EU LAW Revised - Notes PDF

Preview

Summary

Competences, Sources and Law Making Competences: difference between the word competence and power: used interchangeably. Competence: the ability to act in a given field -> what can it act on (e. competence relating to the customs union) Power: to allow the EU institutions to use its ‘...

Description

Competences, Sources and Law Making

Competences: difference between the word competence and power: used interchangeably. Competence: the ability to act in a given field -> what can it act on (e.g. competence relating to the customs union) Power: to allow the EU institutions to use its ‘competence’ to legislate in a certain field. (power to legislate in relation to the customs union). Conferral of Powers: ART 5(1) TEU if not on the list eu cannot act in that field. The states as sovereign states can give power(CONFER UPON) to legislate to the EU, technically not a delegation of powers. (if they decide their interests are better by a common action) ART 5.(1): Gives competences and limits them. Limits to its competences: EU cannot act beyond its competences, (ultra vires) act is invalid. ART 5.2 TEU: Principle of conferral: (EXPRESS POWERS) union shall act only within the limits of competences conferred upon it by the Member states in the treaties to attain the objectives set out therin. Two consequences: 



EU does not have power to confer power on itself (Kompetenz-Kompetenz: competence fo the competence of the EU, it is the members that decide when they have competence) HOWEVER it can act through judicial activism of cjeu (By doctrine of implied powers). (can be criticised but also does a lot of good things). If EU acts beyond its powers (ultra vires act) then the action is invalid since the Union did not have the power to take it. It can be annulled by CJEU under art 263

Implied powers:    

Formed through case law, extends original powers By using theory of implied powers as per CASE 8/55 Federation Charbonniere de Belgique v High Authority {1954-1956}. Described as not formed directly from treaty provisions but are derived from general objectives set out in the particular treaty. EG: joined cases of 281/283-285 and 287/85 Germany and others v Commission 1987 expanded the internal (doctrine of internal powers) spheres of action and Case 22/270 Commission v Council (Re ERTA) on the external.

Residual Powers: ART 352 TFEU: 

Where the treaties have not provided sufficient power for the EU to attain an objective, the council acting unanimously on a proposal from the commission and obtaining permission from the parliament can adopt the appropriate measure.

Meaning providing it follows the set measures, the council can authorise such powers. It can be used for 2 purposes ( according to Schutze, R) 1. Can be employed where the union is given a specific competence but it is deemed insufficient to achieve a specific objective 2. The residual competence can be used to develop a policy area that has no specific title within the treaties. 352 is limited by the treaty itself (art 354. 3 and .4) and by case law (opinion 2/94 [accession by the community to the European convention for the protection of Human rights and fundamental freedoms) EG of recent use: Council Regulation (EU) No 390 (2014): establishing the ‘Europe for citizens’ programme for the period 2014-2020. o







Union Competences. 

Treaty of Lisbon provided answers as to how competence would be allocated as before there was no clear delineation. o Exclusive competences: ART 2 TFEU distinguishes between exclusive and shared competences. Exclusive competences relate to areas where only union institutions can act, member states are thus prevented from acting unilaterally or collectively in those areas. E.g. Monetary policies for countries having the EURO o Shared competences: where both the Union, institutions and MS can act. ART 4 TFEU non exhaustive lst of areas of competences: EG energy and transport. Areas not mentioned under ART 4 also fall under act. Member states can oly act if Union has not decided to exercise it right to act or has decided to cease exercising its right to act (Art 2.2 TFEU). Meaning that an MS cannot adopt measures contrary to EUs values or principles or in breach of sincere cooperation art 4.3.  The idea that the Union could exercise rights in all areas is stopped by exceptions such as art 4.3. where research, technological developments and space and humanitarian aid are a member states business and cannot be prevented from acting upon them. And by Protocol no 25 Of the exercise of competence and by principle of subsidiarity and proportionality. o Supportive competences:  1. Coordinating competences. Art 2(3) and 5 TFEU. It cann issue guidelines and suggest initiatives amongst member states in relation to economic policy, employment policy and social policy.  2. Complimentary competences ART 6 AND 2(5) TFEU, the EU is allowed to take action to support, coordinate or supplement the action of the member states in fields such as health, culture and education. o Enhanced Cooperation procedure: Introduced by Amsterdam treaty, allowed as a last resort for areas that do not fall within the exclusive competence of the EU(Spain and Italy v Council of Europe)

