European Public Law

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

- approved in 2000 entry into force 2001

- originally with a very limited force, weak position in the European legal framework

- only with the treaty of Lisbon the charter has been recognized as formal binding primary source of eu law. EU’s

- The EU must act and legislate consistently with the Charter and the court will strike down EU’s legislation adopted by the institutions that contravenes it.

- The charter contains a serious of political economic social rights for European citizens and resident of MS.

- Fundamental act because the Charter applies to the Institutions of the EU and its MS when implementing EU law.

7 titles:

• Titles I-VI: six classes of fundamental rights: dignity, freedoms, equality, solidarity, citizenship and justice
• Title VII: general principles concerning the application of the Charter. Not all the provision contain in the charter are fundamental rights, because they are not directly applicable.

rightsrecognized can be limited in cases stated by the eu legislation.

SECONDARY SOURCES OF LAW

While the primary sources of law are international treaties approved by the MS, the secondary sources of law are acts normally approved by the institutions of the EU.

There is hierarchy, the secondary sources of law have to comply with the primary sources of law.

ART 288 TFEU:

“To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.

Recommendations and

ART 289, 290, 291 TFEU: Delegated acts and implementing acts approved by the commission in order to implement or supplement directive regulations or decisions

Biding acts: regulations and directives are the most important ones. The difference is the scope of their applicability and the production of direct effect derived from these sources of law

Regulations:

• Acts of general application, binding in they entirely and directly applicable
• MS, citizens and institutions directly bound when the regulation enters into force
• Regulations do not need acts of implementation by the MS, because they are directly applicable in the national legal order.
• Due to these characteristics, the regulation can be defined as the legislative act of the European Union, the laws.

Decisions:

• Binding in their entirety and directly applicable
• Normally, not generally applicable
• Only applicable to subjects to which the decisions are addressed

• (individual addressed decisions, MS addressed decisions)
• in some case non-addressed decisions are approved.

Directives:

• the most controversial source of law
• they are not binding in their entirety, binding only as to the result to be achieved,
• address to the MS, which according to the directive, are required to reach particular objectives, leaving the national state to choose the forms and methods in order to achieve those results
• They must adopt transposing acts in order to be applicable to the citizens.
• The MS enjoy some discretion in the implementation of the act.
• Individual citizens are given rights and bound by legal act only once the transposing act has been adopted
• Transposition must be effected within the period laid down in the directive
• In principle no direct applicability
• The court of justice specified that certain provisions of a directive may, exceptionally, produce direct effects in a MS even if an act of

implementation has not yet been adopted.

• Conditions:
• The directive has not been transposed into national law or has been transposed incorrectly
• The provisions of the directive are imperative and sufficiently clear and precise
• The provisions of the directive confer rights on individuals

Non binding acts: Recommendations and opinions

• Do not confer any right or obligation on those to whom they are addressed
• May provide guidance as to the interpretation and content of Union law

LEGISLATIVE AND NON-LEGISLATIVE PROCEDURES

art. 289 TFEU:

1. The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. This procedure is defined in Article 294.

2. In the 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

The participation of the European Parliament, shall constitute a special legislative procedure. EUROPEAN PUBLIC LAW 19 di 28

The procedures are described in the treaties in particular in the TFEU, in part 6 of the treaty dedicated to the institutional framework of the Union. The TFEU establishes the way in which the Union operates in order to produce acts.

Distinction between procedures aim at producing legislative acts and procedure finalized to the production of other non legislative acts. The most important one is the legislative procedure.

Decision-making procedure: (from a general point of view) sequence of acts or events aimed at the formation of the will of an institution (in this case the EU) and its manifestation through determined legal acts.

Series of rules on how to adopt a legal act on the part of the Union. How an institution operates in order to adopt a legal act.

Involvement of all Union institutions on the procedures regulated by the treaties,

• Inter institutional

• Procedural differences with respect to other areas conferred on the Union competence

• Residual category: contains all the procedures finalized to the adoption of acts which have no legislative nature, as a consequence very different procedure which have one single common element: the absence of legislative nature of the acts.
• Procedures for adopting European Council acts
• Procedures for the adoption of supplementing or implementing acts by the Commission
• Decision-making procedures in the CFSP (Common Foreign Security Policy) area
• Procedure for the conclusion of international agreements
• Procedure for the establishment of enhanced cooperation
• Procedure for the approval of the annual budget

decision-making process:

- Legal basis of the act to be adopted:

• The provision of the Treaty which confer the competence on the Union to adopt acts in a given area also indicates the decision-making process to be followed
• (art. 33 TFEU)

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• Two evaluation elements:
• - content of the act
• - purpose of the act
• Identification is complex when the act has differentiated content or pursues a plurality of purposes. A series of criteria have been established in order to decide which decision making procedure to adopt in the cases in which is not so clear.

- Theory of center of gravity of the act: the legal basis of the act is derived from finding the main purpose of the act. If the act that is going to be approved primarily concenter the custom union regulation and also other topic the normal legislative procedure is adopted.

- Cumulation of the applicable decision-making procedures: some parts of the act are approved through the ordinary legislative

procedure and other part through the spe-cial procedure- If these criteria do not work: Preference for a decision-making procedure that does not sacrifice the rights of participation of the European Parliament“Within Art 33 TFEU the scope of application of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission“sion.

Special legislative procedure: Art 113 TFEU“The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid