EUROPEAN LAW
CHAPTER I: INTRODUCTION
2 EU PRIMARY LAW+ 3 EU SECONDARY LAW
EU primary legislation: treaties (TEU, TFEU, Charter), touchstone of all other EU law
and certain aspects of national law and the laws that apply between the individuals.
EU secondary legislation: regulations, directives and decisions, is adopted on the basis
of the treaties,
EU secondary legislation must be compatible with EU primary law and may not exceed
the latter’s boundaries.
EU tertiary legislation: delegated and implementing acts adopted on the basis of
secondary legislation, needs to be compatible with both primary and secondary
legislation.
CHAPTER II: THE NATURE OF THE EUROPEAN LEGAL ORDER AND ITS
RELATIONSHIP WITH THE LEGAL ORDERS OF THE MS
1 INTRODUCTION
Legal order derives from hierarchies and norms on administration and adjudication and
legal can be said to exist when two conditions met: authority and autonomy.
Autonomy= the norms that made up the legal order are self-referential and do not rely
on other norms for meaning or validity.
Authority= the legal order has its own institutions to ensure that the norms are
enforced, and disputes are settles.
The general principles can be grouped in three categories:
1. Constituting principles that establish and limit the EU as an actor.
2. The principles dealing with the MS and individuals as actors in an EU law
framework.
3. Principles that establish the values that guide EU actors.
2 CONSTITUTING PRINCIPLES
The EU can act on its own motion. It can take executive action through one or more of its
own institutions, bodies, offices and agencies. In acting the EU is empowered and
constrained (=beperkt) by three general principles: conferral (=toekenning),
subsidiarity and proportionality (art. 5 TEU).
2.1 THE PRINCIPLE OF CONFERRAL: THE UNION’S COMPETENCES.
The system (or principle) of the specific conferral of powers is enshrined in art. 4 (1) TEU,
read in conjunction with art. 5 (1) and (2) TEU.
,Conferral= the Union can only act if the MS by means of the Treaties have explicitly
authorized the EU to do so. All EU measures must have a legal basis in the Treaties.
‘Implied power’ doctrine: the doctrine provides that the Union can take external action
in areas where it has not been granted this competence expressly by the treaties, but
rather where this external competency is implied by the competence in internal matters.
ERTA.
Important because:
1. Material safeguard: ensuring that the Union does not overstep its
competences by taking action in areas where it is not authorized to do so.
Tobacco Advertising I.
2. Procedural safeguard: it reflects the fact that the TFEU prescribes different
decision-making procedures and varying degrees of institutional involvement for
EU action depending on the area in question. They need to be followed. All
legislative procedures start with a proposal by the European Commission that then
needs to be accepted by the MS represented in the Council and EP.
2.2 THE PRINCIPLE OF SUBSIDIARITY: THE EXERCISE OF COMPETENCES
The principle only applies to the Union’s non-exclusive competences, only
legislative.
Under the subsidiarity test, the Union can only act of and in so far, the objectives of the
proposed action cannot be sufficiently achieved by the member states and can be
better realized at EU level.
Needs to be as close as possible to the citizens.
Ex ante application of the principle: it predates the moment at which the pollical plans
become legally binding acts (most important).
Ex post application of the principle: refers to the use of the principle to challenge
existing legislation.
Protocol 2 of the Treaty on European Union (TEU) and the Treaty on the Functioning of
the European Union (TFEU): These procedures are designed to ensure the application of
the principles of subsidiarity and proportionality.
Yellow Card Procedure:
The Yellow Card procedure is triggered when 1/3 of national parliaments object to a
legislative proposal on the grounds of subsidiarity within eight weeks of receiving the
proposal. The objections are sent to the European Commission, which then reviews the
proposal. After the review, the Commission can decide to maintain, amend or
withdraw the proposal. If the Commission decides to maintain the proposal, it must
provide a detailed explanation of why it believes the proposal complies with the principle
of subsidiarity.
Orange Card Procedure:
The Orange Card procedure is similar to the Yellow Card procedure, but it requires a
majority of national parliaments to object to a legislative proposal on the grounds of
subsidiarity. If the Orange Card procedure is triggered, the Commission must review the
proposal. However, unlike the Yellow Card procedure, if the Commission decides to
, maintain the proposal, it must then be approved by a majority in the Council and a
majority of the votes cast in the European Parliament.
2.3 THE PRINCIPLE OF PROPORTIONALITY
The EU must not exceed what is necessary to achieve the objective pursued applies
to all sections, but focusses on legislative actions.
Ex post application is the most important.
The test for proportionality consists of 3 elements, the subcategories: appropriate,
necessary, stricto sensu (impact on other objectives unrelatable to the measure).
