Eu law

Added Defendant Mechanism

• Allows both the EU and its member states to participate in cases before the ECHR if EU law is questioned.
• The CJEU views this as risky because it could blur the division of powers between the EU and its member states.

Prior Involvement of the CJEU

• The EU wants its Court of Justice to be involved in cases where EU law might be questioned before the ECHR makes a decision.
• This would prevent the ECHR from interpreting EU law without the CJEU's input.

Judicial Review in Foreign Policy (CFSP)

• The EU Court has limited power to review foreign policy decisions (CFSP matters).
• The EU is concerned that the ECHR could end up reviewing areas where the EU Court has no jurisdiction.
• This would give too much power to an external body over the EU’s legal system.

EU's Fundamental Rights Protection

• Even without joining the ECHR, the EU has its own system to protect fundamental rights, as outlined in its Charter of Fundamental Rights.
• EU member states must respect these rights, and the CJEU ensures that EU law is compatible with them.
• The ECHR has been an important influence on EU law, especially in cases involving fundamental rights.

Membership and Rule of Law in the EU

• Accession (Joining the EU):
  • Any country that respects democracy, human rights, and the rule of law can apply to join the EU, provided it meets the criteria set out in the EU treaties.
• Rule of Law Mechanism:
  • The EU can take action against member states that breach these values, potentially leading to sanctions.
  • This is particularly relevant for countries like Hungary and Poland, where concerns have been raised about the independence of the judiciary and other democratic backsliding.
• The EU wants to join the ECHR, but it must do so in a way that protects its legal system, respects the unique relationship between its member states, and maintains the authority of its own Court of Justice.

Lecture 12: The Sources of European Union Law

Primary European Law

• Founding Treaties (currently TEU and TFEU)
• Charter of Fundamental Rights
• General principles of law

Intermediate Sources

• Rules of general international law and agreements concluded with third states

European Secondary Legislation

• Acts adopted by the institutions (basic acts)
  • Binding acts
  • Non-binding acts
  • Typical acts
  • Atipic acts
• The commission’s implementing and implementing acts

Intermediate Sources

• International Agreements with Third States:
  • International agreements concluded by MS
  • International agreements concluded by the EC/Union
  • International agreements concluded by the EC/Union and the MS (so-called mixed agreements)

Foreword

• The Union is an autonomous subject of international law with respect to the MS: under Article 47 TFEU it ‘shall have legal personality'.
  • As a subject of international law, it must respect the rules of general international law
  • Conduct by institutions in violation of a rule of general international law constitutes an international tort

Interpretation of the Court of Justice

• They are part of the Union's legal system: 'the competences of the Community (now the Union) must be exercised in compliance with international law' (Court of Justice, 3 September 2008, Joined Cases 402/05 and 415/05);
• They perform a hermeneutic function, being used for the interpretation of Union rules, including those contained in the Treaties (Court of Justice, 4 December 1974, C-41/74)
• They constitute a parameter for the legitimacy of acts of the Union (Court of Justice, 16 June 1998, C-162/96)

International Agreements Concluded by MS

• International agreements concluded by MS are not part of the Union's legal order!
• They can only take on value to the extent that such an agreement, under certain conditions, can be invoked by the MS as a justification for failure to fulfil Treaty obligations. But when?
  • For agreements concluded before the date on which the ECT entered into force with respect to the Member State in question.
  • The rationale follows from the principle of general international law that a treaty concluded by two states cannot be amended or abrogated by the subsequent conclusion of another treaty between two states, only one of which is also a party to the first.
  • RESULT: the state that has concluded both the first and the second remains obliged to respect them both
  • Art. 351 TFEU compatibility clause
    • The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties.
    • To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established.
    • Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude.

EU Treaties and Shared Benefits

• The EU works because all Member States benefit from shared agreements. These benefits come from:
  1. The EU’s shared institutions (like the European Parliament and the Commission).
  2. Member States giving up some of their power to these institutions.
• Every Member State agrees to treat others equally, sharing the advantages created by EU treaties fairly.

