Facultat de

Ciències Polítiques
i Socials

European Union Institutions and Policies (21697)

Part I. Institutions and functioning of the European Union

Module 3. The EU Law and Policy-making

2023-2024
 Warm-up
• The EU is the Union of law
• The sources of the EU law
• The general principles of the EU
• Can the EU sign international agreements?
• True/false? The EU is the member of the WTO?
• True/False: The EU has shared competence in the
employment polcies and consumer protection?
• True /false? The EU has exclusive competence in
education policies

2
Some initial ideas
1. The European Union is an Union of law. The European Union is based on the
principle of Rule of Law. This means that every action taken by the EU is
founded on treaties that have been approved democratically by its members.

2. The EU law is the result of the evolution of the EU integration and co-exists
with law of the Member States.
− Evolutionary: in continuous reform (see Week 1 PPT about Treaties)

− Co-existent : EU law (institutions, procedures and principles) (see

Week 3 and 4 PPT) and its effects on MS national laws.

3. The Law of the European Union is the result of the attribution by a group of
States of exclusive sovereign competences.
 Some initial ideas

4. Law of the European Union includes, among others, a

codification of:
• The legal structures and sources of the law (Primary and secondary
Law);
• The distribution of competencies between the Union and the Member
States (Distribution of competences);
• The distribution of competencies between the different organs of Union
(EU institutional framework) (see PPT: EU institutions 1 and 2);
• The rules governing the interaction among institutions (institutional
procedures, e.g. co-decision process)
• The enforcement in the application of EU law and the settlement of
legal disputes between national governments and EU institutions
(Court of Justice of the EU).

4
Application of the EU law in
national setting

5
 Some initial ideas
5- The principles for the national application of the EU law :
primacy, direct and indirect effects are of judicial origin (not
written anywhere)

+
-
incremental development of the
Lack of clarity, contraditions,
EU law and interaction between
complexity, interpretations
national courts and the Court

6
 Example of the football club
Coordination and integration (see the readings)

7
 The EU?
Public international
law (substantive
dimension,
implementation is
“cooperative federalism” enforced by states
(Bobek)
National procedures and
insitutions, principles of
(in)direct effect and
primacy

Federal structure
/(not only the rules
but the
implementation)

8
 Concepts to reflect on
o Sources of the EU law
o 3 principles determine how and in what areas
the EU may act
o Direct effect
o Indirect effect
o Primacy

9
 Characteristics of the EU law
Autonomy (own sources of law, legislative capacity, independent judicial
institution)

Systemic (hierarchy: primary and secondary sources)

Sectorial (authority given by states in certain sectors)

Plurality of normative categories (multiplicity of normative acts)

Obligatory nature: directly enforcible legal obligations for states, institutions,

individuals

Dynamic

10
 Sources of the EU law (hierarchy)
Treaties
primary law

General
principles of
the EU law

International treaties

Secondary law: directives,

recommendations, opinions ..

Complementary sources:
jurisprudence and customs
11
Source;: Sanchez 2017
Types of the EU law
Primary Law (Derecho originario): the Treaties
− Treaty of the European Union
− Treaty on the Functioning of the European Union

Secondary Law (Derecho derivado): legislative acts and non-legislative acts.

Types of secondary law:
− Regulation
− Directive
− Decision
− Recommendation
− Opinions
− Delegated Act
− Implementing Act
− International Agreements
Primary Law
Acts which are based directly on the Treaties.

• Treaties are the starting point for EU law and are known in the EU as
primary law.
• It is the supreme source of law in the EU. It comes mainly from the
founding treaties, Treaty of Rome (which evolved in the Treaty of the
Functioning of the European Union) and the Treaty of Maastricht (which
evolved in the Treaty on European Union).

• Primary law is an autonomous normative system that sets out,

objectives, general principles, the distribution of powers and
responsibilities between the EU and EU countries. It provides the legal
context within which EU institutions formulate and implement policies.

• The treaties are negotiated and agreed by all the EU countries and then
ratified by their parliaments, sometimes following a referendum.

13
Primary Law
TEU and TFEU

Indeterminate duration
Application
• Territory of the member states
• The EU and outermost regions (The European Union (EU) counts nine
outermost regions, which are geographically very distant from the
European continent. These are French Guiana, Guadeloupe, Martinique,
Mayotte, Reunion Island and Saint-Martin (France), Azores and Madeira
(Portugal), and the Canary Islands (Spain). Special regimes!
• Territories whose external relations are governed by member states
(Gibraltar).

Superiority in the EU law hierarchy

14
 General principles
• Fragment
Art 5. TEU
The limits of Union competences are governed by the principle of
conferral. The use of Union competences is governed by the principles of
subsidiarity and proportionality
Art 6.3
Fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms and as they result
from the constitutional traditions common to the Member States, shall
constitute general principles of the Union's law

ECJ
“fundamentals”, “valores” ,”structural Exhaustive list?
principles” as a part of juridic base of (primacy principle)
the EU (interprete treaties) 15
 International treaties
• Association Agreements
• A partnership and cooperation agreements
(PCA)
• Trade agreements (WTO)

16
Secondary Law
Legislative Acts
• Legislative acts are adopted following one of the legislative procedures set
out in the EU treaties (ordinary or special).

Non-legislative acts
• Non-legislative acts do not follow these procedures and can be adopted
by EU institutions according to specific rules.

Legislative Competences by the EU

• The EU can pass laws only in those areas where its members have
authorised it to do so, via the EU treaties. Who has the legislative
competence?

17
Secondary Law
Legislative Acts
• Legislative acts are adopted following one of the legislative procedures set
out in the EU treaties (ordinary or special).
They express:
• Legal basis directly in the Treaty.
• The fundamental political options.
• The essential elements of the legal regime in question.
• The general objectives
• The principles that will rule them.
• A legislative act : regulates or affects human rights, has important
policy implications or enjoys a large degree of discretion.

18
 Secondary law
• Legislative acts are published in the Official Journal of the
European Union and enter into force on the date specified in
them or, if no date is specified, on the 20th day following
that of their publication.

19
 Secondary Law
Legislative competence
European Parliament (represents citizens) + Council of the EU (represents
territories)

Art. 289.3 TFUE: legislative procedure

• Legislative act by the EP and the Council: ordinary procedure

• Legislative act by the EP and the Council: special procedure

In the Treaties: Approx. 120 legal bases for legislation (more than 120 articles
along the TFUE attributes the competence to legislate and adopt norms).

Possibility to delegate the right to legislate to the Commission : ‘delegated’

regulations, directives and decisions
20
Secondary Law – Legislative Acts
Regulations
• Regulations are legal acts that apply automatically and uniformly to all EU
countries as soon as they enter into force, without needing to be
transposed into national law. They are binding in their entirety on all EU
countries (e.g. Mobile Roaming Regulation, Pet passport regulation). Date
is specified or 20 days.

21
Secondary Law – Legislative Acts

• Directives
• Directives require EU countries (all or some) to achieve a certain result,
but leave them free to choose how to do so. EU countries must adopt
measures to incorporate them into national law (transpose) in order to
achieve the objectives set by the directive. National authorities must
communicate these measures to the European Commission.
Transposition into national law must take place by the deadline set when the
directive is adopted (generally within 2 years). When a country does not
transpose a directive, the Commission may initiate infringement proceedings.

22
Secondary Law – Legislative Acts
Decisions
• A decision shall be binding in its entirety. A decision which specifies those
to whom it is addressed shall be binding only on them.

Croatia set to join the euro area on 1 January 2023: Council adopts final
required legal acts

23
Secondary Law – Legislative Acts
Decisions
• A decision shall be binding in its entirety. A decision which specifies those
to whom it is addressed shall be binding only on them.
Regulation Directive Decision

Area of application general particular Particular/abstract

Obligatority All its elements Only the result All elements

Applicability Direct Transposition Direct

Source (Sànchez, 2017)

24
Secondary Law – Legislative Acts
Delegated acts
• Delegated acts are legally binding acts that enable the Commission to
supplement or amend non-essential parts of EU legislative acts, for
example, in order to define detailed measures.

