Sources of EU law - L3 Flashcards
Primary, Secondary and Tertiary law
Primary Law /
* Founding Treaties (TEU, TFEU, Euroatom + all and any
amending Treaties, Acts of Accession etc)
* The Charter of Fundamental Rights of the EU (Art. 6 (1) TEU)
* General principles of EU law (some by now codified – e.g. Art.
4 (3), 5 (3&4), 6 (3) TEU; others just in case law)
* Protocolls and Annexes to the Treaties (same status), but not
(unilateral) Declarations.
Secondary Law
*
„Derived“ law, created under and within (and by the institutions
foreseen in) primary law
* The „typical“ acts in Art. 288 TFEU + „atypical“ acts
Tertiary Law
* Delegated Acts (Art. 290 TFEU)
* Implementing Acts (Art. 291 TFEU)
Hierarchy (?)
Not so strict a vision as in national laws (such as
Austria - Stufenbau der Rechtsordnung)
However (at least):
A/ Internal Coherence
- Secondary law ought to remain (grosso modo)
within the primary law remit (plays a role not
only in the judicial control of the proper legal
basis, but also for subsequent interpretation of
secondary law)
- Delegated acts must remain within the
individual delegation – Art. 290 TFEU
B/ External Coherence
EU law, in particular secondary law, must be
compatible with any international law obligations
assumed by the Union
Primary law („Constitution“ of the EU)
A recap:
- TEU, TFEU, Euratom
- The Charter of Fundamental Rights
- Considerable constitutional case law of the CJEU
(and highest national courts) – primacy, direct
effect, state liability …
- The awkward position of case law in civilian
systems and their teaching of EU law
Is case law (or even one judicial precedent) a source of (EU) law?
A lot of areas of EU law purely case-law creations. Decisions of the
CJEU enforced like any other law, even lacking explicit legislative
basis. Or how far can one go in pretending that all judicial
pronouncements are just „clarifications“? Level of abstraction?
In any case: case law in EU law is a source of law, hierarchically
positioned at the level of the subject matter/source is interprets (seems
to interpret).
Decisions of the CJEU enforced like any other law, even lacking explicit legislative basis (how far can one go in pretending that all juridical pronouncements are just “clarifications”)
Case law in EU law is a source of law, hierarchically positioned at the level of the subject matter/source is interprets (seems to interpret)
Dualists (PIL same level as treaties) VS monalists (PIL on top)
PIL customs, (art 3 (5) TEU), - EU tries to incorporate customs (needs to be compatible w EU primary law)
PIL in EU law
The Treaties ratified by the EU as a contracting party (exclusive of shared
competence – mixed treaties) = is part of the corpus of EU law (becomes
incorporated)
Position = „mazzanine“ - PIL in EU law takes precedence over any
secondary law; however, treaties entered into by the Union must be
compatible with primary EU law (Art. 218 (11) TFEU – ex ante Opinion
on the compatibility of a draft treaty with EU law possible)
Typically = EU accession to a treaty and then, within the EU competence,
EU internal transposition of the obligations stemming from the treaty. The
treaty remains internally important for conform interpretaion (plus
potentially conformity review)
The position of PIL customs? In principle yes (Art. 3 (5) TEU), there are
however limits – See in particular Kadi II
The Aarhus Convention
UNECE Convention on Access to Information, Public Participation
in Decision-making and Access to Justice in Environmental
Matters (Aarhus Convention), signed on 25 June 1998 in Aarhus,
Danemark
Three pillars of rights for the „public concerned“ (including NGOs!):
- the broadest posssible access to information concerning environment (Art. 4),
- the participation of the „public concerned“ in administrative deicision-making
in matters concernng environment (Art. 6 – 8) und
- Access to judicial review in environmental matters (Art. 9).
Environmental Policy = one of the shared competence between the Union and
the MSs (Art. 191 and ff TFEU) => mixed treaty, signed by the EU and all its
MSs, and the EU shall implement the parts corresponding to its competence on
in the matter of environement
Since environment shared competence EU + MSs
(Art. 4 (2) e) TFEU), EU transposed internally as well via
a number of directives, such as:
- Directive 2003/4/EC of the European Parliament and of the Council of 28
January 2003 on public access to environmental information
- Directive 2003/35/EC of the European Parliament and of the Council of
26 May 2003 providing for public participation in respect of the drawing up
of certain plans and programmes relating to the environment
- Directive 2001/42/EC of the European Parliament and of the Council of
27 June 2001 on the assessment of the effects of certain plans and
programmes on the environment
- Regulation (EC) No 1367/2006 of the European Parliament and of the
Council of 6 September 2006 on the application of the provisions of the
Aarhus Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters to
Community institutions and bodies
–> Aarhus convention (signed 25 june 1998, “Convention on access to information, public participation in decision-making and access to justice in environmental matters” ; 3 pillars of rights for the “public concerned” (including NGOs): - the broadest possible access to info concerning environment (art 4) - the participation of the “public concerned” in administrative decision-making in matters concerning environment ( art 6-8) and - access to judicial review in environmental matters (art 9)
Environmental policy = one of the shared competences between the EU and the MSs
Secondary Law
Art. 288 TFEU- typical acts
(1) Regulation
(2) Directive
(3) Decisions
(4) Recommendations and Opinions
+ A number of atypical acts (i.e. not explicitly mentioned in the Treaties), e.g.
