SOURCES OF EU LAWEU law; Revision notes

EU LAW DERIVES FROM A NUMBER OF DIFFERENT SOURCES…

EU LAW

Primary Sources

Secondary Sources

Tertiary Sources

• Treaties

• EU Legislation;• Regulations• Directives• Decisions• Recommendations&opinions.

• Case law from the ECJ• General principles of EU law• International Treaties

PRIMARY SOURCES:• Most significant source of EU law.• All subsequent law must have a legal

basis derived from the Treaties.• ^ (Must fulfil objectives of the treaties.)• Are the legal foundation of all EU law.• As European Law is not static, it goes

through periods of significant transformation which can be seen in the amendments of treaties and creation of new treaties.

Secondary LegislationDirectivesDecisions

RegulationsRecommendations & Opinions

Follow up TreatiesTreat of Maastricht

Single European ActTreaty of Brussels

Treaty of Amsterdam

Founding TreatiesTreaty of RomeTreaty of Paris

Treaty on the Functioning of the EU

TREATY FOR THE FUNCTIONING OF THE EU

• Incorporates the EC treaty into the Treaty establishing the EU.

• EC treaty most important treaty.

PrinciplesPart 1• Sets out the key principles and objectives of the EU.• Derived from the Treaty of Rome.

CitizenshipPart 2• Key focus of EU is citizenship & rights that bestows on

citizens.

PoliciesPart 3• Broken down into 24 titles.• Major areas of substantive law such as CFSP, CAP etc.

REMEMBER.EC Treaty= Treaty of Rome.TEU= Treaty of MaastrichtTFEU= Treaty of Lisbon.

OverseasPart 4• Deals with overseas relationships & agreements.

External ActionPart 5• Concerns external actions of the union.

Institutions & FinancesPart 6• Concerns the common market, framework of the

institutions & their functions.

SECONDARY LEGISLATION

• Governed by Article 288 which gives definitions & scope of all secondary legislation.

• The way in which union principles and objectives outlined in the Treaties are furthered & evolved upon.

• Subordinate to the Treaties• The scope & effect of each

form of legislation is how they differ from one another.

To carry out tasks assigned by treaties.

That acts in strict accordance with the provisions of the treaties. For the fulfilment of the objectives of the treaties.

That acts within the statutory limitations of Article 288.

Institutions may only enact legislation:

REGULATIONS

• Have general applicability; their measures generally apply to all member states.

• Are binding in its entirety so member states have no choice in implementing the regulation.

• Have direct applicability so they automatically become law in each country on the date specified. No need for implementation.

• Direct effect can operate due to the direct applicability creating enforceable rights on individuals.

Eridana Case;“By reasons of their nature & their

function in the system of the sources of community law, regulations have

direct effect and as such are capable of creating individual rights which national courts have to protect.”

DIRECTIVES

• They are binding as to the result to be achieved.

• And implementation is left for the member states to do.

• Not directly applicable, implementation requires member states to incorporate directive into national law.

• An obligation or order given to member states to do something.

• Were not originally considered as giving rights to an individual, but was established that vertical direct effect on directives did exist.

Ratti

•Opportunity to implement directive must be given.

•Vertical direct effect.

Marshall v South

Hampton

Foster v British

Gas

Von Colson

• Indirect effect• Article 10

obligation to interpret lnational Law in line with EU

Marleasing

•Failure to implement a directive

•Article 10= indirect effect

Francovich • State liability.• States fault.

• Emanation of the state

Binding nature of a directive only to state addressed.NO HORIZONTAL DIRECT EFFECT.

All cases described more in

depth in Direct Effect notes.

Article 10 now Article 4(3) of the TFEU.

DECISIONS.• Are binding in its entirety upon those

to whom it is addressed.• In terms of scope & effect a decision

is;• Immediately & completely binding on

party.• Because of this it creates individual

rights & can be directly effective.• Not generally applicable; depends on

who decision is addressed to.• Difficult to define.• Can be legally binding or informal

actions set down by guidelines.• Often used in EU competition law.Grad v Finanzamt.

• Challenge by company relating to Germany breaching a tax directive.

• Directive breached & decision made in relation to time tax directive to be implemented.

• “It would be incompatible with the binding nature of decisions… to exclude the possibility that persons affected may invoke the obligations imposed by a decision the effectiveness of such a measure would be weakened if national courts could not invoke it & disregard it.”

Recommendations & Opinions are rare to be relied upon in EU law. However Article 288 does

include them and the Commission has powers to

formulate recommendations & deliver opinions but these are

not binding. Due to this recommendations are often

seen as ineffective but they are useful for dealing with issues in

an informal manner & they have been seen to have a

persuasive effect in the ECJ.

General Applicability Direct Applicability Direct Effect

Treaty Articles(TFEU,Rome etc)

Are applied generally through-out the EU.So are considered as generally applicable.

Once a treaty is incorporated there is no need for further enactment of articles. Ratification=incorporation.

Dependent on meeting the Van Gend en Loo’s criteria, if it does… Then they are directly effective.

RegulationsAre applied generally through-out the EU so are also generally applicable.

These require no further implementation so are directly applicable.

Also dependent on meeting the Van Gend en Loo’s criteria.

DirectivesUsually tend to be addressed to all member states so they tend to be considered as generally applicable.

Do require state implementation within a deadline, so cannot be considered directly applicable.

Vertical direct effect only, (Defrenne v SABENA, Van Duyn, Marshall v Southampton) so can be directly effective.

DecisionsTend to be addressed to particular individuals or parties so are not generally applicable.

These are an order that must be complied with by the addressee in a state of proceedings so aren’t directly applicable.

May confer rights on individuals affected by them so can be directly effective.

General notes;

TERTIARY SOURCES• The court of justice has played an essential

role in the development of EU law.• Preliminary references, creating direct effect,

establishing supremacy…• Court illuminates & develops the principles of

EU law, in regards of the broad objectives established in the Primary Legislation.

• It also adds detail & context to the principles and provisions of Secondary legislation to provide a more coherent and precise application of it for member states to follow.

• As the ECJ follows continental civil law procedures, binding precedent of judicial decisions does not exist.

• However deference from previous decisions will not be done without good cause.

CILFIT 1982;Rules regarding previous rulings on

interpretation in regards of preliminary reference still applied today.

Example of consistency within the ECJ.

Key Principles of

EU Law.

Proportionality

Subsidarity

Equality

Legal Certainty

Natural Justice

Protection of Human

Rights.

PROPORTIONALITY• Any measure or action taken must be proportionate to the actual end achieved.• Principle incorporated into the EC Treaty via the Maastricht Treaty.• Applies in regards to whether legislation goes beyond what is necessary to achieve the purpose

in the treaty provision behind the legislation.• Harsh provisions that go beyond what is necessary are unfair and can be declared invalid.

(Article 267; validity.)• Principle also applied when courts reviewing acts of the institution; is action to great a burden

for the actual breach of EU law?• Exercised in reviewing member states actions also when they claim derogations from various

freedoms or provisions. Is derogation proportionate?Internationale

Handelsgesselschaft case:

“No burden should be placed upon citizens except to the extent that is necessary to achieve the purpose.”

R (sugar) v Intervention Board case:

A sugar trade did not apply for export license in time.Bank where securities had been lodged acted in accordance with regulation; Loss of £1670 to sugar trader.Total forfeiture was disproportionate to the breach committed.Forfeiture procedure under the regulation declared invalid.

SUBSIDARITY & EQUALITY

• Subsidiarity is a principal deriving from the founding treaties.

• Decisions should be taken as closely as possible to the citizens that are affected by them.

• UK insisted that it should be formally incorporated in the EC treaty by the TEU. >>> ARTICLE 5

• EU should not act beyond its scope.• 2 part test; • It must be determined that the

measure is one which is within the competence of EU law to deal with… OR

• The introduction of the EU measure can only be justified if this services an end which;

Cannot be achieved satisfactorily at national level,

Can be achieved in a more satisfactorily way by the EU

Subsidiarity; Equality;• Equal treatment and non

discrimination is more than just a general principal.

• Is one of the founding principal’s of the EU and is incorporated into all areas.

• Article 18; Prohibits nationality based discrimination.

• Article 157; Demands male/female equal pay for equal work. This was extended to cover all discriminatory forms.

• Article 40; Prohibits discrimination between producers & consumers in relation to CAP.

Defrenne v SABENA… Equal

pay.

LEGAL CERTAINTY, NATURAL JUSTICE, PROTECTION OF HUMAN

RIGHTS.Le

gal C

erta

inty

•The law in its application has to be both certain & predictable.

•Da Costa case.•Officer van Justitie v K

•It was held that the daty of the national courts to interpret EU law in such a manner that is, “Limited by the general principles of law. & is also in particular national courts should observe the principles of legal certainty & non retroactivity.”

Natu

ral J

ustic

e

•Right to a non biased hearing.

•Right to be heard•Right to a reasoned decision

•Common sense… Think Human Rights and Article 6!

•^ right to a fair trial.

Prot

ectio

n of

Hum

an

Righ

ts

•Human rights incorporated into the EC by the Treaty of Lisbon.

•Previously, not a principal of the treaties.

•Internationale H;•“Respect for fundamental human rights form an integral part of general principles of law protected by the court of justice. The protection of such rights, while inspired by the constitutional traditions in member states must be ensured within the framework of the structure & objectives of the EC.”

•Article 11(6) now guarantees Human Rights.