Transcript EU legal order 3

EU Law
(Part 1)
Legal Order
Mery Ciacci
3rd lecture, 8 November 2012
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Principles
Competences
Legal Acts
Rulings
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The EU legal order:
Principles
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Principle of conferral (Art. 5.2 TEU)
Principle of subsidiarity (Art. 5.3 TEU)
Principle of proportionality (Art. 5.4 TEU)
Principle of sincere cooperation (Art. 4.3
TEU)
• Respect of HR (Art. 6 TEU) + Principle of
non-discrimination (Art. 18 TFEU)
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The principle of conferral (Art. 5 TEU)
• 5.1: The limits of Union competences are governed
by the principle of conferral
• 5.2: Under the principle of conferral, the Union shall
act only within the limits of the competences
conferred upon it by the Member States in the
Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the
Treaties remain with the Member States
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Categories and areas of competences
(Title I TFEU)
• Exclusive competence
- Article 2.1
- Article 3: areas of exclusive
competence
• Shared competences
- Article 2.2
- Article 4
• Supportive competences
- Article 2.5
- Article 6
Pre-emption
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Principle of subsidiarity (Art.
5.3 TEU)
• in areas which do not fall within
its exclusive competence, the
Union shall act only if and in so far
as the objectives of the proposed
action cannot be sufficiently
achieved by the Member States,
either at central level or at
regional and local level, but can
rather, by reason of the scale or
effects of the proposed action, be
better achieved at Union level
Principle of proportionality
(Art. 5.4 TEU)
• the content and form of
Union action shall not
exceed what is necessary to
achieve the objectives of the
Treaties
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Sincere Cooperation
Art. 4.3 TEU
Pursuant to the principle of sincere cooperation, the Union and
the Member States shall, in full mutual respect, assist each other
in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general
or particular, to ensure fulfilment of the obligations arising out of
the Treaties or resulting from the acts of the institutions of the
Union.
The Member States shall facilitate the achievement of the
Union’s tasks and refrain from any measure which could
jeopardise the attainment of the Union’s objectives.
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Respect of fundamental rights
• Art. 6 TEU
• Principle of non-discrimination (Art. 18 TFEU)
 Connected to the respect of fundamental rights
 Based on nationalities
 Connected to the concept of EU citizenship
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EU law:
primary/secondary law
Primary law
Secondary law
• Treaties’ law
• Principles of IL
• Legal acts adopted by the
European Institutions (art.
288 TFEU)
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Legal acts
Binding acts
• Regulation
• Directive
• Decision
Non-binding acts
• Recommendation
• Opinion
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Binding Acts: Common features
• Motivation: Legal acts shall state the reasons on which they are based
and shall refer to any proposals, initiatives, recommendations, requests or
opinions required by the Treaties (art. 296.2 TFEU)
• Legal Bases: to make reference to one or more provision of the Treaty
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Important: choice of the legal bases is highly connected to the respect of
the principle of attributed competences and the allocation of
competences among the institutions (issues of the consensus)
It has to be selected according to the subject and the scope of the act
If the legal acts concerns more than one area: it is important to verify if
they are both important or if one is supportive of the other, in order to
choose one or more legal bases
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Direct Effect
• All binding EU law (Treaties, secondary
legislation, international legislation)
• Provisions of binding EU law which are
sufficiently clear, precise and unconditional
to are justiciable and can be invoked and
relied on by individuals before national courts
• It confers rights on individuals
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Regulation
• general application
• binding in its entirety
• directly applicable in all Member States
(monism/dualism)
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Decision
• binding in its entirety
• a decision which specifies those to whom it is
addressed shall be binding only on them ( ≠
regulation)
• May affect individuals, as well Members States
• May be general (authorization for starting
international negotiations)
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Directive
• binding as to the result to be achieved
• Binding upon each Member State to which it
is addressed
• leave to the national authorities the choice of
form and methods to reach the result (within
a required time-frame)
• A good tool to harmonize the laws within a
certain areas
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Directive: direct effect
• ECJ C-26/62 ‘Van Gend en Loos’: the capacity of a
provision of EU law to be invoked before a national
Court (p.183), set the criteria (sufficiently clear,
precise and unconditional )
• In case of conflict with domestic law: disapplication of
the domestic law
• Vertical direct effect: directives can be enforced
directly by individuals against the state after the time
limit for their implementation has expired
• NO Horizontal direct effect: directives cannot of
themselves impose obligations on individuals
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Non-binding acts
Opinion
• Soft law
• No direct effect
• Act through which the
institutions and other
bodies inform about their
position on a defined
subject
• Function: policy-orientation
Recommendation
• Soft law
• No direct effect
• Usually addresses Mb States
• Invitation to conform to a
defined behaviour
• Function: policy and
regulatory orientation
Though not binding, the Court of Justice stated that national judges should take
them into account when interpreting and applying other EU binging acts
(Grimaldi case, 322/88)
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The relationship between
EU law and national legal order
• Primacy of EU law on national law: no formal basis in the
Treaty, but developed by the ECJ on the basis of its conception
of a ‘new legal order’ (Van Gend en Loos)
• Why: in order to preserve the uniformity of a common market
(subordination to national law could undermine this)
• Relation with Direct Effect
• In case of conflict with national law: disapplication of the
domestic rule (but no nullification)
• C- 6/64 Costa v Enel (p. 257)
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Court of Justice:
5 kind of Rulings
• requests for a preliminary ruling – when national courts ask
the Court of Justice to interpret a point of EU law
• actions for failure to fulfil an obligation – brought against EU
governments for not applying EU law
• actions for annulment – against EU laws thought to violate
the EU treaties or fundamental rights
• actions for failure to act – against EU institutions for failing to
make decisions required of them
• direct actions – brought by individuals, companies or
organisations against EU decisions or actions
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1. Preliminary ruling procedure
• The national courts in each EU country are responsible for
ensuring that EU law is properly applied in that country. But
there is a risk that courts in different countries might interpret
EU law in different ways.
• To prevent this happening, there is a ‘preliminary ruling
procedure’. If a national court is in doubt about the
interpretation or validity of an EU law, it may – and sometimes
must – ask the Court of Justice for advice. This advice is called
a ‘preliminary ruling’.
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2. Proceedings for failure to fulfil an obligation
• The Commission can start these proceedings if it believes that
a member country is failing to fulfil its obligations under EU
law. These proceedings may also be started by another EU
country.
• In either case, the Court investigates the allegations and gives
its judgment. If the country is found to be at fault, it must put
things right at once. If the Court finds that the country has not
followed its ruling, it can issue a fine.
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3. Actions for annulment
• If any EU country, the Council, the Commission or
(under certain conditions) Parliament believes that a
particular EU law is illegal, it may ask the Court to
annul it
• ‘Actions for annulment’ can also be used by private
individuals who want the Court to cancel a particular
law because it directly and adversely affects them as
individuals
• If the Court finds the law in question was not
correctly adopted or is not correctly based on the
Treaties, it may declare the law null and void
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4. Actions for failure to act
• The Treaty requires Parliament, the Council
and the Commission to make certain decisions
under certain circumstances. If they fail to do
so, member countries, other Community
institutions and (under certain conditions)
individuals or companies can lodge a
complaint with the Court so as to have this
failure to act officially recorded.
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5. Direct actions
• Any person or company who has suffered
damage as a result of the action or inaction of
the Community or its staff can bring an action
seeking compensation before the General
Court.
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