European Constitutional Law

EU

Legislative / Non- We have a

Legislative acts system made up

EU Institutions acts of different level

in hierarchical order.

1)European treaties (TEU AND TFEU)

They are, from a formal point of view, international treaties concluded by member

states of EU but, from a substantial point of view, they can be seen as constitutional

charters because they established the EU, set competences of EU and distributing

competences between MSs. They are the most important source of EU law and cannot

violated by other sources of law.

2)International agreement

The Union shall have legal personality. It can conclude international

ART. 47 TEU:

agreements. They must respect the EU treaties even if they prevail over EU legislative

and non-legislative acts.

CJ jurisdiction over international agreements

“Advisory opinion procedure: A MS, the EP, the Council or

According to ART. 218 TFEU,

the Commission may obtain the opinion of the CJ as to whether an agreement envisaged

is compatible with the Treaty. Where the opinion of the Court is adverse, the agreement

envisaged may not enter into force unless it is amended or the Treaties are revised”.

Reminder: The CJ can give advisory opinion procedure (in reality are not advising

but legal binding). Not so frequently advisory opinion are asked but every time the CJ

deliver opinion is always an important act. Usually a preliminary opinion is asked for

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before its conclusion, however, an international agreement can be annulled by CJ if it

violates the EU treaties because they must be respected.

Legislative and non-legislative acts

They are called “secondary orders of law” because are passed by the EU institution.

Hierarchically subordinate both to the EU treaties and to international agreements

concluded by the EU.

3)Legislative acts “Legal acts adopted by legislative procedure shall

ART. 289 TFEU Legislative acts:

constitute legislative acts” (formal definition)

Legislative procedure

The ordinary legislative procedure shall consist in the joint adoption by the EP and the

Council of an act on proposal of the Commission.

In specific cases provided for by the treaties, the adoption of the act by the EP

with the participation of the Council, or by the latter with the participation of the EP, shall

constitute a special legislative procedure. (co- decision)

Ordinary procedure

ART. 294 TFEU: CO-DECISION:

-Legislative proposal submitted by the Commission to the EP

-First reading: EP can approve or amend it. If the Council agrees, the bill is approved. If it

disagrees, the position of the Council comes back, with reasons, to the EP.

-Second reading: if the EP rejects the Council position, the procedure fails. If the EP

approves it, the act is passed; if the position is amended, it is forwarded to the Council,

which can approve all the amendments (the act is passed) or disapprove them

(Conciliation phase)

To have an act of co-decision, it must be started with an initiative that is in the hand

of the Commission. Then are the first and the second reading (if fails the act is not

approved)

-Conciliation: a Conciliation Committee (made up of the members of the Council and an

equal number of members representing EP) has the task to prepare a joint text. If it fails,

the act cannot be approved. If it succeeds, a third reading starts.

-Third reading: if the joint text is approved both by the EP and the Council, the act is

passed. If either the EP or the Council reject the text, the procedure fails definitively.

4)Non-legislative acts

They are divided in to delegated acts and implementing acts

Non-legislative acts: Delegated acts 38.

ART. 290 TFEU: “A legislative act may delegate to the Commission the power to adopt

non-legislative acts of general application to supplement or amend certain non-

essential elements of the legislative act.”

- Delegated act must necessarily be approved by the commission

- The decision to delegate must be contained necessarily in a legislative act

(-> Council and EP must agree on the delegation)

- essential elements cannot be delegated

“The objectives, content, scope and duration of the delegation of power shall be

explicitly defined in the legislative acts. The essential elements of an area shall be

reserved for the legislative act and, accordingly, shall not be the subject of a delegation

of power”.

The EP or the Council may decide to revoke the delegation.

The delegated act may enter into force only if no objection has been expressed by

the EP or the Council within a period set by the legislative act.

The adjective “delegated” shall be inserted in the title of delegated acts.

(Expressively required, because regulations, directives, decisions can either be

legislative acts, or delegated acts.)

Main features

-General delegation not admissible.

-Peculiar hierarchical position: the delegated act can amend (=change the non

essential elements) the delegating act (hierarchical parity), but at once it has to respect

the conditions (=essential elements) set in the latter, it cannot compete with it

(hierarchical subordination). But it is changing it! So the delegated act is simultaneously

subordinated and not to the legislative act.

-Constitutional limits: Commission’s exclusive role; general application norms;

distinction between essential and non-essential elements

-Political limits: strengthened political control by the EP.

