Европейское право

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-Introduction of a new catalogue of the sources of secondary law of the EU- introduction of new types of acts- legislative and non-legislative: delegated, executive. The Treaty of Lisbon classified the sources of secondary law of the EU and specified proceedures of their adoption. This structure comprises:

 

1.legislative acts (listed in art. 288 TFEU): regulations, directive and decisions adopted by the European Parliament and the Council within two procedures (art. 289 TFEU):

a).ordinary legislative procedure- act is adopted by the European Parliament and the Council acting jointly at the initiative of the European Commission;

b).special legislative procedure- act is adopted by the European Parliament with the participation of the Council or by the Council with the participation of the European Parliament;

 

2.non-legislative acts:

a).delegated acts- on the basis of the legislative act of the European Commission there can be a transfer of the competence to adopt non-legislative act of a general scope, which supplement or amend some, other than the relevant, elements of the legislative acts;

b).executive acts- issued within the European Commission’s executive powers (in some cases by the Council) if it is necessary to ensure the homogenous conditions for the execution of the legally binding acts of the EU.

 

TYPES OF EU LAW:

1-Primary law:

1-the founding treaties- they set out the distribution of competence between the Member States and Establish the powers of the EU institutions- they determine the legal framework within which the EU institutions implement their policies,

e.g.:the Treaty on the EU and the Treaty on the functioning of the EU

2-amending EU treaties;

3-the protocols annexed to the founding treaties and the amending treaties;

4-the treaties on new Member States’ accession to the EU.

2-A.Unilateral acts divided into 2 categories:

1-acts listed in Art. 288 of the TFEU:

-regulations;

-directives;

-decisions;

-opinions and recommendations

2-acts not listed in Art. 288 of the TFEU= atypical acts, such as:

-communications and recommendations;

-white and green papers

B.Conventions and Agreements (bilateral or multilateral character):

1-international agreements signed by the EU and a country or outside organisation;

2-agreements between Member States;

3-interinstitutional agreements, i.e. agreements concluded between the EU institutions (Commission and Council of the EU)

 

3-The supplementary law- enables the ECJ to bridge gaps left by primary and / or secondary law:

1-the case law of the European Court of Justice (ECJ)- its judicial decisions; European precedents;

2-international law- written law + custom + usage = a source of inspiration for the ECJ in the development of its case law;

3-the general principles of law (unwritten sources of law) developed by the case law of the ECJ

 

*Art. 288 of the TFUE- secondary sources of the EU law:

A regulation- has a general application and is binding in its entirety and is directly applicable in all Member States;

A directive- is binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves its national authorities the choice of form and methods;

A decision- is binding in its entirety. A decision which specifies those to whom it is addressed is binding only on them;

Recommendations and opinions- have no binding force.

 

 

-A strengthened role for the European Parliament: the European Parliament, directly elected by EU citizens, is provided with important new powers regarding EU legislation, the EU budget and international agreements. In particular, the increase of co-decision procedure in policy-making ensures that the European Parliament is placed on an equal footing with the Council, representing Member States, for the vast bulk of EU legislation.

 

-For the very first time in history of the European integration introduction of a possibility of withdrawal from the European Unionà case of Greece- will it happen and if yes, will it be the proper solution to the EU economic crisis?

 

-Introduction of a new High Representative for the Union in Foreign Affairs and Security Policy, also Vice-President of the Commission= at the moment Catherine Ashton (the UK)à for the coherence and the visibility of the EU's external action + A new European External Action Service will provide back up and support to the High Representative.

 

The supranational Character of European Union law/ Primacy of European Union Law:

 

EU= supranational organisation + international organisation (it stems from the Treaty of Lisbon) concluded between sovereign States which has its own institutions which act independently from MS, it may take decisions by a majority binding on all MS (autonomous decision-making), its institutions supervise the proper implementation of these decisions by MS + the EU founding Treaty and decisions may give rise to various rights and obligations on the part of individualsà these rights and obligations are directly enforceable by courts in the MS (even in case of conflicting provisions of national law)à the EU constitutes a separate legal order. E.g.: In Van Gend & Loos Case the ECJ stated for the very first time that (back then) Community law not only imposes obligations on individuals but is also intended to confer on them “rights which will become part of their legal heritage” + “The Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.” In Costa v. Enel Case the ECJ formulated the rule of primacy of (back then) Community law over national (domestic) law of MS (national courts and tribunals are automatically required to apply Community law in the context of the national legal system.

 

Subsidiarity + proportionality- important principles in earlier regulations:

 

The principle of subsidiarity is defined in Article 5 of the Treaty establishing the European Community. It is intended to ensure that decisions are taken as closely as possible to the citizen and that constant checks are made as to whether action at Community level is justified in the light of the possibilities available at national, regional or local level. Specifically, it is the principle whereby the Union does not take action (except in the areas which fall within its exclusive competence) unless it is more effective than action taken at national, regional or local level. It is closely bound up with the principles of proportionality and necessity, which require that any action by the Union should not go beyond what is necessary to achieve the objectives of the Treaty. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

 

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

 

Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. (Article 5 of the Treaty on European Union)

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ACQUIS COMMUNAUTAIRE (= the Community acquis)- since the Treaty of Lisbon came to force it is called: “The Union acquis”- this term means the whole of the accumulated achievement of the EU (and primarily of the European Communities), i.e. the whole of the accumulated EU legislation (legal acts; issued documents) as well as the ECJ case law, which constitutes the body of the European Union law

Compare: The Schengen acquis integrated into the EU

Ермакович Сергей Леонидович

Европейский союз. Основополагающие акты в редакции Лиссабонского договора в редакции профессора Кашкина.

Европейское частное право. Леонович, Ландо

Институционное право Европейского союза Ландо Самарин

Право ЕС в вопросах и ответах под редакцией Кашкина

Европейское корпоративное право Дубовицкая

Право ЕС Хартли

Сайт московской государственной юридической академии eulaw.edu.ru

Сайт МГИМО eclaw.ru

Eur-lex.europa.eu