Source of EU law
Article 289(3) TFEU defines legislative acts in a somewhat tautological manner as acts adopted "by legislative procedure". Article 289 further explains that a legislative act is Either an act adopted jointly by the European Parliament and the Council under the ordinary legislative procedure defined in Article 294 Or an act adopted by the Council with participation of the European Parliament or vice-versa where the Treaty provides for such a special legislative procedure. Article 290 and 291 TFEU provide two examples of non-legislative acts: Article 290 concerns the adoption of acts by the Commission under powers delegated to it by the legislator (i.e. Parliament and Council acting under a legislative procedure). Article 291 concerns the adoption of implementing legislation in lieu of the Member States in situations where uniformity is deemed necessary and therefore implementation by Member States regarded as not desirable.
How do the treaties differentiate between legislative and non-legislative acts?
proportionality, protection of legitimate expectations, non-retroactivity, rule of law, etc. These are of utmost importance as criteria for the legality of EU acts, particularly in EU administrative law.
What are some examples of general principles of law recognized by the Court?
the default legislative procedure applying in the overwhelming majority of cases since the Lisbon Treaty is the "ordinary" legislative procedure defined in Article 294 TFEU. The Treaty also provides for "special" legislative procedures
What are the two legislative procedures?
The Treaties (and the EUCFR which has the same binding force as Treaties) stand at the top of the hierarchy of norms. This means that any secondary legislation adopted by the institutions has to comply with the Treaties and the EUCFR and is liable to being annulled if it fails to do so. This is also true of international agreements, in the sense that, where an international agreement entered into by the Union is incompatible with the Treaty, the decision of the Council through which that agreement was concluded could be annulled, thereby depriving the agreement of any effect within the Union legal order. This could be diplomatically awkward vis-à-vis third party states with which the Union concluded the agreement. Therefore, in order to minimise the likelihood of this happening, the Treaty allows in Article 218(11) TFEU any Member State as well as European Parliament, Council or Commission to seek an Opinion of the Court of Justice on the compatibility with Union Law of a proposed agreement before that agreement is formally concluded: Article 218(11) TFEU indicates the Opinion of the Court is binding and the agreement cannot be concluded as long as the incompatibility with the Treaties is removed, either by changing the agreement or the Treaties themselves. The Court has been particularly insistent in protecting the autonomy of the Union legal order when considering proposed international agreements, notably with respect to provisions which would have the effect of preventing the Court of Justice of fulfilling its role of ensuring the uniform interpretation of Union law. The recent Draft agreement on accession of the European Union to the ECHR was, in the eyes of the CJEU in Opinion 2/13 (ECLI:EU:C:2014:2454), incompatible with the Treaties precisely for that reason, thereby preventing the Union from becoming a party to the ECHR until a new agreement can be negotiated which would be compatible with the Treaties.
What is at the topic of the hierarchy of norms?
when a situation is entirely outside the field of application of Union law, there can be no issue of the general principles of EC law binding the Member States. In Kremzow, an Austrian national had been convicted by an Austrian court of murder and imprisoned. The European Court of Human Rights had later found that the trial had breached the individual's right to a fair trial under Article 6 ECHR. Kremzow had then sued the Austrian state for damages for unlawful detention and a reference was made to the CJEU in that context. The Court noted that the situation was not connected with any of the situations envisaged by EU law and that the original offences for which Kremzow was convicted were not designed to secure compliance with EU law rules. As such, the situation was entirely outside the field of application of Union law and there could be no question of the general principles of EU law applying to the case.
What is the forth of the four situations where general principles of law bind member states?
Once concluded, the agreement is in principle binding on the Union institutions, the Member States and, where relevant, natural and legal persons in the Member States. As we will see later, however, certain conditions must be fulfilled before an international agreement can be enforced through judicial processes within the EU, the most significant of which is that the agreement must be meant to be enforceable through such processes. In particular, when an agreement provides alternative modes of enforcement relying more on diplomatic or other processes involving a significant element of discretion for the parties to the agreement, the Court is likely to find that the agreement might not be amenable to enforcement before courts in the EU.
Are international agreements binding?