Application to Agreements with Third Countries: Consequences of Treaty Revisions

• Sometimes, an agreement between an EU Member State and a third country (a non-EU country) was made before the EU gained the authority (competence) over the subject of the agreement due to a treaty revision.
• In such cases:
  • The agreement can still be valid, even if the EU didn’t have authority at the time.
  • If the EU already had authority but hadn’t acted on it, the agreement may still be valid (as long as it’s not in an area of exclusive competence).

When It’s an Area of Exclusive EU Competence

• If the agreement falls under an area where the EU has exclusive competence, the Member State must get approval from the European Commission to maintain the agreement.

Limits and Fundamental Obligations

1. Avoiding Treaty Evasion:
   • A Member State can only rely on a pre-existing agreement with a third country to the extent absolutely necessary to fulfill its obligations under that agreement.
   • A state cannot use an agreement to justify actions that are not strictly required by it.
2. Respect for Fundamental Rights:
   • All agreements and actions must respect EU fundamental rights, which take priority.

Key Takeaway

• Member States must balance their obligations to the EU and their agreements with third countries.
• Agreements made before the EU had authority may still be valid but must align with EU rules, especially in areas of exclusive competence or fundamental rights.

PARTICULAR PHENOMENON: AGREEMENTS CONCLUDED WITH THIRD STATES, PRIOR TO THE DATE INDICATED IN ARTICLE 351 TFEU, BY ALL MEMBER STATES. What's Going On?

• Succession of these rights and obligations for the MS: the Union is not only obliged to allow the contracting MS to continue to abide by the agreement, but is itself obliged to abide by the agreement in the exercise of its competences.
• ES: GATT (General Agreement on Tariffs and Trade) 3/10/1947 con ogg. Subjects falling under the common commercial policy referred to in Article 207 TFEU

FOR THE CHARTER OF THE UNITED NATIONS?

• Judgment of the Court of First Instance, 21 September 2005, Case T- 306/01, Yusuf:
  • "the Community must be considered to be bound by the obligations under the Charter of the United Nations in the same way as its Member States, by virtue the Treaty establishing it" … "in so far as under the EC Treaty the Community has assumed powers previously exercised by MS in the area governed by the Charter of the United Nations, the provisions of the Charter have the effect of binding the Community".
• The only limitation in the CFSP area: For the Court, there is an obligation to implement Security Council resolutions and to take due account of their terms and objectives, only when there is a decision in the CFSP area.

Agreements with Non-EU Countries

1. Agreements with non-EU countries made before a certain date (mentioned in Article 351 of the TFEU) by all EU countries:
   • What’s happening? If an EU country made an agreement before this date, the EU has to let that country continue to follow the agreement. The EU itself is also required to respect the agreement when using its own powers.
   • Example: The General Agreement on Tariffs and Trade (GATT) from 1947 covers trade matters that now fall under the EU's common commercial policy (Article 207 TFEU).
2. For the United Nations Charter:
   • A court ruling (Yusuf case, 2005) stated that the EU must follow the obligations of the UN Charter just like its Member States do, because the EU has taken over some responsibilities from its members in areas covered by the Charter.
   • Limit: In the area of foreign and security policy (CFSP), the EU must implement UN Security Council resolutions, but only when there is a decision in this specific policy area.

International Agreements Concluded by the EC/Union

• They form part of the Union's legal order from the date of their entry: Art. 216(2) TFEU 'agreements concluded by the Union are binding upon the institutions of the Union and on its Member States'.
• This conclusion presupposes the inherent nature of the agreement in the areas of (external) competence of the Union, as a precondition for the relevance of the agreement itself as a source of Union law (principle of attribution).

External Competence of the EU

• The EU is an independent actor in international law, meaning it can enter into agreements with other countries or organizations. However, this power is limited by the principle of attribution, meaning the EU can only act where its treaties explicitly allow it to.

