LEGISLATIVE PROCESS

Question 1

what is primary legislation?

Answer 1

TREATIES - Treaty of Lisbon, TEU, and TFEU

Question 2

what is secondary legislation?

Answer 2

The EU enacts secondary legislation - regulations, directives, decisions under the powers CONFERRED by the treaty

These acts supplement the Treaty provisions

Question 3

What is a regulation?

Answer 3

ARTICLE 288 TFEU
Detailed forms of secondary legislation
‘general application…binding in its entirety and directly applicable in all member states’
Means that it applies to all governments institutions and individuals without the need for national implementation

Question 4

What is a directive?

Answer 4

ARTICLE 288 TFEU
‘binding as to the result to be achieved, upon each member state to which it is addressed but leaving it up to the national authorities the choice of form and methods’

Member states are required to implement directives, which are set out in general terms, through the adoption of detailed measures normally legislation

Question 5

What are decisions?

Answer 5

Addressed to member states or to specified individuals for instance Commission decisions addressed to businesses concerning breaches of competition law

Question 6

Recommendations and opinions?

Answer 6

Not legally binding

Question 7

What is a GPL?

Answer 7

The court of justice has helped to develop over the years, these form a part of EU law even though they are not principles that can be located in the treaty

These GPL’s act independently from the treaty, but usually find there way into the treaty so they are not problematic as they are then binding

But originally created absent of treaty authority

Question 8

Name some GPL’s

Answer 8

• subsidiarity
• proportionality
• fundamental human rights
• equality
• legal certainty

Question 9

Why do we have GPL’s?

Answer 9

1. Interpretation of EU law. GPL fill gaps in the Treaties and allow the Court to ‘update’ EU law, adjusting it to contemporary developments.
2. GPL define and limit scope of the EU institutions’ competences when they adopt EU legislation. The Member States or individuals may rely on GPL to challenge EU measures.
3. GPL place obligations on the Member States when they act within the field of EU law, e.g. when they invoke exceptions from the TFEU to impose national ‘trade restrictions’ within the EU market; or when they adopt national law or administrative acts to implement EU law. These acts can be challenged on the basis of GPL.

Question 10

Sources of GPL’s:

Answer 10

• Public international law (e.g. the European Convention of Human Rights (ECHR))
• Domestic legal systems: ‘The court … chooses from each member state those solutions which, having regard to the objects of the Treaty, appear to be the best or …the most progressive’; Case 14/61 Hoogovens v High Authority [1962] ECR 253. The preferred formulation is: the constitutional traditions common to the Member States (see below).
• The Court’s own decisions (case law e.g. on legal certainty, protection of legitimate expectations and non retroactivity, right to a fair hearing, legal professional privilege)

Question 11

What is the unions democratic deficit?

Answer 11

• (VERTICAL STRAND) – too many powers have been moved up the scale from the more democratic national level to the less democratic EU level
First, there is unease about the gradual accretion of power at the European level (less democratic)l, at the expense of power located at the (more democratic) Member State level. The weakness of the principle of subsidiarity and the breadth of the European institutions’ powers are seen as major concerns.
• The further up the chain of governance you go the further away from the citizen you are so the higher level of decision making the less democratic it is, so they should be taken at lower levels

• (HORIZNTAL STRAND) taking on board that certain things are done at the EU level but WHO should do them – looks at the institutions at EU level – the most criticised is the commission – not elected
Second, the lack of power of the EP (the only EU institution whose members are directly elected by the European peoples) relative to the other European level institutions is also highlighted.
How would we like decisions to be made at EU level, what is the appropriate balance?

Question 12

what is the ordinary legislative procedure?

Answer 12

Implemented by the Treaty of Lisbon

co decision procedure
- two readings of the proposed legislation

First reading - parliament delivers its opinion to the Council with any suggested amendments

If these are approved then that means the measure may be adopted

IF NOT

Second reading - Parliament considers the Council’s common position including any council amendments which must have been adopted unanimously

IF PARLIAMENT REJECTS THE POSITION THEN IT DOESN’T BECOME LAW

IF IT PROPOSES FURTHER AMENDMENT

These are referred to the Council and the Commission which deliver their opinion

IF THE COUNCIL APPROVES ALL AMENDMENTS THEN IT CAN BE ADOPTED

If not a meeting of the Conciliation Committee compromising of MEP’s and Council members or their representatives is convened

If a joint text is approved it will be adopted - if not the measure won’t be adopted

Question 13

What is special legislative procedure?

Answer 13

Applies in respect of specified areas provided for by the Treaties

Under special legislative procedures, the Council is, in practice, the sole legislator. The Parliament is simply associated with the procedure. Its role is thus limited to consultation (such as under Article 89 TFEU concerning cross-border police operations) or consent (such as under Article 86 TFEU concerning the European Public Prosecutor’s Office) depending on the case

Question 14

what is subsidiarity?

Answer 14

a principle that the EU cannot act if a member state is better placed to do so

Question 15

what is proportionality?

Answer 15

that the EU should not do more than is necessary when implementing policy