Competences & Legislation Flashcards
principle of the rule of law
= legality principle
every binding measure taken by an EU institution mus be based on a legal provision allowing it to take that measure in terms of both scope and form
review of legality of EU acts
1) What subject matter (EU policy) does the proposal belong to with regards to its objective and content?
(e.g. the competition law chapter in the TFEU)
2) Vertical distribution of competences:
Have competences in the field (of e.g. competition law) been transferred to the EU by MS?
–> principle of conferred powers
(= EU may only act if expressly authorized to do so)
3) Horizontal distribution of competences:
Which EU institution is responsible for exercising the powers conferred to the EU and how are they to be exercised?
4) Enforcement:
What happens once the measure has been enacted?
Vertical Distribution of Competences
= division of the power to legislate a given policy area between the EU and the MS
- principle of conferred powers (Art. 5 para. 2 TEU)
–> competences have to be transferred by the MS
- legislative competences Art. 3 TEU
- catalogue of vertical competences Art. 2 - 6 TFEU
- non-exhaustive & non-constitutive character clarified in Art. 2 para. 6 TFEU
–> catalogue itself does not establish individual competences –> task of the policy chapter of the TFEU
types of competence
three main types:
1) exclusive
defined in Art. 2 para. 1 TFEU
–> absolute blocking effect concerning legislation
Art. 3 para. 1 TFEU:
- customs union
- competition rules (internal market)
- monetary policy for the Euro
- conservation of marine biology resources under the common fisheries policy
- common commercial policy
Art. 3 para. 2 TFEU:
- conclusion of an international agreement when…
… its conclusion is provided for in a legislative act of the EU
… it is necessary to enable the EU to exercice its internal competence
… its conclusion may affect common rules
2) shared
defined by Art. 2 para. 2 TFEU
–> MS and EU may legislate
–> MS only as long as EU has not yet exercised its competence
Art. 4 para. 1 TFEU
- catch-all category
Art. 4 para. 2 TFEU
- internal market
- social policy
- cohesion policies
- civil law, criminal law, police & asylum (ASFJ)
- agriculture & domestic fisheries
…
Art. 4 paras. 3 and 4:
- research & humanitary aid
–> not shared but complimentary (makes sure that EU’s exercise of competence shall not result in MS being prevented from exercising theirs
3) complementary, cooperative, supporting
(intermediate & sub-types of competences)
not defined uniformly but described by their nature
–> MS competences never terminated by EU action
–> harmonization (replacing national provisions) precluded
Art. 5 TFEU:
- important & interrelated ares of economy & employment cooperative competences
exercising competences: subsidiarity & proportionality
limits to the exercise of competences despite their conferral to the EU
principle of subsidiarity:
Art. 5 para. 3 TEU
action on EU level must promise better regulatory results than individual measures
(only applies for shared competences, for exclusive competences already reflected in the decision made in primary law that the competence is exclusive)
principle of proportionality:
Art. 5 para. 4 TEU
checking suitability, necessity & appropriatenes of the scope
(applies to all types of competences)
Art. 296 TFEU
duty to state reasons for all legally binding acts (also in the context of subsidiarity & proportionality)
legislative flexibility clause
Art. 352 legal basis for legislation rather than a provision allocating competences
- allows actions that would otherwise require Treaty amendments under Art. 48 TEU
–> fits into the system of vertical distribution of competences
–> neither an exception to that system nor to the principle of conferred powers
- linked to the description of of EU’s aims and tasks in Art. 3 TEU
–> supplementary whenever legal basis contained in the specific policy chapters throughout the Treaties are insufficient to implement a given proposal
- substantive limit: harmonization measures where harmonization is prohibited under the provisions of the relevant policy chapter
prerequisites:
- unanimity in the Council
- Parliament’s consent
Subsidiary Complaint under Prot. No. 2
control mechanisms for MS parliaments as EU legislation infringing the principles of subsidiarity and proportionality curtails these parliament’s legislative powers
–> tool to check EU legislation in regard to these principles
