Understanding the Foundations of EU Law

EU law notes for LLB law course The CJ consists of one judge from each MS. Each judge ‘shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial office in their respective countries’ (Article 19(2)). Judges who are wholly independent and do not represent the interests of their MS. The CJ is also assisted by 11 Advocates-General who act as advisors to the court, providing non-binding opinions on certain matters, they are appointed by common accord for a period of 6 years, Article 252 TFEU states; ‘it shall be the duty of the Advocate-General, acting with complete impartiality an independence, to make in open court, reasoned submissions… which require his involvement’. The European Central Bank; and The ECB acts as the central bank of the euro and is responsible for administering monetary policy throughout the Eurozone. One of the ECB’s main aims is to ensure price stability within the Eurozone ((i.e. to safeguard the value of the Euro). The Court of Auditors. This oversees and audits the EU’s financing, ensuring expenditure complies with the EU’s budget. The court is composed of a member of each MS, each of whom serves for a term of 6 years. EU constitutional law Sources of EU law Primary sources Supreme source of law in EU Treaties Accession treaties included. TFEU, TEU (Costa v ENEL 6/64) – “because an integral point of the legal systems of the member states”. Secondary sources Secondary sources Regulations 288 TFEU Decisions 288 TFEU Directives 288 TFEU Tertiary sources Supplementary sources which primary and secondary sources lack. Case law Guidelines/notices Principles Recommendations/ Opinions International treaties Article 218 TFEU International agreements are secondary sources too. Principles of EU law Natural justice Protection of procedural rights Proportionality Equality Subsidiarity Legal certainty Sources of law for the European Union. 1. Treaties – these are agreed by MS’s at meetings of the European Council. They are subject to ratification by the legislature of each MS, and in some cases many be subject to a public vote (also known as a referendum) if required under the national law of a particular MS. In the UK, new treaties and treaty changes must be approved by both Houses id Parliament, and, it major change are made by a treaty (e.g. extending the objectives or competences of the EU), the European Union Act 2011 also requires there to be a referendum. (the European Union (Withdrawal) Act 2018 repealed this legislation with effect from Exit Day for the UK). a. KEY TREATIES i. THE TREATY ON THE EUROPEAN UNION (TEU) – sets out the general aims and structure of the EU ii. THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (TFEU) – details the substantive law of the EU. The treaties were agreed by the heads of state/government of each MS and ratified in accordance with each MS’s own constitutional requirements. Together the Treaties set out the rules and procedures of the EU institutions and act as the basis for its legal system. Article 288 TFEU provides for secondary legislation (regulations, directives and decision) to be sources of law. Article 288 also provides that recommendations and opinions have no binding force. 2. Regulations – everyone has to abide by these, these are a form of secondary legislation passed by the European Parliament and the Council. Regulations 3. 4. 5. 6. 7. have general application throughout the EU, are binding in their entirety and are directly applicable to all MS’s (Article 288 TFEU). Regulations are used to impose ‘one size fits all’ laws throughout the EU. Directives- these are also secondary legislation passed by the EP and the Council. These are binding, as to the result to be achieved, upon each MS to which they are addressed, however, the precise form and methods of implementation is left to the discretion of each MS. Directives require that legislature of each MS to enact them in order for them to become law. They are used where social, cultural, political and/or administrative differences between MS;s mean that a ‘one size fits all’ law would be appropriate. Decisions- these are generally made by agreement between the EP and the Council, in some situations, the Council can delegate the power to make decisions to the Commission. Decisions apply to those persons (these can be individuals or MS’s) to whom they are addressed and are binding in their entirety upon those persons (Article 288 TFEU). They do not require the legislature of MS’s to enact them in order for them to have legal effect. Decisions are used as a fast ways for laws to be made where there is no express Treaty provision in place. Recommendations and opinions – EU institutions have the power to issue recommendations to MS’s. requesting them to act in a particular way. EU institutions can also issue opinions on specific situations or developments. Both recommendations and opinions have NO binding legal force, they are persuasive only (Article 288 TFEU). However, they do have political weight and are frequently followed, they allow EU institutions to make their views known without imposing legal obligations on the recipients. Recommendations are also taken into account by the courts when interpreting national law which has been enacted to implement EU Directives. (Grimaldi v Fonds). Guidelines/Notices- the Commission can also issue notices/guidelines (Notices relating to Competition Law such as NAOMI). Like recommendations, guidelines and notices have no binding legal force. However, they are generally followed in practice. Case Law- the Court of Justice (CJ) is the ultimate authority on the application and interpretation of the EU law. The CJ’s decisions are published as a body of case law. The national course of individual MS’s are obliged to follow decisions of the CJ under the Principle of Supremacy of EU Law (Costa v Enel). The CJ prefers to interpret EU law in accordance with its general spirit and aims, the CJ is not required to stick to rigid literal interpretations and instead typically takes a purposive approach. It has created a further course of law known as the General Principles, these are principles that the CJ thinks underline all EU law, even though they may not have been expressly provided for in a Treaty- this is like ‘closing loopholes’ in EU Law.