Limits to competences: ART 5.1. TEU:

Principle of subsidiarity: ART 5.3 TEU and Protocol 2: Enshrined in Maastricht treaty. Involves the sharing of powers between several levels of authority, a principle which forms the institutional basis for federal states. Serves to regulate the exercise of the Union’s non-exclusive powers. Effectively it rules out Union intervention when an issue can be dealt with effectively by member states at central, regional or local level. But t also justifies a union exercising its powers when member states cannot achieve objectives proposed. I nar easi nwhi c ht heEur opeanUni ondoesnothav eex c l usi v ecompet ence,t hepr i nc i pl eof s ubs i di ar i t y ,l ai ddowni nt heTr eat yonEur opeanUni on,definest hec i r c ums t ancesi nwhi c hi ti s pr ef er abl ef oract i ont obet ak enbyt heUni on,r at hert hant heMemberSt at es .

t hepr i nci pl eofsubsi di ar i t yseekst osaf eguar dt heabi l i t yoft heMemberSt at est ot ak e deci si onsandact i onandaut hor i s esi nt er v ent i onbyt heUni onwhent heobj ect i v esofan act i oncannotbesuffici ent l yachi ev edbyt heMemberSt at es,butcanbebet t erachi evedat Uni onl evel ,‘ byr easonoft hescal eandeffect soft hepr oposedact i on’ .Thepur poseof i ncl udi ngar ef er encet ot hepr i nci pl ei nt heEUTr eat i esi sal sot oensur et hatpower sar e ex er ci s edascl oset ot heci t i z enaspossi bl e,i naccor dancewi t ht hepr oxi mi t ypr i nci pl e r ef er r edt oi nAr t i cl e10( 3)oft heTEU.

UnderAr t i cl e5( 3)TEUt her ear et hr eepr econdi t i onsf ori nt er v ent i onbyUni oni nst i t ut i onsi n accor dancewi t ht hepr i nci pl eofsubsi di ar i t y :( a)t hear eaconcer neddoesnotf al l wi t hi nt he Uni on’ sex cl usi v ecompet ence( i . e.nonexcl usi v ecompet ence) ;( b)t heobj ect i vesoft he pr oposedact i oncannotbesuffici ent l yachi evedbyt heMemberSt at es( i . e.necessi t y) ;( c ) t heact i oncant her ef or e,byr easonofi t sscal eoreffect s,bei mpl ement edmor esuccessf ul l y byt heUni on( i . e.addedval ue) . Compliance with the principle of subsidiarity may be achieved by fulfilling two requirements: a) Necessity test: for the EU to act, it must demonstrate that it is not possible for member states to individually or collectively achieve the objectives set out in the treaty. b) Greater benefits or added value test: The EU must show that the circumstances are such that they would be better achieved at union level. Therefore built in bias in favour of action at lowest possible level.

Subsidiarity is guaranteed by safeguards by: Protocol on the Application of the Principles of SUbsidirity and proportionality and the protocol on the role of national parliaments in the European Union (2012, OJ C326/203) Safeguards:

 



The Commission must consult widely (at national/regional/local level) before proposing legislative acts All draft legislature acts must include a statement (usually in preamble) whereby the institution proposing the act demonstrates that the proposal complies with subsidiarity (by quantative and qualitative methods) National parliaments have extensive powers to monitor the application of the principle of subsidiarity. They have 8 weeks and 2 votes per member states to send a response on why a particular act does not have to comply with subsidiarity. o If a third of all votes cast indicate there is a violation of subsidiarity a yellow card will be issued (Used in 2012 over Monti II) and Commission must review the act. o If a majority believes there is a violation, the commission must respond a reasoned opinion as to why it thinks the act to be in conformity with the principle (orange card). Reasoned opinion is given to European Parliament and the Council along with the opinion of national parliaments. The EP and C must decide whether it conforms. (if not it is dismissed)