• The Commission adopts the delegated act and, if Parliament and Council
have no objections, it enters into force. EP and CEU can withdraw the
delegation (COMMISSION DELEGATED REGULATION (EU) …/... amending
Delegated Regulation (EU) 2019/1122 as regards the modernisation of the
functioning of the Union Registry)

25
Secondary Law – Legislative Acts
Implementing acts
• Implementing acts are legally binding acts that enable the Commission –
under the supervision of committees consisting of EU countries’
representatives – to set conditions that ensure that EU laws are applied
uniformly.
• (Comitology)
• NB: Implementation usually rests with the member states
COMMISSION IMPLEMENTING REGULATION (EU) …/... amending Implementing Regulation (EU)
2017/2470 as regards the conditions of use of the novel food Yarrowia lipolytica yeast biomass

26
Secondary Law – Non-legislative Acts
Recommendations
• Recommendations allow the EU institutions to make their views known
and to suggest a line of action without imposing any legal obligation on
those to whom it is addressed. They have no binding force.
Opinions
• An 'opinion' is an instrument that allows the EU institutions to make a
statement, without imposing any legal obligation on the subject of the
opinion. An opinion has no binding force

27
3 principles EU law
3 principles determine how and in what areas the EU may act:

Conferral
• The EU has only that authority conferred upon it by the EU treaties, which
have been ratified by all member countries

Proportionality
• The EU action cannot exceed what is necessary to achieve the objectives
of the treaties
EU measures:
must be suitable and necessary to achieve the desired end;
must not impose a burden on the individual that is excessive in relation to the objective sought to
be achieved (proportionality in the narrow sense).

Subsidiarity
• In areas where either the EU or national governments can act (joint
competence), the EU may intervene only if it can act more effectively
(usually lowest level) 28
Division of competences within the
EU
Exclusive EU (art 3
TFEU)

Shared (art 4 TFEU)

Supporting (art.6
TFEU)

29
Distribution of Competences
The EU can legislate alone in certain areas (following the principle of
conferral).

The role of member countries is limited to applying the law, unless the EU
authorises them to adopt certain laws themselves. In these areas, the EU has
what the treaties call exclusive competences.

Only EU can legislate:

• Customs Union for the movement within EU borders (the single market)

• Competition Rules for the functioning of the single market

• Monetary Policy for the Eurozone- Member States

• Trade and international agreements (under certain circumstances)

• Marine Plants And Animals regulated by the Common Fisheries Policy

30
Distribution of Competences
EU or national governments can legislate in conjunction
In certain areas, both the EU and member countries are able to pass laws. But
member countries can do so only if the EU has not already proposed laws or has
decided that it will not.
In these areas, the EU has what the treaties call shared competences:
− Single Market

− Employment And Social Affairs

− Economic, Social And Territorial Cohesion

− Agriculture

− Fisheries

− Environment

− Consumer Protection

− Transport

− Trans-european Networks

− Energy

− Justice And Fundamental Rights

− Migration And Home Affairs

− Public Health (For The Aspects Defined In Article 168 Of The Treaty On The Functioning Of The European Union) 31
Distribution of Competences
Member States legislate (EU assists)

In certain areas, the competence remains with the Member States.

The EU can only support, coordinate or complement the action of Member
States. The EU has no power to pass laws and may not interfere with member
countries’ ability to do so.

In these areas, the EU has what the treaties call supporting competences.

• Public Health
• Industry
• Culture
• Tourism
• Education And Training, Youth And Sport
• Civil Protection
• Administrative Cooperation
32
EU Legislative Procedure
Main ideas

Right of legislative initiative: The European Commission

Co-Legislators:
• The Council of the EU
And,
• The European Parliament

Legal base: Articles 289 and 294 of the Treaty on the Functioning of the
European Union

33
 EU Legislative Procedure
Main ideas - ordinary legislative procedure

The main characteristic of the ordinary legislative procedure is the adoption

of legislation jointly and on an equal footing by Parliament and the Council. It
starts with a legislative proposal from the Commission (normally for a
regulation, directive or decision) and consists of up to three readings, with
the possibility for the co-legislators to agree on a joint text - and thereby
conclude the procedure - at any reading.

National
Parliaments
Co-decision procedure
Proposal
(Two readings + 1
Right of legislative reading)
initiative − Regulation
− Directive
− Decision

Proposal Submission of opinions Co-Legislators 34

 European Commission – Right of
legislative initiative
Right of legislative initiative

The Commission holds the 'right of

initiative', i.e. the prerogative to
propose legislation at Union level
(Article 17 TEU).
35
European Commission – Right of legislative initiative
Legislative acts
Legislative acts (Article 288 TFEU) proposed by the Commission to be
adopted by a legislative procedure (ordinary or special legislative procedure),
Article 289 TFEU.

Regulations

Directives Decisions

36
European Commission – Right of legislative initiative
In specific cases, defined in the Treaties, the ordinary legislative procedure
can be launched:

• on the initiative of a quarter of the member states (when the proposal

concerns judicial cooperation in criminal matters or police cooperation
(Article 76 TFEU);
• on a recommendation from the European Central Bank (on proposals
concerning the statute of the European system of central banks and of the
European Central Bank) (Article 40 of Protocol 4);
• at the request of the Court of Justice of the EU (on matters relating to the
statute of the Court, establishment of specialised courts attached to the
General Court, etc.) (Article 257(1) TFEU).
• At the request of the European Investment Bank.

37
 European Commission – Right of
legislative initiative

RIGHT OF LEGISLATIVE INITIATIVE WHILE THE RIGHT OF LEGISLATIVE INITIATIVE IS

HELD BY THE COMMISSION, OTHER EU ACTORS
CAN REQUEST THE COMMISSION TO LAUNCH
AN INITIATIVE IF CONSIDERED.

38
European Commission – Request the EC for legislative action

The Parliament and The Council

Parliament and Council, under Articles 225 and 241 TFEU, respectively, may
request the Commission to submit appropriate proposals for legislative acts.

• The Council (by a simple majority of its members) may request the
Commission to carry out studies and submit any appropriate legislative
proposals.

• The Parliament (by a majority of its component members) may also ask
the Commission to submit legislative proposals.

This request for legislative action, is, however, not binding on the
Commission – the Commission can choose not to submit the legislative
proposal, but must give reasons for doing so.

39
European Commission – Request the EC for legislative action

The Parliament and The Council

In paragraph 10 of the Interinstitutional Agreement on Better Law-Making

(see Chapter 8) it is agreed that the Commission will reply to such requests
within three months,
If the Commission decides not to submit a proposal, it will provide detailed
reasons and, where appropriate, an analysis of possible alternatives (see also
Rule 47 RoP).

40
41
European Commission – Right of legislative initiative
Citizens

Similarly, a citizens’ initiative can invite the Commission to submit

appropriate proposals to implement the Treaties in accordance with Articles
11 TEU , i.e. proposals for legislation in any area where the Commission has
the power to propose legislation.

https://www.youtube.com/watch?v=HDJxXiYlK4
8

(substantive and prodecural restrictions?)

42
43
44
45
46
47
• Who is in charge of the EU law
implementation?

48
 European Commission – Implementing
acts
Comitology
EU laws sometimes authorise the European Commission to adopt
implementing acts, which set conditions that ensure a given law is applied
uniformly. (art 290 and 291 TFEU)

When does comitology apply?

− The law also stipulates that the Commission is to be assisted by a
committee (national representatives)
− Comitology is not compulsory for all implementing acts – some of
which the Commission can adopt without consulting a committee (for
example, when allocating grants under a certain amount).

