Sources of European Union Law

Question 1

Discuss the two Constitutive Treaties

Answer 1

1. TEU
2. TFEU
   - Article 1(2) TEU - “The Treaties” and equal legal value to each other
   - Parti Écologiste-‘Les Verts’ v. European Parliament [1988] ECR 1017 – ECJ = Para. 23 - “the basic Constitutional Charter, the Treaty”; has been repeated in later cases
   - Constitutional stuff mainly in TEU and non-constitutional stuff mainly in TFEU but exceptions

Question 2

Discuss the constitutional stuff in the TFEU.

Answer 2

Articles 2-6 TFEU - EU competences
Articles 20-25 TFEU - Creates and governs EU citizenship

Question 3

Discuss the non-constitutional stuff in the TEU.

Answer 3

Title V Chapter 2 TEU - Very specific provisions on CFSP

Question 4

Discuss accession treaties.

Answer 4

Can amend TEU and TFEU.

Question 5

Discuss annexes and protocols to TEU and TEFU.

Answer 5

• Key thing = Equal in every way to the Treaties (might as well be in the Treaties, same legal value)
• Article 51 TEU – The Protocols and Annexes to the Treaties shall form an integral part thereof.

Question 6

Discuss the CFREU.

Answer 6

Article 6(1) TEU - Charter of Fundamental Rights provisions has same legal value as the Treaties

Question 7

Discuss declarations.

Answer 7

Largely only political value, no legally binding force

Question 8

Discuss the procedures for amending the Treaties.

Answer 8

See Article 48 TEU - Important thing = Must use unanimity voting
- Ordinary revision procedure - Stage 1 = Public consultation (Since ToL); Stage 2 = Intergovernmental conference decided by majority of MS vote; agree on Treaty changes and then ratified by each in MS based on each MS’ own constitutional requirements
- Simplified revision procedures - Just agreed by European Council unanimously; Change voting method from SLP to OLP or unanimity to QMV – Shortened version of ORP

Question 9

Discuss the derivation of General Principles of EU law.

Answer 9

1. The EU Treaties e.g. Article 18
2. MS legal systems
3. Treaties on which the Member States have collaborated or of which they are signatories – e.g. ECHR – Derived a general principle of respect for fundamental human rights

Question 10

What Treaty justification is there for the ECJ treating general principles as a source of law?

Answer 10

Article 19 TEU - CJEU
Article 263 TFEU - Review actions
Article 340 TFEU - Non-contractual liability of the Union ‘in accordance with the general principles common to the laws of the Member States.’
Article 6(3) TEU - ECHR; Note interesting – 1. Names a specific general principle 2. Confirms that General Principles exist, MS confirm CJEU saying they are GPs.

Question 11

Give 7 examples of general principles the ECJ has recognised.

Answer 11

• Respect for fundamental rights
• Legal certainty
• Legitimate expectations – If law creates LE, LE must be respected)
• Proportionality – Proportionality between aims and means used to achieve them
• Equality (including non-discrimination on grounds of age)
• The right to a hearing – Hear both sides of a dispute
• Legal professional privilege – Derived from CL

Question 12

What roles do general principles play?

Answer 12

1) To fill in gaps in written EU law

2) As an interpretive guide to (all) written EU law

3) To control the actions of EU institutions

Question 13

Discuss EU ‘secondary’ legislation.

Answer 13

All the EU acts (Treaties are considered “primary legislation”)

Question 14

Discuss the different types of EU secondary legislation

Answer 14

Article 288 - See lecture notes for more detail

Question 15

Discuss inter-institutional agreements

Answer 15

Article 295 TFEU - II between EP, Council, EC may be binding

Question 16

Name the two types of treaties other than the Constitutive Treaties.

Answer 16

a) ‘Subsidiary’ conventions - Between MS for matters within the scope of Union matters and general context of the Union but less important now because of secondary legislation
- Past examples = included Brussels Convention, Rome Convention (now governed by regulations)
- Current examples = European Stability Mechanism Treaty, Fiscal Stability Treaty
- Acts of MS but part of EU law and can be ruled on by ECJ

b) Agreements with third countries:
- Three kindsL
1. EU + one or more non-MS e.g. EU-UK Withdrawal Agreement (2019)
2. EU and MS + one or more non-MS e.g. Agreement Establishing WTO (1994)
3. MS acting alone without Union + one or more non-MS e.g. Geneva Convention (1951) (Note Article 78 TFEU)