Ordering Europe
INTRODUCTION TO LAW
EU Law = the Object and Agent of integration
Object → integration is achieved by harmonizing national laws
Agent → law as a tool for economic, political and social integration
You cannot study EU integration without a basic understanding of EU law.
Law: the body of rules which a particular state/community recognizes as binding on its members.
- Needs to be recognized: the existence and content of law depends on social facts, on what
is recognized by legal officials as authoritative
- It is not dependent of its merits: a rule being a law does not depend on fairness, morality…
Unjust statutes (eg. Apartheid in South Africa) are still law if created and recognized by
authorities → self-referential definition of law.
Legal positivism argues that all law is positive: law that was created by being laid down → there is
an official source for every legal rule: if a rule stems from an official source, it is a legal rule; those
and only those rules which can be traced to an official legal sources are legal rules = “sources thesis”.
Legal rules: a rule is reason for action, it is different from a purpose (another reason for action) →
rule-based decision making must be dinstinct from particularistic or all-things-considered decision-
making and requires acceptance of arbitrary outcomes.
- Rules are followed because they are found in an official legal source.
Legal sources: put forward by an authority recognized as having authority to do so.
Legal sources are organized hierarchically:
At the national level: Consitution > legislation > administrative acts
At the EU level: EU treaties > EU legislation > delegated acts
- EU treaties: TEU, TFEU, Charter of Fundamental Rights of EU → primary law
- EU legislation: case law, legislative acts → secondary law
- Delegated and implementing acts → secondary (but non-legislative) law
Hierarchy between national and international law:
- Monist: international law has automatic effect in the national legal order and ranks between
the constitution and ordinary legislation (ex. Netherlands, where it is written in the Dutch
Constitution).
-1-
, - Dualist: international law must be incorporated in the national legal to exist as a law, only
then will international law take the same rank as an act of national law.
- Case law is also an important source of law in national legal systems and the EU because it
sets precedents → courts follow earlier decisions if the facts are sufficiently similar.
Different legal systems and legal forms:
- Common law: origins in the UK, still followed in some of its former territories (US); law is
uncodified and case law is the most important source of law
- Civil law: origins in continental Europe; law is codified and statutory law is the most
important, far more than case law.
- Public law: concerns the relationship between state and individual (criminal law,
administrative law, tax law)
- Private law: concerns the relationship between individuals (contract law, tort law, family law).
When the meaning of the law is ambiguous or unclear in its application, interpretation is needed:
- Textual: lawyers look at the text/words that the legislator adopted and the meaning of those
words
- Schematic: often there are “hundreds” of rules in 1 legislative act; we assume that the
legislator intended to adopt a consistent package of rules → find meaning within the broader
system
- Purposive: what is the purpose of the rule → better understanding of how a rule should be
applied
- Historical: look at statements made by the legislator when adopting a rule, statements of
Treaty drafters… to understand what lawmakers had in mind when adopting a piece of
legislation or Treaty.
LEGAL REASONING, J. HAGE
Legal Syllogism
The most important form of legal reasoning can be represented as a logical syllogism: argument with
two premises and a single conclusion.
- First premise contains the formulation of a legal rule (IF condition, THEN legal consequence)
- Second premise is a description of the facts that satisfy the conditions of the rule.
Sometimes auxiliary facts render the syllogism incomplete: the second premise must match the
conditions of the rule that was formulated in the first premise which is in the abstract, hence does
not consider facts = it is necessary to ‘translate’ the case facts of the second premise in the abstract
→ classification of the facts. legal Rules-abstract Lif then ) But cave-car facts.... ...
-
classification translatingcase facts into abstract legal
:
terms.
Why ? -to match Legal conditions of Kul (if ) !...
broken
Eg Pierce was distracted , stumbled a fell
. ,
lea to a vase.
paid insufficient attention
>
-
negligently caused damage
>
-
>
-
damage amounts to 300 E
Concrete P stumbleda broke vose
facts : .
classified facts P acted : .
negligently a caused
damage
-2- Rule :...