Prots. Nos. 1 & 2 ensure complete supply of information to the MS’ parliaments about the Commission’s legislative plans & proposals submitted to the legislative process (–> duty to state reasons)
Prot. No. 1:
requires Commission to re-examine proposals against which a certain number of MS’s parliaments expressed subsidiary concerns
–> explained opinions on why
–> each national parliaments 2 votes
yellow card procedure:
- 1/3 of national parliaments arise
- leads to mandatory review (may be maintained with justification)
orange card procedure:
- 1/2 of national parliaments arise
- only for ordinary legislative procedure (Art. 294 TFEU)
- provides for the possibility of a simplified rejectionn of the draft by the Parliament and/or Council
–> no right of veto
- national parliaments & Commission of the Regions privileged standing:
can bring action for annulment for an infringement of the subsidiary principle
Procedures for the Adoption of Legal Acts
- Art. 289 para. 3 TFEU definition of legislation
- determined by the relevant legal basis
–> principle of the rule of law (legality)
non-legislative acts
= legal acts without legislative character
- ranked below legislation in the hierarchy of norms
- standing for actions for annulments: non -privileged applicants under Art. 263 TFEU only need direct concern (not individual concern)
- power & procedures for adoption often laid down in primary law
(e.g. Art. 290 & 291 TFEU, Art 105 para. 3 TFEU, Art. 18 para. 1 TEU)
- details typically in secondary law & applied by responsible administrative authority (often the Commission)
1) (especially) administrative law (executive branch)
–> often acts of the Commission in the implementation or enforcement of EU law
- general & abstract (implementing regulations or directives, Art. 291 TFEU) or individual & concrete (decisions with individual addressees)
2) tertiary law
= intermediary form of delegated acts as provided for in Art. 290 TFEU
(although they go beyond simple implementing/enforcement; alter legislation in non-essential aspects)
legislative actors
duty to state reason why & how & legal basis
must be published in the Official Jounral of the Eu
trias of institutions Art. 289 TFEU
–> legislator = the Commission, the Council, the EP
–> horizontal distribution safeguards principle of institutional balance
- ordinary legislative procedure (responsibility shared between the co-legislators)
& special legislative procedures (main responsibility assigned to one actor)
–> BUT (almost) always Commission’s monopoly right of initiative
- Council, EP & EU citizens (European Citizens’ Initiative; Art. 11 para. 4 TEU & Art. 24 TFEU) can request legislative proposal (not binding, but reasons if request is denied)
- but cannot co-shape in the process
- but limited veto-power: can withdraw its oirginal proposal prior to the council taking its first vote
ordinary legislative procedure
since Treaty of Lisbon
Art. 294 TFEU
(= co-decision procedure)
standard legislative procedure for most policy areas
–> used outside of sensitive policy areas
EP & the Council have equal powers regarding shaping the content and deciding on the final adoption of legislative proposals
majorities:
- 1st reading:
–> qualified majority in the Council, simple majority in the EP
- further stages:
–> may be absolute majority for the EP and/or unanimity in the Council (amendments in the 2nd reading dissapproved by the Commission)
ordinary legislative procedure -
steps
1) proposal from the Commission to the EP & the Council
2) 1st reading:
- Parliament agrees or make amendments
- Council agrees to Parliament’s position
3) 2nd reading
(if positions differ)
3.1 Parliament approves Council’s position
–> act approved
3.2 EP rejects act (absolute majority)
–> legislative procedure terminated
3.3 EP adopt amendments to Council’s position
–> Commission must approve
3.3.1 Council approves (qualified majority)
–> act approved
3.3.2 Council does not approve
–> may adopt the act (only unanimously)
4) 3rd reading
- adoption of the joint draft within six weeks
–> if still not adopted, legal act rejected
special legislative procedure
exceptions to ordinary legislative procedure
common definition Art. 289 para. TFEU
–> but no uniform procedural framework!
only one institution holds decisive powers (mostly the Council), other institution (mostly EP) less involved
two main types:
1) consultation procedures
- Parliament only consulted for its opinion on the proposal
(social security legislation, voting rights,..)