While general principles of law are meant to bind Union institutions and Member States when the latter act within the scope of Union law, they are not primarily targeted at individuals. The Court has nonetheless seemingly decided in a couple of remarkable cases that they could in certain circumstances bind individuals.
Do general principles bind individuals?
Article 5 TEU- The use of Union competences is governed by the principles of subsidiarity and proportionality.
Even those areas where the Union does enjoy competence, there are additional principles governing the exercise of these principles. What are these principles are where are they found?
It formalises the possibility of convening a Convention prior to an IGC to consider Treaty amendments (see Art 48(3) TEU). Indeed, the wording of Art 48 TEU suggests that the normal treaty amendment process should include such a Convention, unless the European Council, with the consent of the European Parliament, considers that the amendments are not significant enough to warrant the convening of a Convention; It introduces a simplified procedure allowing the European Council to amend the treaties without the need for the convening of a Convention or IGC for certain types of amendments: (i) revisions to part 3 of the TFEU (concerned with the internal EU policies) which do not entail increases in competences of the Union (see Art 48(6) TEU) and subject to ratification by Member States according to their constitutional requirements; (ii) change from unanimity to qualified majority voting in the Council or change from a special legislative procedure to the ordinary legislative procedure (Art 48(7) TEU), subject to consent from the European Parliament and non-opposition of national Parliaments
Following Lisbon, which two major innovations to the Treaty revision process did article 48 TEU introduce?
Stauder v City of Ulm: "the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of [EU] law and protected by the Court." The Court suggests that fundamental rights are indeed protected by the Court in the context of the EU legal order as general principles of law
From 1969 onwards that the CJEU starts to engage with the issue of protecting fundamental rights, starting with what case?
negotiations with third countries on the conclusion of an agreement are conducted by the Commission on the basis of a mandate from the Council. Once an agreement is reached, the agreement is formally concluded by a Council decision. In the majority of cases, the Council needs the consent of the European Parliament, although there are still a few areas where Parliament is merely consulted. The procedure and the cases in which the consent of Parliament is required are specified in Article 218 TFEU.
How are international agreements made?
Prior to the Lisbon Treaty, the Treaties only contemplated one procedure for Treaty amendments: consisting chiefly of the adoption of an amending Treaty text by an Intergovernmental Conference ("IGC") followed by ratification of the amending Treaty by each Member State in conformity with their own constitutional requirements. In order to endow the Treaty amendment process with more legitimacy and a less executive-centred process, a Convention process, involving representatives of national parliaments as well as the European Parliament had been involved in the drafting of the Charter of Fundamental Rights and, later, in the process of adoption of Draft Constitutional Treaty.
How did Treaties used to be amended and why did it change?
The original EEC Treaty did not contain any express provisions concerning the protection of fundamental rights. The dominant perspective on human rights among the Member States at the time was primarily focused on civil and political rights (as reflected in the ECHR) and it was felt, perhaps somewhat naively, that an 'economic' Treaty like the EEC would not give rise to significant fundamental rights issues and that therefore the EEC Treaty need not provide for these. Fundamental rights in the early case law of the Court are characterised by their invisibility. In a number of early cases, applicants did raise arguments concerning potential infringements of their fundamental human rights by EU institutions (Cases 1/58 Stork ECLI:EU:C:1959:4, 36-38&40/59 Geitling ECLI:EU:C:1960:36, 40/64 Sgarlata ECLI:EU:C:1965:36) but these arguments were not really addressed by the Court of Justice.
How did fundamental rights used to be protected?
In areas of exclusive internal competence, the Union will also enjoy exclusive external competence: in those areas, only the Union can enter into an agreement with a third country. In areas where competence is shared between the Union and Member States, both the Union and the Member States can, in principle, enter into an agreement with a third country (although a Member State would lose the power to do so in relation to issues where the Union has exercised its power to legislate internally). It is not uncommon in areas of shared competence for an agreement to be concluded both by the Union and the Member States. Such agreements are known as "mixed agreements".
How does the external competence of the Union broadly mirror its internal competence?
