Economic and legal integration in Europe
Lecture 13/12/2023 1
Treaties <eur-lex.europa.eu>
Treaty on the European Union (TEU)
Treaty on the Functioning of the European Union (TFEU)
IRAC method (one way to format legal reasonings; answering examen questions)
- Issue- what is the (legal) problem?
- Rule- what are the relevant legal norms? Called into question (TEU or TFEU, most
likely TFEU) all the factual elements collected in this scenario ‘in what way can
you combine the fact under those rules?’
- Application- how do these norms apply to the facts?
- Conclusion- how is a judge likely to decide?
EU lawmaking
1. What does the EU legislate?
2. When does the Eu legislate?
Competences
Structural principles; subsidiarity and proportionality
3. How does the Eu legislate?
Legislative procedures
4. What are the effects of EU law in the Member States?
Structural principles II: direct effect and primacy/ supremacy
National enforcement of EU law
Sources of EU Law
1. Primary law (EU treaties: TEU and TFEU as legalbackbone)
2. General principles of Eu law
3. International law
4. Secondary law(legislation)
5. Implementation of EU law
primary law
The treaties (TEU+TFEU)
TFEU more administrative in nature, operational, about the EU competence
TEU more constitutional in nature, values
Protocols (binding)
Annexes (Binding)
Declarations (non-binding, attached to the treaties to clarify the interpretation)
The Charter of Fundamental Rights of the EU (CFREU)
Most powerful legal sources where the EU law relies on
Primary law – Ordinary revision procedure (48 TEU), followed to amend treaty (very rare)
Supranational phase:
- Initiative: Commission, MS or EP
- Opening of the procedure: European Council (simple majority)
- After consulting: EP, Commission, (ECB if it’s a financial matter)
,Convention phase (optional):
- Convened by European Council (simple majority)
- Composition: representatives of national parliaments, heads of state or government,
EuParl, Commission (all members that have experience within EU law making)
- Functioning: adopts a recommendation by consensus
Intergovernmental phase:
- Intergovernmental conference (representatives of MS)
National phase
- Ratification according to national procedures
- Unanimity required
General principles of EU law (GPEL)
- Non-written, not in the treaties – derived from CJEU case law
Content:
- Fundamental rights (freedom of expression etc.)
- Responsibility of MS (CJEU, Francovich): if it violates EU law you can ask for
compensation
- Legal certainty
- Proportionality
- Apply to the EU institutions and MS
- GPEL (justiciability) <-> EU values (art. 2 TEU)
International law
- International agreements where EU is a party (e.g. free trade agreements)
- Unilateral acts obliging the EU
- General international law (e.g. customary international law)
Secondary law: types of legal acts (Art. 288 TFEU)
Regulation – Directive – Decision - …
- Difference
- Why would one be more suitable than the other for some specific type of legislation
Secondary law: regulations
- General application (indeterminate number of situations), applies to all the legal and
natural persons that fulfil those elements
- Legally binding in all its elements
- Direct application in all MS (no implementation and direct effect)
Secondary law: directives
General application
obligation of result for the Member States (but no authority about the form &
methods)
rule: no direct effect, need for implementation (transposition):
- deadline: set by each directive, in which MS have to have complied
- form: law (at least in the material sense)
- content: not necessarily identical to the other MS
exception: direct effect – 3 conditions: (very exceptional)
- no/bad implementation
- deadline expired
, - obligation/right is unconditional and sufficiently precise
Secondary law: decisions
individual act (precise addressees)
binding in all its elements
direct application (direct effect) when a company violates EU law they receive a
fine or sanctions
secondary law: recommendations and opinions
addressed to MS or individuals (natural + legal persons) to conform with an adopted
line of conduct
non binding (except in excessive deficit procedure)
‘soft law’
secondary law: delegated and atypical acts
delegated acts (Art. 290 TFEU)
- Non-legislative acts of general application
- Commission delegated by legislative act
- Supplement or amend non-essential elements
- Subject to supervision by European Parliament and Council: right of revocation and
objection
Atypical acts
- Sui generis decisions
- Interinstitutional agreements
- Resolution and conclusions
- Communications of the commission
implementation of EU law
implementation competence
rule: MS, national administrations
exception: EU, especiallly, Commission with implementing acts (291 (2) TFEU),
where uniform conditions of implementation are needed; MS control trough
‘comitology committees’
interpretation of EU law
- national judge as ordinary judge of EU law
- preliminary ruling question – 267 TFEU
- sanctions and responsibility in case of violation
EU law-making
1. what does the EU legislate?
