P4; CH1: Hierarchy of norms

Question 1

What is the Acquis?

Answer 1

It’s a term used to describe the Corpus Iuris of the Union, that is the set of sources like TREATIES, PROTOCOLS, AGREEMENTS, PRINCIPLES, ACTS, LEGISLATIVE and SOFT LAW INSTRUMENTS.

Question 2

Is there a deadline to complete the Acquis?

Answer 2

No, EU has unlimited time to pursue its objectives

Question 3

Which are the 2 parts of EU law that don’t fall in the category of the Acquis and Why?

Answer 3

1. CFSP/CSDP INSTRUMENTS because they are too specific to be reduced
2. INTERNATIONAL AGREEMENTS, since they are under MEMBER STATES’ Competence but influnce the Union

Question 4

What indicates that the Acquis evolved in a Hierarchy of norms?

Answer 4

1. The violation of the Treaties implies invalidity of the act (and implicates a hierarchy)
2. Binding effect of international treaties over secondary law (implicates a hierarchy)
3. Legislative instruments limit the validity of delegated acts (and implicates a hierarchy)
4. RULE OF LAW PRINCIPLE -> Primacy of the law
5. CASE LAW OF THE ECJ: imposing limits and powers, clarifying hierarchies

Question 5

What composes Primary Law?

Answer 5

TREATIES AND PROTOCOLS

+ GENERAL PRINCIPLES OF LAW anchored by the Court in art. 263 TEU

Question 6

Art. 263 TEU

Answer 6

Da fare

Question 7

Are Treaties and Protocols constitutional?

Answer 7

No, they resembles a sort of constitutional form in common values and fundamental principles.

2004 Failure shows that EU does not have a Constitution

Question 8

Relationship between the two primary law treaties

Answer 8

TEU and TFEU have the same legal value and are together at the apex of the Union’s legal system

Question 9

Relationship between the Charter of Fundamental Rights and the two primary law treaties

Answer 9

CHARTER, TFEU and TEU have the same legal value (art. 6 TEU, after Lisbon reform)

Question 10

3 important points about the Charter of Fundamental Rights

Answer 10

1. Difficult to modify even with the TREATY REVISION PROCEDURE
2. PRIMARY NORMS can modify it but not in pejus (modify can only expand individual’s guarantees)
3. It states Common Values of the Union, that together with Fundamental Rights reconstructs a constitutional framework between Union and Citizens

Question 11

The intermediate category

Answer 11

It’s important in cases in which secondary law is allowed by TREATIES to modify/integrate primary law

UNDER PRIMARY LAW, ABOVE SECONDARY LAW

Question 12

Example of Intermediate category applying

Answer 12

ART.81 TFEU -> The Council determines family law provisions with cross-border implications using ORDINARY LEGISLATIVE PROCEDURE if the National Parliaments do not oppose

Question 13

International Agreements

Answer 13

Are concluded in the framework of the Union’s external competences. If they enter into force they become part of the Union’s legal order.

They must be adopted:
- OBSERVING International Law
- RESPECTING the UN Charter

UNDER PRIMARY LAW, ABOVE SECONDARY LAW

Question 14

How’s Secondary Law divided and what are the differences?

Answer 14

Secondary law is divided in:
1. Legislative Acts (subjected to subsidiarity control of national parliaments and made after a proposal of the Commission)
Can be made with ORDINARY or SPECIAL proceduree

2. Non-Legislative Acts (Delegated acts + Implementing acts = Third tier sources of law: they make legislative acts operational)

Question 15

Secondary Law LEGISLATIVE ACTS: difference between ORDINARY PROCEDURE ACTS and SPECIAL PROCEDURE ACTS

Answer 15

ORDINARY PROCEDURE ACTS:
Parliament and Council are both joint and equal legislators

SPECIAL PROCEDURE ACTS:
It is chosen either the Parliament or the Council should legislate (Usually the Council, representing Govs.)
——
- Same legal value
- Different political value

Question 16

Can the legislator delegate its power to legislate?

Answer 16

Only if these powers regards to non-essential aspects of the legal regulation

The legislator also decides what is essential and what is not

Question 17

What are the Implementing Acts?

Answer 17

They are third-tier sources of law and measures necessary to make Union’s legally binding acts operational.

Question 18

What are the Implementing Acts?

Answer 18

They are third-tier sources of law and measures necessary to make Union’s legally binding acts operational.

Question 19

Relationship between Implementing acts and Delegated acts

Answer 19

the formers cannot derogate the latters. Delegated acts have a residual legislative power, but still more than merely implementing acts

Question 20

What are interinstitutional agreements and what are they functional to?

Answer 20

+ They are agreements concluded between EP, ECOUNCIL and ECOMMISSION (3 political organs) and the ECB.
+ They are functional to prevent conflicts arising from interferences between competences
(ex. ECB - Parliament act making monetary policy more democratic using periodic reports)
+ They are encouraged by the principle of loyal and mutual cooperation