Sources of EU Law: Primary Law - PDF

Sources of EU law. Primary law. Treaties and general principles EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  Sources of EU law TEU and TFEU Primary law CFREU Gene...

Sources of EU law. Primary law. Treaties and general principles EU LAW (Global Law) a. a. 2024/2025 PROF. AVV. LUCA CALZOLARI, PH.D, LL.M 0  Sources of EU law TEU and TFEU Primary law CFREU General principles General international law International law International agreements executed by the EU Binding sources (regulations, directives and decisions) Secondary law Not binding sources (recommendations and opinion) Soft law (communications, Other sources guidelines 1  Treaties  Treaties provide the basic (but fundamental) legal regime to regulate the relations between the different subjects of the EU legal order  Treaties are the higher legal source of the EU legal order  In the hierarchy of the sources, therefore, they are above inter alia secondary law  Treaties can confer rights (or impose obligations – see for example Articles 101 and 102 TFEU) not only to the institutions and the Member States but also upon individuals (as we have already seen in the Van Gend en Loos case)  Treaties confer the competences to the EU institutions and therefore confer legal force and effectivity to the acts of the institutions  37 Protocols, 2 Annexes and 65 Declarations are attached to the Treaties, together with 2 tables of equivalence and the CFREU  Also Accession Treaties (i.e. treaties between the EU and a new member of the EU) are included in the notion of Treaties ex art. 49 TEU 2  Treaties (2)  The Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) have the very same legal value (see article 1 TEU)  The Treaties have been defined by the ECJ as the “constitutional charter” of “a community based on the rule of law” (case Les Verts del 1986; ECJ opinion no 1/91)  However, the definition of "constitutional charter" has a meaning only from the political point of view, since Treaties do not have the structure of actual constitutional charters (e.g., within the Treaties, and especially in the TFEU, there are also detailed rules, they are amendable in all their parts if the Member States deem so)  Practical consequence = systematic and teleological interpretation often (almost always) prevails over literal interpretation(es. «every provision of community law must be placed in its context and interpreted in the light of the provisions of community law as a whole , regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to 3be applied » (see Cilfit case 1992 § 20)  TEU’s structure – 55 articles  Preamble  common provisions  Provisions on democratic principles  Provisions on the institutions (art. 13 TEU to art. 20 TEU)  Provision on enhanced cooperation  General provisions on the Union’s external action and specific provisions on the common foreign and security policy (CFSP is the only material policy to be regulated in the TEU, all the other policy are disciplined by the third part of the TFEU. Why? Because of the special nature of the CFSP which is, essentially, not subject to the community method)  Final provisions (legal personality, revision of the treaties, accession and withdrawal) 4  TFEU’s structure – 360 articles  Preamble  Part I = principles (Title I = categories and areas of union competence; Title II provisions having general application)  Part II = non-discrimination and citizenship of the Union  Part III = Union policies and internal actions (Title I to XXIII, including internal market, CAP, area of freedom, security and justice, competition law, etc.)  Part IV = Association of the overseas countries and territories  Part V = Union external actions (in sectors other than the CFSP) (Titles I to VIII)  Part VI = Institutional and financial provisions (Titles I to III)  Part VI = General and final provision (e.g. flexibility clause) 5  Protocols Protocols complement the discipline of the Treaties, as they enjoy the same (primary) legal value (51 TEU) They allow to avoid making the text of the Treaties too complex, regulating specific matters (e.g., Prot. No. 4 on the Statute of the ECB and ESCB) They provide for transitional and temporary discipline (e.g., Protocol No. 36, 2009-2014 period on parliamentary elections, qualified majority in Council and Council formations) They introduce differential discipline for certain Member states (e.g., Prot. No. 19 (Schengen acquis, 20, 22 on Denmark's position with respect to certain policies - e.g., Part III, Title V) 6  Declarations They can be made by one (or more) Member States as well as by the intergovernmental conference during the adoption of the Treaty 1969 Vienna Convention: declarations lack binding force, but they are useful interpretive tools (they show the context in which treaty was formed) Many declarations actually somehow restate concept that are already included in the Treaty (e.g. n. 18 on the competences) 7 Revision procedures of the Revision of the Treaties Ordinary (article 48 §§ 2-5) TEU Treaties Simplified no 1 = only for the third part of the TFEU (art. 48 § 6 TEU) Simplified no 2 = passerelle / bridging procedure (art. 48 § 7 TUE) 8  The ordinary revision procedure  Scope of application = general, it can always be applied  Interinstitutional procedure + Member States  Two