SUPREMACY OF EU LAW: SOURCES Flashcards
PRIMARY SOURCES OF EU LAW: Legal system and sources of eu law, in a nutshell two forms of eu law primary and secondary law. Primary sources: only really one which is the treaties. The treaty is a primary source of law these are held within the EU legal system, they are the highest form of the EU law and affect the whole of European Union and whole of operation, functioning and European union legal system.
PRIMARY SOURCES OF EU LAW: Treaties of the EU, treaty functioning of the EU (treaty of Rome) came into force 1957, focuses on various different aspects of European union government, has always been the backbone of the community.
PRIMARY SOURCES OF EU LAW: Treaty on EU treaty of Maastricht: contains important fundamental principles eg subsidiarity and explain institutional framework. Important to distinguish both and refer to the correct treaty and correct provisions. A treaties is made: agreed between member states at intergovernmental conferences, signed by heads of state, ratified by each state individually, parliament needs to agree this too not just heads of states.
SECONDARY SOURCES OF EU LAW: Made by the EU institutions made according to the rules procedures in the treaties. Article 288 TFEU, this article outlines and depicts all of the secondary forms of union legislation which are: regulations, directives, decisions all binding. Non binding are – recommendations and opinions. Article 288 sets out all of the relevant legal sources for secondary sources of the union law. We can see that a good way to differentiate secondary sources is between binding and non binding. Binding and non binding categories good way to know how they work.
SECONDARY SOURCES OF EU LAW: Regulations are directly applicable and based on the authority of the treaty, similar to a treaty once it is enacted it has a binding validity on the whole of Europe and will have to adhere to the regulations. Directives implanted by member states, approximation rather than uniformity. Decisions- are binding on addressee only, theyre binding in relation to who they are addressed to, decisions are generally court decisions therefore it would only bind the party the judgement is against. In terms of source of law is of course court decisions and commission decisions.
SECONDARY SOURCES OF EU LAW: Decisions of the CJEU court does not bind itself, often finds creative solutions to loopholes left by treaties and secondary legislation. Direct effect is the ability of an individual to be able to rely on European union law in their national member state. Think about whether these sources of law have direct effect or note. Treaties are directly effective in Van Gen den Loos case. Regulations are generally directly effective, Directives are directly effective subject to certain rules. Decisions directly effective against certain parties. Sources of law can be used in the national court of law and also can be relied upon within individuals, shows different forms of law.
Using the judgement from the following cases outline what is meant by ‘primacy/ supremacy of EU law’: Van Gend En Loos Case 26/62, COSTA V ENEL Case 6/64, and Simmenthal Case 106/77.
The earliest indication of supremacy of EU law came from the case of Van Gend En Loos where there was a Dutch law which was in direct conflict with a treaty provision of the European Union. It was held that member states had limited their sovereign rights, in limited fields, and that the subject of the rights are not only the member states but the individuals (citizens of the member states). This meant that individuals could bring an action in national courts should there be national laws that conflict with European Union laws. The Court of justice also referred to the European Union as a new legal order.
In Costa v ENEL there was a conflict between Italian national law and a European Union treaty provision.
In Simmenthal the supremacy of EU law was further clarified as the court stated: A national court which is called upon, within the limits of its jurisdiction, to apply provisions of community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means.
The primary source of EU law derives from the treaties. The two treaties that currently stand are the Treaty on the Functioning of the European Union (TFEU) and the Treaty on European Union (TEU). The original founding treaties of the European Union have been supplemented and updated considerably over the years through agreement of the member states of the European Union. In 2009 the Lisbon Treaty was signed which was the most recent amendment to the operation of the EU. Treaty provisions are both directly applicable and able produce direct effects.
The secondary sources of EU law are regulations, directives, decisions and recommendations/ opinions. Article 288 of the TFEU outlines the secondary sources of EU law and their binding validity.
Regulations as outlined above are binding in their entirety and directly applicable in all member states. Regulations provide general provisions of law which apply to the union as a whole. As this source of law is universally binding this means that the law in all member states for the specific issue will be exactly the same. This is a form of union law that harmonises the EU as a whole and provides the minimum standard to be applied across the union. Regulations are both directly applicable and able produce direct effects
Directives are binding as to the result to be achieved but is a mechanism that leaves the form and method of implementation to the member states discretion. Directives are binding on all member states. The discretion given to member states allows member states to conform to the aims of the directive in a way which suits them. It also means that if they are already in line with the aims of the directive they only need to notify the Commission of the European Union so that the Commission does not initiate enforcement proceedings against them.
Directives come into force on the date specified in the directive or after the twentieth day following the publication of the directive see Article 297(2) of the TFEU. Directives are capable of direct effect if specific criteria is met. Directives are not directly applicable.
Decisions are only binding upon the person to whom the decision is addressed. Decisions can be addressed to individuals, member states or both collectively. A decision is binding in its entirety. Decisions are directly effective upon whom they are addressed.
Recommendations and opinions although mentioned in Article 288 do not carry binding force. Recommendations and opinions can be used by the Commission of the European Union and Court of Justice of the European Union when making decisions and they can be helpful in clarifying definitions of complicated subject matter.
Recommendations and opinions are not capable of direct effects.