- Interinstitional Agreements (Parlament + Council+ Kommission)
- Communications, Best Practices, Guidelines, Benchmarks, Green Book, White
Books, Yellow Pages … and other „soft law“ (actual status)?
+ FYI – before the Treaty of Lisbon adopted, today still valid Framework Decisions
(such as 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European
arrest warrant and the surrender procedures between Member States)
A Regulation
Art. 288 (1) TFEU
* A „EU“ statute – binding in its entirety
* Abstract subject-matter and an indeterminate set of addressees
* Directly applicable (after entry into force) in all Member States
* No transposition necessary (unless not specifically requested by the
instrument itself)
* Applicable by all authorities in the MSs (administration, courts) directly
Example:
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April
2016 on the protection of natural persons with regard to the processing of personal data
and on the free movement of such data (Eur-Lex)
N.B.: - the legal basis stated (Union competence) = Art. 16 TFEU
- Structure of the act
- The recitals and their role
- Entry into force, typical closing provisions
A Directive
Art. 288 (2) TFEU- binding as to the results to be achieved (Rahmengesetzgebung,
loi-cadre)
* Choice of the form of methods of transposition left to the MSs (diversity as to the
legislative technique, or also as to the content? How much?)
* Transposition period
* Addressees = the Member States
* No immediate direct applicability, but:
* „blocking effect“ after the entry into force before transposition period lapsed
* Possibility for „direct effect“ after the transposition period if sufficiently clear, precise,
and unconditional and evoked by an individual against a Member State
Example:
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on
the right of citizens of the Union and their family members to move and reside freely
within the territory of the Member States (Eur-Lex)
N.B. – The wording of obligations, structure
- Entry Into Force + Implementation Period + Notification + (Often) Reporting
Case C-376/98, Deutschland/EP and Council
All forms of advertising and sponsorship of tobacco products
were banned (with a few exceptions), including local media
such as open air events and cinema advertising as well as
advertising in the so-called “Horeca” (hotels, restaurants and
cafés), for example on parasols or ashtrays …
Germany: Art. 114 TFEU as legal basis for such a ban? A legal
act must actually contribute to the completion of the internal
market. Instead of promoting trade in tobacco and the freedom
to provide services in this area, the directive almost
completely eliminates these freedoms. The advertising ban, for
example, makes it virtually impossible to introduce new
products and market new products on the tobacco market,
thereby paralyzing trade between Member States.
What is the competence here? Establishing the Internal
Market by closing it down in certain sectors (but for the
benefit of other goods?)
Decision
2 types of decisions under Art. 288 (3) TFEU
(1)With stated addressees (essentially – „ein Bescheid“,
„Einzelentscheidung“)
An administrative decision, addressed to:
* To a Member State (e.g. Decision on state aid or subsidy)
* To individuals (e.g. Decisions in competition matters)
(2)Without stated addressees
A de facto measure of general application (an
„Allegemeinverfügung“)
* Binding erga omnes
* Normally no need for implemenetation
Recommendations, Opinions
(and other soft law)
Formally not legally binding, providing content is a true soft law (Art. 288 (5) TFEU)
However, in reality not always a clear cut
- E.g. Case 322/88, Grimaldi (was ist eine „Berufskrankheit“?)
- Case C-919/19, Féderation bancaire francaise – EBA Guidelines
Questions/Problems:
- Competence issue (a fortiori for agencies, such as EBA)
- Judicial control (crypto-legislation)
The judicial approach so far:
(1) Die Selbstbindung der Verwaltung => protection of legitimate expectations of
the addressees (E.g. Case C-226/11, Expedia)
(2) If generating in reality „binding legal effects“, then irrespective of the form
judicially reviewable.
Tertiary Law
= delegated acts by the Commission under Art. 290 (1) TFEU
- Objectives, content, and scope of the delegated powers must be deteremined
- Cannot concern essential elements.
Idea: flexible and faster way of rule making, in particular also in complex
economic or scientific matters and those changing a lot.
= implementing acts under Art. 291 TFEU – the „comitology“ system.
Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16
February 2011 laying down the rules and general principles concerning mechanisms for
control by Member States of the Commission’s exercise of implementing powers
- Horizontal instrument
- High practical relevance and amount of comites, in particular for market
regulation
- Normally staffed with (seconded) national experts
But what exactly means
„implementing“? And above all,
what are „essential elements“?
1/ The Legislative Framework:
Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on
type approval of motor vehicles with respect to emissions from light passenger and commercial
vehicles (Euro 5 and Euro 6)
- Art. 5 (3) of the Reg: The specific procedures, tests and requirements for type approval set out in
this paragraph, as well as requirements for the implementation of paragraph 2, which are designed
to amend non-essential elements of this Regulation, by supplementing it, shall be adopted … by
the Commission.
- The maxima for NOx-Emissions (Nitrogen Dioxided) are 180 mg/km for Euro-5-Norm and
80 mg/km for die Euro-6-Norm.
2/ Supplementing the „Non-Essential Elements“?
Commission Regulation (EU) 2016/427 of 10 March 2016 amending Regulation (EC) No 692/2008
as regards emissions from light passenger and commercial vehicles (Euro 6)
- Testing will be done differently (not in a lab, but outside under „real driving conditions“)
- Under „RDC“ testing, the margins are to be higher, because measured differently: NOx =
„1 + margin“