The Court has repeatedly held that international agreements bind the institutions. It would seem to follow from this that secondary legislation adopted by the institutions should be regarded as invalid if it conflicts with such an international agreement. However, the Court has repeatedly held that, while it is indeed the case that international agreements to which the Union is a party are binding on the Union and its institutions and that, therefore, such an agreement should in principle take priority over measures adopted by those institutions, this is only so to the extent that "the broad logic" of the agreement does not preclude a review of the validity of Union legislation in the light of the agreement. The Court has thus concluded in International Fruit Company Commission v Portugal that the GATT and WTO Treaties were too flexible and lend themselves too much to negotiated settlements between states to allow for judicial enforcement by the CJEU and it therefore refused to review the validity of Union legislation in the light of those agreements. That finding has also been applied to other kinds of treaties where the Court has considered that the scheme of the treaty was inconsistent with a judicial enforcement to strike down legislation
How important are international agreements in the hierarchy?
General principles of law are binding on the institutions. Institutions must therefore comply with general principles of law when adopting secondary legislation and if that is not the case, that secondary legislation could be struck down as invalid. Conversely, general principles of law could not be invoked to set aside the application of Treaty provisions since the latter are superior to the former in the hierarchy of norms. In case of conflict, therefore, the Treaty provisions would take priority. The question of the relationship between general principles of law and international agreements is less straightforward. Both are binding on EU institutions. That said, for an international treaty to be binding on the institutions, it has to be adopted by the Union. And adoption by the Union pre-supposes that the agreement has been concluded by the institutions, at which point any incompatibility with general principles of law could be invoked to oppose the conclusion. This would tend to suggest that general principles of law are located higher in the hierarchy of norms than international agreements.
How important are the general principles of law in the hierarchy?
he Treaty contains some very wide empowering clauses, in particular the so-called "flexibility clause" contained in Article 352 TFEU, which can be used in situations where action is deemed necessary and the Treaty has not provided the power to do so as long as the proposed measure remains within the realm of the objectives of the Treaties and the policies defined therein. That said, use of Article 352 TFEU requires unanimity in the Council and the consent of the European Parliament. It is therefore only for measures that reflect a broad consensus among the Member States and the Union institutions on the usefulness of EU action that Article 352 TFEU will be used.
How is there flexibility around the principle of conferral?
The use of the concept of general principles of law to protect fundamental rights has lost much of its salience after the EU Charter of Fundamental Rights was made binding by the Treaty of Lisbon. Nowadays, the Charter, which reproduces pretty much the whole contents of the ECHR and more, is the primary point of reference of the Court regarding fundamental rights protection. General principles of law could still play a role, albeit a subsidary one in relation to rights which are not recognised in the Charter.
Is the concept of general principles of law to protect fundamental rights still important?
From the perspective of enforcement against the Member States or individuals, the distinction between legislative and non-legislative (or "regulatory") acts is of relatively little import, since both categories are equally binding on them. This distinction, however, is of more significance when reviewing the legality of acts of the Union institutions as the conditions for challenging non-legislative acts are slightly less onerous than for legislative acts.
Is the distinction between legislative and non-legislative acts important?
The fact that the principle of subsidiarity is enshrined in Article 5 TEU means that it is a legal norm, in principle enforceable by the Court of Justice. In practice, the Court of Justice has been reluctant to substitute its own appreciation of what subsidiarity requires to that of Union institutions. Rather than rely on judicial enforcement, the Lisbon Treaty reinforced the political mechanisms for considering whether the Union should refrain from acting on subsidiarity ground, notably by involving national parliaments in the process. The changes, however, fall short of giving national parliaments a power to block the adoption of measures that they consider incompatible with subsidiarity.
Is the principle of subsidiarity binding?