Judicial review: CJEU is competent to deal with actions on grounds of infringements brought by principle of subsidiarity. ART 263 TFEU some maybe brought by an EU institution or a member state. May also ask for it to question the interpretation of the princ of subsidiarity via 267 TFEU 



Art 9 OF THE PROTOCOL, principles of subsidiarity and proportionality must submit an annual report toe ht eEuropean Council, the European Parliament and the Council on the application of Art 5 TFEU When amending draft legislative acts, both the council and the EP must take into account subsidiarity.

Principle of proportionality Dfinition: principle that applies in relation to form and content of the act Action must be appropriate to attain its objectives and does not go beyond what is necessary to achieve them (Case 114/76 Skimmed Milk Powder 1977 ECR 1211 When choice between various types of measures, need to opt for the least restrictive and the least burdensome Applies in relation to the form and content of the measure suggested by the E Institutions.   

The content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties (Ar 5.4. TFEU) Each draft must explain how proportionality is complied with. Stems from Verhaltnismasssigkeit (german legal system) and adopted into EU law by Case 8/55 Federation Charbonniere de Belgique v High Authority.

Limits: Art 5.4.: All draft legislative acts must be justified with regard to the principle of proportionality Judicial review 263 TFEU

Unlike the principle of subsidiarity, the CJEU has found a number of measure in contravention of the principle of proportionality. Conclusion: EU is based on the principle of conferral of powers, but the implied powers theory and th residual powers clause has been used to expand powers. Treaty of Lisbon provides 3 main types of competences. Any measure adopted by EU institutions must be founded on legal basis in the treaty. Main limititaions are Subs and Proport. Proport: used to strike down legislation than legal application

Subs: remains concept of political, rather

Sources of EU law Acquis Communautaire: what has been acquired or gained (in EU law) Any state tat wishes to join it has to accept: Regulations: Charter of fundamental Right, CJEU Case Law Directives: Treaties (TEU and TFEU), Recommendations and Opinions Decisions: General Principles of EU Law, International agreements.

2 categories:

Legislative/ Enacted: Primary Sources: TEU TFEU (Known as the treaties, amended by lisbon, entered into force by maastricht) Charter of Fundamental Rights

Secondary Sources: Listed in Art 288 TFEU (Acts of the institutions) International agreements

Judicial / Non – Enacted CJEU Case Law

General Principles. Primary Sources: Definition of treaties: international agreement between states usually in written form, binding on states concerned. Treaties are self executing (ie do not need to be transposed ito national law and are directly applicable) however UK, Germany and Belgium have dualist system and therefore treaties must be formally implemented into domestic law by national legislation. (In UK European Communities ACT 1972 provides implementation of this). In monist states, such as France, once duly ratified, the treaties automatically become law without needing further legislation. The treaties of EU are created by intergovernmental agreements, negotiating and agreeing to ratify an agreement. However the problem is some states need a referendum, e.g. constitutional treaty rejected due to several referendums. Content of treaties: •

Foundations, aims and objectives of the European Union

•

Competences of the European Union

•

Powers, composition, etc of each institution

•

Procedures for law-making

•

Mechanisms for legal redress (eg Art 263 TFEU, Art 267 TFEU)

•

Relation between EU and Member States:

‘Pursuant to the principle of sincere cooperation…the Member States shall take any appropriate measure…to ensure fulfilment of the obligations arising out of the Treaties...[and] shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.’ (Art 4(3) TEU) •

Amendment procedures (Art 48 TEU)

•

Withdrawal procedure (Art 50 TEU)

Treaties similar to constitution Though treaties do not contain rights, they do confer them. Official EU institutions set out by them.

