2. EU LAW DERIVES FROM A NUMBER OF
DIFFERENT SOURCES…
EU
LAW
Primary Sources
Secondary Sources
Tertiary Sources
• Treaties
• EU Legislation;
• Regulations
• Directives
• Decisions
• Recommendations&
opinions.
• Case law from the ECJ
• General principles of EU law
• International Treaties
3. PRIMARY SOURCES:
• Most significant source of EU law.
• All subsequent law must have a legal basis
derived from the Treaties.
• ^ (Must fulfil objectives of the treaties.)
• Are the legal foundation of all EU law.
• As European Law is not static, it goes
through periods of significant
transformation which can be seen in the
amendments of treaties and creation of
new treaties.
Secondary Legislation
Directives
Decisions
Regulations
Recommendations & Opinions
Follow up Treaties
Treat of Maastricht
Single European Act
Treaty of Brussels
Treaty of Amsterdam
Founding Treaties
Treaty of Rome
Treaty of Paris
Treaty on the Functioning of
the EU
4. TREATY FOR THE FUNCTIONING OF THE
EU
• Incorporates the EC treaty
into the Treaty establishing
the EU.
• EC treaty most important
treaty.
PrinciplesPart 1
•Sets out the key principles and objectives of the EU.
•Derived from the Treaty of Rome.
CitizenshipPart 2
•Key focus of EU is citizenship & rights that bestows on
citizens.
PoliciesPart 3
•Broken down into 24 titles.
•Major areas of substantive law such as CFSP, CAP etc.
REMEMBER.
EC Treaty= Treaty of Rome.
TEU= Treaty of Maastricht
TFEU= Treaty of Lisbon.
OverseasPart 4
•Deals with overseas relationships & agreements.
External ActionPart 5
•Concerns external actions of the union.
Institutions & FinancesPart 6
•Concerns the common market, framework of the
institutions & their functions.
5. SECONDARY LEGISLATION
• Governed by Article 288 which
gives definitions & scope of all
secondary legislation.
• The way in which union
principles and objectives
outlined in the Treaties are
furthered & evolved upon.
• Subordinate to the Treaties
• The scope & effect of each
form of legislation is how they
differ from one another.
To carry out tasks assigned by treaties.
That acts in strict accordance with
the provisions of the treaties.
For the fulfilment of the objectives of
the treaties.
That acts within the statutory limitations
of Article 288.
Institutions may only enact legislation:
6. REGULATIONS
• Have general applicability; their measures generally apply to all
member states.
• Are binding in its entirety so member states have no choice in
implementing the regulation.
• Have direct applicability so they automatically become law in
each country on the date specified. No need for implementation.
• Direct effect can operate due to the direct applicability creating
enforceable rights on individuals.
Eridana Case;
“By reasons of their nature & their
function in the system of the sources of
community law, regulations have direct
effect and as such are capable of
creating individual rights which national
courts have to protect.”
7. DIRECTIVES
• They are binding as to the result to be
achieved.
• And implementation is left for the
member states to do.
• Not directly applicable, implementation
requires member states to incorporate
directive into national law.
• An obligation or order given to member
states to do something.
• Were not originally considered as giving
rights to an individual, but was
established that vertical direct effect on
directives did exist.
Ratti
•Opportunity to
implement
directive must be
given.
•Vertical direct
effect.
Marshall v
South
Hampton
Foster v
British Gas
Von
Colson
•Indirect effect
•Article 10
obligation to
interpret
lnational Law in
line with EU
Marleasing
•Failure to
implement a
directive
•Article 10= indirect
effect
Francovich • State liability.
• States fault.
• Emanation of the state
Binding nature of a directive only
to state addressed.
NO HORIZONTAL DIRECT EFFECT.
All cases described
more in depth in
Direct Effect notes.
Article 10 now Article
4(3) of the TFEU.
8. DECISIONS.
• Are binding in its entirety upon those to
whom it is addressed.
• In terms of scope & effect a decision is;
• Immediately & completely binding on
party.
• Because of this it creates individual
rights & can be directly effective.
• Not generally applicable; depends on
who decision is addressed to.
• Difficult to define.
• Can be legally binding or informal
actions set down by guidelines.
• Often used in EU competition law.
Grad v Finanzamt.
• Challenge by company relating to Germany
breaching a tax directive.
• Directive breached & decision made in relation to
time tax directive to be implemented.
• “It would be incompatible with the binding nature of
decisions… to exclude the possibility that persons
affected may invoke the obligations imposed by a
decision the effectiveness of such a measure would
be weakened if national courts could not invoke it &
disregard it.”
Recommendations & Opinions
are rare to be relied upon in EU
law. However Article 288 does
include them and the
Commission has powers to
formulate recommendations &
deliver opinions but these are not
binding. Due to this
recommendations are often
seen as ineffective but they are
useful for dealing with issues in an
informal manner & they have
been seen to have a persuasive
effect in the ECJ.
9. General Applicability Direct Applicability Direct Effect
Treaty Articles
(TFEU,Rome etc)
Are applied generally through-
out the EU.