In a limited number of areas (listed in Article 3 TFEU), the Union enjoys exclusive competence. These are areas where the Member States have transferred to the Union the exclusive power to adopt legislation. Member States can only act in these areas if they are empowered and/or required to act by the Union. Most of the competences of the Union are shared with the Member States. In areas of shared competence, both the Member States and the Union can adopt binding acts. However, they are not on an equal footing: where the Union has legislated, the Member States cannot adopt measures which would be incompatible or inconsistent with that legislation. Areas of shared competence are listed in Article 4 TFEU. In a number of areas (listed in Article 6 TFEU), the Union only enjoys complementary competence to "support, coordinate or supplement the actions of the Member States." While the Union does enjoy the power to adopt binding acts in those areas, those acts will not consist of harmonisation to national laws. The idea, therefore, is that the Union will not interfere with the legislation adopted by Member States or more widely the power of Member Sates to regulate in these areas. For instance, the powers of the Union in the field of education enable it to legislate to establish schemes to promote student mobility such as the Socrates-Erasmus scheme. It could not, however, adopt measures requiring the harmonisation of school curricula. Finally, the Union enjoys what could be called a co-ordinating competence in the field of economic policy and employment policy (and to a lesser extent broader social policy). The idea here is that the power to legislate in this field remains with the Member States. However, how those powers are exercised gives rise to co-ordination at Union level. Typically, that power is exercised through guidelines which do not change in themselves the law applicable in the Member States but constrain to some extent how the Member States can design their policies in those fields. Article 5 TFEU is concerned with that category of competence Those categories are not water-tight and will overlap to some extent. It is the role of the Court of Justice to police the boundaries between those areas and ensure that the Union and its institutions do not act beyond the powers granted to them under the Treaties.
The powers enjoyed by Union institutions are not the same in all areas. What four main types of competences does Articles 2 to 6 TFEU distinguish?
In addition to these written sources of law, the Court of Justice has developed the concept of general principles of law as an unwritten source of law, which the Court "finds" in the EU legal order and/or the common legal tradition of the Member States. General principles of law are 'judge-made law' in the same sense that the common law is 'judge-made law.' It will therefore be the case law of the Court of Justice that we will have to turn to in order to identify what those general principles of law are. the idea of a general principle of law is that of a fundamental value embodied in the legal system. Thus, while it may not be expressed in a single piece of legislation per se, it forms part of the frame of understanding, and a view of the world represented by the legal order as a whole. The role of the judge, in that context, is that of unearthing and expressing what these implicit principles are.
What are general principles of law?
made the European Union Charter of Fundamental Rights (EUCFR) a binding instrument. The Charter has the same legal value as the TEU and TFEU. Those three instruments (TEU, TFEU and EUCFR) therefore constitute the basis on which the EU legal order rests.
What else did the Lisbon Treaty do?
the Court went further and held that not only would it look at the constitutions of the Member States but also to international treaties related to the protection of human rights to which the member States were parties: "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 [EU] law." This development allowed the CJEU to 'borrow' from the European Convention of Human Rights all the rights that it contained and apply them in the EU legal order as general principles of law even though the EU is not a party to the ECHR and therefore not bound by it.
What happened in Nold?
the starting point is a proposal from the Commission and up to two readings by both the Council and European Parliament who can both propose amendments to the proposal. If, Council and Parliament reach an agreement on the same text in that phase, that text is adopted and becomes legislation. If they cannot agree, a conciliation committee made up of representatives of both the Council and Parliament (in equal numbers) is convened and tasked with drafting a text likely to be acceptable to both. The Commission also takes part in the work of the conciliation committee, acting as a broker to attempt to reconcile the positions of the Council and Parliament. The committee has six weeks to reach agreement on a text. If no such agreement is reached, the procedure ends with the proposal being deemed rejected. If agreement is reached within 6 weeks, the text is then submitted to both the Council and Parliament for a third reading and must be adopted by both to become legislation.
What is the Ordinary legislative procedure?
The two main special legislative procedures are the consultation and consent procedures. Under the consultation procedure, the Council has to "take into account" the opinion of Parliament but is not bound by it. This used to be the procedure in the original EEC Treaty but it is now confined to a very limited areas, chiefly competition law (see Arts. 103 & 109 TFEU) and (indirect) tax harmonisation (Art 113 TFEU). Under the consent procedure, the Parliament has no power of amendment but gives it the power to veto the adoption of an act approved by the Council. This is used mainly in the context of accession of new states to the Union (Art. 49 TEU) or, conversely, regarding the approval of arrangements for the withdrawal of a Member State under Article 50 TEU. Other than that, the two main circumstances where use the consent procedure will be required is in relation to measures to combat discrimination under Article 19(1) TFEU or in relation to the use of the 'flexibility clause' (Art 352 TFEU) mentioned above.
What is the Special legislative procedures?
