The choice of the correct legal basis (art. 5 (2) TEU)
The legal basis provides:
- Whether the EU has competence to act (vertical division of powers)
- The procedure to be followed (horizontal division of powers)
- What kind of acts can be adopted (directives, regulations, decisions)
Shared powers EU and Member States
Art. 2 (2) TFEU
Pre- emption: The member states can only exercise their powers to the content that the EU
has not exercised its powers.
- Except for art. 4 TFEU: member states can always adopt acts in this these fields,
whether the EU has acted or not:
➔ Internal market (art. 114 TFEU)
➔ Environment (art. 192 TFEU (193))
Substantive elements (subsidiarity) → art. 5 (3) TEU
● Only applies outside of EU exclusive competence
● The EU shall act only
- if the objectives of the proposed action cannot be sufficiently achieved by
the Member states
- but can rather, be better achieved at Union level
Enhanced role for the National parliaments (to check the subsidiarity)
● ‘Early warning mechanism’:
All draft legislative acts need to be sent to the national parliaments, they have an eight week
period to review whether or not that particular draft legislative act complies with the principle
of subsidiarity.
- Opinions
- The Collective opinion (yellow card) protocol 2 art. 7 (2)
When 1/ 3 of the national parliaments are not content → the Commission has to review the
proposal, it may then decide to maintain, amend or withdraw the draft, stating reasons.
- The Special Legislative Opinion (orange card) protocol 2 art. 7 (3)
When 1/ 2 of the national parliaments are not content → the Commission has to review the
proposal and it also allows the EU institutions (Commission, Parliament) to cut short the
proposal because it not applied with the principle of subsidiarity.
● Limitations
- applies only to legislative acts → only then the Commission is required to
send the draft legislative acts to the national parliaments
- limited to the initial stages of the legislative procedure (8 weeks)
- the EU institutions can ‘press on’ regardless
Types of legal acts
, Art. 288 TFEU
● Regulations → when wanting uniformity
- General application (never addressed to a specific Member State)
- Directly applicable in the Member States
● Directives → when much differences between MS
- Binding as to the result to be achieved
- Upon each Member State to which it is addressed
- Shall leave the national authorities with the choice of form and methods
● Decisions
- Can have addressees, in that case only binding to them (can sometimes have
general application)
Legislative and non- legislative acts
Art. 289 TFEU
In addition to a distinction that can be made on the content of the act, the EU Treaties also
differentiate between acts on the basis of procedure.
→ The procedure that was followed in order to adopt that legally binding act, matters.
Legislative acts
- Ordinary legislative procedure (art. 294 TFEU)
- Special legislative procedures (looking at the specific legal basis that has to be
followed) → parliament and council involved
Non- legislative acts
- Other legally binding acts based on the EU treaties not adopted by ordinary or
special legislative procedure
- Delegated acts (art. 290 TFEU)
- Implementing acts (art. 291 TFEU)
Why is the distinction between legislative acts and non- legislative acts important?
Obligations if an act is a legislative act:
- the participation of national parliaments (Art. 2- 5 protocol 1 and art. 6-7 protocol 2
Treaty of Lisbon
- transparency in Council decision- making (art. 16 (8) TEU) (in public → so national
parliaments can more easily monitor what their minister is stating in Brussels)
Non- legislative acts:
- There are less procedural obligations for the EU institutions to follow
- Much harder with non- legislative acts for national parliaments to exercise control
over their members on the Council (ministers)
Implementing and delegating acts
The legal basis provides:
- Whether the EU has competence to act (vertical division of powers)
- The procedure to be followed (horizontal division of powers)
- What kind of acts can be adopted (directives, regulations, decisions)
Shared powers EU and Member States
Art. 2 (2) TFEU
Pre- emption: The member states can only exercise their powers to the content that the EU
has not exercised its powers.
- Except for art. 4 TFEU: member states can always adopt acts in this these fields,
whether the EU has acted or not:
➔ Internal market (art. 114 TFEU)
➔ Environment (art. 192 TFEU (193))
Substantive elements (subsidiarity) → art. 5 (3) TEU
● Only applies outside of EU exclusive competence
● The EU shall act only
- if the objectives of the proposed action cannot be sufficiently achieved by
the Member states
- but can rather, be better achieved at Union level
Enhanced role for the National parliaments (to check the subsidiarity)
● ‘Early warning mechanism’:
All draft legislative acts need to be sent to the national parliaments, they have an eight week
period to review whether or not that particular draft legislative act complies with the principle
of subsidiarity.
- Opinions
- The Collective opinion (yellow card) protocol 2 art. 7 (2)
When 1/ 3 of the national parliaments are not content → the Commission has to review the
proposal, it may then decide to maintain, amend or withdraw the draft, stating reasons.
- The Special Legislative Opinion (orange card) protocol 2 art. 7 (3)
When 1/ 2 of the national parliaments are not content → the Commission has to review the
proposal and it also allows the EU institutions (Commission, Parliament) to cut short the
proposal because it not applied with the principle of subsidiarity.
● Limitations
- applies only to legislative acts → only then the Commission is required to
send the draft legislative acts to the national parliaments
- limited to the initial stages of the legislative procedure (8 weeks)
- the EU institutions can ‘press on’ regardless
Types of legal acts
, Art. 288 TFEU
● Regulations → when wanting uniformity
- General application (never addressed to a specific Member State)
- Directly applicable in the Member States
● Directives → when much differences between MS
- Binding as to the result to be achieved
- Upon each Member State to which it is addressed
- Shall leave the national authorities with the choice of form and methods
● Decisions
- Can have addressees, in that case only binding to them (can sometimes have
general application)
Legislative and non- legislative acts
Art. 289 TFEU
In addition to a distinction that can be made on the content of the act, the EU Treaties also
differentiate between acts on the basis of procedure.
→ The procedure that was followed in order to adopt that legally binding act, matters.
Legislative acts
- Ordinary legislative procedure (art. 294 TFEU)
- Special legislative procedures (looking at the specific legal basis that has to be
followed) → parliament and council involved
Non- legislative acts
- Other legally binding acts based on the EU treaties not adopted by ordinary or
special legislative procedure
- Delegated acts (art. 290 TFEU)
- Implementing acts (art. 291 TFEU)
Why is the distinction between legislative acts and non- legislative acts important?
Obligations if an act is a legislative act:
- the participation of national parliaments (Art. 2- 5 protocol 1 and art. 6-7 protocol 2
Treaty of Lisbon
- transparency in Council decision- making (art. 16 (8) TEU) (in public → so national
parliaments can more easily monitor what their minister is stating in Brussels)
Non- legislative acts:
- There are less procedural obligations for the EU institutions to follow
- Much harder with non- legislative acts for national parliaments to exercise control
over their members on the Council (ministers)
Implementing and delegating acts
