The Four main sources of EU Law Flashcards
What are The four main sources of EU Law:
Primary Legislation (the EU Treaties - e.g. TFEU);
(b) Secondary Legislation (Regulations, Directives,
Decisions, Recommendations and Opinions);
(c) Jurisprudence of the European Court of Justice (ECJ);
(d) International Agreements.
The Treaty on the Functioning of the European Union (TFEU)
The Framework Treaty:
Sets out broad principles and objectives of the EU
Allows the institutions within the EU to achieve the objectives by passing
secondary legislation
The Four Institutions under TFEU
The Council (one representative from each Member State (MS) - depending on the topic - responsible for co-ordinating the general economic policies - e.g. in discussing Trade, only representative trade ministers from each Member State will attend);
2. The European Council (Heads of States or Government of the Member -
forum for making key political decisions/inter-governmental co-operation:
instructs either the Council or Commission to implement the policy decisions
they have made); contd.
The Treaty on the Functioning of the
European Union (TFEU) contd.
The Institutions are (contd.):
3. The European Commission (the ‘Commission’) (made up of European
Commissioners from each Member (but stay independent from their States) -
initiate union policy and propose legislation, implement Union policies and
the budget, ensure MS comply with their obligations under EU law,
administer and enforce EU competition law, negotiate international
agreements between the EU and other States); and
(POINT TO NOTE: the Council and the Parliament have the power to ask the Commission to submit
proposals for legislation (Articles 241 and 225 TFEU respectively)).
4. The European Parliament (the ‘Parliament’) (made up of members of the
European Parliament (MEPs), decided roughly by the MS population size) -
supervisory powers (e.g. Article 234 TFEU, the Parliament can require the
whole of the Commission to resign by a vote of censure carried by a two-thirds
majority), and legislative powers.
Regulations
A “regulation” is a binding legislative act. It must be applied uniformly and in its entirety across
the EU Member States as soon as they enter into force, without needing to be transposed into
national law. National authorities must ensure they are correctly.
Directives
A “directive” is a legislative act that sets out a goal that all EU countries must achieve.
It is up to the individual countries to devise their own laws on how to reach these goals.
Each directive contains a deadline by which EU countries must incorporate its provisions into
their national legislation and inform the Commission to that effect.
Court of Justice of the European Union (the CJEU)
This refers collectively to the Court of
Justice and the General Court
Due to the structure of legal process and the application of EU Law (Regulations and
Directives), national courts have accordingly become responsible for enforcing individuals’
rights under EU Law
This means:
National courts could potentially interpret key provisions of EU Law differently
Huge legal uncertainty; businesses trading in several Member States would not be able to rely
on consistent interpretations of EU Law
Lack of uniformity in application and interpretation of EU Law - essential to effective internal
market
International Law is:
Law agreed by two or more States;
It is applicable to those contracting States and in most cases their nationals; and
Laid down in rules referred to as Treaties, Conventions, Regulations and Declarations.
The effect of signing these rules means:
States that sign a Treaty or Convention agree to be bound by its rules.
Sometimes states reserve the right to determine at a later date to what extent a treaty or
convention will affect the State or its nationals.
International Public Law concerns:
Set-up of international institutions (the United Nations, the European Community, and the
European Court of Human Rights),
Human Rights (European Convention on Human Rights etc.); and
Extradition of nationals from another country to their home country.
Public International Law
International Personality State Territory State Succession State Responsibility International Dispute Settlement Law of the Sea International Space Law Law of War/Armed Conflict
Private International Law
Inheritances Money and Banking Intellectual Property Torts Commerce/Commercial/Company Contracts and Sales Transportation Financing Securities Regulations Antitrust Taxation
International Private Law:
What is it?
“Private international law […] is part of the law […] between private
citizens of different countries, [or its] definition, regulation, and
enforcement of rights in situations where [both parties] are private
citizens of different nations.
“It is also a set of rules and regulations […] established or agreed
upon by citizens of different nations, who privately enter into a
transaction/ contract/agreement and that will govern in the event
of a dispute
IPL
may be also known as Private International Law
What is the aim of IPL
The aim of International Private Law is to solve problems in international legal
relationships which arise from different legal systems
PROBLEM TO RECONCILE (1):
Where application of the foreign law may be contrary to (or goes against) the forum court’s fundamental
public policy, which leads to an unwanted result
POSSIBLE SOLUTION?
Forum courts may apply public policy exception (or doctrine of ‘ordre public’)
Public policy exception, allows the court to refuse the application of that law (PPE = very unruly horse)
IPL Obligators in Contract
Responsibilities of the Parties Payment Delivery Quality of Goods General Obligations Transferring Obligation of Contracts Seeking Legal Assistance
EU IPL: Practical Implications
Taking decisions about matters of civil and commercial law; or
Advising and acting for clients in such matters (e.g. drafting and inserting a
governing law clause and jurisdiction clause in a contract).
