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Fabian Amtenbrink & Hans Vedder – European Union LawChapter 2: The nature of the European legal order and its relationship with the legal orders of the
Member States
1 Introduction
Legal order stand for ‘an aggregate or a plurality of general and individual; norms that
govern human behaviour, that prescribe, in other words, how one ought to behave’,
whereby it can be described as an order ‘if the norms constitute a unity, and they constitute
a unity if they have the same basis of validity’.
More simple definition the totality of legal norms applicable in a given the territory, such
as a state (domestic legal order).
Autonomy the norms that make up the legal order are self-referential and do not rely on
other norms for meaning or validity.
Authority requires the legal order to have its own institutions to ensure that the norms
are enforced, and disputers are settled.
EU has the authority to declare a law of a member state contrary to EU law, forcing that
member state to change that law and this its own legal order. Moreover, individuals can
enforce EU law vis-à-vis the state authorities of their own member state.
There are member states who have decided to transfer some of their powers to an
international legal body. This means that the EU can only claim to be indirectly constituted by
the people via their member states. The EU’s legal actions are thus only as effective as the
member states’ legal orders allow them to be.
2 Constituting principles
EU can act on own motion. Executive action. For example impose duties on imported
goods and can impose fines on companies that break EU competition rules. EU can also ban
products. Can take legislative actions setting standards for products, production processes.
Three general principles: conferral, subsidiarity, proportionality
Article 4(1) TEU, Article 5 TEU competences assigned to the EU, as well as the means that
it can apply to exercise these competences.
Principle of conferral EU can only act if the member states by means of the Treaties have
explicitly authorized the EU to do so. Protect the democratic foundations of the transfer of
competences to the European legal order by creating a safeguard at the level of the founding
Treaties against an uncontrolled expansion of the Union’s competences.
This principle is supplemented by the principles of subsidiarity and proportionality
additional safeguards make EU more palatable to its citizens.
2.1 The principal of conferral: the Union’s competences
Article 4(1) in conjunction with 5(1 and 2) TEU.
The EU can only act if the Treaties explicitly authorize it to do so. There must be a legal
basis for EU action. Examples of legal bases: Art 18, 48, 114, 192, 352 TFEU.
EU law also encompasses the so-called ‘implied powers’ doctrine provides that the Union
can take external action in areas where it has not been granted this competence expressly
by the Treaties, but rather where this external competence is implied by the competence in
internal matters. That is to say, a power that is implicit in or inherent to the existence of a
related internal power.
Article 5 TEU all EU measures must have a legal basis in the Treaties. This requirement is
important for two reasons:
, 1. It is a means of ensuring that the Union does not overstep its competences by taking
action in areas where it is not authorized to do so. In policy areas for which the
Member States have not transferred competences upon the EU (material safeguard).
2. It reflects the fact that the TFEU prescribes different decision-making procedures and
varying degrees of institutional involvement for EU action deepening on the area in
question (procedural safeguard).
Ultra vires review this view goes beyond reviewing whether there is a correct legal basis
for a specific legislative or executive action, as it is also about reviewing the intention that is
encapsulated in a legal basis.
2.1.1 Material safeguard
The material safeguard is key to ensuring that the Union does not take action in areas where
it does not have the competence to do so. Especially important in cases where the TFEU
specifically prohibits legislative action.
Final clause Article 168(5) TFEU Union is not allowed to adopt harmonizing measures in
the area of public health protection.
Article 168(1) however, it is still meant to ensure a high level of human health protection
in all its policies and activities.
Article 114 TFEU on the approximation of laws in support of the internal market requires the
Union to act on the basis of ‘a high level of protection’ of public health in its third paragraph.
Tobacco case. The substance of tobacco advertising directive appeared to focus more on
the protection of public health rather than on the establishment or improvement of the
functioning of the internal market for tobacco advertising. It actually prohibited such trade in
the interest of public health. Court of Justice plays a decisive role in what should first and
foremost be a political process, namely the adoption of decisions concerning the transfer of
clearly defined competences at national level.
