The EU legislation
Sources of EU law
• primary law
• secondary law
• Other sources of law
Sources of primary law
• Sort of “constitution” of the EC
– the ECSC Treaty of 1951 (Treaty of Paris)
– the EEC Treaty of 1957 (Treaty of Rome)
– the EURATOM Treaty of 1957 (Treaty of Rome)
– the Merger Treaty of 1965
– the Acts of Accession of the United Kingdom, Ireland and Denmark (1972)
– the Budgetary Treaty of 1970
– the Budgetary Treaty of 1975
– the Act of Accession of Greece (1979)
– the Acts of Accession of Spain and Portugal (1985)
– the Single European Act of 1986
– the Treaty of Maastricht of 1992 (Treaty on European Union)
– the Acts of Accession of Austria, Sweden and Finland (1994)
– the Treaty of Amsterdam of 1997
– the Treaty of Nice of 2001
– the Treaty of Accession 2003
– the Treaty of Accession 2005
– The Lisbon Treaty 2009
Sources of secondary law
• Unilateral acts:
– See art. 288 TFEU
– Atypical acts
• In some sense also agreements:
– interinstitutional agreements
Art. 288 TFEU
• To exercise the Union’s competences, the institutions shall
adopt regulations, directives, decisions, recommendations
and opinions.
• A regulation shall have general application. It shall be binding
in its entirety and directly applicable in all Member States.
• A directive shall be binding, as to the result to be achieved,
upon each Member State to which it is addressed, but shall
leave to the national authorities the choice of form and
methods.
• A decision shall be binding in its entirety. A decision which
specifies those to whom it is addressed shall be binding only
on them.
• Recommendations and opinions shall have no binding force.
• Article 113: The Council shall, acting unanimously in accordance
with a special legislative procedure and after consulting the
European Parliament and the Economic and Social Committee,
adopt provisions for the harmonisation of legislation concerning
turnover taxes, excise duties and other forms of indirect taxation to
the extent that such harmonisation is necessary to ensure the
establishment and the functioning of the internal market and to avoid
distortion of competition.
• Article 114 : 1. Save where otherwise provided in the Treaties, the
following provisions shall apply for the achievement of the objectives
set out in Article 26. The European Parliament and the Council shall,
acting in accordance with the ordinary legislative procedure and
after consulting the Economic and Social Committee, adopt the
measures for the approximation of the provisions laid down by law,
regulation or administrative action in Member States which have as
their object the establishment and functioning of the internal market.
Regulations
• Regulations are legislative instruments of
general application.
• binding in their entirety
• directly applicable
• Transposition is not necessary nor
welcomed
• REGULATION No 1 determining the languages to be used by the European Economic Community
• THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY,
• Having regard to Article 217 of the Treaty which provides that the rules governing the languages of the institutions
of the Community shall, without prejudice to the provisions contained in the rules of procedure of the Court of
Justice, be determined by the Council, acting unanimously;
• Whereas each of the four languages in which the Treaty is drafted is recognised as an official language in one or
more of the Member States of the Community;
• HAS ADOPTED THIS REGULATION:
• Article 1
• The official languages and the working languages of the institutions of the Community shall be Dutch, French,
German and Italian.
• Article 2
• Documents which a Member State or a person subject to the jurisdiction of a Member State sends to institutions of
the Community may be drafted in any one of the official languages selected by the sender. The reply shall be
drafted in the same language.
• Article 3
• Documents which an institution of the Community sends to a Member State or to a person subject to the
jurisdiction of a Member State shall be drafted in the language of such State.
• Article 4
• Regulations and other documents of general application shall be drafted in the four official languages.
• Article 5
• The Official Journal of the Community shall be published in the four official languages.
• Article 6
• The institutions of the Community may stipulate in their rules of procedure which of the languages are to be used in
specific cases.
• Article 7
• The languages to be used in the proceedings of the Court of Justice shall be laid down in its rules of procedure.
• Article 8
• If a Member State has more than one official language, the language to be used shall, at the request of such State,
be governed by the general rules of its law.
• This Regulation shall be binding in its entirety and directly applicable in all Member States.
