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EU LAW

EU LAW. FORMS OF LAW. Forms of Law –Sources of Law. Formal sources EU Law. Formal sources of International Law. Treaties -Founding , Amending and Accession Treaties (protocols & declarations) Acts of Institutions

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EU LAW

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  1. EU LAW FORMS OF LAW

  2. Forms of Law –Sources of Law Formal sources EU Law Formal sources of International Law • Treaties-Founding, Amending and Accession Treaties (protocols & declarations) • Acts of Institutions • 3. International agreements with non member states and other Int. Organizations • 4. International law • 4. Decisions of the ECJ • 5. General Principles of Law and General Principles of Community Law • Treaties • International Custom • General Principles of law • Judicial Decisions • Learned Writers or Doctrine

  3. Primary Sources of EU LawPrimary Law (Birincil Hukuk) • TREATIES (Constitutive) • A) Founding Treaties • B) Amending Treaties • C) Treaties of Accession • D) Protocols attached to Treaties • E) Declarations attached to Treaties

  4. Primary Sources of EC Law • Founding Treaties • 1951 Paris Treaty---European Coal and Steel Community (ECSC)-expired in 2002 • 1957 Rome Treaty—European Atomic Energy Community-Euratom • 1957 Rome Treaty-European Economic Community-EEC-European Community-EC • 1993 Maastricht Treaty (Treaty on European Union)-EU Treaty

  5. Pillar Structure before Lisbon Treaty

  6. Structure with Lisbon after December 2009 • Lisbon Treaty signed in 2007 & entered into force in Dec. 2009 • Amended two fundamental treaties: • Treaty on European Union (TEU) • Treaty Establishing the European CommunityNew Name”Treaty on the Functioning of the EU” (TFEU) • Pillar structure will diasappear and EU will have new institutional framework

  7. New institutional framework • No Pillar structure in five years time • The jurisdiction of the ECJ before 2009did not cover area of freedom, security and justice now it does. • Police and judicial cooperation in criminal matters ECJ can give preliminary ruling. Before subject to declaration by MSafter 5 years • Visa, asylum, immigration and other policies on free movement of personsany national court will be able to request Preliminary rulingentered into force from December 2009

  8. Primary Sources of EC Law • Amending Treaties: • They are not independent instruments • They amend or modify the Founding Treaties regarding functions, decision-making, organs, representations etc. • 1967 Merger Treaty-Single Council and Commission for the EC • 1987 Single European Act • 1999 Treaty of Amsterdam • 2003 Treaty of Nice • 2009 Treaty of Lisbon

  9. Primary Sources of EC Law • Treaties of Accession: (concluded for a- territorial scope of the Founding Treaties and b-Composition of Community Institutions) • 1973 Treaty of Accession: Denmark + Ireland and United Kingdom • 1981 Treaty of Accession: Greece • 1985 Treaty of Accession: Portugal + Spain • 1995 Treaty of Accession: Austria + Finland + Sweden • 2004 Treaty of Accession: Ten new members (Cyprus + Czech Rep + Estonia + Hungary + Latvia + Lithuania + Malta + Poland + Slovakia + Slovenia) • 2007 Treaty of Accession: Bulgaria + Romania

  10. Primary Sources of EC Law • Protocols attached to Treaties: • They are integral parts of Treaties • They are used to provide: • Interpretation for certain articles (provisions) of Treaties • Regulation of more technical matters • They have treaty status and equal binding force • Exp: Protocol 10&3 attached to 2004 ToA • Exp: Protocol 30: Poland and UK Charter of Fundamental Rights

  11. Primary Sources of EC Law • Declarations attached to Treaties: • They are used for the clarification of meaning of treaty provisions & application of such articles • Unlike protocols, they don’t enjoy treaty statusthey are not binding • But sometimes exceptionally the ECJ used them for interpretation----and they may cause binding consequences

  12. Primary Sources-Treaties General Characteristics of Primary Law • They are signed by all member states, approved by Council and Parliament and approved by member states according to their respective constitutional procedures. • They cannot be amended by the institutions even through “unanimous decision” (Exp: Ireland and Cyprus issues) • Recent problems---Czech Republic and then Slovakia (Beneş Decrees) • Acts of institutions cannot be contrary to the primary sources. Secondary law should be consistent with Primary law.