49
 The implementation of the EU law rests with the ….. but for
areas where uniform conditions for implementation are
needed (taxation, agriculture, the internal market, health and
food safety, etc.), the Commission (or exceptionally the
Council) adopts an implementing act.
e.g
D089566/01 - (Draft Implementing Act) in dossier CMTD(2023)19 - Date:
25/04/2023 - 26/04/2023

COMMISSION IMPLEMENTING REGULATION (EU) amending certain Annexes to

Implementing Regulation (EU) 2021/620 as regards the approval or withdrawal of
the disease-free status of certain Member States or zones or compartments thereof
as regards certain listed diseases and the approval of eradication programmes for
certain listed diseases
Committee: C20402 - Standing Committee on Plants, Animals, Food and Feed -
Section: "Animal health and animal welfare"
50
 European Commission – Delegated acts
Delegated acts.

51
European Commission – Delegated acts
Delegated acts.
is subject to strict limits:

− The delegated act cannot change the essential elements of the law

− The legislative act must define the objectives, content, scope and
duration of the delegation of power

− Parliament and Council may revoke the delegation or express

objections to the delegated act

52
EU Ordinary Legislative Procedure
Main elements of the ordinary procedure:
1. The European Commission submits a proposal to the Council and the European
Parliament

2. The Council and the Parliament adopt a legislative proposal either at the first
reading or at the second reading

3. If the two institutions do not reach an agreement after the second reading a
conciliation committee is convened

− If the text agreed by the conciliation committee is acceptable to both

institutions at the third reading, the legislative act is adopted

If a legislative proposal is rejected at any stage of the procedure, or the Parliament

and Council cannot reach a compromise, the proposal is not adopted and the
procedure ends.

Along the whole procedure, trilogues are taken place: informal interinstitutional
negotiations by the Commission, the Council and the Parliament. 53
EU Ordinary Legislative Procedure – European
Parliament
Committee, Chair of Committee, a Rapporteur and Shadow-Rapporteurs
To start with the co-decision process, on the Parliament side, each legislative
proposal is attributed to a committee (usually following a decision of the
committee coordinators), which nominates a 'rapporteur' to draw up the
report on the committee’s behalf.
Other political groups may appoint 'shadow rapporteurs' to coordinate their
position on the issue within the committee.
The Chair is responsible for chairing meetings of the committee and of its
coordinators. The Chair has authority over voting procedures and rules on the
admissibility of amendments. The Chair also presides over interinstitutional
negotiations.
At the start of the legislative term, each political group may designate one
member to act as its coordinator in the committee.

54
EU Ordinary Legislative Procedure

In interinstitutional negotiations during the first and second readings,

Parliament is represented by a negotiating team which is led by the
rapporteur, presided over by the Chair of the committee(s) responsible or by
a Vice-Chair designated by the Chair.

The negotiating team shall comprise at least the shadow rapporteurs from
each political group that wishes to participate (Rule 74 RoP).

55
EU Ordinary Legislative Procedure

56
EU Ordinary Legislative Procedure
First Reading Stage
1. At first reading, the Parliament and the Council examine in parallel the
Commission’s proposal.

2. the Parliament has to act first, by approving the Commission’s proposal without
amendments, amending it or rejecting it. (simple majority)

3. After the Parliament has adopted its position, the Council may decide to approve
that position . If so, the legislative act is adopted. If not, it may amend
Parliament’s position and communicate its position at first reading to Parliament
for a second reading.

− The Parliament and the Council may reach an informal agreement at any point,
leading to a first reading agreement (if a compromise text amending the
Commission proposal is agreed between the Parliament and Council before
Parliament’s first reading vote) or an early second reading agreement (if such a
compromise text is agreed before the Council’s first reading vote).

There’re not time limits in the first reading for taking a decision.
57
EU Ordinary Legislative Procedure

58
EU Ordinary Legislative Procedure
Second Reading Stage
Once the Parliament formally receives Council’s position at first reading, the phase of
the second reading starts.

