week 2: Constitutional aspects - competences, sources, effects

Constitutional Aspects

1. direct effect
2. primacy
3. values (rule of law, human rights, justice)
4. area of freedom, security, justice
5. respect for fundamental rights and different legal systems and traditions MS

Direct Effect

* van Gend en Loos 1963
* "Art 12 must be interpreted as producing direct effects and creating individual rights…if rules are clear, precise, and unconditional”
* if conditions are met, community law in principle has direct effect

Primacy

* Costa v ENEL 1964
* nature of the community justifies the primacy of community law, even if the domestic law has a constitutional value or is posterior
* established SUPRANATIONAL order

van Gend en Loos

* 1963 case → established Direct Effect of Community Law
* groundbreaking; resolved questions as to the nature of the community legal order
* " Article 12 must be interpreted as having direct effects and creating individual rights which national courts must protect, if rules are clear, precise, and unconditional”

Costa v ENEL

* 1964 case, established primacy of EU community law
* introduces supranational nature of community law
* Nature of the community (supranational, more than international) justifies primacy of community law

Art 2 TEU

* describes values of community “Union is founded on the values of..respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights….pluralism, non-discrimination, tolerance, justice….”

Art 3(2) TEU

* EU objectives in AFSJ = to offer citizens an area of freedom, security, and justice

Art 67(1) & 3 TFEU

* EU shall constitute an AFSJ with: respect for fundamental rights & different legal systems and traditions of MS

Types of competences

* Arts 2-6 TFEU
* Exclusive
* Shared
* Supporting

Exclusive competence

* Art 2 TFEU: EU has full competence to legislate
* "only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.”
* e.g. customs, competition, monetary, conservation MBR

Shared competence

* Art 2 TFEU: “When the Treaties confer on the Union a competence shared with the MS in a specific area, the Union and the MS may legislate and adopt legally binding acts in that area. The MS shall exercise their competence to the extent that the Union has not exercised its competence. The MS shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.” So;
* EU and MS may legislate and adopt legally binding acts, where MS exercise competence to the extent that
* 1) EU has not exercised its competence
* 2) EU has decided to cease exercising its competence
* Art 4(2)(j) TFEU: shared competence in the area of AFSJ/CL

Supporting competence

* “In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.”
* MS exercise competence, as supported by EU
* No harmonization
* e.g. health, culture, tourism, education, civil protection etc

Principles of EU Law

limits/use of competences


1. Conferral (limit)
2. Subsidiarity (use)
3. Proportionality (use)

Art 5(1) TEU: " The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.”

Principle of Conferral

* Art 1 TEU: MS confer competences on EU to attain common objectives
* Art 3(6): pursuit of EU objectives by appropriate means commensurate with the competences conferred upon in the treaties
* Art 5(2): EU only acts within limits of competence conferred (primary EU treaties determine basis for union competence)
* Art 4(1) & 5(2) TEU → competences NOT conferred remain with MS

Principle of Subsidiarity

* Art 5(3) TEU: areas not within exclusive competence
* extra parliamentary check to make sure EU does not surpass boundary of competence (EU may only act within the boundaries of which it has conferred power)
* TFEU Art 69 + Protocol 2
* National parliamentary scrutiny: yellow & orange card procedure

Yellow card procedure

* if 1/4 national parliaments vote against specific legislative act (AFSJ) because may breach principle of subsidiarity → provide report to president Commission within 8 weeks → Commission reviews

Orange card procedure

* if majority national parliaments vote against legislative proposal because of subsidiarity breach
* Parliament and Council may veto

Principle of Proportionality

* Art 5(4) TEU “the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”
* requirement to justify draft legislative acts (Art 5 protocol 2)
* CL cooperation: ultima ratio principle (admin or civil law measures instead?)
* Art 49(3) CFR = penalties cannot be ‘disproportionate’
* Art 83(2) TFEU = approximation must be ‘essential’

EU Competences - History (comparison)

1. Pre-maastricht


1. intergovernmental, no express CL competences, just ‘appropriate measures’ to enforce treaty obligations (more of an ancillary competence/action to enforce single market/freedom) → crim law seen as a means to an end, should not pose an obstacle
2. Commission v Greece 1989 → established “effective, proportionate, and dissuasive penalties”; so no explicit CL competence, but becomes ancillary through integrationist jurisprudence of court (spill-over effect)
2. Maastricht era


