sources of EU law Flashcards
rule of law
any state intervention vis-a-vis individuals ad any claim among private parties must be based on a legal basis stipulating precisely that the state has such power
principles in cases involving conflicting stipulations
- lex superior derogat legi inferiori
- lex specialis derogat legi generali
An legal act was issued in the form of a regulation. Can it nevertheless be transposed into national law?
Art 288(2) - binding in its entirety + directly applicable = no need
prohibition of repetition - duplication prevents uniform application of union law (Variola case)
delegated acts
- art 290
- non-legislative acts
- not part of proper legislation but capable of amending non-essential elements of a legislative act
- by Commission
- makes quick adaptations of legislations possible in areas of dynamic scientific, technological and economic development
implementing acts
- 291(2)
- Commission’s (or sometimes Council) may prescribe guidelines for MS for implementation in a binding manner if there’s an exceptional need for uniform conditions
principle of decentralized enforcement
Art 291 (1) TFEU - implementation of EU law is normally a matter for the MS
Art 19 (1) TEU - judiciary and MS courts
principle of procedural autonommy
where MS are competent for enforcement, they have full freedom to determine the structures and procedures BUT they have to be effective and equivalent
centralized enforcement
only exceptionally, when EU expressly orders so - Commission, agencies, Council
Comitology Regulation
Art 291 (3) = MS have a right to participate in the Commission’s exercise of adopting implementing acts
- the Commission must consult with a committee of representatives of the MS before adopting implementing acts
- examination procedure - (e.g. tax, agriculture, environment) Commission’s proposal must be supported by majority, otherwise - appeals committee for the final decision
- advisory procedure - (e.g. culture) simple majority, not fully binding (just taken into consideration as far as possible)
mezzanine rank
international agreements - between primary (legal basis) and secondary (have to be in accordance with international agreements)
integration-proof core of constitutional law
Art 4(2) TEU = constitutional identity
EU is to respect the national identities of the MS inherent in their political and constitutional fundamental structures
BUT vague and only duty of CONSIDERATION
Solange
Solange case - an EU institution acts ultra vires if the power to take action in question has not been conferred to the EU due to inalienable domestic constitutional restraints (possible interference with a national constitution’s integration-proof core is the direct invalidation of MS legal acts]
German constitutional court said that:
Solange I = SOLANGE EU doesn’t ensure fundamental rights protection equivalent to German constitutional rights, German constitutional court has the right to control the EU law in accordance with German fundamental rights
Solange II= SOLANGE EU conducts sufficient control over fundamental rights, the German constitutional court won’t be conducting control over such rights
principle of equality
Art 4(2) TEU - MS are equal before the treaties (if they are to be treated equally, they also have to subject to the treaties in full and without reservations)
primacy of EU law - justification
Costa ENEL - EU created a new legal order which became an internal part in the MS
MS transferred powers to the EU thus limiting their sovereignty
Internationale Handelgesellschaft
primacy of EU above national law applies at all levels, even above national constitutional law
ultra vires act
(Solange)
conflict in competence between the ECJ and national constitutional courts (EU acts ultra vires when it acts outside of powers conferred on it, in the core area of national law no powers have been conferred on the EU so EU ultra vires law should not claim precedence)
sources of primary law
- TEU, TFEU
- protocols
- CFR
- general principles of law
sources of secondary law
- Art 288 domestic legislation
- inter-institutional agreements
- (mezzanine - international agreements)
sources of tertiary law
- implementing acts
- delegated acts
