4. Decision-Making & Legal Instruments Flashcards
What are the main components of the Union method in EU decision-making?
The Union method involves the distribution of decision-making among the EP, Council, and EC, which exert legislative and executive power within conferred competences and ensure democratic functioning.
It features a separation of powers where the EC has a monopoly on legislative initiative, and the Council (representing MS) and the EP (representing citizens) adopt/accept legislation.
It also employs a functionalist approach in areas where the EU has competence.
In which policy areas does the intergovernmental method prevail?
The intergovernmental method prevails in CFSP, where Member States have prevalence through the European Council and Council.
It also has a stronger role in economic policy, where the Council leads to the detriment of the EC, and in some aspects of the Area of Freedom, Security and Justice (AFSJ), with a more active role for MS through the Council (criminal judicial cooperation, approximation of criminal law, police cooperation) and national parliaments (veto in family law).
Explain the principle of institutional balance in EU law and cite the relevant Treaty article.
Article 13(2) TEU states that ‘Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation’.
Institutional balance is a legally binding rule requiring that ‘each of the institutions must exercise its powers with due regard for the powers of the other institutions’. It applies to Member States in their relations with EU institutions but not to individuals.
What are the key aspects of the democratic principle in the EU’s functioning?
Refer to TEU Art. 10(1), 10(2), 11, Citizens’ initiative, 12, 15
The EU’s functioning is founded on representative democracy (Art. 10(1) TEU).
There is a double democratic legitimacy: citizens are represented through the EP, and MS in the European Council and Council are accountable to national parliaments and citizens (Art. 10(2) TEU).
Institutions allow citizens and representative associations to make their views known and maintain an open dialogue (Art. 11 TEU).
The Citizens’ initiative allows one million citizens to invite the EC to submit a proposal.
National parliaments have various rights, including being informed of legislative drafts and ensuring respect for subsidiarity (Art. 12 TEU).
Transparency, including access to documents and public meetings, is also a key aspect (Art. 15 TFEU).
What is the significance of the legal basis of an EU act?
Refer to factors for judicial review
A specific legal basis in the Treaties delineates EU competence precisely. It sets out the scope and exclusions, type of act, legislative procedure, voting rule in the Council, and participation of other institutions or national parliaments. The combination of these factors determines whether the act is closer to the Union or intergovernmental method. The purpose and content of the measure are objective factors for judicial review of the legal basis.
Under what conditions is a dual legal basis possible for an EU act?
A dual legal basis is exceptionally possible where there are ‘two indissociably linked components, neither of which can be regarded as secondary or indirect as compared with the other’.
It is possible if there is qualified majority in the Council and the ordinary legislative procedure. It is not possible if the procedures are incompatible, EP’s rights would be encroached on, voting rules in the Council are different, or internal competence and CFSP are affected.
If a dual legal basis is not possible, the act may be split in two.
What are the main features of the ordinary legislative procedure?
Refer to applicability to CFSP and what happens in practice
The ordinary legislative procedure involves the intervention of the EC, EP, and Council on an equal footing, where both the EP and Council may reject the EC’s proposal.
It is not applicable to CFSP.
The Council generally acts by qualified majority, but unanimity is required to amend a proposal with certain exceptions.
It involves up to three readings in the EP and Council, potentially leading to a Conciliation Committee if no agreement is reached after the second reading.
In practice, many proposals are discussed and even approved informally in trilogues (three way informal dialogue).
How do special legislative procedures differ from the ordinary legislative procedure?
Special legislative procedures are characterized by a leading role of the Council over the EP, where the EP is either consulted (giving a non-binding opinion) or gives its consent (without the right to amend).
There are also special legislative procedures where the EP has a leading role with the Council’s consent, primarily related to the EP’s prerogatives.
What are delegated acts and what control do the EU institutions have over them?
Delegated acts are non-legislative acts of general application adopted by the EC to supplement or amend non-essential elements of legislative acts.
The legislative act must lay down the objectives, content, scope, and duration of the delegation, as well as the control mechanisms by the EP or Council, which can decide to revoke the delegation or object to the act’s entry into force.
Member States have no control over delegated acts.
Ex: amendment to the monitoring rules of a directive regarding emission quotas (quotas [essential element] stays the same)
What are implementing acts and how are they controlled?
Implementing acts are adopted by the EC where uniform conditions for implementing legally binding EU acts are needed.
While Member States adopt national measures to implement EU law, the EC has implementing powers in specific cases.