So are considered as generally
applicable.
Once a treaty is incorporated
there is no need for further
enactment of articles.
Ratification=incorporation.
Dependent on meeting the Van
Gend en Loo’s criteria, if it
does… Then they are directly
effective.
Regulations
Are applied generally through-
out the EU so are also generally
applicable.
These require no further
implementation so are directly
applicable.
Also dependent on meeting the
Van Gend en Loo’s criteria.
Directives
Usually tend to be addressed to
all member states so they tend
to be considered as generally
applicable.
Do require state implementation
within a deadline, so cannot be
considered directly applicable.
Vertical direct effect only,
(Defrenne v SABENA, Van Duyn,
Marshall v Southampton) so can
be directly effective.
Decisions
Tend to be addressed to
particular individuals or parties so
are not generally applicable.
These are an order that must be
complied with by the addressee
in a state of proceedings so
aren’t directly applicable.
May confer rights on individuals
affected by them so can be
directly effective.
General notes;
10. TERTIARY SOURCES
• The court of justice has played an essential role
in the development of EU law.
• Preliminary references, creating direct effect,
establishing supremacy…
• Court illuminates & develops the principles of
EU law, in regards of the broad objectives
established in the Primary Legislation.
• It also adds detail & context to the principles
and provisions of Secondary legislation to
provide a more coherent and precise
application of it for member states to follow.
• As the ECJ follows continental civil law
procedures, binding precedent of judicial
decisions does not exist.
• However deference from previous decisions
will not be done without good cause.
CILFIT 1982;
Rules regarding previous rulings on
interpretation in regards of preliminary
reference still applied today.
Example of consistency within the ECJ.
Key
Principles of
EU Law.
Proportiona
lity
Subsidarity
Equality
Legal
Certainty
Natural
Justice
Protection
of Human
Rights.
11. PROPORTIONALITY
• Any measure or action taken must be proportionate to the actual end achieved.
• Principle incorporated into the EC Treaty via the Maastricht Treaty.
• Applies in regards to whether legislation goes beyond what is necessary to achieve the purpose in
the treaty provision behind the legislation.
• Harsh provisions that go beyond what is necessary are unfair and can be declared invalid. (Article
267; validity.)
• Principle also applied when courts reviewing acts of the institution; is action to great a burden for
the actual breach of EU law?
• Exercised in reviewing member states actions also when they claim derogations from various
freedoms or provisions. Is derogation proportionate?
Internationale
Handelsgesselschaft case:
“No burden should be placed upon
citizens except to the extent that is
necessary to achieve the purpose.”
R (sugar) v Intervention
Board case:
A sugar trade did not apply for export license in
time.
Bank where securities had been lodged acted in
accordance with regulation;
Loss of £1670 to sugar trader.
Total forfeiture was disproportionate to the breach
committed.
Forfeiture procedure under the regulation declared
invalid.
12. SUBSIDARITY & EQUALITY
• Subsidiarity is a principal deriving from
the founding treaties.
• Decisions should be taken as closely as
possible to the citizens that are
affected by them.
• UK insisted that it should be formally
incorporated in the EC treaty by the
TEU. >>> ARTICLE 5
• EU should not act beyond its scope.
• 2 part test; • It must be determined that the
measure is one which is within the
competence of EU law to deal
with… OR
• The introduction of the EU measure
can only be justified if this services an
end which;
Cannot be achieved satisfactorily at
national level,
Can be achieved in a more
satisfactorily way by the EU
• Equal treatment and non discrimination
is more than just a general principal.
• Is one of the founding principal’s of the
EU and is incorporated into all areas.
• Article 18; Prohibits nationality based
discrimination.
• Article 157; Demands male/female
equal pay for equal work. This was
extended to cover all discriminatory
forms.
• Article 40; Prohibits discrimination
between producers & consumers in
relation to CAP.
Defrenne v
SABENA… Equal
pay.
13. LEGAL CERTAINTY, NATURAL JUSTICE,
PROTECTION OF HUMAN RIGHTS.
LegalCertainty
•The law in its application
has to be both certain &
predictable.
•Da Costa case.
•Officer van Justitie v K
•It was held that the daty
of the national courts to
interpret EU law in such a
manner that is, “Limited
by the general principles
of law. & is also in
particular national courts
should observe the
principles of legal
certainty & non
retroactivity.”
NaturalJustice
•Right to a non biased
hearing.
•Right to be heard
•Right to a reasoned
decision
•Common sense… Think
Human Rights and
Article 6!
•^ right to a fair trial.
ProtectionofHumanRights
•Human rights
incorporated into the EC
by the Treaty of Lisbon.
•Previously, not a
principal of the treaties.
•Internationale H;
•“Respect for
fundamental human
rights form an integral
part of general principles
of law protected by the
court of justice. The
protection of such rights,
while inspired by the
constitutional traditions
in member states must
be ensured within the
framework of the
structure & objectives of
the EC.”
•Article 11(6) now
guarantees Human
Rights.
