EU law - Week 2A Flashcards
What are the legal basis for the EU institutions?
- Primary law (treaties, mostly TFEU)
- Secondary law (legislation passed: act of an institution in the Union, so called legislative act) Article 289 TFEU
- Tertiary law ( implementing acts of the Commision and MS, so called non-legislative acts) Article 290, 291 TFEU
What are the differences between the ordinary and the special legislative procedures?
ordinary: Parliament making a decision on an equal footing with the Council (Art. 289 and 294 TFEU)
special: Parliament has only a consultative role → only the council has the competence to do so
What are the legal instruments existing within the EU?
- Regulation: it shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
- Directive: it shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
- Decision: it shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
- Recommendations and opinions: they shall have no binding force
What is the two type of non-legislative acts (Tertiary law)?
- Delegated acts (Art. 290 TFEU)
- Implementing acts (Art. 291 TFEU)
What was decided in the Internationale Handelsgesellschaft case?
“Respect for fundamental rights forms an integral part of the general
principles of law protected by the Court of Justice” (para. 4)
→ HR does exist in the EU legal order after all, as unwritten general principles (= part of primary EU law); ‘inspiration’ drawn from national constitutions and HR Treaties, esp. the ECHR.
Explain what is meant by the “principle of conferral.”
TEU Article 5(2):
the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
Explain what is meant by the “principle of subsidiarity.”
TEU Article 5(3):
Builds on two tests:
The first may be called the national insufficiency test:
-The Union can only act where the objectives of the proposed action could not be sufficiently achieved by the Member States (centrally or regionally).
act if and only so far as national measure would be insufficient
The second test is a comparative efficiency test:
- The Union should not act unless it can better achieve the objectives of the proposed action.
- whether the EU is the best to take action → goal is better achieved by EU due to scale/effects of EU action
Explain what types/categories of competences the European Union possesses.
- General competences of the EU
- Articles 114 TFEU: internal market competence
- Article 352 TFEU: residual competence - Categories of Union Competences - Article 2
- Exclusive Competences: Article 3
- Shared Competences: Article 4
- Coordinating Competences: Article 5
- Complementary Competences: Article 6
What is the potential consequence of the Union’s legislature using the wrong legal basis in adopting a legislative measure? Include in your answer the relevant case law of the CJEU prescribed for this week.
Choice of legal basis is of great practical and institutional importance; determines who passes legislation, level of harmonization, who should be consulted etc…
Commission can decide legal basis; they have right of initiative. CJEU ultimately decides if it is the correct legal base
Tobacco Advertising Case
- consequence: the directive can be annulled
The working Time directive case
- one article was taken out of the directive
What is minimum harmonization?
EU law sets minimum standards, EU countries may set higher standards
What is maximum harmonization?
EU law sets a maximum standard. EU countries may NOT induce higher standards
