4 Sources of EU law A. Introduction

Transcription

1 30 4 Sources of EU law A. Introduction The European Court of Justice (ECJ) in Case 6/64 Costa v ENEL held that: By contrast with ordinary international treaties, the EEC Treaty hast created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.

2 31 Accordingly, the ECJ recognised the EU law system as: unique, autonomous, distinct from international law and from national legal systems of the Member States. The EU legal system has its own sources of law written and unwritten and its own hierarchy of sources.

3 32 The EU legal system is structured and hierarchical: 1. Primary sources 2. General principles of EU law 3. External sources 4. Secondary sources 5. EU acts not expressly mentioned in Article 288 TFEU 6. Case law of the ECJ

4 33 B. Primary sources of EU law The founding Treaties: the EEC and the EA Treaties as amended by subsequent Treaties. After the entry into force of the Treaty of Lisbon: TEU and the TFEU Protocols and Annexes attached to these Treaties which form an integral part of them Acts of accession of new Member States

5 34 Acts adopted by the Council, or the Council and the European Parliament for the adoption of which approval by the Member States in accordance with their respective constitutional requirements is necessary e.g. see Articles 311 and 223(1) TFEU

6 35 The Charter of Fundamental Rights of the European Union (CFREU) Article 6(1) TEU The CFREU brings together in a single document the fundamental rights protected in the EU. The CFREU contains rights and freedoms under six titles: Dignity, Freedoms, Equality, Solidarity, Citizens' Rights, and Justice. The CFREU has become legally binding on the EU with the entry into force of the Treaty of Lisbon (2009).

7 36 The CFREU sets out a series of individual rights and freedoms The CFREU is a very modern codification and includes third generation fundamental rights such as: v v v data protection, guarantees on bioethics and transparent administration.

8 37 Ranking of primary sources in the hierarchy of sources of EU law Primary sources come first in the hierarchy of sources in EU law all other sources are subordinate

9 38 C. General principles of EU law General principles of law are unwritten sources of law developed by the case law of the ECJ General principles are applied to: avoid denial of justice fill what would otherwise be gaps in EU law and strengthen the coherence of EU law

10 39 In the hierarchy of sources general principles are either: part of primary sources or inferior to primary sources Many general principles are expressly mentioned in the Treaties and the CFREU ( primary sources)

11 40 In formulating general principles the ECJ draws inspiration from many sources: Public International Law National laws of the Member States by identifying general principles common to the laws of the Member States EU law by inferring the general principles from the nature of the EU International conventions on the protection of fundamental rights

12 41 For example on general principles see the ECJ Decision Stauder (ECJ 29/69) of The protection guaranteed by fundamental rights is, as regards Community law, assured by various provisions in the Treaty, such as Articles 7 and 40(3); this is written law supplemented in its turn by unwritten Community law, derivedfrom the general principles of law in force in Member States.

13 42 For example on general principles see the ECJ Decision Nold (ECJ 4/73) of (13) As the Court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the Constitutions of those States. Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law. The submissions of the applicant must be examined in the light of these principles. (14) If rights of ownership are protected by the constitutional laws of all the Member States and if similar guarantees are given in respect of their right freely to choose and practice their trade or profession, the rights thereby guaranteed, far from constituting unfettered prerogatives, must be viewed in the light of the social function of the property and activities protected thereunder. For this reason, rights of this nature are protected by law subject always to limitations laid down in accordance with the public interest. Within the Community legal order it likewise seems legitimate that these rights should, if necessary, be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of these rights is left untouched. As regards the guarantees accorded to a particular undertaking, they can in no respect be extended to protect mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity.

14 43 D. External sources External sources derive from international commitments of the EU. The EU has legal personality and as such is empowered to enter into international agreements.

15 44 Article 216(2) TFEU: International agreements are binding upon the institutions of the EU and the Member States. Case 181/73 Haegeman v Belgium: Provisions of international agreements to which the EU is a contracting party form an integral part of the EU legal order.

16 45 Hierarchy of sources: 1. Primary sources 2. General principles of EU law 3. External sources 4. Secondary sources

17 46 E. Secondary sources The ToL rationalised, simplified and provided for the hierarchy of secondary sources. It retained regulations, directives and decisions as legally binding instruments for legislative acts and for non-legislative acts. In this respect Article 288 TFEU states that the EU institutions shall adopt regulations, directives, decisions, recommendations and opinions.

18 47 I. Regulations Article 288(2) TFEU defines regulations in the following terms: A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

19 48 A regulation has general application It is addressed to abstract categories of persons (not to identified persons) The ECJ has indicated that regulations are aimed at general categories of persons but may nevertheless be limited to certain categories of persons. A regulation is still a regulation even when, at the time of the publication of the act, it is possible to determine the number, or even the identity of the persons to whom it applies.

