Environmental Legal Team Environment and Beyond

EU Law(Part 1)

Legal Order

3rd lecture, 8 November 2012

Mery Ciacci

Environmental Legal Team Environment and Beyond

• Principles• Competences• Legal Acts• Rulings

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The EU legal order:Principles

• Principle of conferral (Art. 5.2 TEU)• Principle of subsidiarity (Art. 5.3 TEU)• Principle of proportionality (Art. 5.4 TEU)• Principle of sincere cooperation (Art. 4.3

TEU)• Respect of HR (Art. 6 TEU) + Principle of

non-discrimination (Art. 18 TFEU)3

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The principle of conferral (Art. 5 TEU)

• 5.1: The limits of Union competences are governed by the principle of conferral

• 5.2: Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States

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Categories and areas of competences (Title I TFEU)

• Exclusive competence - Article 2.1- Article 3: areas of exclusive

competence

• Shared competences- Article 2.2- Article 4

• Supportive competences- Article 2.5- Article 6

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Pre-emption

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Principle of subsidiarity (Art. 5.3 TEU)

• 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

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

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Sincere Cooperation Art. 4.3 TEU

Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual 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 the obligations 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 measure which could jeopardise the attainment of the Union’s objectives.

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Respect of fundamental rights

• Art. 6 TEU

• Principle of non-discrimination (Art. 18 TFEU) Connected to the respect of fundamental rights Based on nationalities Connected to the concept of EU citizenship

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EU law:primary/secondary law

Primary law

• Treaties’ law• Principles of IL

Secondary law

• Legal acts adopted by the European Institutions (art. 288 TFEU)

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Legal acts

Binding acts

• Regulation• Directive• Decision

Non-binding acts

• Recommendation• Opinion

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Binding Acts: Common features

• Motivation: Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties (art. 296.2 TFEU)

• Legal Bases: to make reference to one or more provision of the Treaty- Important: choice of the legal bases is highly connected to the respect of

the principle of attributed competences and the allocation of competences among the institutions (issues of the consensus)

- It has to be selected according to the subject and the scope of the act- If the legal acts concerns more than one area: it is important to verify if

they are both important or if one is supportive of the other, in order to choose one or more legal bases

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Direct Effect

• All binding EU law (Treaties, secondary legislation, international legislation)

• Provisions of binding EU law which are sufficiently clear, precise and unconditional to are justiciable and can be invoked and relied on by individuals before national courts

• It confers rights on individuals

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Regulation

• general application

• binding in its entirety

• directly applicable in all Member States (monism/dualism)

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Decision

• binding in its entirety• a decision which specifies those to whom it is

addressed shall be binding only on them ( ≠ regulation)

• May affect individuals, as well Members States• May be general (authorization for starting

international negotiations)

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Directive

• binding as to the result to be achieved• Binding upon each Member State to which it is

addressed• leave to the national authorities the choice of

form and methods to reach the result (within a required time-frame)

• A good tool to harmonize the laws within a certain areas

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Directive: direct effect

• ECJ C-26/62 ‘Van Gend en Loos’: the capacity of a provision of EU law to be invoked before a national Court (p.183), set the criteria (sufficiently clear, precise and unconditional )

• In case of conflict with domestic law: disapplication of the domestic law

• Vertical direct effect: directives can be enforced directly by individuals against the state after the time limit for their implementation has expired

• NO Horizontal direct effect: directives cannot of themselves impose obligations on individuals

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Non-binding acts

Opinion• Soft law• No direct effect• Act through which the

institutions and other bodies inform about their position on a defined subject

• Function: policy-orientation

Recommendation• Soft law• No direct effect• Usually addresses Mb States• Invitation to conform to a

defined behaviour• Function: policy and

regulatory orientation

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Though not binding, the Court of Justice stated that national judges should take them into account when interpreting and applying other EU binging acts

(Grimaldi case, 322/88)

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The relationship between EU law and national legal order

• Primacy of EU law on national law: no formal basis in the Treaty, but developed by the ECJ on the basis of its conception of a ‘new legal order’ (Van Gend en Loos)

• Why: in order to preserve the uniformity of a common market (subordination to national law could undermine this)

• Relation with Direct Effect• In case of conflict with national law: disapplication of the

domestic rule (but no nullification) • C- 6/64 Costa v Enel (p. 257)

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Court of Justice:5 kind of Rulings

• requests for a preliminary ruling – when national courts ask the Court of Justice to interpret a point of EU law

• actions for failure to fulfil an obligation – brought against EU governments for not applying EU law

• actions for annulment – against EU laws thought to violate the EU treaties or fundamental rights

• actions for failure to act – against EU institutions for failing to make decisions required of them

• direct actions – brought by individuals, companies or organisations against EU decisions or actions

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1. Preliminary ruling procedure

• The national courts in each EU country are responsible for ensuring that EU law is properly applied in that country. But there is a risk that courts in different countries might interpret EU law in different ways.

• To prevent this happening, there is a ‘preliminary ruling procedure’. If a national court is in doubt about the interpretation or validity of an EU law, it may – and sometimes must – ask the Court of Justice for advice. This advice is called a ‘preliminary ruling’.

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2. Proceedings for failure to fulfil an obligation

• The Commission can start these proceedings if it believes that a member country is failing to fulfil its obligations under EU law. These proceedings may also be started by another EU country.

• In either case, the Court investigates the allegations and gives its judgment. If the country is found to be at fault, it must put things right at once. If the Court finds that the country has not followed its ruling, it can issue a fine.

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3. Actions for annulment

• If any EU country, the Council, the Commission or (under certain conditions) Parliament believes that a particular EU law is illegal, it may ask the Court to annul it

• ‘Actions for annulment’ can also be used by private individuals who want the Court to cancel a particular law because it directly and adversely affects them as individuals

• If the Court finds the law in question was not correctly adopted or is not correctly based on the Treaties, it may declare the law null and void

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4. Actions for failure to act

• The Treaty requires Parliament, the Council and the Commission to make certain decisions under certain circumstances. If they fail to do so, member countries, other Community institutions and (under certain conditions) individuals or companies can lodge a complaint with the Court so as to have this failure to act officially recorded.

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5. Direct actions

• Any person or company who has suffered damage as a result of the action or inaction of the Community or its staff can bring an action seeking compensation before the General Court.