- Sources of EU law
2. When does the EU legislate
- Competences
- Structural principles I: subsidiarity and proportionality
3. How does the EU legislate
- Legislative procedures
4. What are the effects of EU law in the Member States
- Structural principles II: direct effect and primacy/ supremacy
- National enforcement of EU law
, Competences: the principle of conferral
Art. 4 (1) + Art. 5 (2) TEU
- Content: ‘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 therin’ –
‘Competences not conferred upon the Union in the treaties remain with the Member
States’
- Ratio legis: respect of sovereignty of the MS
- Conditions: demands legal basis (connected to the goals of the legal act) but often
legal bases are broadly framed (e.g. 114 TFEU) and/or Court adopts generous
interpretation (e.g. CR v Parliament and Council 482/17)
EU competences: types
each competences has its own title:
(1) Exclusive competences, Art 3 TFEU: competition, Custom Union, monetary policy
(2) Shared competences, Art 4 TFEU: both EU and MS can legislate, common
agriculture policy, energy
(3) Complementary competences, Art 6 TFEU: education, giving frameworks
(4) CFSP
implied competences
principle of conferral - effectiveness of eu law
express - implicit competences
especially in the domain of external relations, CJEU, ERTA, C-22/70
existence of internal competence (for example: transport)
risk of affecting EU internal actions
exercise of external competence necessary to fulfil the internal objectives although it
is not explicitly provided in the treaties (CJEU, Opinion 1/76)
structural principles I: the principle of subsidiarity
Art. 5 (3) TEU + protocole n. 2
content:
- in areas of shared competence
- the union can act only if the objectives pursued by the measure ‘cannot be sufficiently
achieved by the MS, either at central level or at regional or local level’
- and can be ‘better achieved at Union level’
ration legis: taking decisions close to citizen (democracy)
procedural aspects
- political control: protocol 2 (national parliaments)
- judicial control
structural principles I: the principle of proportionality
Art. 5 (4) TEU
- content: the EU will only take the action it needs to achieve its aims, and no more
- rationale: rule of law (limiting power)
- conditions
Appropriateness: measure is adequate to its (legitimate) goal
Necessity: no alternative measures available that would be less restrictive, but as efficient
Proportionality sensu stricto: balancing
Lecture 13/12/2023 1
Treaties <eur-lex.europa.eu>
Treaty on the European Union (TEU)
Treaty on the Functioning of the European Union (TFEU)
IRAC method (one way to format legal reasonings; answering examen questions)
- Issue- what is the (legal) problem?
- Rule- what are the relevant legal norms? Called into question (TEU or TFEU, most
likely TFEU) all the factual elements collected in this scenario ‘in what way can
you combine the fact under those rules?’
- Application- how do these norms apply to the facts?
- Conclusion- how is a judge likely to decide?
EU lawmaking
1. What does the EU legislate?
2. When does the Eu legislate?
Competences
Structural principles; subsidiarity and proportionality
3. How does the Eu legislate?
Legislative procedures
4. What are the effects of EU law in the Member States?
Structural principles II: direct effect and primacy/ supremacy
National enforcement of EU law
Sources of EU Law
1. Primary law (EU treaties: TEU and TFEU as legalbackbone)
2. General principles of Eu law
3. International law
4. Secondary law(legislation)
5. Implementation of EU law
primary law
The treaties (TEU+TFEU)
TFEU more administrative in nature, operational, about the EU competence
TEU more constitutional in nature, values
Protocols (binding)
Annexes (Binding)
Declarations (non-binding, attached to the treaties to clarify the interpretation)
The Charter of Fundamental Rights of the EU (CFREU)
Most powerful legal sources where the EU law relies on
Primary law – Ordinary revision procedure (48 TEU), followed to amend treaty (very rare)
Supranational phase:
- Initiative: Commission, MS or EP
- Opening of the procedure: European Council (simple majority)
- After consulting: EP, Commission, (ECB if it’s a financial matter)
,Convention phase (optional):
- Convened by European Council (simple majority)
- Composition: representatives of national parliaments, heads of state or government,
EuParl, Commission (all members that have experience within EU law making)
- Functioning: adopts a recommendation by consensus
Intergovernmental phase:
- Intergovernmental conference (representatives of MS)
National phase
- Ratification according to national procedures
- Unanimity required
General principles of EU law (GPEL)
- Non-written, not in the treaties – derived from CJEU case law
Content:
- Fundamental rights (freedom of expression etc.)
