EU law and International Law as a Source of EU Law  Case-law of the Court of Justice of the EU (CJEU)  International Law Principle: Functional and normative autonomy of EU law from rules of international public law International agreements concluded by the EU: Binding on the EU institutions and on the Member States (art. 216(2) TFEU) International agreements concluded by the EU Member States before the entry into force of the Treaty of Rome or their accession to the EU: The rights and obligations arising from them are not affected by the Treaties, unless they are not compatible with them (art. 351 TFEU) Other rules of international law o Article 3(5) TEU o Judgment of the Court of 24 November 1992, Poulsen, C-286/90 (EU:C:1992:453), para. 9. – EU must respect international law. Secondary Sources of EU Law (I)  All the legal acts adopted by EU institutions on the basis of EU Treaties  The Lisbon Treaty has: Clarified the hierarchy between the various secondary sources of EU law (legislative and executive acts) Kept the pre-Lisbon typology of secondary acts Maintained a particular ad hoc typology for measures adopted as part of the CFSP Established a distinction between two types of executive secondary measures: Delegated and Implementing Acts   Typology of EU legal acts Secondar Article 288 TFEU y Binding instruments: Sources o Regulations o Directives of EU o Decisions Law (II) Non-binding instruments: o Recommendations and Opinions  The distinction between delegated and implementing acts Judgment of the Court of 18 March 2014, European Commission v European Parliament and Council of the European Union, C‑427/12 (EU:C:2014:170), paras. 38-40 o 38 ”When the EU legislature confers, in a legislative act, a delegated power on the Commission pursuant to Article 290(1) TFEU, the Commission is called on to adopt rules which supplement or amend certain non-essential elements of that act. In accordance with the second subparagraph of Article 290(1) TFEU, the objectives, content, scope and duration of the delegation of power must be explicitly defined in the legislative act granting such a delegation. That requirement implies that the purpose of granting a delegated power is to achieve the adoption of rules coming within the regulatory framework as defined by the basic legislative act.” o 39 ”By contrast, when the EU legislature confers an implementing power on the Commission on the basis of Article 291(2) TFEU, the Commission is called on to provide further detail in relation to the content of a legislative act, in order to ensure that it is implemented under uniform conditions in all Member States.”  Secondary Sources of EU Law (III)  Delegated acts (art. 290(1) TFEU) “A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act. The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.”  Distinction between ‘supplementing’ and ‘amending’ Judgment of the Court (Fifth Chamber) of 17 March 2016, European Parliament v European Commission, C-286/14 (EU:C:2016:183), paras. 40-42  Implementing acts (article 291 TFEU) Principle: Member States are in charge of the implementation of EU law (art. 291(1) TFEU) Secondary Sources of EU Law (IV)  Categories of EU acts (formal and procedural definition) Legislative acts (article 289 TFEU) o Ordinary legislative procedure (article 294 TFEU) o Special legislative procedure (article 289(2) TFEU): e.g. budget (article 314 TFEU), social security and social protection (art. 21(2) TFEU), provisions concerning passports, identity cards, residence permits (art. 77(3) TFEU) Non-legislative acts o Rationale for delegation o Delegated acts (article 290 TFEU) o Implementing acts (article 291 TFEU) Ordinary Legislative Procedure EP and Council decide on a Commission proposal No. of areas has grown over time to all areas where QMV applies Still limited powers in taxation, health services, education, and CFSP/CSDP In 2017 MEPs called for remaining special legislative procedures to be converted into ordinary Importance of trialogues (See video https://www.consilium.europa.eu/en/cou ncil-eu/decision-making/ordinary-legislati For more info ve-procedure/ www.europarl.europa.eu/olp/en/ordinary-legislative-proc  Secondary Sources of EU Law (V)  Non-legislative acts - Control mechanisms: Delegated acts o Revocation (art. 290(2)(a) TFEU) o Objection/opposition (article 290(2)(b) TFEU) Implementing acts (art. 291(3) TFEU) o ‘Comitology’: Procedures through which the European Commission exercises its implementing powers under the control of committees of representatives from national governments of EU Member States. o ‘Neo-Comitology’ Regulation: Regulation 182/2011 of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers Examination procedure Advisory procedure Secondary Sources of EU Law (VI) General EU administrative rules:  Statement of Reasons (art. 296 TFEU) - Text accompanying an act or preparatory act to explain the reasoning behind it  Signature, publication and entry into force (art. 297 TFEU) The hierarchy of EU law norms