2.1.2 Procedural safeguard
All legislative procedures start with a proposal by the European Commission that then needs
to be accepted by the member states represented in the Council. However, depending on
the legal basis, the EU Parliament has a definitive say or it can only issue an advisory opinion.
Furthermore, the legal basis also determines whether the Council votes with a majority or
unanimity.
2.1.3 Resolving disputes concerning the appropriate legal basis
Court of Justice always starts its search for the appropriate legal basis with the observation
that the choice of a legal basis for a measure must be based on objective factors that are
amenable to judicial review, such as the aim and content of the measure.
Next, it examines the substance and objectives of the measure concerned. Based on this
examination, it may conclude that a measure actually contains elements associated with two
different legal bases. For example, although their primary objective was to protect forest
ecosystems, the forest protection regulations were also partly agricultural in nature.
Necessary to consider whether the measure concerned relates principally to a particular
field of action, while having only incidental effects on other policies, or whether both
elements are equally essential.
One element clearly dominates, the associated legal basis is sufficient. Identification of an
aim the center of gravity test. Both elements equally important both legal bases should
be used cumulation of legal bases.
In cases where one or more legal bases for EU action exist, the Union has the competence to
adopt measures.
2.2 The principle of subsidiarity: the exercise of competences
, It always needs to be determined whether the Union should actually make use of their
power of competence.
Article 5(3) TEU the principle of subsidiarity applies only to the Union’s non-exclusive
competences. So, the Union’s exclusive competences (Article 3 TFEU) are not governed by
this principle.
The Union can only act if and in so far as the objectives of the proposed action cannot be
sufficiently achieved by the member states and can be better realized at EU level. So, the
action in question must relate to a cross-border issue for which the European solution offers
economies of scale or greater effectiveness than national action.
Application is largely limited to the political arena ex ante application of the principle: it
predates the moment at which the political plans become legally binding acts.
Ex post application: the use of the principle to challenge exiting legislation, for example in an
annulment procedure.
A preliminary question that needs to be answered before the compliance with principle of
subsidiarity can be examined is thus whether the action in question relates to an area of
exclusive or non-exclusive competence of the Union.
Non-exclusive competence of the Union the Union and the member states initially both
have the competence to take action.
Shared competence has far-reaching effects.
The Sperrwirking/blocking effect of EU action can make it almost impossible for the member
states to exercise their pre-existing powers. Because, in areas where the EU has exclusive
competence, the member states cannot take any actions anymore, unless the EU explicitly
allows them to do so.
Article 3 = exclusive competences. Article 4 TFEU = shared competences.
Protocol the effects of the exercise of a shared competence only covers those elements or
partial areas covered by the Union act in question and not the whole area. This means that
the member states can still exercise competence in those fields of environmental law (shared
competence) where the Union has not (yet) adopted any legislation. Member states can
once again exercise competence in a particular area if the Union decides to repeal a
legislative act.
2.2.1 The subsidiary test
Principle contains a dual test:
1. First, it needs to be established that the objectives of the proposal action cannot be
realized adequately by the member states.
2. Second, they can therefore be realized more effectively at EU level.
Test comprises both a negative and positive element.
Protocol cites such factors as transnational aspects, the need to correct distortions of
competition and the benefits of scale of EU action as grounds for determining that the
principle of subsidiarity has been satisfied.
While checking whether a Union measure complies with the principle of subsidiarity, the
Court will take into account the objectives and content of the measure.
Directive, containing, inter alia, a ban on the use of tobacco for oral use, the Court observed
that the Directive pursued the twofold aim of creating an internal market whilst ensuring a
high level of health protection. It then observed that whilst the second objective the second
objective might be more effectively attained at the member state level, that would endanger
the internal market objective. Directive complied with the principle of subsidiarity.
Current protocol more procedural approach to the issue of subsidiarity, providing national
parliaments with a greater role in the enforcement of this principle giving the Court
jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a
legislative act.
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