Sources OF EU LAW PDF

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SOURCES OF EU LAWPrimary EU Sources Treaty Articles : form the ‘constitution’ of the EU; legally binding; directly applicable  Treaty Protocols : legally binding; directly applicable  Declarations : political statements incorporated into treaties by the intended parties; non-binding  General Pri...

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SOURCES OF EU LAW Primary EU Sources    

Treaty Articles: form the ‘constitution’ of the EU; legally binding; directly applicable Treaty Protocols: legally binding; directly applicable Declarations: political statements incorporated into treaties by the intended parties; non-binding General Principle: principles developed by the CJEU adjudicating in debate and developing decisions for various matters; some are codified & some unwritten primary law (i.e. Charter of fundamental rights, principle of subsidiarity & proportionality, principles in the ECHR

EU Secondary Legislation - legislative acts adopted through the legislative procedure. There is no hierarchy of the EU’s secondary sources – the most appropriate mechanism will be chosen when there is a choice. Article 288 of the TFEU:  Regulations – “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States” o CASE 34/73 VARIOLA (1973) – HELD: the CJEU found it unnecessary and impermissible to domestically re-enact regulations turning them into national law because regulations are going to be legally binding anyway 

Directives – “A directive 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.” o It allows the member states to adopt the best action that they need to do to achieve the outcome that the directive needs to achieve o Not directly applicable – it requires member states to incorporate the directive in order for it have to effect in the national legal system o The purpose of the Directive must be implemented on a legally binding basis e.g. COMMISSION V NETHERLANDS (1982): “It is true that each member state is free to

delegate powers to its domestic authorities as it considers fit and to implement the directive by means of measures adopted by regional or local authorities. That does not however release it from the obligation to give effect to the provisions of the directive by means of national provisions of a binding nature.” 

Decisions – “A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them” o They ensure that the Union will be implemented in accordance with the rules, laws, guidelines and outlines of the treaties (i.e. there are decisions that impose fines in competition cases under Arts 101/102 TFEU)

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Recommendations & Opinions – “Recommendations and opinions shall have no binding force”

Comitology – concerns the decisions and powers delegated to the Commission by the Council and Parliament  Article 290 of the TFEU: “A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain nonessential elements of the legislative act. The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.”  Article 291 of the TFEU: “For the purposes of paragraph 2, the European Parliament and the Council…shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers.”

SOURCES OF EU LAW Special Legislative Procedure – often reserved for sensitive issues where the Treaties provide for the adoption of a regulation, directive or decision  Consent procedure: Article (unknown) TFEU: grants Parliament the power to accept or reject an act drafted by the Council  Consultation procedure: Article (unknown) TFEU: the Council is required to consult the EP on a drafted act, but are not obliged to receive consent  ROQUETTE FRERES (1980): “The consultation provided for… is the means which allows the

Parliament to play an actual part in the legislative process of the Community, such power represents an essential factor in the institutional balance intended by the treaty. Although limited, it reflects at community level the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly.”...