SOURCES OF EC AND EU LAW

Transcription

1 SOURCES OF EC AND EU LAW Autonomy of the EC/EU legal order: between international and national legal systems The system of sources of law: primary, intermediate and secondary law Lack of a hierarchy among secondary sources of law: problems; reform of the Lisbon Treaty Lack of general rules on the choice of the type of secondary measures to be adopted: choice on a case by case basis

2 PRIMARY EC/EU LAW The Treaties and Protocols (art. 51 new TEU; art. 311 TEC): between and international treaty and a Constitution Interpretation: teleological v. literal; effet util The modification of the Treaty: art. 48 new TEU. Ordinary revision (Convention + Intergovernmental conference (IGC); # art. 48 old TEU: IGC), ratification by Member States The methods: the Convention (Nice Charter of fundamental rights, European Constitution); generalization in the Lisbon Treaty (art. 48(2) TEU) Simplified amendments (art. 48(6)(7) new TEU): decision by unanimity of the Europan Council + assent of the EP; possibility of opposition of national Parliaments Accession to the EU: art. 49 TEU (new and old): geographical and substantial conditions; the Copenhagen criteria (1993) + art. 2 new TEU Treaty of Lisbon: possibility of withdrawal of a Member State (art. 50 TEU)

3 INTERMEDIATE SOURCES: GENERAL PRINCIPLES Intermediate status: subordinate to the Treaties, prevalence over secondary law General principles of EC law: non discrimination, free circulation, proportionality, subsidiarity, enumerated competencies, etc. General principles common to the legal orders of the Member States: rule of law, legal certainty, protection of legitimate expectations, proportionality Protection of fundamental rights: initial lack of rules in the TEC; Common declaration of 1977, case law of the ECJ (Stauder 1969, Nold 1974, Hauer 1979)

4 GENERAL PRINCIPLES - II Sources of fundamental rights: common constitutional traditions of the member States; international treaties: European Convention of human rights and fundamental freedoms (Rome, 1950, Council of Europe) The fundamental role of case law and subsequent developments: art. 6 TEU; Charter of Nice on fundamental rights of the EU (2000): lack of binding effect; # Treaty of Lisbon: dignity, freedoms, equality, solidarity, citizens rights; accession to the ECHR (art. 6(2) TEU) Functions of general principles: interpretation, standandard for judicial review, gap filling

5 INTERNATIONAL LAW AND INTERNATIONAL AGREEMENTS Legal personality of the EU: art. 1 new TEU (before: EC, art. 281 TEC) Relevance of international obligations for the EC International agreements: of the EC, of the member States, mixed agreements (EC + member States) Exclusive competencies: substition of the EC to the Member States; e.g. GATT; cp. WTO: mixed agreement Parallel between internal and external EC competencies: AETS case (1977) Treaty of Lisbon: external action of the EU (art. 205 TFEU) International agreements between the EC and third States of other international organisations: arts 216, 220 TFEU (art. 300 TEC) International agreements on common commercial policy (art. 207 TFEU, art. 133 TEC) and association agreements (art. 217 TFEU, 310 TEC)

6 SECONDARY EC LAW Art. 288 TFEU, art. 249 TEC: typical acts; atypical acts (e.g. budget, communications, etc.) Binding (regulations, directives and decisions) and non binding acts (recommendations and opinions) Legislative and regulatory acts TEC: lack of a hierarchy of acts and of general rules on the choice of the type of act Lisbon Treaty: legislative acts (art. 289 TFEU), delegated acts (art. 290 TFEU), executive acts (art. 291 TFEU); Eur. Const: different terminology, same content (laws and framework laws, various types of regulations, decisions)

7 SECONDARY EC LAW - II Regulations: general application; entirely binding; directly applicable Directives: addressed to one, several or all member States; biding for the result, discretion for member States of form and means Two stages of directives: enactment and transpositions; deadline; obligation to transpose and standstill Directives and harmonisation; the role of subsidiarity; detailed directives The problem of lack of or wrongful transposition: the case law of the ECJ on direct effect

8 SECONDARY EC LAW - III Decisions: totally binding; addressed to specific subjects (States, natural or legal persons) Non-binding acts: recommendations and opinions Soft law instruments

9 ACTS OF THE III PILLAR Before the Lisbon Treaty: art. 34 TEU: acts of the III pillar; lack of direct effect Common positions Framework decisions: aproximations of laws, binding for the result but not for form and meas, no direct effect Decisions: no aproximation of laws, binding, no direct effect Conventions (special rules for entry into force) Decisions by uninimity in the Council, except implementing acts of decisions Treaty of Lisbon: area of freedom security and justice, title V chs 4-5; same types of acts (+ strategic guidelines of the European Council)

10 ACTS OF THE II PILLAR Art. 25 new TEU (art. 12 old TEU): European Council: principles and general guidelines (art. 13 old TEU also common strategies, with objectives, duration and means); no legislative act Council: implementation of general guidelines Council: decisions on operational action, art. 28 new TEU (art. 14 old TEU: joint actions): operational action related to specific situations; definition of objectives, scope and means; binding for member States Council: decisions defining the approach, art. 29 new TEU (art. 15 old TEU: common positions): approach of the EU to particular matters International agreements (art. 24 TEU) Vote by unanimity in the Council, except for implementing acts (art. 24(1) new TEU, art. 23 old TEU); exception: vital and stated reasons of national policy (art. 31(2) new TEU; art. 23(2) old TEU); unanimity and qualified abstention: max 1/3 of the States (art. 31(1) new TEU; art. 23(1) old TEU)