CHAPTER I: INTRODUCTION
2 EU PRIMARY LAW+ 3 EU SECONDARY LAW
EU primary legislation: treaties (TEU, TFEU, Charter), touchstone of all other EU law
and certain aspects of national law and the laws that apply between the individuals.
EU secondary legislation: regulations, directives and decisions, is adopted on the basis
of the treaties,
EU secondary legislation must be compatible with EU primary law and may not exceed
the latter’s boundaries.
EU tertiary legislation: delegated and implementing acts adopted on the basis of
secondary legislation, needs to be compatible with both primary and secondary
legislation.
CHAPTER II: THE NATURE OF THE EUROPEAN LEGAL ORDER AND ITS
RELATIONSHIP WITH THE LEGAL ORDERS OF THE MS
1 INTRODUCTION
Legal order derives from hierarchies and norms on administration and adjudication and
legal can be said to exist when two conditions met: authority and autonomy.
Autonomy= the norms that made up the legal order are self-referential and do not rely
on other norms for meaning or validity.
Authority= the legal order has its own institutions to ensure that the norms are
enforced, and disputes are settles.
The general principles can be grouped in three categories:
1. Constituting principles that establish and limit the EU as an actor.
2. The principles dealing with the MS and individuals as actors in an EU law
framework.
3. Principles that establish the values that guide EU actors.
2 CONSTITUTING PRINCIPLES
The EU can act on its own motion. It can take executive action through one or more of its
own institutions, bodies, offices and agencies. In acting the EU is empowered and
constrained (=beperkt) by three general principles: conferral (=toekenning),
subsidiarity and proportionality (art. 5 TEU).
2.1 THE PRINCIPLE OF CONFERRAL: THE UNION’S COMPETENCES.
The system (or principle) of the specific conferral of powers is enshrined in art. 4 (1) TEU,
read in conjunction with art. 5 (1) and (2) TEU.
,Conferral= the Union can only act if the MS by means of the Treaties have explicitly
authorized the EU to do so. All EU measures must have a legal basis in the Treaties.
‘Implied power’ doctrine: the doctrine provides that the Union can take external action
in areas where it has not been granted this competence expressly by the treaties, but
rather where this external competency is implied by the competence in internal matters.
ERTA.
Important because:
1. Material safeguard: ensuring that the Union does not overstep its
competences by taking action in areas where it is not authorized to do so.
Tobacco Advertising I.
2. Procedural safeguard: it reflects the fact that the TFEU prescribes different
decision-making procedures and varying degrees of institutional involvement for
EU action depending on the area in question. They need to be followed. All
legislative procedures start with a proposal by the European Commission that then
needs to be accepted by the MS represented in the Council and EP.
2.2 THE PRINCIPLE OF SUBSIDIARITY: THE EXERCISE OF COMPETENCES
The principle only applies to the Union’s non-exclusive competences, only
legislative.
Under the subsidiarity test, the Union can only act of and in so far, the objectives of the
proposed action cannot be sufficiently achieved by the member states and can be
better realized at EU level.
Needs to be as close as possible to the citizens.
Ex ante application of the principle: it predates the moment at which the pollical plans
become legally binding acts (most important).
Ex post application of the principle: refers to the use of the principle to challenge
existing legislation.
Protocol 2 of the Treaty on European Union (TEU) and the Treaty on the Functioning of
the European Union (TFEU): These procedures are designed to ensure the application of
the principles of subsidiarity and proportionality.
Yellow Card Procedure:
The Yellow Card procedure is triggered when 1/3 of national parliaments object to a
legislative proposal on the grounds of subsidiarity within eight weeks of receiving the
proposal. The objections are sent to the European Commission, which then reviews the
proposal. After the review, the Commission can decide to maintain, amend or
withdraw the proposal. If the Commission decides to maintain the proposal, it must
provide a detailed explanation of why it believes the proposal complies with the principle
of subsidiarity.
Orange Card Procedure:
The Orange Card procedure is similar to the Yellow Card procedure, but it requires a
majority of national parliaments to object to a legislative proposal on the grounds of
subsidiarity. If the Orange Card procedure is triggered, the Commission must review the
proposal. However, unlike the Yellow Card procedure, if the Commission decides to
, maintain the proposal, it must then be approved by a majority in the Council and a
majority of the votes cast in the European Parliament.
2.3 THE PRINCIPLE OF PROPORTIONALITY
The EU must not exceed what is necessary to achieve the objective pursued applies
to all sections, but focusses on legislative actions.
Ex post application is the most important.
The test for proportionality consists of 3 elements, the subcategories: appropriate,
necessary, stricto sensu (impact on other objectives unrelatable to the measure).