Protocols, Annexes and Declarations are attached to the Treaties. Whilst the protocols are an integral part of the treaties, declarations are only legal if they are adopted by the council(e.g. protocols and provisions, e.g. Protocol 1 for the Role of National Parliaments in the EU, Protocol 2 on the application of the principles of subsidiarity and proportionality and protocol n 30 on charter of fundamental rights of the EU to Poland and UK, the most relevant declaration is declaration 1 concerning primacy in charter of fundamental rights)

Secondary Sources: Are the most substantial part of eu law. Legislative Acts: 289 TFEU (Ordinary legislative procedure) Non-legislative Acts: Delegated acts of general application (290 TFEU: Enacted by the Commission to supplement or amend non-essential elements of the legislative act but provided the legislative act allows the commission to do s) Implementing acts (Art 291 TFEU: implementing powers of the commission or the council) Opinions and recommendations (Art 288 TFEU) Treaty of Lisbon implemented a hierarchy among secondary sources (art 289,290, 291):

5 types according to Art 288 TFEU ‘To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation (binding)shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive (binding)shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision (binding) shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Recommendations and opinions shall have no binding force.’ (Art 288 TFEU): CASE 60/81 IBM V COMMISSION. They have persuasive powers in the courts however

Criteria for Validity of EU Acts: •

Must be within the competences of the EU

•

Must provide a legal basis (Art 296 TFEU)

•

Must contain a reference to a preliminary act (Art 269(2) TFEU)

•

Must include a statement of the reasons why this piece of legislation is necessary (Art 296(2) TFEU; Case 24/62 Germany v Commission (Brennwein) [1963] ECR 63)

•

Must be signed by the appropriate person

•

Must be published in the Official Journal of the European Union or notified to the relevant addressee

Case law of CJEU •

CJEU role (Art 19 TEU) ‘It shall ensure that in the interpretation and application of the Treaties the law is observed.’

•

Case law used to fill in gaps left by vague language in Treaties and acts

•

CJEU has created constitutional principles which have secured integration of policies across European Union –

Principle of supremacy

–

Principle of direct effect

–

Principle of State liability

General Principles: •

‘It shall ensure that in the interpretation and application of the Treaties the law is observed.’ (Art 19(1) TEU)

•

Not only EU law but any relevant rule of law

•

Two types of general principles of EU law:

•

•

Derived from legal traditions of the Member States (eg principles of proportionality, legal certainty)

•

Established by the CJEU (principle of institutional balance)

Some have been formally adopted in the treaties (e.g. principles of equality, proportionality, subsidiarity) or in the Charter of Fundamental Rights

Charter of fundamental rights Includes poticial, social, economic and societal rights •

Given legal status by Treaty of Lisbon in recognition of the growing importance to respect rights of the individual

•

Binds EU institutions and Member States when implementing EU law (Art 51 Charter)

•

Opt-out Protocol 30:

‘To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.’  Confirmed in Case C-411/10 NS v Secretary of State for the Home Department, 21 December 2011, nyr

International Agreements

•

EU has legal personality (Art 47 TEU) (state has rights under EU law)

•

Art 217 TFEU: ‘The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.’

•

International agreements must be respected

Principles of Law – Making Principles relating to institutions: -

Cooperation between institutions involved in decision-making process -> trilogue o Article 295 TFEU recognises the institutions’ capacity to conclude legally binding interinstitutional agreements. o Pre-legislative consultations and consultations throughout the decision-making process

-

Principles relating to institutions o

o -

•

•

Cooperation between institutions involved in decision-making process  trilogue 

Article 295 TFEU recognises the institutions’ capacity to conclude legally binding interinstitutional agreements



Pre-legislative consultations and consultations throughout the decisionmaking process

Principle of institutional balance

Principles relating to content and procedure o

Subsidiarity and proportionality

o

Transparency

o

Legal certainty

o

Simplicity, clarity and consistency in the drafting of the acts

o

Democratic legitimacy

o

Accountability

Two procedures: –

Ordinary legislative procedure

–

Special procedures

Range of institutions and actors involved in decision-making –

At the EU level: European Commission, Council of Ministers, Europ...