The Sources of EU Law

Question 1

Primary sources - the treaties

Answer 1

European Coal and Steel Community (ECSC)

European Atomic Energy Community (EURATOM)

European Community (EC)

Single European Act (SEA)

Treaty on European Union (TEU)

Treaty of Amsterdam (ToA)

Treaty of Nice (ToN)

Treaty of Lisbon (ToL) – divided into the TFEU and TEU

Question 2

Secondary sources

Answer 2

Legislation:
o Regulations
o Directives and decisions
o Recommendations and opinions

Question 3

Tertiary sources

Answer 3

Case Law of the European Court of Justice

Question 4

General Principles?

Answer 4

• Proportionality, Equality, Legal Certainty and Procedural rights
• Protection of Fundamental Human Rights
• Subsidiarity
• Acts adopted by representatives of member states Governments meeting in Council
• Public international law

Question 5

The Structure of the Treaty on the Functioning of the European Union – TFEU (replaces EC treaty):

Answer 5

• This begins with a preamble which is useful for the ECJ for interpretation purposes
• It is then split into 7 parts:
  o Principles – ground rules
  o Citizenship – added by TEU and now in Article 20
  o Policies of the community – effectively the legal order
  o References to overseas relationships
  o External action by the union
  o The institutions – empowerment and identification of the roles, etc.
  o General and final provisions e.g., to enter other treaties

Question 6

The principles:

Answer 6

Following Treaty of Lisbon, Article 3 TEU has replaced Arts 2 and 3 of the EC treaty and covers the basic principles and objectives of the EU

Question 7

What do these principles include?

Answer 7

Promoting peace and well-being of the people

Offering citizens an area of freedom, security, and justice without internal frontiers

Free movement of citizens recognising external border controls, immigration and asylum, border control and prevention of crime.

Question 8

What do the objectives include?

Answer 8

o Establishment of the internal market
o Balanced economic growth
o A competitive social market economy
o Full employment, social progress
o Protection of the environment

Question 9

What does Art 3 TEU do?

Answer 9

seeks to ensure that the EU acts within the limits of its powers and for the objectives assigned to it

Question 10

What does Art 4(3) TEU do?

Answer 10

• Art 4(3) TEU identified the obligations of the member states:
  o ‘To take all appropriate measures … the ensure fulfilment of the objectives arising out of the Treaty’
  o ‘To abstain from any measure which could jeopardise the attainment of the objectives…’

Question 11

What does Art 18 TFEU do?

Answer 11

identifies basic principle of non-discrimination on the basis of nationality

Question 12

the union policies?

Answer 12

• These are found in part 3
• The most important are the ‘four freedoms’:
  o Free movement of goods
  o Free movement of persons
  o Free movement of services/ establishment
  o Free movement of capital
• Free movement of goods provides for the elimination or custom duties and quantitative restrictions between Member States to products originating in member states and products coming from non-member states that are in ‘free circulation’.
• Art 30 governs the Customs Union – elimination of duties etc
• Arts 34 and 35 cover the non-tariff barriers – elimination of quotas and bans
• Agriculture is subject to complex rules and a Common Agriculture Policy (CAP)
• Free movement of persons and services are both guaranteed under the treaty in Arts 45,49 and 56, and workers families are also given protection in secondary legislation.
• A Common transport policy is also envisaged in the treaties.
• Free movement of capital is contained in TEU all restrictions on movement of capital and payments are prohibited, and now policy is ultimately driven toward economic and monetary union.
• Other main EU policies include:
  o Rules on anti-competitive practices in arts 101 and 102
  o Tax provisions in art 110
  o Anti-discrimination in art 157

Question 13

What are the rules on the institutions and on procedure?

Answer 13

• One of the most important procedural Articles is Article 288, which identified and explains the different forms of legislation.
• The relationship with member states is partly defined art 267 which provides the mechanism for gaining interpretations of EU law from the ECJ.

Question 14

What are the general rules regarding each of the institutions are in the TFEU?

Answer 14

• Parliament in Arts 223-235
• Council in Arts 237-243
• Commission in Arts 244-250
• Court of Justice in Arts 251-281

Question 15

What are the general and final provisions?

Answer 15

• Provides the EU with a legal personality – so that under Art 354 it can make arrangements with other international bodies.
• The EU can be liable through its institutions (Art 340)
• Powers are also given to Member states to derogate from Treaty obligations in certain extreme circumstances e.g., security, serious internal disturbances, or threat of external conflict, balance of payments crises.
• The Council has very broad powers under Art 352 to legislate to do anything that ‘is necessary to attain … an objective of the EU’

Question 16

Secondary Sources of EU law: The acts of the institutions?

