Class notes
Institutional Law of the EU - week 1 to 6
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Notes summarising the lectures from week 1 to week 6.
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———————————————————————————————————————————Week 1:
Outline:
1. What does the EU legislate?
- Sources of EU law
2. When does the EU legislate?
- EU competences
3. How does the EU legislate?
- Legislative procedures
- Structural principles of EU law
The EU is not like a state, it cannot address any new challenge that might come up across the
society. It can only act within its competences assigned by the EU…
• Sources of EU law:
1. Primary law -> the treaties
2. Secondary EU law -> acts adopted by EU institutions, such as regulations, directives, etc.
• Primary law:
Treaty on European Union
Title 1: Common Provisions
Title 2: Provisions on democratic principles
Title 3: Provisions on the institutions
Title 4: Provisions on enhanced cooperations
Title 5: General provisions on the Union’s external action and specific provisions on the Common
Foreign and Security Policy
Title 6: Final provisions
1.1 Primary law:
- The Treaties (TEU +TFEU):
-> Protocols (legally binding)
-> Annexes (legally binding)
-> Declarations (legally non-binding)
,Ordinary revision procedure (48 TEU):
Supranational phase:
-> Initiative: Commission, MS, EP
-> Opening of the procedure: European Council (simple majority)
-> After consulting: EP, Commission, (ECB)
Convention phase:
-> Convened by European Council (simple majority)
-> Composition: representatives of: nat parls, heads of state or government, EuParl, Commission
-> Functioning: Adopts a recommendation by consensus
Intergovernmental phase:
-> Intergovernmental conference (representatives of MS)
National phase:
- Ratification according to national procedures
- Unanimity required
1.2 General Principles of EU Law (GPEL)
- Non-written - derived from CJEU case-law
- Apply to the EU institutions and MS
- EU values (art.2 TEU) <-> GPEL (justiciability)
- Content:
-> Fundamental rights (see: Week 3)
-> Other GPEL - e.g. responsibility of MS (CJEU, Francovich), legal certainty, proportionality.
1.3. International Law
- International agreements where EU is a party
- Unilateral acts obliging the EU
- General international law (e.g. customary international law)
1.4. Secondary law
Regulation —> Directive —> Decision —> …
,Types (art. 288 TFEU):
- Regulation:
-> Generally applicable (indeterminate number of situations)
-> Legally binding in all its elements
-> Directly applicable (Ø implementation) (direct effect)
- Directive:
-> Generally applicable
-> Binding with regard to results (Ø form & means)
-> in principle, no direct effect
-> Implementation (transposition):
- Deadline: fixed by each directive
- Form: law (at least in the material sense)
- Content: not necessarily identical to text of the directive
-> Direct effect - exceptionally under 3 conditions:
- No/bad implementation
- Deadline expired
- Obligation unconditional and sufficiently precise
{if a MS did not implement a directly effective directive due to which a EU citizen has suffered damages, then
the judge can rule that the MS pays damages to the EU citizen concerned…-> SO: the judge can possibly
rely directly on the directive to create obligations vis à vis individuals…so an EU citizen can claim damages
based on this directive..}
- Decision
-> Individual act (precise addressees)
-> Obligatory in all its elements
-> Directly applicable (direct effect)
- Recommendations and opinions:
-> not binding (except in excessive deficit procedure)
-> invitations addressed to MS or individuals (natural + legal persons) to conform with an adopted
lign of conduct.
-> ‘soft law’ (p.103)
, - Delegated acts:
-> Delegation to the Commission, 290 TFEU
-> Subject to supervision: right of evocation, right of objection
- Atypical acts:
-> Sui generis decisions
-> Interinstitutional agreements
-> Resolutions and conclusions
-> Communications of the Commission
-> …
1.5. Implementation of EU law
{-> implementation and application of EU law is the responsibility of the MS}
- Implementation competence:
-> Default: MS, national administrations
-> Exception: EU, especially Commission with implementing acts (291 (2) TFEU)
- Interpretation of EU law:
-> National judge as ordinary judge of EU law (so national judges are often asked to interpret EU
law..)
-> Preliminary ruling question - 267 TFEU
- Sanctions and responsibility in case of violation
-> What happens when MS do not implement EU law? -> see week 2.
Sources of EU law - questions
Which type of secondary law would be most suitable if the EU were to legislate on questions such
as:
- Prohibiting pregnant women to cycle (decision?)
- Temporarily closing Bulgarian-Turkish border (regulation?)
- Legalizing marijuana (directive?)
{It is not so much about giving the correct answer, but more about the argumentation behind your
answer?}
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