Please enable JavaScript.
Coggle requires JavaScript to display documents.
TOPIC 2 : THE SOURCES OF EU LAW - Coggle Diagram
TOPIC 2 : THE SOURCES OF EU LAW
3 CATEGORIES OF EU LAW
primary law
the constitutive treaties as interpreted by the court of justice
treaties are most important source of EU law
the authority of the original treaties is limited to where the MS gave over sovereignty
if institutions go beyond their limits of power ->
ultra vires
include original, current, complimentary, treaties of accession (states the terms under which an applicant can become a member state), amending treaties treaties
Union is founded on the TEU and TFEU - both have the same legal value
ART 6 TEU -> the charter of Fundamental rights of the EU -> the same legal value as the treaties -> a primary source of EU law
general principles
-> that are fundamental may be regarding as primary law
equality, legal certainty, fundamental human rights etc
force majeure - intervening measure beyond control
natural justice/ enumerated rights
secondary law
secondary legislation that the eu adopts in accordance with the treaties : regulations, directives, decisions - legally binding , recommendations and opinions - not legally binding
Regulations
LEGALLY BINDING
general in their application -> apply to everyone
binding in their entirety as to their form and substance
directly applicable - usually implemented within 20 days
do not need to be implemented at national level -> once enacted at union level they have force of law
NORDDEUTSHES VIEH UND FLEISCHKONTOR GMBH v HAUPTZOLLAMT HAMBURG ST.ANNEN 1971
MSs can add minor details as long as they don't detract from the regulation
directives
binding with regards to the result that is to be achieved - MSs can decide how to achieve it
usually specifies the date of entry into force
not all provisions of the directive have the same entry into force date
transposition process into domestic law can be subdivided into :
a a formal obligation to implement the legislation
the substantive obligation to subscribe to the objectives of the legislation
1: a mere administrative practice is not sufficient for proper transposition of a directive
Commission v. Germany (Re Nursing
Directive) [1985] ECR 1661
transposition may not be necessary where national legislation is already enforcing the content of the directive
where there is a
conflict between the terms of the directive and the national legislation
transposing it, the national authorities are obliged to comply with the directive
text
Case 103/88 Fratelli Constanzo SpA v. Commune
di Milano [1988] ECR 1839
decisions
binding in their entirety but only to the adressee
not of general application
legal acts that don't go through the legislative process
recommendations & opinions
no binding force -> constitute soft law
recommendation usually given on imitative of institution
opinions usually given as a response to a question asked
if a person relies on them in good faith -> creates a
legitimate expectation
tertiary law
case law of the court of justice and international agreements entered into by the EU
international agreements
CJEU -> the union must respect international law in the exercise of its powers
the union can negotiate and conclude international agreements where it has exclusive competence
before an international agreement is signed, the parliament, council, commission or MS can apply to the CJEU for it to examine the agreement in terms of its compliance with EU law
competence
exclusive competence
-> just the EU
share competence
-> when the EU act with the member states
no competence
-> only the member states act
external competence
-> union has exclusive competence internally, it develops external competence
OBLIGATION TO SUBSTANTIATE
legal acts must state the reasons on which they are based
EU must have a mandate
Case C-29/84 Commission v. Germany (Re Nursing
Directives) [1985] ECR 1661