20 49 A regulation is binding in its entirety incomplete or selective implementation is prohibited under EU law It is a legal act binding upon: v the institutions; v the Member States; v the individuals to whom it is addressed.

21 50 Regulations are directly applicable in all Member States This means that: v no measures to incorporate it in national law are required; v it attributes rights and obligations independently of any national implementing measures. v it may be used as a reference by individuals in their relations with other individuals, with Member States or with the European authorities.

22 51 Regulations apply in all the Member States from the day of their entry into force, v e.g. 20 days after their publication in the Official Journal. Their legal effects are simultaneously, automatically and uniformly binding in all the national legislations.

23 52 II. Directives Article 288(3) TFEU defines directives in the following terms: 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.

24 53 Directives are used to harmonise national legislations, regulations and administrative provisions. They respect the autonomy of national institutional and procedural systems while imposing upon Member States the obligation to achieve a necessary result.

25 54 Unlike regulations, directives have no general application unless they are addressed to all Member States Directives are binding only their addressees (a particular Member State, or some Member States) They have general scope of application when they are addressed to all Member States. Case 70/83 Kloppenburg: ECJ classified EC directives addressed to all Member States as acts having general application

26 55 A legal act which must be transposed This is a two-tier legal act which comprises: v v the directive proper, issued by the European institutions; national implementing measures, issued by the Member States. The Member States are free to choose the form and the means for applying the directive.

27 56 Non-implementation of a directive within a prescribed time limit produces the following results: It becomes directly applicable upon the expiry of the time limit (i.e. an individual may rely on it in court); The Commission may bring an action under Article 258 TFEU against the Member State concerned for breach of EU law. An individual may, upon the expiry of the time limit, sue a defaulting Member State for damages, provided certain conditions are satisfied. See e.g. Francovich ECJ C-6/90 of

28 57 III. Decisions Decisions have no general scope of application unless addressed to all Member States. They may be addressed to all or to a particular Member State, or to any legal or natural person or they have no addressees.

29 58 The effect of a decision is specified in Article 288(4) TFEU, which states that: A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.

30 59 The definition covers both decisions which are addressed to specified parties and decisions which have no particular addressees. With regard to a decision specifying its addressee the ECJ in Case 54/65 Châtillon described it as: A measure emanating from the competent authority, intended to produce legal effects and constituting the culmination of procedure within that authority, whereby the latter gives its final ruling in a form from which its nature can be identified.

31 60 Decision specifying to whom it is addressed In this case, its application is strictly individual and it has binding effect only for those to whom it is addressed. A decision may be addressed to Member States or individuals. e.g., the Commission uses decisions to take action against undertakings which have engaged in concerted practices or abused a dominant position.

32 61 Decision not specifying to whom it is addressed Since the entry into force of the Treaty of Lisbon, the decision no longer necessarily specifies to whom it is addressed. The decision has therefore acquired a broader definition and, in particular, has become the basic instrument in the field of the Common Foreign and Security Policy.

33 62 The Council and the European Council may therefore adopt decisions relating to: the interests and strategic objectives of the Union; the action to be taken by the Union at international level; the positions to be adopted by the Union on international issues; the implementing procedures relating to actions and positions of the Union.

34 63 IV. Recommendations and opinions Recommendations and opinions have no binding force (Article 288(5) TFEU) Recommendations are adopted by the Council or, in the specific cases provided for in the Treaties, by the Commission or the European Central Bank. (Article 292 TFEU)

35 64 F. EU acts not expressly mentioned in Article 288 TFEU There are sources of EU law, not mentioned in Article 288 TFEU, which are strictly speaking not secondary sources but some of which, nevertheless, may produce binding legal effects. In this category two kinds can be distinguished: Acts which are mentioned in the Treaties Acts which are not mentioned in the Treaties

36 65 Acts which are mentioned in the Treaties Those which despite their name, are of different legal nature from those listed in Article 288 TFEU (e.g. directives adopted by the Council on the basis of Article 218(2) TFEU, which are addressed to the Commission) Inter-institutional agreements (Article 295 TFEU) Internal rules of procedure which regulate the composition, functioning and procedures of each EU institution.

37 66 Acts which are not mentioned in the Treaties Resolutions, deliberations, conclusions, communications and common declarations of two or more EU institutions adopted by various EU institutions. In principle they are part of soft law (not legally binding), but the ECJ will determine on a case-by-case basis whether they are intended to produce binding legal effects.

38 67 G. Case law of the ECJ Judgments of the ECJ are not regarded as a formal source of EU law. ECJ established constitutional principles and important concepts of EU law in its judgments, which have subsequently become sources of EU law.