Conce. P : .
must compensate damage
,Justification of the Rule
Most legal rules are based on uncontroversial rules (i.e. rules that express the normal meaning of
words; eg. cars count as vehicles, generally accepted rule). Other rules are potentially more
*
controversial. In this case, the rule is often justified by its origin: an official source of law → the
official sources of a modern legal system are typically legislation, treaties and precedents.
*
use of a
rule-justified because it can be found in an official legal source.
In the common law tradition, judges are only bound by the ratio decidendi of a case: this only
consists of the decisive grounds that led the court to take the decision. Other relevant reasons that
did not determine the court’s decision are called obiter dicta (things that were also said). Courts are
not bound by these obiter dicta. This ratio decidendi, together with the outcome of the case, is
comparable to respectively the conditions and the conclusion of a rule. Where case law is an official
source of law, the fact that a court has decided a precedent in a particular way can be used as a
reason why this rule is valid law and can support new legal decisions.
Interpretation
Interpretation: needed when formulating a rule with a clear structure from the text of an official
legal source, classification of case facts to fit the rule conditions or establishment of legal
consequences. The techniques to deal with interpretation are called canons of interpretation.
Interpretation might also be necessary to decide on the scope of application of a rule (eg. dogs
prohibited in butcher shop, does it also apply to guide dogs?).
Methods of interpretation:
- Literal Rule (resulting in Grammatical Interpretation): the interpretation matches the literal
A
meaning of the words in the rule (= by dictionary)
- Mischief Rule (Legislative Intent): the interpretation matches the original intention of the
legislator (by looking at the travaux préparatoires)
- Golden Rule (resulting in Teleological/Purposive Interpretation): the interpretation matches
the purpose of the rule itself, without considering the intentions of the legislator = might give
precedence to other factors
→ Needed when laws are unclear, which often happens as they try to cover as many cases as
possible.
Applicability of a Rule
A rule is applicable only if the facts of the case after classification satisfy the conditions of the rule.
When a rule is not strictly applicable to a case, it can still be applied by analogy. This is because there
may be many similarities to older cases to which the rule was applicable.
It is also possible to use precedents for reasoning by analogy. A new case is rarely identical to an old
one. An old case should thus function as a precedent for a new case when it is the most on point
-3-
, case of all potential precedents. The binding nature of precedent only applies to cases that are
similar to already decided cases (similar = identical in all relevant asprects).
Principles to deal with Rule Conflicts
Lex Superior: the rules of the ‘central’ legislator are considered superior to those of ‘local’ legislators
Lex specialis: the more specific rule prevails over the more general rule, as it was made to correct an
over-inclusive / under-inclusive rule
Lex posterior: the newer rule prevails over the older one.
EU VALUES, ACCESSION AND WITHDRAWAL
ACCESSION TO THE EU AND VALUES
Accession to the EU is regulated by Article 49 TEU.
Three substantive conditions to be met:
1. Being a European State
2. Respecting the values mentioned in Article 2 TEU
3. The conditions of eligibility as agreed upon by the European Council (Copenhagen Criteria).
Copenhagen Criteria:
- Stable institutions that can guarentee democracy & fundamental rights
- Functioning market economy that is able to participate in free trade and the internal market,
and cope with the pressures thereof
- Must have the ability to take on the obligations of an EU Member State (implement the EU
Legal acquis; implement, adopt, comply).
Five procedural conditions apply to regulate the membership process:
- Membership application to be addressed to the Council of the EU
- Recommendation from the Commission (non-binding opinion)
- Consent of the EP by majority of its component members
- Unanimous decision by Council of the EU
- International agreement between the Member States and the applicant State.
Once a state has become an official EU Member State, it cannot be ‘forced out’. However, a Member
State has the option to withdraw under the Treaties.