When the EU Can Make Agreements (Article 216 TFEU)

The EU may conclude agreements if:

1. Treaties Explicitly Allow It: For example, in areas like trade, environmental protection, or research.
2. It’s Necessary to Achieve Treaty Objectives: If the agreement helps fulfill EU goals outlined in its treaties.
   • Parallel and Prior Competence: The EU had the authority before making the agreement.
3. A Binding EU Legal Act Requires It: If EU law mandates an agreement.
   • Parallel and Subsequent Competence: The EU gains authority due to prior internal action.
4. The Agreement Could Impact EU Rules: If it could change the scope or application of EU regulations.

Types of External Competence

Exclusive Competence

The EU alone can act in these areas, and Member States cannot make agreements independently. This happens when:

1. The area falls under the EU’s original exclusive competence (like trade).
2. Agreements are tied to EU legislative acts.
3. Agreements are necessary for the EU to exercise its internal powers.
4. Agreements might affect EU rules or their scope (exclusive derivative competence).

Shared Competence

In other areas, competence is shared between the EU and Member States. Examples include agreements on social policy or environmental issues.

• These are often called mixed agreements, where both the EU and Member States participate.

Mixed Agreements

Mixed agreements are used when:

1. Member States refuse to give the EU full control over certain issues.
2. Competence is shared between the EU and Member States.

Challenges with Mixed Agreements:

• Parts of the agreement related to Member States’ competence are not part of EU law.
• However, the Court of Justice of the EU (CJEU) can still interpret the entire agreement if needed.
• For example, in a 2000 case (Joined Cases C-300/98 and C-392/98), the Court ruled that it could clarify provisions of a mixed agreement, even if some parts fell under national competence.

Key Takeaways

• The EU’s external powers are limited by its treaties.
• In exclusive competence areas, only the EU can act.
• In shared competence areas, Member States and the EU may act together through mixed agreements.
• The CJEU plays a crucial role in ensuring clarity and consistency, even in complex mixed agreements.
• What is the legal value of international agreements? Where do they stand?

EXCEPTIONS TO THE CHARACTER OF LEGITIMACY

• There are exceptions: WORLD TRADE ORGANISATION WTO INSTITUTIONAL AGREEMENT AND UN CONVENTION ON THE LAW OF THE SEA, due to their sensitive nature
• EXCEPT:
  1. The contested act was adopted precisely to implement the obligations arising from those agreements
  2. When the contested act expressly refers to specific provisions of such agreements.

SOURCES OF EUROPEAN SECONDARY LEGISLATION

• REGULATIONS
• DIRECTIVES
• DECISIONS
• ACTS IN THE CFSP
• Art. 288 TFEU: In order to exercise the Union's competences, the institutions shall adopt:
  • REGULATIONS
  • DIRECTIVES
  • DECISIONS
  • RECOMMENDATIONS
  • OPINIONS

REGULATIONS

• Art. 288 TFEU: A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
• General scope
  • The regulation is not addressed to identifiable recipients but to abstract categories of persons, which differs from the decision.
  • That is, it indicates to us that the regulation is normative in nature.
  • Indeterminate and indistinct number of individuals
• MANDATORY in all its element: THE REGULATION MUST BE APPLIED IN FULL
  • The Regulation is binding in its entirety and cannot therefore be applied incompletely, selectively or partially.
  • It is a legally binding act for:
    • institutions
    • the Member States
    • individuals
• Direct applicability: no internal act of transposition required
  • The regulation is not subject to measures of transposition into national law: the adaptation of domestic law to the regulation occurs automatically and immediately.
  • Any national act of transposition would not only be superfluous, but also incompatible with Article 288 TFEU
  • It confers rights and duties independently of a national implementing measure. It can be invoked by individuals in their relations with other individuals, institutions or community authorities (so-called direct effect or direct effectiveness).