alternatives = by Convention or only by Intergovernmental Conference (see below)  Power of initiative = the power to propose amendment to the Treaties rests with EU Parliament, Commission or each Member State’s government  Addressees of the proposal = the proposal is submitted to the Council, which forwards it to the European Council and notifies national parliaments  Decision on examination of the proposal = after hearing the Commission and the EU Parliament, the European Council decides, by simple majority (why not by consensus?), whether to proceed with the procedure for examining the proposal 9  The ordinary revision procedure (2)  Ordinary “ordinary” procedure = appointment of the Convention, the European Council’s president convenes a Convention with a mixed and broad composition (representatives of the Commission, EU Parliament members, heads of state/government, national parliamentarians + ECB if monetary policy)  Recommendation to Intergovernmental Conference = the Convention shall consider the proposal and adopts by consensus a Recommendation for the Intergovernmental Conference  Adoption of amendments = the Intergovernmental Conference shall determine the actual revision to be made to the Treaties, i.e. draft the revised version of the Treaties  Entry into force = amendments enter into force only if ratified by all Member States (if within 2 years only 4/5 of ratifications, the matter is referred to the European Council)  Alternative (no convention) (but yet within the context of the ordinary procedure) = with the approval of the EU Parliament, the European Council may decide not to convene the Convention and immediately mandate the Intergovernmental Conference. In this case, it is directly the European Council that provide the mandates the Conference 10  The (first) simplified procedure for the material (substantive) policies of the EU  Purpose = the first simplified procedure applies only to potential amendments concerning Part III of the TFEU where, as seen, EU internal policies are regulated  Limit = This procedure cannot be used to increase or decrease the Union's powers or competences  Power of initiative = EU Parliament, Commission or government of a Member State (as with regard to the ordinary procedure)  Proposal = may amend all or part of the provisions of Part III of the TFEU  Adoption = amendment may be adopted by unanimous decision of the European Council (no Convention, no Conference)  Requirements = ex ante, consultation of the European Parliament and of the Commission and ex post, ratification by all11 the Member States  The «Pringle» case  In the context of the debts crisis, European Council Decision 2011/199/EU amended Article 136 of the TFEU with regard to a stability mechanism for Member States whose currency is the euro  1. In order to ensure the proper functioning of economic and monetary union, and in accordance with the relevant provisions of the Treaties, the Council shall, in accordance with the relevant procedure from among those referred to in Articles 121 and 126, with the exception of the procedure set out in Article 126(14), adopt measures specific to those Member States whose currency is the euro:  (a) to strengthen the coordination and surveillance of their budgetary discipline;  (b) to set out economic policy guidelines for them, while ensuring that they are compatible with those adopted for the whole of the Union and are kept under surveillance.  2. For those measures set out in paragraph 1, only members of the Council representing Member States whose currency is the euro shall take part in the vote.  A qualified majority of the said members shall be defined in accordance with Article 238(3)(a).  3. The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made12 subject to strict conditionality.  The «Pringle» case (2) The (complex and ambiguous) distinction between monetary policy and economic policy  The objective of the stability mechanism “which is to safeguard the stability of the euro area as a whole, that is clearly distinct from the objective of maintaining price stability, which is the primary objective of the Union’s monetary policy. Even though the stability of the euro area may have repercussions on the stability of the currency used within that area, an economic policy measure cannot be treated as equivalent to a monetary policy measure for the sole reason that it may have indirect effects on the stability of the euro” (§ 56)  “the instruments envisaged in order to attain the objective concerned, Decision 2011/199 states only that the stability mechanism will grant any required financial assistance; it contains no other information on the operation of that mechanism. The grant of financial assistance to a Member State however clearly does not fall within monetary policy” (§ 57) 13  The «Pringle» case (3) (non) extension of EU competences  Decision 2011/199 “confirms that Member States have the power to establish a stability mechanism and is further intended to ensure, by providing that the granting of any financial assistance under that mechanism will be made subject to strict conditionality, that the mechanism will operate in a way that will comply with European Union law (§ 72)  That amendment does not confer any new competence on the Union. The amendment of Article 136 TFEU which is effected by Decision 2011/199 creates no legal basis for the Union to be able to undertake any action which was not possible before the entry into force of the amendment of the FEU Treaty (§ 73).  