Unlike delegated acts, Member States control the EC’s implementing powers through comitology (Regulation 182/2011), which involves the possibility of examination, advisory, and appeal procedures by the MS.
Give examples of other executive acts of general application conferred by primary law.
Regulations by the European Central Bank (ECB) on monetary policy and banking supervision (Article 34 of the ESCB and ECB Statute).
Rules of procedure adopted by the European Investment Bank (EIB).
Council Decisions defining the powers of Eurojust and Europol, which set out their responsibilities and operations.
What is multi-speed powers in the EU context?
Examples
Multi-speed powers refer to situations where Union method policies do not include all Member States in the Treaties.
Examples include the Euroarea, where some MS have specific reporting obligations and Denmark has an opt-out, and in the AFSJ, where some MS have opt-in or opt-out provisions (e.g., Denmark and Ireland), while others are obliged to participate (e.g., Cyprus).
Explain the concept of enhanced cooperation.
Enhanced cooperation is a procedure that allows at least nine Member States to adopt an act that is only applicable to them if majority or unanimity is not achieved in the Council.
It is a last resort and must aim to further the EU integration process while maintaining cohesion and respecting the competences of non-participating MS.
The procedure involves a request to the EC, a proposal by the EC (or not), Council decision by unanimity with EP consent, and the possibility for other MS to join later.
Acts adopted under enhanced cooperation are only binding on participating MS and are not part of the acquis (body of EU law that MS must comply with).
Describe the nature of EU law in relation to international and national law.
EU law is an autonomous legal order distinct from international and national law.
Member States have limited their sovereign rights in specific fields for its benefit, and its subjects include both MS and their nationals.
It is integrated with national law and relies on national judiciary but is independent and superior.
What constitutes original or primary law of the EU?
Refer to susceptibility to CJEU
Original or primary law forms the ‘socle constitutionnel’ and includes the Treaties (TEU and TFEU), which have the same legal value.
It also includes Protocols to the Treaties, Accession Acts, the Charter of Fundamental Rights of the European Union (CFREU), and certain constitutional acts adopted by the EU.
Primary law is generally not subject to review by the CJEU.
What are the general principles of EU law and what is their significance?
Refer to constitutional and administrative
General principles of EU law are unwritten sources of primary law enshrined by the CJEU and inspired by the legal traditions of the Member States.
They serve as a validity benchmark for secondary law.
Examples include constitutional principles (conferral, subsidiarity, proportionality, primacy, direct effect, sincere cooperation, fundamental rights) and administrative principles (legitimate expectations, transparency, good administration).
How are international agreements integrated into EU law?
Art. 216(2) TFEU, hierarchy w/ primary law, and role of CJEU
The EU has legal personality and can conclude international agreements (IAs) where the Treaties provide or by implied powers.
These agreements are binding on EU institutions and MS (Art. 216(2) TFEU) and are part of EU law following a monist approach.
They are secondary to primary law.
The CJEU can give opinions on their compatibility with the Treaties.
What are the different types of secondary law in the EU?
Secondary law includes legislative acts (adopted through ordinary or special legislative procedures) and non-legislative acts (delegated and implementing acts).
Other types include regulations, directives, and decisions, as well as recommendations and opinions (non-binding).
CFSP acts, interinstitutional agreements, and ECB acts also form part of secondary law with specific characteristics.
Describe the key characteristics of Regulations.
Regulations have general application, are binding in their entirety, and are directly applicable in all Member States.
While directly applicable, they may still require further EU-level acts for implementation and may not always have direct effect.
Describe the key characteristics of Directives.
Directives are indirect instruments addressed to some or all Member States and are binding as to the result to be achieved within a certain period.
They leave national authorities the choice of form and methods for transposition into national law.
They have limited effects until expiry or proper transposition.
Describe the key characteristics of Decisions.
Refer to relation to regulations and directives
Decisions are binding in their entirety only on their addressees, which can be Member States, individuals, or EU institutions.
They are suitable for implementing regulations and directives.
What are non-binding acts of the EU and what are their legal effects?
Susceptibility to CJEU, interpretive, and self-binding value
Non-binding acts include recommendations and opinions (typical soft law), as well as a broader range of atypical soft law such as codes of conduct and guidelines.
They are generally not subject to CJEU review unless they hide a binding act.
They can have interpretive value even for national judges (understanding and application) and may have self-binding value for the institutions that issue them (if you issue it, you have to follow it).