Direct Applicability of EU Regulations and Supplementary National Measures

1. When Member States (MS) Can Add Measures:
   • If Required by the Regulation: Sometimes, regulations specifically ask Member States to take additional steps (e.g., setting penalties for breaking rules).
   • If Implied by the Regulation: Even if not explicitly stated, Member States may add measures to achieve the regulation’s goals under the principle of loyal cooperation (Article 4(3) TEU).
2. When Regulations Take Effect:
   • On the date specified in the regulation itself, or
   • On the 20th day after publication (if no date is given).

Directives (Article 288 TFEU)

1. How Directives Work:
   • Directives tell Member States what results must be achieved, but they allow each country to decide how to achieve those results using their own laws and methods.
   • Directives are like a two-stage process:
     1. The EU sets objectives and general principles.
     2. Member States create their own laws to meet those objectives.
2. Who Directives Are For:
   • Directives can apply to one or more Member States but are usually addressed to all Member States. They aim to harmonize national laws across the EU.

Obligation to Implement a Directive

1. Full Implementation Is Mandatory:
   • Member States must fully implement the directive, unless their laws already meet its goals.
   • Implementation must happen within the deadline set by the directive.
   • Member States can act early but must avoid adopting measures that conflict with the directive during the transition period (standstill obligation).
2. Consequences of Non-Implementation:
   • Failing to implement a directive on time means the Member State breaches its obligations.
   • This can lead to infringement proceedings under Articles 258, 259, and 260 TFEU.
3. Reporting to the EU:
   • Member States must inform the EU about how they’ve implemented the directive, ensuring loyal cooperation (Article 4(3) TEU).
4. Limits on Member States’ Choices:
   • Member States can choose how to implement a directive, but their methods must be suitable for achieving its goals.
   • Administrative practices (e.g., internal guidelines without legal backing) are not sufficient to fulfill this obligation.

Direct Effect of Directives

1. No Automatic Direct Applicability:
   • Unlike regulations, directives are not directly applicable because they require Member States to adapt their national laws first.
2. Direct Effect of Directives:
   • A directive can have direct effect (create rights for individuals) if:
     • The deadline for implementation has passed.
     • The directive is clear, precise, and unconditional.
     • Direct effect applies in cases between individuals and the State (vertical effect) but not between private individuals.

Directives as Tools for Harmonization

1. Purpose:
   • Directives help align national laws across the EU to create consistency (harmonization).
   • Example: Article 53 TFEU uses directives to ensure mutual recognition of professional qualifications, supporting free movement of workers.
2. Shift Toward Detailed Directives:
   • In areas like technical regulations, the EU has moved from minimum harmonization to more detailed directives with precise rules for Member States to follow.

Key Takeaway

Directives give Member States flexibility in how they achieve EU goals but require full implementation within a set timeframe. If Member States fail to act, directives can still provide rights to individuals through direct effect in specific situations.

DECISIONS

• Art. 288 TFEU: A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
• Individual decisions: the addressees are identified in the act.
• General decisions: without identified addressees
• INDIVIDUAL DECISION: imposes on its addressees (MS or persons) a certain behaviour, which may have positive or negative content
  • It can be addressed to natural or legal persons. ≠ from the directive which is addressed
  • MS as addressees: an obligation to do something, usually of a specific nature, leaving implementation to the individual MS, which therefore has a narrower margin of discretion than in the case of a directive. Or an obligation not to do something, where the MS is required to refrain from carrying out the prohibited activity.
• Mandatory
  • The decision is binding in its entirety and cannot therefore be applied incompletely, selectively or partially. It is a legal act binding on its addressees (NO general scope).
  • To take effect, the decision must be notified to the person concerned. In principle, the procedure consists of sending a registered letter AR. The decision may also be published in the Official Journal, but publication does not exempt the decision from the notification requirement, which is the only way to make it binding on the addressee.
  • SECTOR: e.g. in the area of competion rules (Art. 105 and 108 TFEU).