Answer 16

• Secondary legislation is a collective term used to describe all the various types of law that institutions can make.
• They are subordinate to primary law (the treaties, and so cannot amend, repeal, or alter the scope of a primary instrument.

Question 17

When may the institutions act?

Answer 17

the institutions may only act:
- To carry out their tasks
- In strict accordance with the provisions of the treaties
- Within the limits of the powers conferred on them in the treaties, specifically Art 288 TFEU which provides that:
o ‘In order to carry out their tasks and in accordance with the provisions of this treaty, the European Parliament acting jointly with the Council [added by the TEU], and the commission shall make regulations and issue directives, take decisions, make recommendations, and deliver opinions’.

• The various forms of secondary legislation are described in Art 288, and it is their scope and effect that distinguishes them from each other.

Question 18

What are regulations?

Answer 18

• By virtue of Article 288: ‘A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States’.
• ‘General application’ means that it applies to all member states
• ‘Binding in its entirety’ means member states have no choice but to give effect to the regulation in its entirety.
• ‘Directly applicable’ means that regulation automatically becomes law in each member state with no requirement for the state to do anything to implement it, and may create rights and obligations directly enforceable in its national courts (Bussone v Ministry of Agriculture (1978))
• Regulations enter into force on the date specified within them.

Question 19

What are directives?

Answer 19

• By virtue of Article 288 ‘A directive shall be binding, as to the result to be achieved upon each member state to which it is addressed but shall leave to the national authorities the choice of form and methods.’
• Directives are unlike regulations (which are uniform and directly applicable rules)
• They are used to ensure that member States adopt their own laws for the application of common standards.
• They require Member States to choose the methods of implementation within a set deadline.
• They are mainly used in areas where the diversity of national laws could have a harmful effect on the establishment or functioning of the Single market.
• So, whereas a regulation is applicable to Member States and individual citizens alike, a directive:
  o Is primarily intended to create legal obligations on the Member State. So, it is not intended to create directly enforceable rights for individuals, but the ECJ ensures that it does.

Question 20

There are now important exceptions to the last point:

Answer 20

• Vertical direct effect, which may be relied upon by individuals in case of unimplemented directives if the claim is against the state or an ‘emanation of the state’ (Van Duyn and Ratti and Marshall, Foster v British Gas and Doughty v Rolls – Royce)
• The duty of ‘uniform interpretation’, which the ECJ derived originally from Art 10 EC Treaty (now Art 4(3) TEU).
• Where the is a divergence between national law and the directive, the national law must be interpreted so as to give effect to the directive even where it remains unimplemented.
• The Francovich principle, that while there can be no horizontal direct effect based on a directive as between non-state parties, an individual who has suffered a loss as a result of the member states failure to implement a directive may claim damages from the state.

Question 21

What are the decisions?

Answer 21

• By virtue of Art 288 ‘A decision shall be binding in its entirety upon those to whom it is addressed’.
• The first feature of a decision is that it is the least easy to define of the legislative acts – it could be a legally binding measure in a specific form, but it could also be a non-binding informal act lying down guidelines.
• Its most striking effect is that it is immediately and totally binding on the addressee, and as a result may create rights for third parties.

Question 22

What is non-binding secondary legislation?

Answer 22

• Art 288 introduces the concept of ‘soft-laws’, referring specifically to recommendations and opinions have no binding force
• While having no legal force, they can be issued on any matter dealt with in the treaties, and may be persuasive, particularly politically or morally.
• Since TEU increasing use has been made of soft laws particularly within the social context.
• A classic example is the Commission Code of Practice on Sexual Harassment

Question 23

What are the General Principles of Law?

Answer 23

• There are often unwritten principles
• These are generally developed by the ECJ, using as its authority the now repealed Art 220 EC - the general duty on the Court of Justice to ensure that EU law is observed.
• They are nevertheless binding on the institutions, the Member states and individual citizens.
• General principles are a familiar concept to those states with a ‘civil’ Roman Law tradition.
• So, they are essentially a statement of values and basic standards that the court will use in interpretation. What did that directive hope to achieve? What results did it want
• They are broad enough to be generally acceptable as principles, but specific application can cause controversy.
• Since much EU Law is essentially administrative, some principles have derived from administrative laws of France and Germany, but some has derived the Common Law.