2) consent procedure
- Parliament’s consent necessary (–> veto right)
- unanimity in the Council required
legislation applying to only some MS
Art. 20 TEU outlines framework for “enhanced cooperation”
–> flexible integration allows willing MS to cooperate in a certain area
(last resort to overcome opposition by other MS)
authorized by the Council (only participating MS can vote, all may participate in Council deliberations)
–> EP & Commission as always
uniform conditions to all forms of enhanced cooperation
- not in areas of exclusive competence of the Union
- at least 9 participating MS
- before no majority in the Council
- then request to the Commission, Commission proposal
involves EU legislation with a limited scope of territorial application
–> only binds participating MS
- BUT may take use of all EU institutions
types of legal acts
determine instruments available to the institutions for their fulfillment of their tasks
- choice of instrument determined by inter alia effectiveness, subsidiarity, proportionality & good administration
types of legal acts -
general observations
- varying legal effects (binding/non-binding)
- varying regulatory intensity (full, partial, no harmonization)
–> does not determine procedure employed for its adoption (depends on legal basis)
instruments used for legislation are always unilateral acts of sovereign character that impose rights and obligations on legal subjects by virtue of state power without any need for consent by those bound by them
- unilateral acts rule in the executive (administrative regulations & decisions) and judicial branches
bilateral acts used in addition for public law (e.g. inter-institutional agreements) and civil law (e.g. contracts in the context of private economic administration)
legal acts lay down rights and obligations for their addressees
- named or identifiable (individual-concrete acts)
- anyone concerned (general-abstract act)
main forms of legal acts listet in Art. 288 TFEU
- beyond those listed = atypical types
–> found in primary law (e.g. international or inter-institutional agreements, contracts under civil law)
regulations
defined in Art. 288 TFEU
- acts of general application
- fully & immediately binding
- directly applicable in all MS (no transposition)
- incompatible national law becomes inapplicable
- no limit to their horizontal effect
directives
defined in Art. 288
- directed towards MS
- never create obligations for an individual
- obliges the MS to transpose directive’s provision into national law by a specific date (= transposition period)
- if not EU law steps in by way of subsidiary tools (consistent interpretation & MS liability in damages) and/or corrective mechanisms (principles of equivalence and effectiveness)
decisions
binding, directly applicable legal act which typically specifies individual addressees
- rights & obligations for individuals, institutions and MS
- capable of having direct effect (horizontally & vertically) depending on whether rights & obligations are laid down in a sufficiently clear manner to be litigated
- typically used in the executive branch
- individual & concrete regulatory scope
second type (besides more common executive type of decisions): decisions without concrete addressees
= decisions sui generis
- establish or create facts
–> often preparatory acts (e.g. decisions asserting facts in the rule of law)
–> may also be organizational (e.g. decisions adopting an invitational’s rules of procedure) or executive character (e.g. appointment of public officials)
- legislative character exceptionally
Harmonization of MS Laws
= alignment or approximation of MS law by EU acts
–> in particular the objective of free movement requires uniform conditions
1) EU legislator adopts secondary law to eliminate disruptive differences (“positive integration”)
2) ECJ guarantees that primary law supersedes conflicting MS law (+ erga omnes effect) (“negative integration”)
either approximation of pre-existing MS law Art. 114 TFEU
or fully replaces MS law (sui generis regime) Art. 352 TFEU (general flexibility clause)
methods of harmonization
guided by principles of subsidiarity and proportionality
(better outcome than individual MS action and only to extend necessary for that better outcome)
- perceived necessity must be stated in the legal act
–> safeguards against centralized overregulation
directive:
1) minimum harmonization
- only base limit set, may be exceeded if a MS wishes
2) full harmonization
- no deviation
persisting deviations from harmonization
after harmonization legislation has entered into force, MS law deviations generally inadmissible
- otherwise the Commission can take action against it by an infringements proceeding & an individual before a national court (dual system of legal protection, preliminary ruling proceedings)
however:
Art. 114 para. 10 TFEU obliges to make room for differentiation that may be necessary post-harmonization
–> “shall include a safeguard clause”
- found in sensitive areas (Art. 36) to prevent against potential threats to overriding public interest present in a MS
in addition:
Art. 114 paras 4-9 TFEU
- allows limited possibility for MS’ unilateral action
1) maintenance of deviating MS law
2) enactment of new deviations by a MS after harmonization
–> both limited to a small number of justification grounds + Commission’s power of control and suspension
fundamental rights
binding on all branches of government
–> absolute limit to the scope (highest norms)
1) limitations absolutely prohibited
- e.g. prohibition of slavery
Art. 5 para. 1 CFR
2) certain limitations are permitted
- e.g. personal liberty
Arts. 6, 7 and 11 CFR
–> principle of proportionality
(Art. 52 para. 1 CFR)
evolution of fundamental rights protection in the EU
- originally no codified fundamental rights instrument
–> EU (EEC) legislator not bound to any limits when imposing obligations upon individuals - case 11/70, Internationale Handelsgesellschaft 1970:
fundamental rights protection based on constitutional traditions common to the Member States - 1974: BVerfG, 2 BvL 52/71, Solange I: BVerfG reserved the right to review Community law as long as no effective protection of fundamental rights was guaranteed in the EEC legal system
- 1986 BVerfG, 2 BvR 197/83, Solange II: BVerfG state that, unless it gave further notice, it would not exercise its right to an ultimate review of fundamental rights since the protection of fundamental rights at the EEC level had now become sufficient
- EU accession to the ECHR: rejected twice by the CJEU
–> since 2020 negotiations resumed
