P4; CH2: Secondary Law

Question 1

What does the term SECONDARY LAW refers to?

Answer 1

SECONDARY LAW refers to all normative acts adopted by the European institutions

Question 2

Where we can find the main list of the Secondary Law instruments?

Answer 2

ART. 288 TFEU

Question 3

How are Secondary Law instruments divided?

Answer 3

Secondary law division is often inconsistent, since there are a lot of binding acts that are not legislative, nor non-legislative.

• LEGISLATIVE:
  The adoption of the acts entails the participation of national parliaments [prot.1 (artt.3,4); prot. 2 (artt.6,7)]
• NON-BINDING: Reccomendations; Opinions
• NON-LEGISLATIVE:
  Implementing or Delegated
  (ex. Implementing Regulation, Delegated Directive)

Question 4

What are the requirements of Legislative Acts?

Answer 4

Union’s legislation must:
- be clear and comprehensible
- allow citizens, public authorities and economic operators to easily understand their rights/obligations
-avoid overregulation and administrative burdens

Question 5

Publishing of EU Legislative Acts

Answer 5

1. Act is published in the OJ
2. It enters into force:
   a) following the day set therein
   b) the 20th day after publication

or, by previous statement of reasons (since it undermines legal certainty):
c) immediately
d) retroactively

Question 6

What’s the general obligation established by Primary Law towards Secondary law?

Answer 6

ART. 296 TFEU
General obligation to state reasons for legal acts

• provides transparency
• omission is a GROUND of INVALIDITY

Question 7

3 main aspects of REGULATIONS

Answer 7

Regulations are the most complete form of normative production of EU law:

1) GENERAL IN SCOPE
Addressed to an undetermined and indistinct number of individuals
(can be annulled if it addresses specific entities)

2) FULLY BINDING or MANDATORY IN ALL ASPECTS
Regulation cant be applied partially or selectively, only entirely; they are an obligation of means and results

3) DIRECT APPLICABILITY
Regulations incides in individuals’ situations without the need of domestic implementation, which is forbidden to avoid delays and lak of uniformity in the application

Question 8

What are DIRECTIVES?

Answer 8

Directives are an instrument for the production of norms that is the result of law-making at two levels:
1) Centralized in the Union
2) Decentralized in the Member States (trasposition)

Question 9

Describe the binding effect of DIRECTIVES

Answer 9

DIRECTIVES bind Member States to achieve a certain result with freedom of means, with only 2 limits to the latter:
1) TEMPORAL LIMIT:
Gradual implementation within the laid down time
2) LIMITS ON CHOICE OF FORMS AND MEANS
the room of manouvre accorded to national authorities must respect the result the institutions intend to achieve.

ex. CIRCOLARI

Question 10

Whose the addressed subject of Directives?

Answer 10

ONLY MEMBER STATES

Question 11

When does the obligation to implement directives can be considered as fulfilled?

Answer 11

1) if the MS complies with the directive or;
2) if principles of constitutional or administrative law:
a) ensure the fully application of the directive
b) the situation is already clear (if directive about rights conferral)
c) individuals can easily invoke and know the prerogatives given by the directive

Question 12

Peculiar Institutional Pratice regarding Directives

Answer 12

Directives impose to Member States to notify the Commission of the internal means of transposition

Question 13

DECISIONS: 3 points

Answer 13

Decisions can be assimilated to administrative law:

1) are binding in all their elements
2) can have general or individual scope
3) produce obligation of results and means
(often used to implement union’s legislation)

Question 14

Why CFSP Decisions can’t be included in the DECISIONS legal framework

Answer 14

DECISIONS do not include CFSP Decisions because these are too specific to be included in the homogenous legal framework of decisions