Law-making & Sources of EU Law Flashcards
What are the sources of EU law?
Primary legislation: the EU is founded on Treaties that constitute the foundation of EU law. This is known as primary legislation.
Secondary legislation: the EU institutions are empowered by the Treaties to adopt legislation/ measures, known as secondary legislation; these are subordinate to the Treaties.
International agreements: Treaties empower the EU to enter into international agreements with third countries, another source of EU law.
General principles of law: the CJEU has determined there is such a source of unwritten law in the EU.
1A. Secondary Legislation: Competence to Adopt Legislation - (i) Principle of Conferral
Explicitly mentioned in TEU: EU institutions can only adopt legislation if granted power to do so in Treaties. This ensures they do not encroach on Member States’ competences (Article 4(1) TEU says competences not conferred upon EU remain with MS).
This means that if EU institutions propose to adopt an act, there must be provision in Treaties/ secondary legislation that provides them with power to do so - provision is termed ‘legal basis’ of the act and will also determine what procedure the institutions can act under, e.g. QMV or unanimity.
However, ‘flexibility clause’ in Article 352 TFEU: can be used where action is deemed necessary but no power has been given to the institutions through Treaties. Article 352 can only be used if vote in Council is unanimous and consent of European Parliament.
Also, Article 114 TFEU: empowers Union to adopt measures deemed necessary to establish or help the European internal market function.
Existence of such wide, empowering clauses has led to ‘competence creep’ issue, i.e. gradual extension of EU competence by using empowering clauses.
(ii) Types of Competence
Four main types of competences:
- Exclusive competence: where MS have transferred the exclusive power to adopt legislation to the EU. Limited number of areas, listed in Article 3 TFEU.
- Shared competence: both MS and EU can adopt binding acts. However, not on equal footing, e.g. where Union has legislated, MS cannot adopt measures incompatible with that legislation. Most common type, listed in Article 4 TFEU.
- Complementary competence: EU adopts binding acts in certain areas, but these will not consist of harmonisation (creating common standards) to national laws. Thus, EU will not interfere with legislation adopted by MS. Listed in Article 6 TFEU.
- Co-ordinating competence: in field of economic and employment policies, as well as, to lesser extent, broader social policy. Power to legislate in this field remains with MS, but how these powers are exercised gives rise to co-ordination at Union level (EU constraints on how MS can design their policies in these fields. Listed in Article 5 TFEU.
(iii) Subsidiarity
One of additional principles governing use of competences, underlined in Article 5 TEU. Subsidiarity is concerned with deciding whether a power should be exercised at EU or national level; only relevant in regards to shared competence. Action at Union level should only be considered if would be more valuable than national action - whether Union is best placed to act/ carry out action or not.
EU legislative institutions: before putting forward legislative proposal, Commission, Council and European Parliament evaluate whether proposal is justifiable with regards to subsidiarity. Article 5 of Protocol requires draft legislative measure to contain statement justifying need for action, with respect to subsidiarity.
Courts: enforceable by CJEU, because subsidiarity is enshrined in Article 5 TEU, rendering it legal norm. Makes it difficult for CJEU to challenge position by legislative institutions, e.g. Vodafone case: underlined that once institutions have defined European-wide objective, subsidiarity principle will mostly always be satisfied.
National parliaments: difficulty of legal challenge, so Lisbon Treaty provided for ‘early warning mechanism’, where national parliaments have opportunity to voice disagreement on subsidiarity grounds with proposed EU measures. After receiving draft EU legislative measures, national parliaments have eight weeks to oppose in a ‘reasoned opinion.’
- Issuance of yellow card: if 1/3 of votes (each parliament has 2 votes) opposite it, institution who put measure forward must review proposal. If they intend to maintain it, must give reasons for doing so.
- Issuance of orange card: if measure was adopted under ordinary legislative procedure and opposition reaches more than 50% of votes of national parliaments. If institution wishes to maintain it, must state reasons in a reasoned opinion and Council and Parliament should take into account reasons against measure by parliaments. If 55% or more of Council or majority in European Parliament oppose measure on subsidiarity ground, measure is blocked and no longer considered (however, usually a minority of 35%).
Unsure if effective: number of reasoned opinions by national parliaments always varies, with 8 in 2015 and 65 in 2016; since Lisbon Treaty’s entry into force, only 3 yellow cards issued (the Commission stuck to view that measure complied with subsidiarity in all 3 cases) and no orange cards.
(iv) Proportionality
Action by Union should be limited to what is strictly necessary to achieve objective being sought.
Difference with subsidiarity: proportionality is concerned with intensity of proposed action, while subsidiarity is concerned with level at which to act (Union or national). More challenges to the former than the latter.
1B. Secondary Legislation: Legislative and Non-Legislative Acts
Article 289: legislative acts are either acts adopted jointly by European Parliament and Council under ordinary legislative procedure, defined in Article 294; or act adopted by Council with participation of European Parliament/ vice versa, where Treaty provides for special legislative procedure.