Enforcement of EU Decisions

Decisions Imposing Payment Obligations:

• If an EU decision requires an individual (person or company) to make a payment, it becomes enforceable like a legal judgment.
• To enforce it, a national authority (designated in each Member State, like Italy’s Ministry of Foreign Affairs) must verify the document’s authenticity and add an enforcement stamp.
• After this, the national courts oversee the enforcement process, but only the Court of Justice of the EU (CJEU) can decide to suspend enforcement.

General EU Decisions:

Some decisions don’t have specific addressees but create general obligations, like:

1. Revising treaties.
2. Determining the Presidency of the Council in specific cases.
3. Addressing risks of Member States violating EU values (Article 2 TEU).

Key Features of Binding EU Acts:

1. Justification: Every act must explain its legal and factual reasoning (the “why” behind it).
2. Legal Basis: Acts must reference specific EU treaty rules to show:
   • The Union’s competence.
   • The institution’s authority.
   • The procedure used.
3. No Retroactivity: Acts generally can’t apply to the past, unless it’s explicitly justified and doesn’t harm people’s legitimate expectations.

Non-Binding Acts:

These acts encourage certain actions but don’t have legal force:

1. Opinions: EU institutions express their views on an issue.
2. Recommendations: EU institutions suggest actions to Member States.

Exceptions:

• Non-binding acts can still have some effects:
  • Opinions may influence whether an act is valid.
  • Recommendations can guide national courts in interpreting domestic laws linked to EU rules.

Other Types of Acts:

1. Communications, Guidelines, and Resolutions:
   • These explain how the EU interprets and applies its laws, providing clarity but not creating binding rules.
2. Foreign and Security Policy (CFSP):
   • The EU uses general guidelines (non-binding but politically important) and Council decisions (which can be binding for Member States) to manage its foreign and security actions.

Key Takeaways:

• Some EU decisions are enforceable like legal judgments but require validation by national authorities.
• Binding acts must include clear legal justifications and follow treaty rules.
• Non-binding acts like opinions and recommendations can still influence legal interpretations or guide national policies.
• EU foreign and security policies use a mix of binding and non-binding tools to ensure cooperation among Member States.

Lecture 13: Role of the EU Institutions in the Decision-Making Process on the Common Foreign and Security Policy

1. Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.

• When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention
  in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.

1. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:
   • when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union's strategic interests and objectives, as referred to in Article 22(1),
   • when adopting a decision defining a Union action or position, on a proposal which the High Representative of the Union for Foreign Affairs and Security Policy has presented following a specific request from the European Council, made on its own initiative or that of the High Representative,
   • when adopting any decision implementing a decision defining a Union action or position,
   • when appointing a special representative in accordance with Article 33.

• If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken.
• The High Representative will, in close consultation with the Member State involved, search for a solution acceptable to it.
• If he does not succeed, the Council may, acting by a qualified majority, request that the matter be referred to the European Council for a decision by unanimity.

1. The European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in cases other than those referred to in paragraph 2.
2. Paragraphs 2 and 3 shall not apply to decisions having military or defence implications.
3. For procedural questions, the Council shall act by a majority of its members.

Ukraine: Major Facts and Numbers

• the largest country in Europe
• approx. $43.5$ mln people
• five nuclear plants
• gave up the third largest nuclear weapons arsenal in the world

Sanctions as Instrument of the CFSP major political developments in EU-Russia relations from 2014 to 2022 (before the full-scale Russian invasion of Ukraine):

