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

2. 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
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Institutional Framework and Organisation 2

3. 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

4. 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

5. 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

6. 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

7. Questions…

8. 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

9. 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”

10. 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

11. Questions…