Example of non-legislative acts provided by Article 290: Commission adopts acts under powers delegated by legislator (Parliament and Council) and this delegation can only cover non-essential elements. Essential elements are only for legislative acts and cannot be delegated. - Frontex case indicates judgment of whether issue is essential element a determined by objective criteria open to judicial review.
Example by Article 291: normally, implementation of Union acts undertaken by Member States. Under Article, implementation by Commission, (or exceptionally, Council) instead of MS occurs when uniformity is deemed necessary and MS implementation is not desirable; Commission will be supervised by Committee made up of representatives from MS.
However, both acts are equally binding; only important when reviewing legality of acts, as conditions for challenging non-legislative acts are less difficult than legislative acts.
(i) Legislative Procedures - Ordinary Legislative Procedure
- Proposal from Commission
- Two readings by Council and European Parliament, who can propose amendments to proposal. If both agree, text is adopted and becomes legislation.
- If in disagreement, conciliation committee (made up of Council and Parliament representatives) convened and tasked with drafting text acceptable to both. Committee has six weeks to reach agreement. If reached, text is submitted to Council and Parliament for third reading and must be adopted by both to become legislation. If not reached, proposal is rejected.
(ii) Legislative Procedures - Special Legislative Procedure
- Consultation Procedure: Council must take into account Parliament’s opinion, but not bound by it. Confined to limited areas, mainly competition law and tax harmonisation.
- Consent Procedure: Parliament has no power of amendment, but has power to veto adoption of act approved by Council. Used mainly in accession of new states to EU or withdrawal of MS. Other than this, the procedure is required in relation to measures to combat discrimination under Article 19(1) TFEU or in relation to use of flexibility clause (Article 352 TFEU).
(iii) Forms of Acts - Regulations, Directives & Decisions
Article 288 TFEU identifies three main types of acts that are binding:
- Regulations: regulate general situations in abstract terms, rather than a particular situation or person. Regulation regulates a situation in immediate manner and is binding on everyone.
- Directives: like regulations, regulates general situations in abstract terms. However, regulates situations indirectly. Regulations are not immediately imposed on people, but are done so indirectly by measures adopted by Member States, who implement the directive.
- Decisions: designed to be individual acts addressed to a specific person (some are abstract and not addressed to anyone).
Two types of act that are not binding are recognised too: recommendations and opinions.
- International Agreements
Article 47 TEU: EU has capacity to conclude international agreement. These are conclusion of agreements with third countries or international organisations. Only the EU can enter into agreements with a third country. In an area where competence is shared between EU and MS, both can enter into an agreement with a third country - known as mixed agreements.
Commission, on basis of mandate from Council, negotiates with third countries to conclude an agreement. Once agreement is reached, it is formally concluded by Council decision, with permission from European Parliament. Once concluded, agreement is binding in principle upon EU institutions and MS.
- General Principles of Law
CJEU has developed general principles of law as unwritten source of law, found in EU legal order and/ or common legal tradition of MS.
General principles of law are made by judges. Treaties give EU institutions power, but do not provide details as to under what conditions powers can be exercised. This unwritten source, thus, is designed to regulate conduct of EU institutions, primarily to protect individuals against their possible abuse of power. National authorities may sometimes be bound by these too when exercising powers within scope of EU law.
(i) General Principles of Law & Fundamental Rights
General principles of law have played significant role in protection of fundamental human rights. Although CJEU has challenged compatibility of EU legislation with fundamental rights, general principles of law have been used to develop protection too.
Stauder v City of Ulm & Internationale Handelsgesellschaft: respect for fundamental rights found to constitute general principle of law.
Nold: Court clarified that it would look to international treaties related to protection of rights that MS were part of and ECHR, to determine contents of general principles of law relating to protection of rights. ECHR protected in EU legal order, despite EU not party to ECHR.
However, EU Charter of Fundamental Rights: general principles of law developed to fill legal vacuum in EU related to fundamental rights, but now vacuum has been filled with this. Courts will now look to EUCFR, unless a right is not included in Charter.
- Hierarchy of Norms - (i) Treaties
- Treaties and EUCFR: stand at top of hierarchy of norms.
Means secondary legislation must comply with treaties and EUCFR and may be annulled if does not comply. This also applies to international agreements.
Article 218(11) TFEU: MS, European Parliament, Council or Commission may obtain CJEU’s opinion on whether proposed agreement is compatible with Treaties.
(ii) General Principles of Law
- General principles of law are binding on EU institutions; they must comply with these principles when adopting secondary legislation, or else it will be struck down as invalid.
As Treaty provisions are superior in the hierarchy, they will take priority in case of conflict and general principles cannot be used to set them aside.
Kadi: where an international agreement has been concluded, operation of that agreement cannot give rise within EU to violation of general principle of law by institutions, and also decision to conclude agreement could be challenged for non-compliance with general principles of law..
(iii) International Agreements
- International agreements bind institutions.
One would think this means secondary legislation would be invalid if it conflicted with international agreements. However, Court has held, e.g. in International Fruit Company and Commission v Portugal, that validity of Union legislation does not need to be looked at light of those agreements. It should in principle take priority over measure adopted by the institutions, but only to the extent that the agreement does not require a review of validity of EU legislation.