1. express CL powers under P3 for CL (Art 31 EU Nice)


1. to facilitate cooperation MS ministries and judiciaries regard proceedings/enforcement
2. no legislative competence criminal procedure
3. MS retain full control via council
3. Amsterdam (pre-Lisbon)


1. EU action in CL split P1 & P3, no competence CrimProcedure
2. dual approach: P1 measures on regulatory issue + P3 CL measure
3. Conflict between supranational Commission + Parliament P1 vs intergovernmental Council P3 (settlement CJEU Env Legislation + Ship source pollution)
4. Lisbon era


1. express competence created in Criminal Procedure
2. Article 82 TFEU: Criminal Procedure Competence (new) + method of cooperation


1. 82(1) = Parliament + Council legislate mutual recognition
2. 82(2) = enacting min. rules via directives
3. Article 83 TFEU: Substantive Criminal Law competence


1. 83(1) min. rules for ‘serious crimes with a cross-border dimension… (ex P3)
2. 83(2) min. rules to approximate MS laws where it is essential to ensure the effective implementation of EU policy in areas previously subject to harmonisation measures (codification of env leg & ship source)
4. Arts 82(3) and 83(3) = emergency break procedure

emergency break procedure

* Art 82(3) and 83(3)
* OLP suspended pending Council decision
* some MS can opt out, those who want to stay can stay
* option for MS to halt integration or advance integration

Environmental Legislation Litigation case 2005

* dispute Commission (P1) vs Council (P3) over what is the right legislation to adopt criminal legislation for environmental protection
* ECJ ruled in favour of Commission (P1), said P3 FD was wrong legal basis (= annulment Council FD)
* para 47-48
* If criminal law is a means to another end, the end being effective achievement of community objectives, then the competence extends to criminal law means

Ship source pollution 2007

* Commission seeking annulment of Council FD (P3)
* clarified what happened in Env Leg case
* obliges states to introduce criminal penalties (that are effective, proportionate, and dissuasive) as it is essential to combat serious environmental offences → to ensure that the rules which it lays down in that field are fully effective
* ancillary competence

Primary Sources (post-Lisbon)

* TEU
* TFEU
* CFR
* Schengen, CISA, Convention on Mutual Assistance in Criminal Matters, MLA EU and USA

Secondary Sources

* Art 288 TFEU
* Regulations (EP + Council)
* Directives (EP + Council)
* Decisions (Council or EuComm)
* FD → in circulation until replaced (from pre-Lisbon)

Directives

* Art 288 TFEU
* most used in CL
* "shall be binding...but shall leave to the national authorities the choice of form and methods”
* MS are addressees, no direct effect on persons
* duty to transpose by deadline
* EP + Council

Direct effect

* if directives clear and precise and unconditional, creates rights for individuals to invoke against MS if MS fails to transpose timely/incorrectly
* (Conditions:
* Sufficiently clear and unambiguous
* Unconditional obligation on MS
* Unconditional right for individual against MS


* does not work other way around (only indv → state)

Indirect effect

* domestic courts should interpret directives harmoniously with EU law, even if not properly transposed

Regulations

"shall have general application...it shall be binding in its entirety and directly applicable to all MS”

* applies to MS, individuals etc → no transposition needed
* used for uniformity (above harmonization), so used in very very very limited circumstances CL
* exceptions: regulations on the establishment for Eurojust and Europol (criminal justice and law enforcement cooperation agencies)
* EP + Council

Decisions

"shall be binding in its entirety..”

* binding on the specific MS it addressed, no direct effect, no implementation required
* standard ECL source


* Council or Commission

Taricco I, 2015

* context: limitation periods in italy → too long limitation periods, would run out so no more prosecution → allegedly led to impunity for complex cases (very strict limitation periods for VAT fraud)
* Primacy of EU Law → duty of domestic courts to disapply national provisions that are not compatible with their obligations under EU law to ensure effectiveness

Taricco II, 2017

* primacy of EU only applies insofar as the principle of legality is adhered to
* applicable law must be precise and may not apply retroactively
* it may not impose stricter conditions of criminal liability than those inn force at the time the infringement was committed

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