Diritto europeo

INTRODUCE IN THE TREATY OF MAASTRICT

policies are decided by consensus directly by the Member States, whereas (most

importantly) the EU cannot adopt legislative acts in this field,

residual competence

Finally, Art. 352 TFEU confers a to the EU:

It might happen that, in order to achieve one of the objectives set out in the Treaties, it is

necessary to act in ways the drafters had not imagined, and so in ways that are not

considered in the articles related to competences. the residual competence cannot be

used beyond the aims of the Treaties, in order not to take too much power away from

National Parliaments.

Subsidiarity and Proportionality

According to Art. 5 TEU, the exercise of Union competences is based on two key

principles: Subsidiarity and Proportionality.

Under the principle of subsidiarity, 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 be

better achieved at Union level.

Art. 5 TEU mentions National Parliaments: once the Union regulates Member States

cannot longer do it,

Art. 12 TEU

clarifies the role of National parliaments, that would become part of the dialogue of

legislation at the EU level.

National Parliaments contribute actively to the good functioning of the Union:

National Parliaments first need to be informed of new legislation coming up. herefore,

the Commission is obliged, when it puts forward a legislative proposal which is not in the

sphere of exclusive competence. Once the proposal has reached the National

Parliaments, they have 8 weeks to object it.

If at least half of the Parliaments objects the proposal, then it must be reviewed.

the Principle of Proportionality

According to the principle, the action undertaken must be proportionate (or commensurate)

to interest pursued

covid

Where a Member State is in difficulties or is seriously threatened with severe difficulties

caused by natural disasters or exceptional occurrences beyond its control, the Council, on

a proposal from the Commission, may grant, under certain conditions, Union financial

assistance to the Member State concerned. The President of the Council shall inform the

European Parliament of the decision taken.

The Instruments of EU Law-making

e EU represents a new legal order, that is (of course) based on international treaties (the

TFEU and TEU), but it can also be seen as a constitutional order.

legal sources

primary sources

• The are (obviously) the Treaties (TFEU and TEU), the Charter of

Fundamental Rights and the General Principles of the EU. All these legal sources are

horizontal: in fact, between them, there is no hierarchy and they have exactly the same

legal value. secondary law:

• Then, we have the legislation that the EU adopts, divided in specific

regulations 3

types of legislation: (shall have general application. It shall be binding in its

directives

entirety and directly applicable in all Member States), (shall be binding, as to

the result to be achieved, upon each Member State to which it is addressed, but shall

decisions(

leave to the national authorities the choice of form and methods.), and are

usually administrative act shall be binding in its entirety. A decision which specifies those

to whom it is addressed shall be binding only on them)

delegated acts,

We then have that are adopted when a legislative act

gives power to the Commission do adopt a specific act within the limits of the delegation,

according to the usual theory of delegation. According to Article 290 TFEU

implementing acts,

Finally, we have mostly adopted by the Commission it is crucial that

the Commission remains within the boundaries Recommendations and

The other two types of acts that the EU can adopt (i.e.,

Opinions) arenot legally binding: they are however very commonly used by the EP (that

issues Recommendations) and by the Commission (that issues Opinions). Therefore, they

cannot be challenged before a Court (as, on a theoretical level, only legally binding acts

can be subjected to judicial review).

The Ordinary Legislative Procedure (OLP)

The OLP is a co-decision procedure: in fact, after the Commission submits a proposal, the

European parliament and the Council decide. the Commission can freely withdraw

(liberamente ritirarla) it when it feels that the EP and the Council amended it so much as to

distort it. First, the Commission sends the final draft to the Council, to the EP and to the

National Parliaments, they have to check that the principle of subsidiarity has been

respected. The EP adopts a position. If then the Council approves the EP position without

modification, then the act is approved.

Oppositely, if the Council does not agree, it adopts its own position, which is then sent

back to the EP. if the EP does not expressly reject the modified draft for three months, the

act is taken for approved. Where representatives of the Commission, the EP and the

Council sit together and decide on a joint text even before the proposal goes to the formal

stage. This is indeed very efficient, but it is not so democratic.