Question 24

What is Proportionality?

Answer 24

• Relates to the Division of powers & the passing of laws
• This is now in TFEU Art 42: ‘Any action by the EU shall not go beyond what is necessary to achieve the objective of this treaty.’.
• The means used must be proportionate to the end to be achieved.
• It derives from a German principal case 11/70: ‘No burdens should be placed on the citizens except to the extent that it is necessary to achieve the purpose’.
• So, if the burden in too great the court can misapply the measure.

Question 25

What is equality?

Answer 25

• A general principle of equal treatment and no-discrimination
• Equal situations must always be treated equally unless there are objective justifications for doing otherwise.
• By article 18 TFEU: no discrimination on nationality
• Art 157 was originally a specific provision on gender discrimination on pay now they include the general aim of equality between men and women.
• But the principle also obviously applies to internal organizations
• Equality now extends through various directives to include preventing discrimination on race, sexual orientation, disability, religion and belief, age, etc.

Question 26

What is legal certainty and procedural rights?

Answer 26

The basic principle is that the law in its application must be predictable. So:
- There should be no retroactive laws:
- All about businesspeople and consumers
having certainty that they know what the
law is and that it won’t change at that time.
- If you enter a contract, then the gov
decides to change the law in 6 months,
- The government cannot insist that a new
law will be applicable today, they cannot
backdate the law.

• There will be respect for acquired rights, which cannot later be withdrawn:
• The law can’t be changed to take rights away from the consumer.
  o A person is entitled to act accordingly to legitimate expectation i.e., as though the law still applies
  o Person effected should be identifiable
  o Language should be easily understood
  o A person is entitled to a fair hearing

Question 26

What is legal certainty and procedural rights?

Answer 26

The basic principle is that the law in its application must be predictable. So:
- There should be no retroactive laws:
- All about businesspeople and consumers
having certainty that they know what the
law is and that it won’t change at that time.
- If you enter a contract, then the gov
decides to change the law in 6 months,
- The government cannot insist that a new
law will be applicable today, they cannot
backdate the law.

• There will be respect for acquired rights, which cannot later be withdrawn:
  - The law can’t be changed to take rights
  away from the consumer.
• A person is entitled to act accordingly to legitimate expectation i.e., as though the law still applies
• Person effected should be identifiable
• Language should be easily understood
• A person is entitled to a fair hearing

Question 27

The protection of fundamental rights

Answer 27

• Now contained in Art11 TFEU: ‘shall respect fundamental rights guaranteed by the European Convention … and from the constitutional traditions common to the member states’
• Several propositions emerge from this:
  o Fair hearing before imposition of a penalty
  o Penalty must be based on a clear, unambiguous case.
  o No one should be subjected to two penalties
  o Entitlement to legal assistance and representation
  o A person is protected from self-incrimination, so no requirement to answer leading questions
  o Respect for private life and inviolability of premises.
• It originates form the constitutions of certain member states
• But the ECJ is prepared to recognise the significance of human rights
• Although the EU is not a signatory to the European Convention on Human Rights it is possible to invoke articles of the Convention
• There is now also a Charter of Rights accepted at the Nice Summit.

Question 28

What is subsidiarity?

Answer 28

• There is some reference to subsidiarity in the founding treaties – decisions should be taken as closely to citizens affected by them.
• Art 5 by the TEU at the UK’s instance:
  o ‘In areas which do not fall within its exclusive competence, the community shall take action, in accordance with the principle of subsidiarity, only and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the community’
• So, there is a twofold test – EU action can only be justified if it serves an end which:
  o Cannot be achieved satisfactorily at national level; and
  o Can be achieved better at community level

Question 29

Case Law of the ECJ

Answer 29

• Unlike common law, civil systems have no binding system of precedent, and the ECJ follows the same principles.
• So, in future cases ECJ judgements act as moral rather than strictly legal authority, and in the strictest technical since the court’s judgement are not a formal source of law.
• However, there are some qualifying points:
  o The court will not depart for its own rulings on law without pressing reasons and judgments, if studied, show remarkable consistency.
  o A ruling in a particular case has an inevitable impact beyond the case itself.
  o The Cilfit rules on Art 267 references prevent repetitions references seeking new ruling on the same principle of law
  o The ECJ has proved over the years to be very proactive, ECJ
  o Indeed, many of the most definitive principles of EU law have originated in the ECJ e.g., direct effect, indirect effect, state liability, etc.