1. Dominance of the Transactional Approach
   • What it means: The EU and Russia focused on specific, short-term exchanges of mutual benefit (e.g., energy trade, business deals), rather than building a deeper, values-based relationship.
   • Why it mattered: This approach lacked trust and a shared vision, reducing the chances of resolving long-term issues like human rights, security, or regional conflicts.
   • Key Example: Despite tensions, Russia remained one of the EU's largest suppliers of natural gas and oil, while the EU was one of Russia's primary export markets.
2. Bilateralism of Relations Between Russia and Particular EU Member States
   • What it means: Individual EU Member States often pursued their own diplomatic or economic agendas with Russia, rather than presenting a unified EU position.
   • Why it mattered: This fragmented approach weakened the EU's ability to negotiate effectively as a bloc and made it easier for Russia to exploit divisions between Member States.
   • Key Examples:
     • Germany maintained strong energy ties with Russia, exemplified by the controversial Nord Stream 2 pipeline.
     • Hungary took a softer stance on Russia compared to other EU countries, prioritizing its economic and political ties with Moscow.
3. Politicisation of the Enlargement Issue
   • What it means: Russia viewed the EU's potential enlargement (particularly in Eastern Europe and the Western Balkans) as a geopolitical threat, interpreting it as the EU expanding its influence into areas Russia considers part of its sphere of interest.
   • Why it mattered: This increased tensions between the EU and Russia, especially regarding Ukraine, Moldova, and Georgia—countries that sought closer ties with the EU but were historically aligned with Russia.
   • Key Examples:
     • The EU’s support for Ukraine following the 2014 Euromaidan protests and Russia's annexation of Crimea escalated conflicts.
     • Russia viewed EU enlargement efforts as a direct challenge to its authority in the region, fueling its anti-EU rhetoric.
4. Structural Impasse of EU-Russia Relations
   • What it means: The relationship reached a stalemate due to fundamental differences in values and approaches to governance, democracy, and human rights.
   • Why it mattered: These deep-rooted disagreements made cooperation on major issues nearly impossible, with both sides increasingly viewing each other as adversaries rather than partners.
   • Key Drivers:
     • The EU’s focus on human rights and democracy clashed with Russia’s authoritarian tendencies under President Vladimir Putin.
     • Russia's actions in Ukraine (annexing Crimea and supporting separatists in Donbas) led to EU sanctions and a significant deterioration in relations.

Conclusion

From 2014 to 2022, EU-Russia relations were characterised by fragmented cooperation, competing priorities, and escalating tensions. The EU's inability to present a unified approach and Russia’s assertive foreign policy created a hostile and unsustainable dynamic, setting the stage for the full-scale invasion of Ukraine in 2022.

Shift of EU Sanction Policy Against Russia and Its Foreign Policy Implications

Four main narratives promoted by the EU institutional leadership:

1. EU as an independent actor in geopolitical relations;
2. EU as a transformational power on the international arena;
3. EU as a promotor of European values among member and non‐member states;
4. ‚special responsibility’ of the EU toward Ukraine in light of Russia’s military aggression

Italy’s Role in the European Union

1. Fulfilling EU Obligations
   Italy actively works to meet its commitments under EU law, guided by the principle of loyal cooperation (Article 4(3) TEU). This principle requires:

• Mutual respect and assistance between the EU and Member States.
• Member States to take all necessary measures to implement treaty obligations and support EU goals.
• A prohibition on actions that could jeopardize the EU’s objectives.

1. Adaptation of Primary Law (EU Treaties)
   How EU Treaties Are Incorporated in Italy

• Ratification Process: Treaties are treated as international agreements under Article 80 of
  tlItalian Constitution. The Italian Parliament authorizes ratification through a specific law, and the President of the Republic formally ratifies the treaty (Article 87(8) Const.).
• Example: The Lisbon Treaty was incorporated into Italian law via Law No. 130/2008, which annexed the treaty as part of Italy’s legal system without requiring further legislative changes.

Challenges and Constitutional Basis

• Legal Difficulties: Some argued that Italy needed a specific constitutional clause to manage EU obligations, similar to France or Germany’s “European clauses.”
• Article 11 of the Constitution: This provides the legal foundation for Italy’s participation in the EU, as it allows for limitations of sovereignty to promote peace, justice, and international cooperation.
  • The Constitutional Court (Costa v. ENEL, 1964) confirmed that Article 11 justifies Italy’s commitment to the EU legal order.
• Counter-Limits Doctrine (Controlimiti): Sovereignty limitations are acceptable only if they align with EU treaty goals and do not undermine Italy’s fundamental constitutional principles or inalienable rights.

