7. Sources of law

Question 1

Types of sources of law

Answer 1

• Sources on the production: competence & procedure
• Sources of production: acts or facts that can produce law
• Sources of cognizance: sources giving legal notice on laws

Question 2

Sources of law: acts

Answer 2

Acts: are written sources of law, voluntarily adopted, that produce legal effects if:

• existence: adopted through the exercise of power conferred to a competent body by law;
• validity: the competent body followed the rules on procedure and substance, established by law for the correct exercise of legislative power;
• efficacy: have the requisites to produce effects.

Question 3

Sources of law: facts

Answer 3

Facts: are unwritten sources of law, which produce legal effects IF the law recognizes that they have the ability to do so.

• Two combined elements are needed:
  
  • objective: behaviour that has remained unchanged over the passage of time;
  • subjective: certain social behaviour is obligatory and considered to be legally binding.

Question 4

Sources of law hierarchy

Answer 4

From top to bottom:

Constitution

Primary sources of law

Secondary sources of law

Customs

Question 5

Primary sources of law

Answer 5

Note: EU sources cannot derogate the Supreme constitutional principles

• Includes:
  
  • Treaties (as amended);
  • Protocols (attached to the treaties);
  • Acts of Accession.
• top of hierarchy of legal sources
• supremacy guaranteed by interpretation given to Treaties by European Court of Justice (ECJ)
  
  • has exclusive jurisdiction with regard to interpretation of both primary and secondary sources of law
  • verify whether secondary sources conform to founding treaties

Question 6

When is criterion of hierarchy law ineffective?

Answer 6

• conflicts between secondary sources of law arise
• criterion of competence is applied instead
• The Treaties established that the source of law that prevails = the one enacted by body that has competence in that particular subject/policy area

Question 7

Types of secondary sources of law

Answer 7

• Binding: regulations, directives, decisions
• Non-binding: recommendations and opinions

Question 8

Non-binding acts

Answer 8

• Recommendations: invitations to Member States to conform to certain behaviours
• Opinions: express position of an EU body

failure to comply does not lead to any sanctions

Question 9

Binding acts - Regulations

Answer 9

• Regulations:
  
  • general and abstract rules which are obligatory and binding for all EU citizens
  • directly applicable within legal systems of Member States => do not have to be implemented by domestic law to become effective
  • ECJ declared domestic laws that reproduce the contents of regulations to be illegitimate

Question 10

Binding acts - Directives

Answer 10

• binding as to the result to be achieved
• implementation to the discretion of Member States
• given a time limit
• used to establish general principles that help harmonise different rules at national level, which govern a given policy area
• only have vertical direct effects - applicable only to Member States and not to single individuals

Question 11

Binding acts - Decisions

Answer 11

• directly applicable acts that are binding to legal persons or Member States to which they are addressed
• Individually rather than generally applicable => distinguishes from regulations

Question 12

Art 290 of TFEU

Answer 12

A legislative act may delegate to Commission the power to adopt non-legislative acts of general application to supplement/amend certain non-essential elements of legislative act

Question 13

Overview of soft law within EU

Answer 13

• atypical acts of non-binding nature
• not provided for by Art 288 TFEU but rather adopted by community institutions to attain important objectives that go beyond their specific competences

Question 14

Soft law - inter-institutional agreements

Answer 14

• Art 295 TFEU
• regulate relationships between community institutions by clarifying/innovating the provisions contained in founding Treaties
• Historically, European decision making process was characterised by democracy deficit - EU Parliament was hardly ever consulted => became significantly central as it is placed at the same level as Council - co-legislator (provided by Art 289 and 294)
• Promote coordination and development of social policies in individual Member States through open method of coordination, based on adoption of non-binding measures/instruments which serve to:
  
  • determine content of European policies. e.g. prepatory acts
    
    • a way to obtain wide consensus
    • promotes better decisions
  • bringing these policies into effect

Question 15

Commissions’ instruments of communication

Answer 15

• green papers: outlines issues it intends to address, its juridicial reference and principle directions this action will take
• white papers: intent of provoking a debate, illustrates the intervention it proposes to make in a given policy area
• plans of actions: explains in details the intervention it intends to carry out to address a specific problem

Question 16

Other soft law instruments

Answer 16

• guidelines of Commission
• code of conduct of European Commission
• Conclusions of European Council

all 3 establish rule of conduct

non-binding nature enables to be utilised in sectors where EU lacks necessary competence

Question 17

Sources of law: common vs civil law

Answer 17

Common:

• Court’s decisions = legal sources
• Judges are often appointed by the executive branch or by election

Civil:

• Court’s decision are not legal sources
• Judges are selected through a public examination system

Question 18

5 traits a Constitution can adopt

Answer 18

1. Codified: one single document; or Uncodified
2. Long: containing the frame of government and the bill of rights or Short: containing only the frame of government
   
   • The frame of government: the relationship among institutional bodies and institutional bodies and citizens
   • Bill of rights: the fundamental rights of citizens
3. Flexible: formally equal to ordinary laws (the Constitution may be modified by ordinary law) or Rigid: at the top of the hierarchy => amendments follow a special procedure & conflicting laws can be invalidated
4. Voted: drafted and voted by a constituent assembly/people or Octroyée: granted by a monarch
5. Normative: Actually bind the political system or Nominal/Sham: Do not describe nor bind the functioning of the political system

Question 19

The Constitution: Italy

Answer 19

1. codified;
2. long;
3. voted;
4. rigid.

Rigid also means there is a special amendment procedure:

• I.it requires a double vote of each Chamber of Parliament;
• II.there must be “an interval between the votes of not less than three months”;
• III.it “shall be approved by a qualified majority … of the members of each Chamber in the second voting”;
  
  1. If 2/3 majority of each chamber =>promulgated
  2. If absolute majority => a popular referendum can be requested.

Question 20

3 types of national law

Answer 20

• Ordinary state law
• Regional laws
• Abrogative Referendum: one used by the people to repeal a law or promote a decision

Note:

• only the parliament has the ability to pass ordinary state laws and that the government completely lacks this power, but can pass decrees
• this is based on the principle of separation of power between judiciary, executive and legislative and the limitation of executive power

Question 21

Procedures of establishing and applying the law

Answer 21

• Initiative: bill is usually introduced by MPs on their own initiative followed by approval
• Approval can follow 3 different procedures:
  
  1. Ordinary procedure
  2. Debating procedure
  3. Drafting procedure

Question 22

Ordinary procedure

Answer 22

1. the speaker of the house will assign the bill to the relevant commission where a more refined version of the bill is approved.
2. Then, the bill goes to the house and after receiving approval for every article of the text, it receives approval on the whole.

Question 23

Debating procedure

Answer 23

everything is done within the commission where the text goes into law.

Question 24

Drafting procedure

Answer 24

the commission drafts a final version of the text where the house can either accept the text as is or reject it as a whole

Question 25

Two different types of acts having the force of law

Answer 25

1. Legislative decree
2. Law decree

Question 26

Legislative decree

Answer 26

Why?

• to speed up the legislative process;
• to deal with highly technical issues (e.g., immigration; taxes; public administration; etc.)
• Note that some areas cannot be delegated

Who? the government, upon an initiative of the Parliament.

How?

• Two phases:
  
  1. Parliament approves a delegation act;
  2. Government issues the legislative decree.

Question 27

Parliament approves a delegation act

Answer 27

With respect to content, the Constitution establishes a series of limits:

• A well specified subject matter;
• A time limit for the exercise of legislative power. The government can decide not to exert its legislative power => after the time limit, the issue returns to the Parliament;
• General principles & criteria;
• The delegation act may contain further limits set by Parliament.

Question 28

Law decree

Answer 28

Why? In an exceptional situation of necessity and urgency.

Who? the Government, by its own initiative.

How?

• Two phases:
  
  1. Government issues the law decree;
  2. Parliament converts the law decree into a normal statute law.

Question 29

Parliament converts the law decree into a normal statute law.

Answer 29

• the Parliament shall convert the law decree into an ordinary law within 60 days
• If the law decree is not converted into law by Parliament it loses all efficacy ex tunc, in other words, it is as if the law decree was never issued.
• Additionally, concept of no abuses: law decrees that have not been converted into law cannot be re-issued, unless there is a new situation of necessity and urgency (dec. 360/1996 of the Constitutional Court).

Question 30

Types of regulations (within a nation)

Answer 30

• Executive regulations: Executing laws and legislative decrees
• Integrative regulations: integrating laws and legislative decrees containing general principles
• Independent regulations: Regulating subject matters not covered by primary law
• Organizational regulations: Outlining the organization and functioning of public administration as outlined by primary legislation

Question 31

Hierarchy of laws within nation

Answer 31

1. Supreme const. principles
2. Other const. principles
3. Laws (state & region), legislative decrees, law decrees, (abrogative) referenda
4. Regulations (state, region & local)
5. Customs