Non-legislative acts: Implementing acts

Usually, MSs control over EU implementing power: eu’s general rules are implemented at

national level by national authorities (same framework, same results, but national,

different means). However, sometimes a legislative act of eu need uniform condition of

implementation, so that MSs cannot implement the law in a different way: another eu act

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implement the first one. But, it is a multilevel procedure*: MSs can take part in it, to

Comitology

control the implementing activity of the Comm. =

MSs shall adopt all measures of national law necessary to implement

ART. 291 TFEU: “

legally binding EU acts.

Where uniform conditions for implementing legally binding EU acts are needed, those

acts shall confer implementing powers on the Commission or, in duly justified specific

cases […], on the Council”.

* For this purpose, the EP and the Council […] shall lay down in advance the rules

and general principles concerning mechanism for control by MSs of the Commission’s

exercise of implementing power. (Comitology Regulation).

The word “implementing” shall be inserted in the title of implementing act.

Main features

Prerequisite: need of uniform conditions for implementing

Subordination of the implementing act to the implemented act

No Commission’s exclusive role: Council is allowed to give implementing powers to itself,

though exceptionally. no division of powers! Council can be both legislative and



executive institution in this case.

Comitology Regulation (182/2011)

“The Commission is to be assisted by a committee composed by representatives of the

MSs when it adopts implementing acts”.

Usually, Advisory procedure: the Committee’s opinion is only advisory.

Sometimes: Examination procedure: the Committee can veto the Commission

through a negative opinion.

5)EU institutions’ acts

To exercise the Union’s competences, the institutions shall adopt

ART. 288 TFEU : “

regulations, directives, decisions, recommendations and opinions”

List of the EU act

-Regulations

-Directives

-Decisions

-Recommendations and Opinions (not legally binding)

Regulations (and Directives) can be both legislative and non-legislative acts,

depending on the procedure used for their approval. 40.

EU institutions’ acts: REGULATION

: “A regulation shall have general application. It shall be binding in its

ART. 288 TFEU

entirety and directly applicable in all MSs”.

Traditional act, the oldest, but really innovative: no other international institutions

have this type of act. Entirely: all norms are binding. Novelty! directly applicable in MSs

simultaneously=when the eu inst approve a regulation, it is published and as soon as it

enters into force at eu union level, immediately it is directly applicable within the legal

system of all MSs. MSs don’t have, and can’t, approve a transposition act. In classical

international agreements, responsibility to apply the regulation before the international

community, but the resolution cannot be applied if not transposed into the national

system. EU regulations=only external source of law in the world.

Main features

-Has general application

-Is legally binding as a whole

-Has direct applicability (automatic incorporation into the domestic legal order of each

Member State; no validating national act is needed for its application)

-Aims at uniformity of norms in all the Member States

EU institutions’ acts: DIRECTIVE

: “A directive shall be binding, as the result to be achieved, upon each

ART. 288 TFEU

Member State to which it is addressed, but shall leave to the national authorities the

choice of form and methods”.

While the regulation is addressed directly to categories of people of MSs, directives

are always addressed to states (one or all): receivers are not individuals, but states. They

are binding in the result to be achieved: MSs can choose the method, procedure to apply

them. Expressed deadline.

Main features

-Is addressed to the Member States

-Is legally binding as the result to be achieved

-The choice of means and methods of implementation is left to the national authorities

-A national transposition by the deadline stated in the directive is needed (dualist

scheme)

-Aims at harmonisation of norms in all the Member States

need for a national implementing act! Directive= usual external source of law (the

→

national implementing act is the internal source of law. 41.

EU institutions’ acts: DECISION

ART. 288 TFEU: “ A decision shall be binding in its entirety. A decision which specifies

those to whom it is addressed shall be binding only on them”.

As a regulation, it is binding in its entirety, but if the text refers to specific individuals, it

is binding only on them. Traditionally, taken by the comm, within the field of competition

law (eg. addressed to a company to stop unfair competition behaviour). The Lisbon

Treaty introduced two types of decisions.

Main features

-Legally binding as a whole

-Decision specifying addressees: strictly individual application; binding effect only

upon the addressees (similar to domestic administrative acts)

-Decision not specifying addressees: not individually binding. They are the basic

instrument in the field of the CFSP: Common Foreign and Security Policy (legally binding

on states, passed by the Council and the European Council, n