Even though the ESM Treaty makes use of the Union’s institutions, in particular the Commission and the ECB, that fact is not, in any event, capable of affecting the validity of Decision 2011/199, which in itself provides only for the establishment of a stability mechanism by the Member States and is silent on any possible role for the Union’s institutions in that connection (§ 74) 14  Internal policies under Part III of the TFEU  the internal market (Title I);  the free movement of goods (Title II), including the customs union;  the common agricultural policy and the common fisheries policy (Title III);  the free movement of workers (and persons in general), services and capital (Title IV);  the area of freedom, security and justice (Title V), including police and judicial cooperation;  transport (Title VI);  competition, taxation and approximation of laws (Title VII);  economic and monetary policy (Title VIII), including articles on the euro;  employment policy (Title IX);  social policy (Title X), in relation to the European Social Charter (1961) and the Community Charter of the Fundamental Social Rights of Workers (1989); Title XI establishes the European Social Fund;  policies related to education, vocational training,15youth and sports (Title XII)  Internal policies under Part III of the TFEU (2)  culture (Title XIII);  public health (Title XIV);  consumer protection (Title XV);  trans-European networks (Title XVI);  industrial policy (Title XVII);  economic, social and territorial cohesion, in other words, the reduction of development disparities (Title XVIII);  policies related to research and development and space (Title XIX);  environmental policy (Title XX);  energy policy (Title XXI);  tourism (Title XXII);  civil protection (Title XXIII);  administrative cooperation (Title XXIV). 16  The so-called passerelle / bridging procedure  Purpose = this procedure allows the transition from situations that are now exceptional in the context of the Lisbon Treaty to what is the ordinary scenario  In other words, it allows (i) the transition from unanimity to qualified majority voting system in the Council and (ii) the transition from the special to the ordinary legislative procedure  How does it work? Unanimous decision by the European Council, after approval by the European Parliament. There is no ratification by the member states  Veto power of national parliaments = National parliaments may oppose to the proposed decision within 6 months from its adoption by the European Council  A single negative opinion precludes adoption of the decision 17  General principles of the EU  Role and legal status = primary sources of EU law  Functions and purposes =  Help fill any legal gaps (the EEC was a “brand new” legal order)  Parameters for interpretation of EU law (Treaties or secondary legislation)  Parameters for legitimacy of EU secondary legislation, i.e. they are binding not only for Member States but also for the EU institutions (and, as we will see, also for individuals – Mangold case)  Categories =  General principles typical of EU law (e.g., non-discrimination, subsidiarity, mutual recognition, loyal cooperation, effet utile)  General principles common to national legal systems (e.g., legality, democracy, legitimate expectations, proportionality) 18  General principles of EU law: examples  Effet utile  Non-discrimination (Art. 18 TFEU, Art. 157 TFEU on pay)  Institutional balance (Les Verts)  Proportionality  Mutual trust and reciprocal recognition among Member States  Rule of law (Poland/Hungary)  Principle of legality (C-42/17, M.A.S. and M.B.)  Legal certainty and legitimate expectation  Effective judicial protection 19  Loyal cooperation  Obligation for the Member states to take any measures of a general or particular nature appropriate to ensure the execution of obligations arising from the Treaties or resulting from the acts of the institutions  Obligation for Member states to facilitate the Union with regard to the fulfillment of its tasks by refraining from any measure that could jeopardize the achievement of EU objectives.  Four "dimensions" = vertical (between Member States and the EU) and horizontal (between institutions and between Member States), both two-way 20  Effet utile / effectiveness  Any disposition of EU law shall be interpreted and applied in the way that better allow the achievement of the goal set forth in it  If a provision of Union law is susceptible to have several (and different) interpretations of which only one is appropriate to safeguard the rule's useful effect, priority shall be given to that interpretation (C-223/98, Adidas)  the full effectiveness of EU rules would be jeopardized if individuals had no possibility of obtaining redress if their rights were affected by an infringement of EU law (C-46/93 and C-48/93, Brasserie du Pecheur) 21  Legal certainty  Transparency of the administrative action  Safeguard of individuals legitimate expectation for example with regard to:  Sudden change in legal discipline  Revocation / annulment of individual acts 22  Thank you! - questions? AVV. LUCA CALZOLARI, LL.M, PH.D [email protected] 23