1. Amendments to the Constitution for EU Participation
   Title V Amendments (2001)

• For the first time, Italy’s Constitution explicitly referenced its EU obligations, stating that legislative power must comply with the Constitution and the obligations deriving from the EU system and international law.

1. Adaptation to Secondary EU Law (Directives and Decisions)
   Directives

• Italy adapts directives into national law through ordinary legislation.

• Standout Features:

  • Direct Applicability: EU regulations are directly applicable and don’t require national implementation measures (except for administrative execution).
  • Italy avoids conflicting measures during the transposition period (standstill obligation).
    Mechanisms for Adaptation

• Early efforts to manage EU obligations included annual “Community laws” to implement EU directives, starting with the La Pergola Law (1989).

• Later reforms, like Law 234/2012, streamlined adaptation by eliminating annual mechanisms and aligning procedures with the Lisbon Treaty’s demands.

1. Law 234/2012 UPSTREAM PHASE
   Purpose and Evolution
   Law 234 modernized how Italy engages with the EU, addressing the challenges posed by financial crises and expanding EU competences. It established principles for implementing EU obligations, including:

• Attribution: The EU acts only within powers conferred by treaties.

• Subsidiarity: Decisions are made at the most effective level (EU or national).

• Proportionality: EU actions must not exceed what’s necessary to achieve objectives.

• Loyal Cooperation: Ensuring effective collaboration between Italy and the EU.
  Upstream Engagement

• Law 234 emphasizes the Italian Parliament’s role in shaping EU policies and decisions, ensuring democratic participation in the legislative process.

1. Institutional Framework
   CIAE (Interministerial Committee for European Affairs)

• This body, operating under the Presidency of the Council, coordinates Italy’s policies in preparing and implementing EU acts.
• Responsibilities:
  • Define Italy’s stance on EU proposals.
  • Ensure timely implementation of EU obligations, incorporating parliamentary input.

1. Historical Legal Milestones
   Key Legislative Steps

2. Fabbri Law (1987): Addressed Italy’s participation in the EU.

3. La Pergola Law (1989): Introduced annual legislative mechanisms for adapting EU directives.

4. Buttiglione Law (2005): Modernised adaptation processes.

5. Law 234/2012: Abolished annual mechanisms, aligning Italian procedures with Lisbon Treaty principles.
   DOWNSTREAM PHASE
   Two distinct instruments play a role in this phase:

6. European Delegation Act

7. European Law

8. European Delegation Law: Implementation of Directives (and Pre-Lisbon Decisions)

• This law contains legislative delegations to the government and authorisations for implementation via regulations.
• The government may also be authorised to act in matters within its exclusive competence, even if they have already been regulated by law, provided no legal reservation exists (delegation).
• Draft Submission: The draft must be submitted to Parliament by 28 February of each year to avoid the risk of infringement.
• Adoption Timeline: Legislative decrees must be adopted within 4 months of the expiry of the directive (formerly 2 months) to comply with EU obligations.

Conclusion

Italy’s participation in the EU reflects a dynamic interplay between its constitutional framework and EU obligations. While grounded in principles like loyal cooperation and subsidiarity, Italy’s evolving legislative mechanisms (e.g., Law 234/2012) ensure that it actively engages in and adapts to EU governance. By balancing national sovereignty with EU integration, Italy upholds both its constitutional values and its role within the Union.

Special features

Prohibition of "Gold Plating"

• Gold plating refers to a situation where a country adds extra rules when implementing EU directives. The rule here is that when Italy implements EU directives, it cannot add more rules or regulations than what the EU directive requires
  Why? To avoid creating extra burdens for businesses, organisations, or individuals beyond what the EU already asks for.

Equal Treatment for Citizens

• There is a prohibition on reverse discrimination, meaning that Italy cannot treat its own citizens better or differently than citizens of other EU member states. Italian law must treat all EU citizens equally.
  European Law and Italy’s Obligations

Italian law must make necessary changes to comply with EU laws and international treaties. Here are the main categories of such changes:

1. Amending or