- Responsibility of MS (CJEU, Francovich): if it violates EU law you can ask for
compensation
- Legal certainty
- Proportionality
- Apply to the EU institutions and MS
- GPEL (justiciability) <-> EU values (art. 2 TEU)
International law
- International agreements where EU is a party (e.g. free trade agreements)
- Unilateral acts obliging the EU
- General international law (e.g. customary international law)
Secondary law: types of legal acts (Art. 288 TFEU)
Regulation – Directive – Decision - …
- Difference
- Why would one be more suitable than the other for some specific type of legislation
Secondary law: regulations
- General application (indeterminate number of situations), applies to all the legal and
natural persons that fulfil those elements
- Legally binding in all its elements
- Direct application in all MS (no implementation and direct effect)
Secondary law: directives
General application
obligation of result for the Member States (but no authority about the form &
methods)
rule: no direct effect, need for implementation (transposition):
- deadline: set by each directive, in which MS have to have complied
- form: law (at least in the material sense)
- content: not necessarily identical to the other MS
exception: direct effect – 3 conditions: (very exceptional)
- no/bad implementation
- deadline expired
, - obligation/right is unconditional and sufficiently precise
Secondary law: decisions
individual act (precise addressees)
binding in all its elements
direct application (direct effect) when a company violates EU law they receive a
fine or sanctions
secondary law: recommendations and opinions
addressed to MS or individuals (natural + legal persons) to conform with an adopted
line of conduct
non binding (except in excessive deficit procedure)
‘soft law’
secondary law: delegated and atypical acts
delegated acts (Art. 290 TFEU)
- Non-legislative acts of general application
- Commission delegated by legislative act
- Supplement or amend non-essential elements
- Subject to supervision by European Parliament and Council: right of revocation and
objection
Atypical acts
- Sui generis decisions
- Interinstitutional agreements
- Resolution and conclusions
- Communications of the commission
implementation of EU law
implementation competence
rule: MS, national administrations
exception: EU, especiallly, Commission with implementing acts (291 (2) TFEU),
where uniform conditions of implementation are needed; MS control trough
‘comitology committees’
interpretation of EU law
- national judge as ordinary judge of EU law
- preliminary ruling question – 267 TFEU
- sanctions and responsibility in case of violation
EU law-making
1. what does the EU legislate?
- Sources of EU law
2. When does the EU legislate
- Competences
- Structural principles I: subsidiarity and proportionality
3. How does the EU legislate
- Legislative procedures
4. What are the effects of EU law in the Member States
- Structural principles II: direct effect and primacy/ supremacy
- National enforcement of EU law
, Competences: the principle of conferral
Art. 4 (1) + Art. 5 (2) TEU
- Content: ‘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 therin’ –
‘Competences not conferred upon the Union in the treaties remain with the Member
States’
- Ratio legis: respect of sovereignty of the MS
- Conditions: demands legal basis (connected to the goals of the legal act) but often
legal bases are broadly framed (e.g. 114 TFEU) and/or Court adopts generous
interpretation (e.g. CR v Parliament and Council 482/17)
EU competences: types
each competences has its own title:
(1) Exclusive competences, Art 3 TFEU: competition, Custom Union, monetary policy
(2) Shared competences, Art 4 TFEU: both EU and MS can legislate, common
agriculture policy, energy
(3) Complementary competences, Art 6 TFEU: education, giving frameworks
(4) CFSP
implied competences
principle of conferral - effectiveness of eu law
express - implicit competences
especially in the domain of external relations, CJEU, ERTA, C-22/70
existence of internal competence (for example: transport)
risk of affecting EU internal actions
exercise of external competence necessary to fulfil the internal objectives although it
is not explicitly provided in the treaties (CJEU, Opinion 1/76)
structural principles I: the principle of subsidiarity
Art. 5 (3) TEU + protocole n. 2
content:
- in areas of shared competence
- the union can act only if the objectives pursued by the measure ‘cannot be sufficiently
achieved by the MS, either at central level or at regional or local level’
- and can be ‘better achieved at Union level’
ration legis: taking decisions close to citizen (democracy)
procedural aspects
- political control: protocol 2 (national parliaments)
- judicial control
structural principles I: the principle of proportionality
Art. 5 (4) TEU
- content: the EU will only take the action it needs to achieve its aims, and no more
- rationale: rule of law (limiting power)
- conditions
Appropriateness: measure is adequate to its (legitimate) goal
Necessity: no alternative measures available that would be less restrictive, but as efficient
Proportionality sensu stricto: balancing