In second reading the two co-legislators are bound by strict time limits laid down in
the Treaty: each of the co-legislators has three months extendable by one month

In second reading, the Parliament can approve, reject or amend the Council’s position
at first reading. (absolute majority of its Members (currently 353 out of 705 votes)

59
EU Ordinary Legislative Procedure

Parliament second reading

Committee stage

1. The rapporteur (normally the same Member who drew up the report for the first
reading) draws up a draft recommendation which is to be submitted by the
responsible committee (the same committee that was responsible at first reading)
to plenary, proposing the approval, amendment or rejection of the Council
position at first reading.

2. The draft recommendation will include the amendments proposed by the

rapporteur.

3. Only full or substitute Members of the responsible committee may table proposals
for rejection and additional amendments. However, in second reading, certain
further restrictions apply to the admissibility of amendments.

60
EU Ordinary Legislative Procedure
Plenary stage
The recommendation for second reading is tabled for vote in plenary.
Additional amendments may be tabled at plenary stage, but only by the responsible
committee, by a political group or by at least 36 Members (the low threshold).
Before the vote in plenary, the President of the Parliament may ask the Commission
to state its position and the Council to comment.
a) The Parliament can approve the Council’s position without amendment.
b) If no amendments or proposal for rejection are tabled or adopted by the majority
of Parliament’s component Members (i.e. at least 353 votes in favour out of a
possible total of 705), the President merely announces that the proposed act has
been finally adopted. In such cases there is no formal vote.
c) The EP rejects the proposal, the proposal is not adopted
d) The EP amends the proposal. The Parliament is allowed to amend amendments
made by the Council.

61
 EU Ordinary Legislative Procedure
Council second reading
Once the Parliament has concluded its second reading and has referred its position to
the Council, the latter has a further three months (or four, if an extension has been
requested) to conclude its second reading.

− At second reading, the Council may approve Parliament’s amendments by a

qualified majority, or by unanimity if the Commission opposes a Parliament
amendment. In this case, the act is adopted.

− If the Council does not accept all of Parliament’s amendments, the Conciliation
Committee is convened, in accordance with the Treaty.

62
EU Ordinary Legislative Procedure

63
EU Ordinary Legislative Procedure

64
EU Ordinary Legislative Procedure
Conciliation and third reading stage

• Conciliation consists of negotiations between the Parliament and the Council in

the framework of the Conciliation Committee, with a view to reaching agreement
in the form of a 'joint text'.

The Conciliation Committee consists of two delegations:

• The Council delegation, composed of one representative of each Member State

(Ministers or their representatives),

and

• The Parliament delegation, composed of an equal number of Members and

chaired by one of the three Vice-Presidents responsible for conciliation.

65
EU Ordinary Legislative Procedure
The Conciliation Committee consists of 54 (27+27) members. It is composed of an
equal number of members of the Parliament and Council representatives.

The Commission is represented by the Commissioner (European Commission)

responsible for the file, and is tasked with taking all necessary initiatives in order to
reconcile the positions of the Parliament and of the Council.

The Conciliation Committee must be convened within six weeks (or eight weeks, if an
extension has been agreed) of the Council concluding its second reading and officially
notifying Parliament that it is not in a position to accept all the Parliament’s second
reading amendments.

It is constituted separately for each legislative proposal requiring conciliation and has
another six weeks (or eight weeks, if an extension has been agreed) to reach an
overall agreement in the form of a 'joint text', which still needs to be formally
approved by the Parliament and by the Council.

66
EU Ordinary Legislative Procedure
Resulting documents:

If the joint text is approved by both institutions, the legislation is published as

a directive, a regulation or a decision of the Parliament and of the Council.

67
EU Ordinary Legislative Procedure

68
Ordinary legislative procedure:

69
EU Ordinary Legislative Procedure
Trilogues

The reconciliation of positions is reached through informal interinstitutional

negotiations meetings in the form of trilogue meetings.

Since the Amsterdam Treaty, which introduced the possibility for the co-legislators to
reach agreement at first reading, it is possible to facilitate the conclusion of the
ordinary legislative procedure at all stages of the procedure.