  13. Primary Sources • They are superior law of the EU • Their validity cannot be challenged before ECJ----like constitutional provisions (exceptional views in literature) • They are directly effective and applicable in all member states • They can impose obligations and grant rights to individuals as well as states • Whenever there is a conflict between Treaties and national law, Treaties should prevail. • They are constitutional documents of the EU.

  14. 2. Secondary Sources of EC LawSecondary Law • Acts of Institutions---They are the products of the legislative work of Community institutions • Institutions’ authority derive from the Treaties----This is why they are called as “derivative law” / “secondary law” • All binding acts of institutions---should state the reason on which they are based and “treaty base must be cited”. • They come after the Primary sources in the hierarchy---so they are called as “secondary”

  15. But binding secondary law---come before the national law • Legal basis: Article 249 EC: “In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions”

  16. Secondary sources of EU Law • Secondary sources differ in each of the three pillars: • First Pillar (supranational): • A- Binding legal acts: • Regulations • Directives • Decisions • Other acts • B- Non-binding legal acts: • Recommendations • Opinions

  17. Secondary sources of EU Law • A) Regulations • Art. 288TFEU: “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.” • Directly applicable in all member states--- They are self-executing • maintains uniformity • There is no need of “transposition” in domestic legal system--moreover prohibited by the ECJ • The EU imposes not only the aims but also the method of putting the measure into effect required for the achievement of that aim.

  18. Secondary sources of law • Regulations impose obligations and grant rights for subjects of national legal systems • It is the obligation of national courts to take such rights and obligations into consideration in taking their decisions. • Conditions for validity: (otherwise annulled by the ECJ) • a) Based on the authority of the Treaty • b) It has to be reasoned

  19. Secondary sources of EU law • B) Directives • Art. 288TFEU: “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods” • Addressed to one or more MS---not the individuals • They are binding and compulsory with respect to their aims • Set out the aims and leaves the choice of form and method of implementation to MS • Not directly applicable----no self-executing character transposition is required.

  20. Secondary sources of EU Law • Directives: • MS’s are free to choose national legal instrument: a law from the legislative body or decision from Council of Ministers • But this is not a discretionary power to put the directive into effect---directive should be put into force until the deadline set by the EU • A wider area of discretion is given to the member state regarding the method of implementation • An individual can rely on a directive which has been transformed into a domestic norm against the member state.

  21. Secondary sources of EU Law • Aims to harmonize laws of the MS • Decisions: • Art. 288TFEU: “A decision shall be binding in its entirety upon those to whom it is addressed” • They are not general, but specific • They are binding only upon persons they are addressed---this can be one or more MS & real or legal persons. • Exp: If there are some companies violating EC treaty in the field of competition---the Commission can punish such companies through a “decision to fine”.

  22. Secondary sources of EC Law • Other Acts Producing Binding Legal Effects: • Art. 288TFEU is not exhaustive of legally binding acts • ECJ declared “All measures taken by institutions that are designed to produce legal effects can be reviewed, whatever their nature and form” • Exp: Commission letter (not formally labeled as directive + regulation + etc) has led to a change in the legal status of a company (force them to be subject to competition law)---and was challenged before the ECJ as a binding act of community law.

  23. Non-binding Secondary Law • Recommendations and Opinions: • Not legally binding • Not directly applicable • But---national courts are required to take recommendations into account when interpreting national law based on community law • Exceptionally there are binding “opinions”: • Exp-1: When EC concludes an agreement with a third-state----ECJ controls its consistency with the Founding Treaties---if its opinion is negative----that agreement can only enter into force after its “revision/amendment”. • Exp-2: Application to become member of the Union----requires “assent of the European Parliament”. This is a kind of positive opinion... • Sometimes the opinion is not binding but from a procedural point of view if it has not been taken---the act can be annulled.