2. Constitutional Europe

Effects of the EU law

Direct Effect and Supremacy

Direct effect In order to have direct effect a provision must satisfy certain conditions:

• It must be intended to grant a right

• it must be self executing, which means to be

clear = not ambiguous or obscure

o unconditional = without conditions attached

o and sufficiently precise to ascertain a right.

o

Direct Effect of the Treaties: from Van Gend to Defrenne

3 vincolanti

“Each Member State shall ensure that the principle of equal pay for male and female

workers for equal work or work of equal value is applied”

the word principle in this case is referred to the fundamental nature of certain provision,

among which the one of equal pay.

And the fact that it is addressed to Member States does not actually means that it does not

confer rights to individuals. Indeed, they can demand to Member States to respect their

duties imposed by the Treaty

“Since Article 119 is mandatory in nature, the prohibition on discrimination between men

and women applies not only to the action of public authorities, but also extends to all

agreements which are intended to regulate paid labour collectively, as well as to contracts

between individuals. The reply to the first question must therefore be that the principle of

equal pay contained in Article 119 may be relied upon before the national courts and that

these courts have a duty to ensure the protection of the rights which this provision vests in

individuals, […] as well as in cases in which men and women receive unequal pay for

equal work which is carried out in the same establishment or service, whether private or

public.”

The court, with this important ruling, stated that Treaty provisions can have direct effect

even in horizontal situations if conditions for direct effects are fulfilled. So, we can see that

the DE works as shield in certain situations.

Therefore, if a right is provided by EU law, national Courts have a treaty mandated duty to

give effect to it: otherwise, EU law would be simply useless.

the free movement of goods is only vertically applicable.

The real mess: directives and direct effect

But if the directive is not implemented, or it is implemented improperly, how can individuals

rely upon their rights?

If, however, by virtue of the provisions of article 189 regulations are directly applicable and

consequently may by their very nature have direct effects, it does not follow from this, that

other categories of acts mentioned in that article can never have similar effects

a functional argument-> it would be an incentive for Member States to implement the

directive since even if they do not implement them or do it unproperly, individuals

concerned by the directive could still rely upon the rights.

a teleological interpretation-> f directives could not be invoked, what would be the ratio of

the Preliminary Reference

Article 177 [267 TFEU], which empowers national courts to refer to the court questions

concerning the validity and interpretation of all acts of the community institutions, without

distinction, implies furthermore that these acts may be invoked by individuals in the

national courts.

But what are the conditions for a directive to be directly effective?:

• Time limit must have expired: ursuant to art. 189 TEU, directives are binding as to

the aims to be achieved in a certain amount of time but leave discretion to Member States

as to the means to use. 2/5 years. t is worth mentioning that Member States, pending the

implementation of a Directive, cannot adopt new legislation as to frustrate the aims of the

Directive.

4

If the MS has correctly transposed the Directive, the individual can invoke the application

of the national transposition law without being in need of direct effect.

for the direct effect to be applicable it is necessary that the Member State has either not

transposed the Directive or has done it incorrectly.

Finally, a Directive can be invoked only against the State or one of its “emanations”

his crucial condition is referred to as Vertical Direct Effect, and it is due to

the fact that Directives are (according to art. 188 TEU) binding only on Member States,

and not upon individuals.

that vertical situations occur only when an individual brings a case against the Member

State

It must be pointed out that where a person involved in legal proceedings is able to rely on

a directive as against the State he may do so regardless of the capacity in which the latter

is acting, whether employer or public authority.

ffect of directives, even though Bocconi has not regulatory power.

The aim of the Court is indeed clear: it is de facto expanding as much as possible the

possibility for individuals to enjoy the rights of EU law.

Vertical versus Horizontal Effect: the role of General Principles and Charter

Now, whereas a directive cannot apply in a horizontal situation, the general principles

(now, fundamental rights) can.

The ratio for this principle (that has been transposed into Art. 51 CFREU) is clear: it is not

pos

always keep in mind that, when considering a directive, this duty applies only after the

time limit to transpose the directive has expired (Adeneler).

National Courts may not provide a contra legem interpretation

the ECJ establishes a general principle: a redress is due for breaches of Community Law

by the Member States.

However, some conditions were established:

The first of those conditions is that the result prescribed by the Directive should entail the

grant of rights to individuals, The second

condition is that it should be possible to identify the content of those rights on the basis of

the provisions of the Directive, inally, the third condition is the existence of a causal

link between the breach of the State’s obligation and the loss and damage suffered by the

injured partie