70
EU Ordinary Legislative Procedure
Trilogues

In interinstitutional negotiations during the first and second readings,

Parliament is represented by a negotiating team which is led by the
rapporteur, presided over by the Chair of the committee(s) responsible or
by a Vice-Chair designated by the Chair.

The negotiating team shall comprise at least the shadow rapporteurs from
each political group that wishes to participate (Rule 74 RoP).

71
Different steps for agreeing
under the Ordinary
Legislative Procedure

72
73
EU Ordinary Legislative Procedure
Role of the Commission in interinstitutional negotiations

Throughout the legislative procedure, the Commission supports the co-legislators by

providing technical explanations and playing the role of facilitator during the
interinstitutional negotiations.

It may be invited to propose compromise texts or to provide more detailed or

'technical' information.

The Commission should act as 'honest broker' when defending or negotiating its
legislative proposals during all stages of the legislative process, in conformity with its
right of initiative and in line with the principle of equal treatment of Parliament and
the Council.

European Parliament Rules of Procedure

Parliament’s day-to-day functioning, including with regard to its internal organisation

and decision making procedures, is regulated by its Rules of Procedure.

74
 Execution of UE Law
The execution corresponds to the Member
States

In case of uniform enforcement requirements,

possibility of conferring implementing powers
on the EU.
In favour of the Commission: exceptionally of
the Council (Art. 24 and 26 TEU (CSDP).

75
 Regulation Directive Decision

Area of application general particular Particular/abstract

Obligatority All its elements Only the result All elements

Applicability Direct Transposition Direct

76
Secondary Law: Regulation

• It does not require complementary measures by Member States' authorities.

• Mandatory in all its elements

• They are imposed with full effectiveness on all

• Member States cannot make reservations; nor can they unilaterally grant
derogations;

REGULATION (EU) 2021/821 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 20 May 2021 setting up a Union regime for the control of exports, brokering,
technical assistance, transit and transfer of dual-use items (recast)

77
Secondary Law: Directive

• At. 288 TFEU: binding only on public authorities; only obliges them to achieve
certain results and leaves the Member States free as regards means.

• It is an act laying down, with binding effect, an objective for one or more Member
States.

• It indicates to the Member States certain objectives to be attained by

supplementing them with national legislative, regulatory or administrative
measures.

• Shared competence and the principle of subsidiarity.

78
Secondary Law: Directive

• Implementation or transposition according to the principle of institutional and

procedural autonomy: State and regional or federal governments (in case of a
decentralised state), to the legislature or the executive.

• Types of orientation/direction:

− Threshold system: sets a lowest common denominator, and each MS can go as gar
as it deems appropriate.
− Range system: a range is set between a minimum and a maximum and each state
decides up to which point it will go (not uniformity but harmonisation).

• Transposition and visibility.

• Dam effect: notification

• Set a deadline for transposition.

79
Secondary Law: Decision

• Art 288 TFEU: act binding in its entirety.

• When it specifies targeted MSs, individuals or entities, it is binding only on them:

each decision determines the person or persons to whom it is addressed (in
comparison with a regulation: the regulation affects everybody, while a Decision
indicates people or entities targeted. It could be the case that a Decision is
targeted to the 27 MS, then that Decision is closer to a Regulation).

• They may be: one or more individuals (natural persons or legal persons), or an
Member state, some of them or the 27 Member states.

• Mandatory publication in the Official journal

80
Secondary Law: Decision

Individuals

For the performance of executive functions.

− It is individually designated and binding: it is notified to its individual

addressee and from the moment of notification it produces legal effects.

• It is a direct management procedure or a procedure for the application of the law

in the economic and business field.

• The Commission is the institution empowered to adopt decisions addressed to

individuals.

− Publication in the Official Journal is not required.

EU sanctions in respect of actions undermining or threatening the territorial integrity,

sovereignty and independence of Ukraine
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Conditions of application of the EU Law

Direct effect

Indirect effect

Primacy

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Conditions of application of the EU Law
Principle of Direct effect: immediate source of law for the national court or
administration. No formal transposition

• Judgment of the Court of Justice of the European Union, Van Gend en

Loos v Netherlands Inland Revenue Administration — the fundamental
principle of direct effect

WHAT DOES THE JUDGMENT ESTABLISH?

