Lecture 5 - Sources of EU LAW PDF

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1. What are primary sources of EU Law? Sources of primary law Primary sources, or primary law, come mainly from the founding Treaties, namely the Treaty on the EU and the Treaty on the Functioning of the EU. These Treaties set out the distribution of competences between the Union and the Member States and establishes the powers of the European institutions. They therefore determine the legal framework within which the EU institutions implement European policies. Moreover, primary law also includes: 

the amending EU Treaties;

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the protocols annexed to the founding Treaties and to the amending Treaties;

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the Treaties on new Member States’ accession to the EU.

1. What are the secondary sources of EU law? Sources of secondary law Secondary law comprises unilateral acts and agreements. Unilateral acts can be divided into two categories: 

those listed in Article 288 of the Treaty on the Functioning of the EU: regulations, directives, decisions, opinions and recommendations;

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those not listed in Article 288 of the Treaty on the Functioning of the EU, i.e. "atypical" acts such as communications and recommendations, and white and green papers. Convention and Agreements group together:

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international agreements, signed by the EU and a country or outside organisation;

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agreements between Member States; and

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interinstitutional agreements, i.e. agreements between the EU institutions

2. What are the general principles of EU law? General principles of law General principles of law are unwritten sources of law developed by the case law of the Court of Justice. These principles have allowed it to implement rules in different domains of which the treaties make no mention, concerning the non-contractual liability of the EU, for example. The general principles of law may be: 

common to national laws: the Court of Justice identified those principles common to all the national legal systems and which are compatible with EU objectives. For example, this is the case with legal certainty and legitimate expectation which protects an individual from unforeseeable amendments to the law;

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derived from particular national laws: the Court of Justice took inspiration from the principles enshrined in certain national legal systems only. This is also the case when the

Court must name the institution responsible for harm caused by the EU and it must determine the extent of the harm; 

specific to the EU: the Court of Justice identified the principles specific to the EU even if the source of their inspiration was from a national legislation. This is the case with the solidarity between Member States, institutional balance and Community preference.

 3. Is there a hierarchy between these sources of law? Treaty on European Union (TEU); Treaty on the Functioning of the European Union (TFEU); and their protocols (there are 37 protocols, 2 annexes and 65 declarations, which are attached to the treaties to fill in details, without being incorporated into the full legal text); Charter of Fundamental Rights of the European Union; as well as the two main treaties, the Treaty Establishing the European Atomic Energy Community (Euratom) is still in force as a separate treaty. — international agreements; — general principles of Union law; — secondary legislation. The Treaties and the general principles are at the top of the hierarchy, and are known as primary legislation. Following the entry into force of the Lisbon Treaty on 1 December 2009, the same value was also given to the Charter of Fundamental Rights. International agreements concluded by the European Union are subordinate to primary legislation. Secondary legislation is the next level down in the hierarchy and is valid only if it is consistent with the acts and agreements which have precedence over it. EU law lecture Court of Justice Constitutional court: consider powers of the institutions and member states, or relations between them Roles and functions: Constitutional court: consider the powers of the institutions and member states, or relations between them Administrative court, judicial review of acts of institutions as to their legality Appeals court: from cases before the general court Advisory court- preliminary rulings and references to national judges/give their opinion on certain matters Punishing court Guilty of judicial activism Method used by the court - Interpretation method - Literal, contextual and teleological interpretation methods - Teleological interpretation: aim and purpose of the EU - Practical effectiveness All EU law decisions, laws and procedures are based on EU treaties which are created and agreed by Member States Treaties have not stayed static and evolved over time Initially influencing by French and German Law and now influencing the development of national laws of Member states.

Enacted/Legislative Primary sources: TEU TFEU Charter of FR Secondary Sources: Listed in Art.288 TFEU (Acts of the institutions) International agreements Non- enacted/Judicial Secondary sources: CJEU Case Law General principles Primary sources: Definition of a treaty: - International agreement between states - Written form - Binding on the states concern  EU Treaties -

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Initially three treaties because of the three communities Creation of treaties by intergovernmental conference under the impetus of the European council Constitution - To some extent – they define the mechanisms of governance and rights and obligations - The EU constitution tried to regroup under one single document all the relevant provisions but was rejected...