WHY?
Principles of free movement of goods, services, capital and persons which
encourage the mobility of European citizens; and
The development of commercial activities throughout the EU.
HENCE: Legal practitioners are faced with:
Situations involving cross-border implications; and
Problems and legal questions governed by EU law.
EXAMPLES:
The fulfilment of contracts involving the delivery of goods and the provisions of
services across borders;
Legal issues relative to the movement of tourists;
Questions relating to the acquisition and disposal of property (moveable and
immoveable), by individuals and businesses in one or more Member States of the
EU other than that in which they are based; and
Succession to the estates of individuals who have property in and connections with
several Member States.
EU IPL: Rules of Judicial Cooperation
in Civil Matters - BASED ON
the equal value, competence and standing of the legal and judicial systems of the
individual Member States;
the equal value of the judgments of their courts and so on;
the principle of mutual trust in each other’s courts and legal systems
THE ABOVE principle IS BASED ON:
The mutual recognition of the orders of courts of the Member States and
encourages the practice of cross-border collaboration between individual courts
and court authorities.
WHY IS JUDICIAL COOPERATION IMPORTANT?
Uniform rules of application
Nurture legal certainty in respect to jurisdiction and the applicable law
Encourage some degree of foreseeability in legal situations with cross-border
implications: especially for citizens and businesses
The Rome II Regulations
Regulation (EC) No 864/2007
determines the law applicable to non-contractual
Obligations
creates a harmonised set of rules in the EU to
govern choice of law
in civil and commercial matters
applies to MS from 11 January 2009
The Rome I Regulations
Regulation (EC) No 593/2008
determines the law applicable to contractual
Obligations
governs the choice of law in the European Union
(except Denmark) to interpret
contracts with an international element
applies to MS from 17 December 2009
Note: EU – Rome I and Rome II Regulations and BREXIT
Exiting The European Union – IPL
At the end of the transition period: 31 December 2020
The Rome Convention will stop applying to the UK on a reciprocal basis.
The Rome Convention will be converted into UK law as retained EU law,
which will be amended by UK legislation
BREXIT – What Measures has the UK Taken?
The UK’s Statutory Instrument: 2019 No. 834
The Law Applicable to Contractual Obligations and Non-Contractual
Obligations (Amendment etc.) (EU Exit) Regulations 2019
The law came into force on exit day for the UK
Remember that the Rome I and II Regulations do not rely on reciprocity,
hence, the UK through this legal instrument has made Rome I and II
Regulations part of domestic law, even in the event of a no deal Brexit
The main source of domestic German conflict-of-law rules (or private international law) is
The Introductory Act to the Civil Code/Einführungsgesetz zum Bürgerlichen
Gesetzbuche (EGBGB) – in particular Articles 3 to 48
Article 3 EGBGB says when there are issues of conflict-of-law, the rules laid down in
EU legislation and in international conventions take precedence over the provisions of
the Act where they apply
German law also contains dispersed conflict-of-law rules other than the EGBGB: for
example in the Insolvency Code (Insolvenzordnung (InsO)).
The two biggest codes of German private law are
The German Civil Code/Bürgerliches Gesetzbuch (BGB) on the
18th August 1896; and
2. The German Commercial Code/Handelsgesetzbuch (HGB) 1897
BGB
The BGB organises private law relations between all those
concerned
HGB
The HGB includes specific law for the economic logistics of
certain businesses, and commercial requirements.
In German Law, we will be looking at:
Overview of the legal system of the Federal Republic of Germany
BGB – German civil code – general part, law of obligations, and
property law
Structure and classification of the German civil code
Property law
In Commercial & Company Law, we will be looking at
Overview of the main features of commercial law (commercial agent,
trade register, procuration, trade practices, and commercial sale)
Fundamentals of company law (especially partnerships and limited
companies)
If we have time, we can look at some comparative ways the German
system differs from other systems of commercial and company law
Commercial Law has steadily been derived from international law.
Examples include:
Cross-Border Contracts
2. The Vienna UN Agreement on International Air and Goods Transport for Contracts on
the International Sale of Goods (CISG)* from the 11/04/1980, BGBI 1990 II, in force
since 01/01/1991)
3. The Geneva Agreement 19/05/1956 on International Road Freight Transport Contracts
(CMR; BGBI 1961 II, 1119)
4. The Warsaw Agreement 22/10/1929 about the Standardisation of Rules on the
Transportation in International Air Space (WA), BGBI. 1964 II, 1295
5. Laws and Rulings of EU Law
6. International Commercial Practice and Trade Customs