  24. Another source: International agreements with non-MS & int org • In Treaties---there are provisions which empower the Commission and the Council to conclude int. treaties which are binding on both the EU and the MSs.----so these are sources • Community acting alone: Exp: trade agreements with individual countries and GATT & WTO • Mixed agreements: By Community acting with the member states (on issues of Community and MS competence). Exp: Association Agreements (Turkey, Macedonia, Croatia) & bilateral agreements with Switzerland and Mediterranean countries & Cotonou Agreement (2000) with 78 African, Caribbean, Pacific countries. • Exceptionally treaties concluded by MS: Community is bound by the provisions of an agreement concluded by MS prior to its membership Art 351 TFEU (ex art 307)

  25. Agreements concluded before the accession • Article 351(ex Article 307 TEC) • The rights and obligations arising from agreements concluded before 1 January 1958 or, for accedingStates, before the date of their accession, between one or more Member States on the one hand, andone 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 Statesconcerned shall take all appropriate steps to eliminate the incompatibilities established. Member Statesshall, where necessary, assist each other to this end and shall, where appropriate, adopt a commonattitude.

  26. International agreements with non-MS & int org • Sometimes, certain provisions of such treaties are not directly applicable: • Exp: Association Agreement with Turkey---free movement of labor ---M. Demirel Case (1987): “A provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable...[wording, purpose, nature, provision contains clear obligation], which is not subject [...] to the adoption of any subsequent measures” ----here there is a need for the Associate Council to take a decision. • Sometimes they are directly applicable: • As mentioned in Sevince Case even decisions of the Association Council may be directly applicable

  27. Decisions of ECJ • Treaties are generally framework treaties and they require substantial interpretation • The ECJ has made wider interpretation and did not only rely on the letter of Treaties • Contributed the development of fundemental doctrines and principles of Community law: • Direct effect of Community law • Supremacy of Community law • General Principles of Community law • Fundamental/human rights

  28. International Law • The ECJ, in interpretting the EC law, uses rules of international law (such as law of treaties) • According to the ECJ: The Community and its institutions must respect international law and are required to comply with the rules of customary international law in the exercise of their powers • The logic: (Int. Fruit Company case) “In so far as under the EEC Treaty the Community has assumed the powers previously exercised by Member States in the area governed by the General Agreement on Tariffs and Trade (GATT), the provisions of that agreement have the effect of binding the Community” • Same logic by ECtHR in the field of Human Rights

  29. General Principles • A- General Principles of Law: • Valid also for national legal systems: • Exp: Principle of good faith & right to appeal & presumption of innocence & lex posterior and lex specialis • B- General Principles of Community Law: • “These are general principles deriving from the common traditions and constitutional rules shared by the member states” • According to the ECJ: if the majority of the MS follow these principles it is enough---not need to see application by all MSs. • Exp: “unjust enrichment” & Principle of confidentiality in the communication between advocate and his/her client

  30. Secondary source of law • Secondary sources differ in each of the three pillars: • Second Pillar (inter-governmental): • Principles and general guidelines • Common strategies • Joint actions • Common positions • Third Pillar (inter-governmental): • Common position • Framework decision • decision

  31. Article 10 EC reads: " Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by institutions of the Community. They shall facilitate the achievement of the Community's tasks.” • “They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty. " • This is often referred to as the "principle of loyal cooperation".

  32. Art 4 TEU • In accordance with Article 5, competences not conferred upon the Union in the Treaties remainwith the Member States. • 2. The Union shall respect the equality of Member States before the Treaties as well as theirnational identities, inherent in their fundamental structures, political and constitutional, inclusive ofregional and local self-government. It shall respect their essential State functions, including ensuringthe territorial integrity of the State, maintaining law and order and safeguarding national security. Inparticular, national security remains the sole responsibility of each Member State. • 3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in fullmutual respect, assist each other in carrying out tasks which flow from the Treaties.The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of theobligations arising out of the Treaties or resulting from the acts of the institutions of the Union.The Member States shall facilitate the achievement of the Union's tasks and refrain from any measurewhich could jeopardise the attainment of the Union's objectives.

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