WITHDRAWAL FROM THE EU
-4-
INTRODUCTION TO LAW
EU Law = the Object and Agent of integration
Object → integration is achieved by harmonizing national laws
Agent → law as a tool for economic, political and social integration
You cannot study EU integration without a basic understanding of EU law.
Law: the body of rules which a particular state/community recognizes as binding on its members.
- Needs to be recognized: the existence and content of law depends on social facts, on what
is recognized by legal officials as authoritative
- It is not dependent of its merits: a rule being a law does not depend on fairness, morality…
Unjust statutes (eg. Apartheid in South Africa) are still law if created and recognized by
authorities → self-referential definition of law.
Legal positivism argues that all law is positive: law that was created by being laid down → there is
an official source for every legal rule: if a rule stems from an official source, it is a legal rule; those
and only those rules which can be traced to an official legal sources are legal rules = “sources thesis”.
Legal rules: a rule is reason for action, it is different from a purpose (another reason for action) →
rule-based decision making must be dinstinct from particularistic or all-things-considered decision-
making and requires acceptance of arbitrary outcomes.
- Rules are followed because they are found in an official legal source.
Legal sources: put forward by an authority recognized as having authority to do so.
Legal sources are organized hierarchically:
At the national level: Consitution > legislation > administrative acts
At the EU level: EU treaties > EU legislation > delegated acts
- EU treaties: TEU, TFEU, Charter of Fundamental Rights of EU → primary law
- EU legislation: case law, legislative acts → secondary law
- Delegated and implementing acts → secondary (but non-legislative) law
Hierarchy between national and international law:
- Monist: international law has automatic effect in the national legal order and ranks between
the constitution and ordinary legislation (ex. Netherlands, where it is written in the Dutch
Constitution).
-1-
, - Dualist: international law must be incorporated in the national legal to exist as a law, only
then will international law take the same rank as an act of national law.
- Case law is also an important source of law in national legal systems and the EU because it
sets precedents → courts follow earlier decisions if the facts are sufficiently similar.
Different legal systems and legal forms:
- Common law: origins in the UK, still followed in some of its former territories (US); law is
uncodified and case law is the most important source of law
- Civil law: origins in continental Europe; law is codified and statutory law is the most
important, far more than case law.
- Public law: concerns the relationship between state and individual (criminal law,
administrative law, tax law)
- Private law: concerns the relationship between individuals (contract law, tort law, family law).
When the meaning of the law is ambiguous or unclear in its application, interpretation is needed:
- Textual: lawyers look at the text/words that the legislator adopted and the meaning of those
words
- Schematic: often there are “hundreds” of rules in 1 legislative act; we assume that the
legislator intended to adopt a consistent package of rules → find meaning within the broader
system
- Purposive: what is the purpose of the rule → better understanding of how a rule should be
applied
- Historical: look at statements made by the legislator when adopting a rule, statements of
Treaty drafters… to understand what lawmakers had in mind when adopting a piece of
legislation or Treaty.
LEGAL REASONING, J. HAGE
Legal Syllogism
The most important form of legal reasoning can be represented as a logical syllogism: argument with
two premises and a single conclusion.
- First premise contains the formulation of a legal rule (IF condition, THEN legal consequence)
- Second premise is a description of the facts that satisfy the conditions of the rule.
Sometimes auxiliary facts render the syllogism incomplete: the second premise must match the
conditions of the rule that was formulated in the first premise which is in the abstract, hence does
not consider facts = it is necessary to ‘translate’ the case facts of the second premise in the abstract
→ classification of the facts. legal Rules-abstract Lif then ) But cave-car facts.... ...
-
classification translatingcase facts into abstract legal
:
terms.
Why ? -to match Legal conditions of Kul (if ) !...
broken
Eg Pierce was distracted , stumbled a fell
. ,
lea to a vase.
paid insufficient attention
>
-
negligently caused damage
>
-
>
-
damage amounts to 300 E
Concrete P stumbleda broke vose
facts : .
classified facts P acted : .
negligently a caused
damage
-2- Rule :...
