Notes on the Legislative and Institutional Framework of the European Union

Introduction to the European Union (EU) as a Common Legal Order

  • The EU is described as a 'common legal order' rather than a State.

  • Its identity is defined by common values outlined in Article 2 of the Treaty on European Union (TEU), including:
      - Respect for human dignity
      - Freedom
      - Democracy
      - Equality
      - Rule of law
      - Human rights (including rights of minorities)
      - Values of pluralism, non-discrimination, tolerance, justice, solidarity, and equal rights for women and men

  • The EU institutions must pursue these values while exercising their powers.

Structure and Governance of the EU

  • The EU exercises powers through institutions modeled on federal States' governance structures.

  • Decision-making balances the Union's freedom of action with the powers retained by Member States.

  • EU institutions operate with functional autonomy and extensive decision-making competences:
      - These competences are often exercised independently from Member States.
      - Subject to various procedural and substantive constraints.
      - Generally amenable to judicial review by the Court of Justice of the European Union (CJEU).

  • This chapter explores:
      - Legislative adoption procedures
      - Types of legal acts
      - Delegation and exercise of powers
      - Constitutional principles of conferral, subsidiarity, and proportionality.

Historical Evolution of EU Law

  • The evolution of this area of law is more significant than many material law fields.

  • Major Treaty revisions have reformed EU decision-making procedures (e.g., Lisbon Treaty).

  • CJEU’s interpretations of Treaty provisions often influence future Treaty amendments.

  • Lisbon Treaty reformed rules restricting Union action while granting new powers.

Protection of Member States' Powers

  • The political safeguard of federalism is evidenced by Member States' ministers composing part of the legislature and executing powers within the Union institutions.

  • The Treaty lacks extensive regulations concerning inter-institutional relations; most detail is allocated to decision-making processes and the Union's budget.

  • The CJEU has developed the concept of 'institutional balance', ensuring that institutions act within conferred powers.

Institutional Balance

  • Each institution must respect the powers of other institutions.

  • The CJEU also regulates respect for the institutional balance even without specific jurisdiction clauses.

  • The duty of 'mutual sincere cooperation' develops through CJEU cases and is explicit in the TEU:
      - Illustrates cooperation, even in legislative processes (e.g., Macro-financial Assistance case).

Forms of Legislative and Normative Acts

  • Types of normative acts adopted include:
      - Regulations: General application; binding in entirety; directly applicable in Member States. Example: Regulation 261/2004 on air passenger rights.
      - Directives: Binding on results; Member States must transpose them into national law. Reflects the principle of subsidiarity.
      - Decisions: Binding to those it addresses; includes rule-making decisions.
      - International Agreements: Legally binding; requires Council decision for incorporation into EU law.
      - Recommendations/Opinions: Non-binding, yet subjected to certain conditions requiring consideration by national courts.

2.1 Regulations

  • Regulations have general application, directly applicable within Member States.

  • Member States cannot modify these regulations, maintaining their Union character.

2.2 Directives

  • Directives require Member States to achieve specific national legislation to meet EU objectives.

  • Often dictate detail due to mistrust among Member States about compliance.

  • CJEU allows for direct reliance on unimplemented directive provisions by individuals.

2.3 Decisions

  • A binding act on addressed entities. Often used for flexible policy or organizational matters.

2.4 International Agreements

  • Signed by the Union, binding legislatively when incorporated via Council decision.

2.5 Interinstitutional Agreements

  • Facilitate smooth application of institutional provisions; can be binding if intended.

2.6 Recommendations and Opinions

  • Designed to persuade or guide but not impose legal obligations; some exceptions do provide limited legal effects.

Hierarchy of Norms in EU Law

  • EU legal order has a distinct hierarchy:
      - Treaties are at the top with equal legal standing to the Charter of Fundamental Rights.
      - No hierarchical distinction exists among secondary laws unless establishing or amending binding acts occurs.

Competences and General Principles

4.1 Competence Defined

  • The term 'competence' encompasses both legal authority and personal ability.

  • The EU recognizes three types of competences:
      - Exclusive: Only EU can legislate in these areas.
      - Shared: Both EU and Member States can legislate unless EU competition supersedes.
      - Ancillary: EU supports or complements Member States’ actions without replacing their laws.

4.2 Principle of Conferral

  • Member States confer competences to the EU for shared objectives, explicitly preserved under the principle of conferral (Article 1 TEU).

  • Competences not conferred remain with Member States (Article 4(1) TEU).

4.3 Grants of Legislative Power

  • Legislative powers are conferred based on specific articles within Treaties.

  • Legislative acts must derive from a defined legal basis to ensure compliance with EU law principles.

4.4 Classification of Competences

  • Exclusive Competences: Detailed in Article 3 TFEU; must be exercised exclusively by the EU.

  • Shared Competences: Residual category; Member States can legislate when the EU has not acted.

  • Ancillary Competences: Limitations apply; no substantial harmonization powers assigned.

Subsidiarity Principle

  • A constitutional principle demanding that decisions are made at the lowest possible level of government.

  • Establishes standards for evaluating Union action.

5.1 The Subsidiarity Test

  • Outlined in Article 5(3) TEU; requires justification for Union action justifying Member State capabilities.

Proportionality Principle

  • Not legally enforceable unlike subsidiarity but plays a significant role in evaluating legislative action.

  • Ensures that any Union action does not exceed what is strictly necessary to achieve objectives (Article 5(4) TEU).