• In its judgment, the Court of Justice of the European Union (the Court)
enshrines the direct effect of European Union (EU) law.
• The judgment states that EU law not only engenders obligations for
EU Member States, but also rights for individuals. Individuals may
therefore take advantage of these rights and directly invoke EU law before
national and European courts, independently of whether the national law
test exists (that is, where there is no judicial remedy under national law).

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Conditions of application of the EU Law

KEY POINTS
Horizontal and vertical direct effect
There are two aspects to direct effect: a vertical aspect and a horizontal
aspect.
• Vertical direct effect is of consequence in relations between individuals
and the country. This means that individuals can invoke a provision of EU
law in relation to the state. Reverse vertical
• Horizontal direct effect is of consequence in relations between
individuals. This means that an individual can invoke a provision of EU law
in relation to another individual.
• According to the type of act concerned, the Court has accepted either
a full direct effect (i.e. a horizontal direct effect and a vertical direct
effect) or a partial direct effect (confined to a vertical direct effect).

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Conditions of application of the EU Law

Direct effect and primary legislation

primary legislation (Treaty and Charter provisions) is directly
enforceable ( Van Gend en Loos judgment). under the conditions
• Treaty provision are clear and unconditional
• they must not call for additional measures, either national or European.
Any type of relationship (vertical, inverted vertical or horizontal)

The conditions for application of secondary legislation (directive)

Standard formula:
• Clear and precise
• Unconditional What about
• Member states have failed to implement the directive decisions and
regulations?

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 Application of the directive
Reverse vertical legal relationship and
“estoppel argument”.

Van Duyn case[1974] ECJ Who is the

adressee of
the directive?

But not horizontal-direct-effect of-directives:

Marshall case (directive prohibiting sex
discrimination)

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Conditions of application of the EU Law

Principle of Primacy
• The principle of the primacy (also referred to as ‘precedence’) of EU law
(conflict EU-national legislation)
• If this were not to be the case, EU countries could simply allow their
national laws to take precedence over primary or secondary EU
legislation, and the pursuit of EU policies would become unworkable.
• The principle of the primacy of EU law has developed over time by means
of the case law (jurisprudence) of the Court of Justice of the European
Union. It is not enshrined in the EU treaties, although there is a
brief declaration annexed to the Lisbon Treaty in its regard.

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Conditions of application of the EU Law

Principle of Primacy
In the Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62), the Court
declared that the laws adopted by European institutions must be integrated into the legal
systems of EU countries, which are obliged to comply with them. EU law therefore has primacy
over national laws.

Further examples of cases in which the Court affirmed the primacy of European law include:

Costa v ENEL (Case 6/64)

Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle fur Getreide und
Futtermittel (Case 11/70)
Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77)
Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89)

With EU law becoming superior to national law, the principle of primacy therefore seeks to
ensure that citizens are uniformly protected by an EU law across all EU territories.

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Conditions of application of the EU Law

Principle of Indirect effect

Example of the strong indirect effect:

Art 14(4) of the Czech Constitution “No citizen may be forced to leave his
homeland”

v.
European Arrest Warrant

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Conditions of application of the EU Law

Principle of Indirect effect

EU-consistent interpretation of national law. (weak, medium and strong indirect effects)

“All national law must be interpreted in accordance

with the all EU law”

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Conditions of application of the EU Law

Principle of state responsibility for non-compliance with EU law.

The principle of state liability was said to be also explicit in Article 4(3) TEU. It relies on
a basic principle of the EU legal order: that national courts must protect the rights
conferred by EU law on individuals, including enforcement of these rights where the
state is responsible.

State liability derives from the fact that EU Member States are responsible for the
creation and above all for the implementation and enforcement of EU law.
Enforcement of state liability for violations of rights granted to individuals by EU law,
including in the fields of employment and industrial relations, is carried out through
the national courts of the Member States.

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