L3: Primary and secondary legislation and decision-making principles

Question 1

Primary Legislation

Answer 1

Always looks at the following treaties first: Treaty on EU (TEU), Treaty on the Functioning of the EU (TFEU), and Fundamental Rights Charter (FRC).

Question 2

Secondary Legislation

Answer 2

Is based on primary law and always needs legal basis, such as regulations, directives, and decisions. There are binding and non-binding instruments.

Question 3

Regulations

Answer 3

are instant but very general, and are directly applicable in all MS. No transposition is needed and is general in nature

Question 4

Directives

Answer 4

have a deadline to be transposed into national law and a deadline for transposition. It is an instrument for harmonising and only for addressed MS

Question 5

Decisions

Answer 5

are instant but very specific, and are binding on individuals, both natural and legal persons, and MS.

Question 6

What are the non biding instruments?

Answer 6

• Opinions (can be shared and can have effect. Is a preparatory act before legislation can be adopted).
• Recommendations (are more general and can also have effect and calls for a particular behaviour).

Question 7

what is Acquis Communautaire?

Answer 7

The primary and secondary legislation and judgement of the CJEU becomes rights and obligations that bind MS together within the EU

Question 8

name the 5 decisions making principles?

Answer 8

Loyalty Principle, 
Principle of Conferral 
Principle of Subsidiarity 
Principle of Proportionality
Concept of Legal Basis

Question 9

what is the loyalty principle and which case?

Answer 9

Spanish Strawberry Case

principle of sincere cooperation, as the MS must cooperate and do what is best for the EU and not for themselves.

Question 10

what is Principle of Conferral?

Answer 10

Art.5(2) TEU & 13(2) TEU)
Not all powers are in the hands of the EU and is sometimes shared. The EU cannot just take power, it must be given. Examples: Art.46 TFEU, 192 TFEU & 168(7) TFEU.

Question 11

what is the Concept of Legal Basis?

Answer 11

Secondary legislation can be proposed if the Commission finds a treaty article to base it upon.

• Art.3 TFEU: Exclusive Competence (only for EU) (custom unions, competition, common commercial policy, monetary policy for euro, etc).
• Art.4 TFEU: Shared Competence (shared by EU and MS’s) (ONCE EU TAKES THE RIGHT TO ACT IN A CERTAIN AREA, IT BLOCKS MEMBER STATES FROM LEGISLATING IN SAID AREA: LOCKING EFFECT) (internal market, environment, human rights, etc).
• Art.5 & 6: Supporting or Coordinating Action (EU can support, but all is up to MB’s) (tourism, culture, and education).

Question 12

The principle of subsidiarity ?

Answer 12

(Art.5(3) TEU)

Question 13

Proportionality principle?

Answer 13

Art.5(4) TEU)
EU should choose a measurement that is the least restrictive, and the EU must not exceed their limit to what is necessary in achieving the treaties objectives.