⇒ Written and unwritten sources

• By written sources we mean the treaties, regulations, directives and decisions
• By unwritten sources we mean the general principles of EU law e.g. subsidiarity protection of Human Rights; and other judicially created doctrines, such as legitimate expectations (these can and often do become written!)

⇒ Internal and external sources

• Internal sources are sources that derive from the Member States e.g. the protection of Human Rights
• External sources are the provisions of international law e.g. treaties undertaken by the EU

⇒ Primary and secondary sources

• Primary sources are the treaties and the general principles
• Secondary sources include the legislation that is made there under

⇒ Sources mentioned by Treaties and those which have been introduced by practice

• By practice e.g. the general principles and the European Council was even created by practice

⇒ The 9 sources of law make up the Acquis Communautaire are: Decisions; Directives; Regulations; the Treaties; CJEU case law; General principles; Charter of fundamental rights; international agreements; recommendations and opinions

⇒ The Lisbon Treaty sought to provide a more definitive list of the hierarchy of norms – now there are 5 principle tiers:

• The Constituent Treaties and the Charter of Rights
• General Principles of law
• Legislative Acts: Art 289 TFEU: adopted in accord with a legislative procedure
• Non-legislative/Delegated acts of general application: Article 290 TFEU: Enacted by the Commission to supplement or amend non-essential elements of the legislative act but provided the legislative act allows the Commission to do so
• Implementing Acts: Art 291 TFEU: Implementing powers of the Commission or the Council

⇒ Definition of a treaty:

• A treaty is an international agreement between States; it must be in written form; and is binding on the States concerned ("pacta sunt servanda")

⇒ Initially there were 3 EU Treaties, now there are 2

⇒ Creation of treaties done by intergovernmental conference under the impetus of the European Council

⇒ The UK has a dualist system which requires us to bring obligations in international law into domestic law through an act of parliament

• But the French republic, by contrast, brings these treaties into French law simply by virtue of signing the treaty

⇒ They provide the foundations, aims and objectives of the Union

⇒ They provide the authority of each Institution

⇒ They provide the mechanisms for legal redress e.g. judicial review

⇒ The Member States' obligations are seen in Article 4(3) TEU

⇒ The Treaty amendment procedures are stated in Article 48 TEU: it is not easy to amend a treaty of EU law

⇒ The Primacy of EU law was made clear in the case of Costa v ENEL (Case 6/64)

• European law would not effectively function unless it was given this primacy over member states’ legal provisions

⇒ This was reiterated by the Lisbon Treaty 2007 in Declaration 17

⇒ Article 51 TEU: "The Protocols and Annexes to the Treaties shall form an integral part thereof" E.g. the principle of subsidiarity is important

⇒ There are 37 protocols and 2 annexes attached to the Treaties

⇒ The CJEU confirmed binding force of these (Wybot [1986]; Foto-Frost [1987])

⇒ These are contrasted with protocols as they are rhetoric

⇒ They express particular views or intentions

⇒ They are not legally binding (unlike protocols) as they have not been incorporated into the Treaties by express provision. Hence they’re excluded from the jurisdiction of the CJEU and they cannot restrict, exclude or modify the legal effect of the Treaties

• Gestoras v Council [2004]: CJEU refused to give legal effect to a declaration

⇒ This is given legal status by the Lisbon Treaty in recognition of the growing importance to respect rights of the individual

• Article 6(1) TEU says the charter has the same legal value as the treaties
• It was originally only soft law (i.e. had no legal effect), but it is now justiciable!

⇒ It binds EU institutions and Member States when implementing EU law (Article 51 Charter)

⇒ Opt-out Protocol 30:

• Article 1(2) of the opt out exempts title 4 of the Charter on Fundamental Rights on the UK
• NS v Secretary of State for the Home Dept 2011: The ECJ confirmed protocol 30 does not exempt the UK from its obligations of having to comply with the charter or preventing a court from ensuring the UK complies with the Charter → so the effect of the opt out is unclear

⇒ These are unwritten principles inherent in the EU legal system

⇒ They may be used when interpreting particular Treaty Articles

⇒ They sit above legislative, delegated, and implementing acts: general principles can be used not only to interpret such acts, but also as a ground for invalidation if a particular legislative, delegated, or implementing act contravenes these principles

⇒ The ECJ has derived general principles from several sources:

1. Developed largely by the CJEU
• They have read principles such as proportionality, fundamental rights, legal certainty, legitimate expectations
• Article 19 TEU: “It shall ensure that in the interpretation and application of the Treaties the law is observed”
2. General principles common to the laws of the Member States (Art 340 TFEU)
• E.g. principle of the prohibition of unjust enrichment, non-contractual liability, protection of business secrets)
3. Some have been formally adopted by the EU: these can be constitutional in nature (such as the principle of conferral and subsidiarity applicable to the EU as an organization; the principles of direct effect, direct applicability and supremacy applicable to EU law; the principles of solidarity applicable to the Mss and institutions; the principle of equality and non-discrimination [article 18 TFEU] applicable to individuals) or reflect the economic philosophy of the internal market (of the free movement of goods, people, services and capital)
4. Principles of Human Rights: through its case-law, the ECJ has developed Human Rights and fundamental freedoms into one of the key principles of EU law

⇒ Regulations, directives, decisions, recommendations and opinions

⇒ All legislative acts must conform to the following criteria:

• Must be within the competences of the EU
• Must provide a legal basis (Art 296 TFEU) e.g. based on treaty article
• Commission must include a statement of the reasons why legislation is necessary (Article 296(2) TFEU; Germany v Commission [1963])

⇒ Must be signed by the appropriate person

⇒ Must be published in Official Journal of the EU or notified to relevant addressee

⇒ There is an obligation to provide a legal basis (Art 296 TFEU) when adopting legislation

⇒ So, we need to be sure the legal Basis determines:

• What the correct decision-making procedure is
• Who the competent institutions are
• What the appropriate rules for voting in the Council are
• Extent of the European Parliament’s participation
• What the content of the act would be

⇒ If there is an incorrect legal basis the act can be challenged and declared void by the CJEU (Germany v Parliament & Council (Tobacco Advertising) [2000])

• In this case, a directive was brought in which contained a complete ban on cigarette advertising and sponsorship. The legal basis was given as article 114 TFEU
• The ECJ said this was the wrong legal basis for the directive, so was declared ultra vires

⇒ If two areas are covered by a regulation or directive, procedural requirements of both must be satisfied unless impossible or against the rationale of the procedural requirements (Commission v Council (Titanium Dioxide) [1991])

⇒ These are measures adopted by the institutions based on the Treaties

⇒ Two types of binding secondary acts exist: (a) legislative acts adopted by the ordinary or special legislative procedures (Article 289(3) TFEU) consisting of regulations, directives, decisions and (b) binding non-legislative acts not adopted through the legislative procedures, consisting of delegated acts (Article 290(1) TFEU) and implementing acts (Article 290(2) TFEU)

• So regulations/directives/decisions can take a normal legislative form, or can take a delegated or implementing form

⇒ Regulations have a general application, are binding entirely, and are directly applicable

⇒ Regulations creates a uniformity of rules throughout the Union

⇒ National implementation measures are invalid (Variola Case [1973]: you cannot implement a community provision “in such a way that the subject matter is bought under national law”)

⇒ Directives are binding as to the result they achieve. National authorities have the choice of form and methods used to achieve that result

⇒ They are manifestations of the principle of proportionality

⇒ They are not of general application, although may be addressed to all member states (Gerda Kloppenburg v. Finanzamt Leer)

⇒ The implementing measures adopted by the Member States must be appropriate and effective (Commission v Belgium [1980])

⇒ Directives are ideal when the laws of the Member States need to be harmonised rather than absolutely uniform

⇒ States given some time to implement the directive but when deadline has passed it enters into force without the need for State implementation

⇒ The Commission monitors the implementation of directives and can initiate proceedings against States that do not implement them (article 260(3) TFEU)

⇒ Decisions are binding upon those to whom it is addressed

• So they have no general scope unless addressed to all Member States – they are binding in their entirety on the addressee only

⇒ Recommendation and opinions, and soft law:

• Not binding (so no legal effect)
• BUT: must be taken into account by national courts, therefore may have some legal effect (Grimaldi Case [1989])

⇒ Also note that an act is binding when it “brings about a distinctive change in the legal position of a party” (IBM [1981])

⇒ CJEU role stated in Article 19 TEU: “It shall ensure that in the interpretation and application of the Treaties the law is observed.”

⇒ Case law fills the gaps left by vague language in the Treaties and legislation

⇒ CJEU case law has created principles which have secured the integration of policies across the EU

• The Case law enforces the will of the union – there is no other means of enforcing the will of the union (e.g. no police, no army)

⇒ These rank above secondary law but below primary law – this is the official view of the CJEU as seen in this case of Caddy

• So International Agreements can be used to challenge secondary law

⇒ International Agreements entered into by the EU with 3rd countries or international organisations are binding on the EU institutions and Member States – Article 216(2) TFEU

⇒ Art 217 TFEU: “The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.”

⇒ The EU has legal personality (Art 47 TEU), so has the competence to enter International Agreements

⇒ This is not a legislative process

⇒ Defrenne [1976] – the ECJ held the “Treaty can only be 
modified by [an] amendment procedure carried out in accordance with [ex] Article 236”

⇒ Revising Treaties governed by Article 48 TEU: this sets out 2 revision procedures (a) ordinary revision procedure (b) simplified revision procedure

⇒ The Lisbon Treaty simplified the legislative procedure by (a) extending the applicability of the ordinary legislative procedure and reducing the scope for special procedures; and (b) reducing the democratic deficit in legislative process and increase its transparency

⇒ The legislative process is usually initiated by Commission and has several stages:

• (a) Draft adopted by Commission
• (b) Proposal is sent to the European Parlaiment, Council and national parliaments

⇒ Ordinary legislative procedure (Article 294 TFEU):

• (a) 1st reading, the European Parlaiment delivers an opinion which the Commission may or may not incorporate into the proposal; The proposal is then submitted to the Council which may accept, reject or introduce its own amendments
• (b) 2nd reading, the European Parlaiment will express its opinion on the Council proposals and may make amendments on which the Commission comments; the Council either approves of the European Parlaiment's amendments or rejects them
• (c) Conciliation stage: a Conciliation Committee is convened to reach agreement within 6 weeks
• (d) The text agreed by the Conciliation Committee must be adopted within six weeks on third reading