EU Law Legal Order 3rd lecture, 7 November 2013

Primary/Secondary law Principles Competences Legal Acts External Relations in a nutshell

EU law: primary/secondary law Primary law Secondary law Treaties’ law Principles of IL Legal acts adopted by the European Institutions (art. 288 TFEU)

Revision of treaties Art 48 TEU The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures (2 procedures)

Ordinary Revision Procedure The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified

Ordinary Revision Procedure If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States

Ordinary Revision Provision A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties. The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

Simplified revision procedures 2 specific case established by the Treaty (art. 48 A stronger power of the Council, who is the major player Less involvement of the other institutions and National Parliaments

Art. 50 TUE: the Right to withdraw Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. Once the State is no longer a Member of the Union, the treaties’ law does not apply anymore in its territory If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49

The EU legal order: Principles Principle of conferral (Art. 5.2 TEU) Principle of subsidiarity (Art. 5.3 TEU) Principle of proportionality (Art. 5.4 TEU) Principle of sincere cooperation (Art. 4.3 TEU) Respect of HR (Art. 6 TEU) + Principle of non-discrimination (Art. 18 TFEU)

The principle of conferral (Art. 5 TEU) 5.1: The limits of Union competences are governed by the principle of conferral 5.2: 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

Categories and areas of competences (Title I TFEU) Exclusive competence Article 2.1 Article 3: areas of exclusive competence Shared competences Article 2.2 Article 4 Supportive competences Article 2.5 Article 6 Pre-emption

Art. 352 TFEU If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament [This article recalls the ‘theory of implied powers’]

Principle of proportionality (Art. 5.4 TEU) Principle of subsidiarity (Art. 5.3 TEU) in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties The Union’s action is proportioned when it meets 3 conditions: - It is proved to be necessary, useful for the objective and there is a nexus of causality between the action and the scope

Sincere Cooperation Art. 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.

Respect of fundamental rights Art. 6 TEU Principle of non-discrimination (Art. 18 TFEU) Connected to the respect of fundamental rights Based on nationalities Connected to the concept of EU citizenship

Legal acts Binding acts Non-binding acts Regulation Directive Decision Recommendation Opinion

Binding Acts: Common features Motivation: Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties (art. 296.2 TFEU) Legal Bases: to make reference to one or more provision of the Treaty Important: choice of the legal bases is highly connected to the respect of the principle of attributed competences and the allocation of competences among the institutions (issues of the consensus) It has to be selected according to the subject and the scope of the act If the legal acts concerns more than one area: it is important to verify if they are both important or if one is supportive of the other, in order to choose one or more legal bases

Direct Effect All binding EU law (Treaties, secondary legislation, international legislation) Provisions of binding EU law which are sufficiently clear, precise and unconditional to are justiciable and can be invoked and relied on by individuals before national courts It confers rights on individuals

Regulation general application binding in its entirety directly applicable in all Member States

Decision binding in its entirety a decision which specifies those to whom it is addressed shall be binding only on them ( ≠ regulation) May affect individuals, as well Members States May be general (authorization for starting international negotiations)

Directive binding as to the result to be achieved Binding upon each Member State to which it is addressed leave to the national authorities the choice of form and methods to reach the result (within a required time-frame) A good tool to harmonize the laws within a certain areas

Directive: direct effect ECJ C-26/62 ‘Van Gend en Loos’: the capacity of a provision of EU law to be invoked before a national Court (p.183), set the criteria (sufficiently clear, precise and unconditional ) In case of conflict with domestic law: disapplication of the domestic law Vertical direct effect: directives can be enforced directly by individuals against the state after the time limit for their implementation has expired NO Horizontal direct effect: directives cannot of themselves impose obligations on individuals

Non-binding acts Opinion Recommendation Soft law No direct effect Act through which the institutions and other bodies inform about their position on a defined subject Function: policy-orientation Soft law No direct effect Usually addresses Mb States Invitation to conform to a defined behaviour Function: policy and regulatory orientation Though not binding, the Court of Justice stated that national judges should take them into account when interpreting and applying other EU binging acts (Grimaldi case, 322/88)

The relationship between EU law and national legal order Primacy of EU law on national law: no formal basis in the Treaty, but developed by the ECJ on the basis of its conception of a ‘new legal order’ (Van Gend en Loos; C- 6/64 Costa v Enel. p. 257) Why: in order to preserve the uniformity of a common market (subordination to national law could undermine this) Relation with Direct Effect In case of conflict with national law: disapplication of the domestic rule (but no nullification)

Legislation and decision-making: Adoption of the acts Ordinary legislative procedure Special legislative procedure Pre-Lisbon: cooperation and co-decision, + other forms Post-Lisbon: Co-decision is the ordinary legislative procedure Art. 294 TFEU Steps: Commission submits a proposal First reading Second reading Conciliation Third reading Art. 289.2 TFEU: specific cases provided for by the Treaties the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament Important role of the Council exercised through its voting (unanimity or qualified majority) The logic behind: - Dialogue - Compromise - More democratic procedure

External Relations of the EU

External Action or International Relations of the EU: what is it about?

The EU in the World The EU as an international actor: increased power and visibility in the last decades; a great range of relations with the rest of the World Former 3-pillar structure: a limit for the external action Need to achieve greater coherence and consistency

Lisbon Treaty: changes and improvements Article 47 TEU: declares the EU (international) legal personality Abolished the 3-pillar structure: although the CFSP still remains separate and distinct from the rest of EU’s power and competences, the PJCC is integrated into the same framework as all other EU policies Office of High Representative of the Union for Foreign Affairs and Security Policy and an EU external action service (a diplomatic corps) The scope of the EU’s exclusive common commercial policy (external trade) has been widened Established a common set of values, principles, and objectives (Art. 3.5 TEU) Attempts to codify parts of the ECJ’s complex case law on implied external powers