Sources of EU Law

Question 1

Conflicting stipulants

Answer 1

• lex superior derogat legi inferiori
  (higher norm supersedes lower norm)
• lex posterior derogat legi priori
  (subsequent norm supersedes earlier norm)
• les specialis derogat legi generali
  (specific norm supersedes more general norm)

Question 2

Primary Law

Answer 2

• TEU (Treaty on the European Union
• TFEU (Treaty on the Functioning of the European Union)
• Protocols
  (additions to Treaty text
  –> too specific, too long or political reasons)
• CFR
• General Principles of Law
  (telos of the Treaties) –> Art. 6 para. 3 TEU

Question 3

TEU

Answer 3

• objecitve of forging an ever-closer union
• values of the EU
• EU’s tasks
• basic tasks of the institutions and MS
• fundamental rights
• institutions and their basic structure
• CFSP (Common Foreign and Security Policy)
• legal personality of the EU
• primary law amendment
• accession or withdrawal
• scope of application

Question 4

TFEU

Answer 4

• cataglogue of competences and cross-cutting principles
• in detail numerous internal EU policies (e.g. citizenship, internal market, competition, external trade)
• details on the setup and tasks of the institutions, e.g. legislative procedures, court procedures

Question 5

Secondary Law

Answer 5

• International Agreements
• Inter-institutional Agreements
• domestic Legislation, Art. 288 TFEU
  (“typical” acts)
  –> “derived” law (created under primary law)

Question 6

International agreements

Answer 6

• procedure for conclusion & ratification laid down in Art. 218 TFEU
• binding for EU institutions
  –> must be taken into account and implemented by secondary legislation
  –> mezzanine rank
  (Art. 216 TFEU)

Question 7

Domestic legislative Acts based on Art. 288 TFEU

Answer 7

choice for type of act is limited by general principles of subsidiarity & proportionality
- regulation
- directive
- decision
- recommendation
- opinion

Question 8

Tertiary Law

Answer 8

Delegated Acts, Art. 290 TFEU
Implementing Acts, Art. 291 TFEU

Question 9

Delegated Acts

Answer 9

• not part of legislation proper, but are capable of amending certain non-essential elements of a legislative act
  –> not just acts of enforcement
  –> direct impact on the content of the legislative act
• step between legislation and administration
• quick adaptions of legislation
  –> specifies or adds technical details to EU laws
• used in areas of dynamic scientific, technical or economic development
  Art. 290 TFEU

Question 10

Implementing Acts

Answer 10

• uniform conditions for the enforcement/implementation of EU law by MS
• sphere of administrative law
  –> comitology system
  (set of procedures through which the European Commission exercises the implementing powers conferred on it by the European Union (EU) legislator)

Question 11

principle of decentralised enforcement/principle of procedural autonomy

Answer 11

with regard to MS authorities Art. 291 TFEU and in concerning the role of various courts Art. 19 para. 1 TEU
–> power factor for MS
(co-determine impact of legal provisions in domestic daily life)

Question 12

centralised enforcement

Answer 12

when EU law expressly orders it:
Eu institutions enforce EU law themselves
–> quasi federal enforcement
- usually the Commission
- few agencies operating in specific areas
- in exceptional cases the Council

Question 13

Hierarchy of legal consequences

Answer 13

incompatibility may entail a formal invalitdation of a lower ranking norm by the CJEU

Question 14

Hierarchy in EU Law

Answer 14

1. Primary Law (“consitution”)
2. International agreements
3. Secondary Law: EU legislation
4. Tertiary law and enforcement: EU non-legislative acts
5. MS law

Question 15

theory of an integration-proof core

Answer 15

certain core elements of MS’ constitution remain outside the scope of application of EU law (top of hierarchy pyramid)
–> de facto limits to EU Primacy
–> Solange I & II (1974, 1986)

Question 16

Solange I
Solange II

Answer 16

• Solange I, 1974
  BVerfG reserved the right to review Community law as long as no effective protection of fundamental rights was guaranteed in the EEC legal system
• Solange II, 1986
  BVerfG states that, unless it gave further notice, it would not exercise its right to an ultimate review of fundamental rights since the protection of fundamental rights at the EEC level had now become sufficient
  –> illustrates presumption underlying integration-proof core that EU institutions act ultra vires (i.e. outside the powers conferred on it)
  –> EU law doesn’t recognize integration-proof core of national institution