The Treaty on European Union (TEU) (which is a very substantially revised version of the previous Treaty on European Union designed to provide a common constitutional framework for the EU); The Treaty on the Functioning of the European Union (TFEU) (which replaced the EC Treaty and contains more detailed provisions on, inter alia, EU policies);
What is the current Treaty framework for the European Union as it results from the Lisbon Treaty?
When a specific provision of EU law is itself an application of a general principle of law, the duty of the Member State to comply with the general principle of law is, in general, uncontroversial and flows from the specific EU law provision itself. Johnston v RUC- concerned the interpretation of Directive 76/207 on equal treatment between men and women as regards access to employment vocational training and promotion, and working conditions. Article 6 of the Directive established a right to a judicial remedy for persons wronged by a failure to apply to them the principle of equal treatment. The Court found that such right to a judicial remedy reflected a general principle of law underlying the constitutional traditions common to the Member States and also found in Articles 6 and 13 of the ECHR. The Court found that certain rules of evidence contained in British legislation had the effect of depriving individuals of their right to a remedy and were, to that extent, incompatible with Art 6 of the Directive interpreted in the light of the general principle of law relating to the right to a judicial remedy.
What is the first of the four situations where general principles of law bind member states?
for any act that Union institutions propose to adopt, there must be a provision in the Treaties (or in secondary legislation adopted under the Treaties) that provides those institutions with the power to adopt that act. This is known as the legal basis of the act and will normally be mentioned at the beginning of the preamble of the act in question. The legal basis will also determine under what procedure the institutions can act (for instance, whether the Council should act unanimously or by QMV).
What is the legal basis of an act?
Article 5 TEU- The European Union is not a state. It does not have inherent jurisdiction to legislate on anything. Union institutions can adopt legislation only to the extent that they have been granted the power to do so in the Treaties. This notion is normally referred to as the "principle of conferral" and is explicitly mentioned in the TEU.
What is the principle of conferral and where is it found?
Under the principle of proportionality, action by the Union should be limited to what is strictly necessary to achieve the objective sought. Conceptually, proportionality is quite distinct from subsidiarity: subsidiarity is concerned with the level (Union or national) at which to act whereas proportionality is concerned with the intensity of the proposed action. In practice, both are linked and not always easy to disentangle. That said, the Court of Justice has been more willing to entertain challenges to the legality of Union action based on the principle of proportionality and it is not unusual to see acts of the institutions annulled on that ground whereas not a single challenge based on subsidiarity has been successful.
What is the principle of proportionality?
The principle of subsidiarity is concerned with deciding at which level (whether EU or national) a power should be exercised. Its domain is therefore that of shared competence, since it is only in those areas that both levels enjoy the power to regulate. The idea behind subsidiarity is that action at Union level should only be considered if there is value added in Union action over national action.
What is the principle of subsidiarity?
In order to determine whether a general principle of law exists, the Court turns to the 'common legal tradition' of the Member States. Thus, determining whether a principle should be recognised as a general principle of law in the EU legal order involves engaging in a comparative analysis of the national legal systems to identify common points of reference in terms of legal norms. That comparative law work can be seen in a case lie Hoechst, where the Court denies the existence of a principle of inviolability of commercial premises
What is the process by which general principles of law are normally identified?
Where a Member State acts in implementation of EU law, the situation falls within the scope of EU law and the Member State is bound by general principles of law, including those principles relating to fundamental rights. This was made clear by the Court in Wachauf: "fundamental rights form an integral part of the general principles of the law,"
What is the second of the four situations where general principles of law bind member states?
more controversially, the Court has found that a Member State acts within the field of application of EU law, and is therefore bound by general principles of law, when it seeks to derogate from an EU law requirement. This would be the case, for instance, when a Member State seeks to rely on Article 36 EC or on a mandatory requirement to justify an obstacle to the free movement of goods. In case C-368/95 Familiapress [1997] ECR I-3689, the Court referred to Art 10 of the ECHR on freedom of expression to determine the extent to which the Austrian legislator could prohibit the publication in Austria of magazines containing prize game competitions. the applicability of general principles of law in this context can cut both ways. It can, as in the example of the Familiapress above, put limitations on the capacity of the Member State to invoke a derogation when doing so would lead the Member State to disregard a general principle of law. However, there can be situations when general principles of law can assist in justifying the measure adopted by the Member State. In Case C-112/00, Schmidberger [2003] ECR I-5659, for instance, the Court was asked whether a decision of a Member State not to ban a demonstration resulting in the closure of a major trunk road for 30 hours constituted a restriction on the free movement of goods prohibited by the Treaty. While the Court found that there was indeed a restriction on the free movement of goods, it nevertheless considered that the decision of the authorities was motivated by the desire to observe the rights to freedom of expression and freedom of assembly of the protesters guaranteed in Article 10 and 11 of the ECHR and protected in the EU legal order as general principles of law had to be taken into account in determining whether or not the restriction was justified.