Conce. P : .
must compensate damage
,Justification of the Rule
Most legal rules are based on uncontroversial rules (i.e. rules that express the normal meaning of
words; eg. cars count as vehicles, generally accepted rule). Other rules are potentially more
*
controversial. In this case, the rule is often justified by its origin: an official source of law → the
official sources of a modern legal system are typically legislation, treaties and precedents.
*
use of a
rule-justified because it can be found in an official legal source.
In the common law tradition, judges are only bound by the ratio decidendi of a case: this only
consists of the decisive grounds that led the court to take the decision. Other relevant reasons that
did not determine the court’s decision are called obiter dicta (things that were also said). Courts are
not bound by these obiter dicta. This ratio decidendi, together with the outcome of the case, is
comparable to respectively the conditions and the conclusion of a rule. Where case law is an official
source of law, the fact that a court has decided a precedent in a particular way can be used as a
reason why this rule is valid law and can support new legal decisions.
Interpretation
Interpretation: needed when formulating a rule with a clear structure from the text of an official
legal source, classification of case facts to fit the rule conditions or establishment of legal
consequences. The techniques to deal with interpretation are called canons of interpretation.
Interpretation might also be necessary to decide on the scope of application of a rule (eg. dogs
prohibited in butcher shop, does it also apply to guide dogs?).
Methods of interpretation:
- Literal Rule (resulting in Grammatical Interpretation): the interpretation matches the literal
A
meaning of the words in the rule (= by dictionary)
- Mischief Rule (Legislative Intent): the interpretation matches the original intention of the
legislator (by looking at the travaux préparatoires)
- Golden Rule (resulting in Teleological/Purposive Interpretation): the interpretation matches
the purpose of the rule itself, without considering the intentions of the legislator = might give
precedence to other factors
→ Needed when laws are unclear, which often happens as they try to cover as many cases as
possible.
Applicability of a Rule
A rule is applicable only if the facts of the case after classification satisfy the conditions of the rule.
When a rule is not strictly applicable to a case, it can still be applied by analogy. This is because there
may be many similarities to older cases to which the rule was applicable.
It is also possible to use precedents for reasoning by analogy. A new case is rarely identical to an old
one. An old case should thus function as a precedent for a new case when it is the most on point
-3-
, case of all potential precedents. The binding nature of precedent only applies to cases that are
similar to already decided cases (similar = identical in all relevant asprects).
Principles to deal with Rule Conflicts
Lex Superior: the rules of the ‘central’ legislator are considered superior to those of ‘local’ legislators
Lex specialis: the more specific rule prevails over the more general rule, as it was made to correct an
over-inclusive / under-inclusive rule
Lex posterior: the newer rule prevails over the older one.
EU VALUES, ACCESSION AND WITHDRAWAL
ACCESSION TO THE EU AND VALUES
Accession to the EU is regulated by Article 49 TEU.
Three substantive conditions to be met:
1. Being a European State
2. Respecting the values mentioned in Article 2 TEU
3. The conditions of eligibility as agreed upon by the European Council (Copenhagen Criteria).
Copenhagen Criteria:
- Stable institutions that can guarentee democracy & fundamental rights
- Functioning market economy that is able to participate in free trade and the internal market,
and cope with the pressures thereof
- Must have the ability to take on the obligations of an EU Member State (implement the EU
Legal acquis; implement, adopt, comply).
Five procedural conditions apply to regulate the membership process:
- Membership application to be addressed to the Council of the EU
- Recommendation from the Commission (non-binding opinion)
- Consent of the EP by majority of its component members
- Unanimous decision by Council of the EU
- International agreement between the Member States and the applicant State.
Once a state has become an official EU Member State, it cannot be ‘forced out’. However, a Member
State has the option to withdraw under the Treaties.
WITHDRAWAL FROM THE EU
-4-
