EU Legislative Powers: Principles and Procedures EU CONSTITUTIONAL LAW 2013 EU Legislative Powers: Principles and Procedures 1

EU Constitutional Stucture Founding values and aims Articles 2+3 TEU Democratic principles Articles 9-12 TEU Basic Principles of Law Articles 4-6 TEU Economic Freedoms Article 18 TFEU Horizontal Requirements Articles 8-17 TFEU ----- Institutional Framework and Organisation 2

Principle of Conferral of Competence Article 5.2 TEU ”Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.” Cf. corresponding clauses in MS Constitutions See e.g. Lisbon Ruling by German Bundesverfassungsgericht 3

Basic Principles of EU Law Play into both political and judicial decision-making (cf. ”legality” a priori and a posteriore) WHAT the EU may do (ultra vires) principle of conferral of competence Article 5.2 TEU + MS Constitutions HOW the EU may do (infra vires) requires respect for: -subdisidiarity and proportionality Article 5.3 TEU + MS Parlaments -fundamental rights Article 6 TEU -national identity Article 4.2 TEU Effectiveness principle of sincere cooperation Article 4.3 TEU principle of primacy of EU law caselaw

Principle of Sincere Cooperation Article 4.3 TEU ”Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.” → A basis for the Principle of Primacy of EU Law

Principle of Primacy of EU law …rests on caselaw (not codifierad): See in particular Case 6/64 Costa mot ENEL “[T]he law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.” ’ Cf. Declaration (17) on Primacy ”The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.” QUESTION: A principle of constitutional or procedural law? 6

Questions…

EU Institutional Framework Principle of conferral of competence Article 13 TEU INSTITUTIONS Council Article 16 TEU European Parliament Article 14 TEU Commission Article 17 TEU Court of Justice Article 19 TEU the EU Court the General Court the special courts European Council Article 15 TEU European Central Bank Article 129 TFEU Court of Auditors Article 285 TEFU …and other ”agencies and bodies” 8

EU Substantive Law Logic Prohibitions and Obligations in Primary Law The ”economic freedoms” and principle of non-discrimination (Art 18 TFEU) Competition rules restricting cartels, dominant positions and state aid Other rules, e.g. citizenship and equal pay Policy Areas and Legal Bases for Secondary Law Principle of conferral of competence and ”choice of legal basis” (Arts 5+13 TEU) EU internal action EU external action Cf. difference in logic… ”de-regulation” vs. ”re-regulation”

Legal Bases for Secondary Law EU internal action subject-specific legal bases, e.g. criminal law Article 83 TFEU general legal basis for ”internal market” Article 114 TFEU EU external action common commercial policy Article 207 TFEU development cooperation Article 209 TFEU humanitarian aid Article 214 TFEU common foreign- and security policy Article 24 TEU General treaty-making competence Article 216 TFEU The Flexibility Clause Article 352 TFEU

Questions…