What is the third of the four situations where general principles of law bind member states?
Article 288 TFEU identifies three main types of acts endowed with binding force: regulations, directives and decisions. It also mentiones two types of acts which do not have binding effect: recommendations and opinions
What secondary legislation is there in EU law? and where is this found in the treaties?
The Treaties are supplemented by a number of protocols annexed to them, such as the Protocol on the application of the principles of subsidiarity and proportionality referred to below. These protocols have the same status and equal binding force as the Treaties themselves.
What supplements the Treaties?
Decisions are primarily designed to be individual acts addressed to a specific person (although some decisions are abstract and not addressed to anybody as such). Regulations and directives, on the other hand, are normally designed to regulate general situations in abstract terms rather than the particular situation of a particular natural or legal person. They do so, however in different ways: a regulation is meant to regulate a situation in an immediate manner and be binding erga omnes. Directives are designed to be an indirect form of regulating situations: rather than imposing obligations immediately on individuals, they are meant to do so indirectly via measures adopted by Member States to implement the directive: the directive determines an objective but Member States are expected to adopt the measures necessary to give effect to that objective. This gives rise to difficulties in enforcement. While directives by their very nature require implementation whereas this is not the case with regulations, it does not follow that regulations never give rise to implementing measures by member States. In fact, it is far from unusual for regulations to require the adoption of practical measures by Member States to give effect to them. The difference remains that regulations do not in principle depend on implementing measures to produce their legal effects on individuals whereas directives do.
Whats the difference between regulations, directives and decisions?
The Treaties enable the Union not only to adopt legislation internally but also to conclude agreements with third countries or international organisations. Article 47 TEU confirms that the Union has legal personality and therefore has the capacity in principle to conclude international agreements. As for internal legislation, the external competence is not unlimited and is also based on the principle of conferral.
Where does the power to make international agreements come from?
Internationale Handelsgesellschaft
Which case confirmed that fundamental rights were indeed in the EU legal order as general principles of law and that the Court would turn to the constitutional traditions common to the Member States to determine what rights were so protected?
Kadi- a Council Regulation giving effect to a UN Security Council resolution. While the Court considered that it was not within its remit to review the validity of a UN Security Council resolution (which is a matter for international law), the fact that a Union act is taken to give effect to such a resolution cannot shield that act from review by the Court of Justice of its compatibility with general principles of law. It seems to follow from this that, where an international agreement has been concluded, the operation of that agreement cannot give rise within the Union to a violation of general principle of law by the institutions and also that the decision to conclude the agreement could also be challenged for non compliance with general principles of law.
Which cases confirm that general principles of law are higher than international agreements?
General principles of law are binding on the institutions. Indeed, the primary function of general principles of law is to control the legality of measures adopted by EU institutions. However, the Court has found that general principles of law can, in certain circumstances, bind the Member States too. Four situations can be distinguished in this respect.
Who are general principles of law binding on?
General principles of law have historically played an important role in the development of a system of protection of fundamental rights in the European Union.
Why are general principles of law important?
"EU] law, which derives from not only the economic but also the legal interpenetration of the Member States, must take into account the principles and concepts common to the laws of those states" it is not a pre-condition to the finding of a general principle of law that it must be recognized in the legal system of each and every Member State. Conversely, it would be difficult to speak of a principle belonging to the 'common legal tradition' of the Member States if it is recognized in just one Member State. The Court, however, does not have an entirely free hand: without at least some commonality across several national legal systems, it is hard to see how the presence of a general principle could be defended.
Why was AM & S significant?