Directives
• Reconcile two objectives:
– secure the necessary uniformity of EU law
– Allows respecting the diversity of national
traditions and structures
• binding on Member States
• They are not directly applicable
• Council Directive 76/207/EEC of 9 February 1976 on the implementation of the
principle of equal treatment for men and women as regards access to
employment, vocational training and promotion, and working conditions
• HAS ADOPTED THIS DIRECTIVE:
• Article 6
• Member States shall introduce into their national legal systems such measures
as are necessary to enable all persons who consider themselves wronged by
failure to apply to them the principle of equal treatment within the meaning of
Articles 3, 4 and 5 to pursue their claims by judicial process after possible
recourse to other competent authorities.
• Article 7
• Member States shall take the necessary measures to protect employees against
dismissal by the employer as a reaction to a complaint within the undertaking or
to any legal proceedings aimed at enforcing compliance with the principle of
equal treatment.
• Article 8
• Member States shall take care that the provisions adopted pursuant to this
Directive, together with the relevant provisions already in force, are brought to
the attention of employees by all appropriate means, for example at their place
of employment.
• Article 9
• 1. Member States shall put into force the laws, regulations and administrative
provisions necessary in order to comply with this Directive within 30 months of its
notification and shall immediately inform the Commission thereof.
• Article 11
• This Directive is addressed to the Member States.
CCC § 53
• If the agreement was
concluded by means of
distant communication
devices, the consumer may
withdraw from the
agreement within 14 days
after the performance was
taken over. …
• Should the consumer
exercise his right of
withdrawal according to the
sec. 7, the supplier is
entitled only to the
reimbursement of the direct
cost of returning the goods.
Directive 97/7 Art. 6:
• For any distance contract
the consumer shall have
a period of at least seven
working days in which to
withdraw from the
contract without penalty
and without giving any
reason. The only charge
that may be made to the
consumer because of the
exercise of his right of
withdrawal is the direct
cost of returning the
goods.
Decisions
• individual act addressed to a specified
person
• binding only on those to whom they are
addressed
• No need to implement them
Recommendations and
Opinions
• not binding and therefore arguably not law
Principles of application of the
EU law
• Direct applicability: A legislative measure
has legal consequences without state
intervention (e.g. regulation)
• Direct effect: A legislative measure grants
rights/duties to individuals. Such
rights/duties must be upheld/enforced by
national courts.
• The direct effect principle has been formed
by the ECJ and is not stated in the
Founding Treaties.
Direct effect rationale
• Ensure that the fundamental aims of the
EU legislation are fulfilled (effet utile/
effectiveness principle)
• Special nature of EU law
"Van Gend criteria"
• The provision must:
– be sufficiently clear and precisely stated,
– be unconditional or non-dependent,
– confer a specific right for the citizen to base
his or her claim on.
• Article 12 of the Treaty of Rome (now replaced by Article 30 TFEU)
stated: "Member States shall refrain from introducing between
themselves any new customs duties on imports and exports or any
charges having equivalent effect, and from increasing those which
they already apply in their trade with each other."
Varieties of direct effect
• Vertical E. = against state (Van Gend en
Loos)
• Horizontal = concerns the relationship
between individuals (Defrenne v.
SABENA)
EU Legislation and direct
effect/applicability
• EC Treaty
Regulations
Directives
Decisions
Opinions/ recommendations
International agreements
Directives
• Grad v Finanzamt Traunstein - D. could be directly
effective
• Becker - "wherever the provisions of a directive
appear...to be unconditional and sufficiently precise,
those provisions may, in the absence of implementing
measures adopted within the prescribed period, be
relied upon as against any national provision which is
incompatible with the directive or insofar as the
provisions define rights which individuals are able to
assert against the State.“
• Pubblico Ministero v. Ratti - time limit for
implementation must expire
• Marshall - directive can not have a horizontal direct
effect
Ratti (Case 148/78)
• Ratti, a manufacturer of solvents in Italy,
was charged with failure to comply with
Italian labelling legislation. He claimed that
his products were labelled according to
EEC standards contained in two directives
• Directive No 1 was adopted in 1973 and
was to be implemented in 1974
• Directive No 2 was adopted in 1977 and
was to be implemented in 1979
Marshall v South West Area
Health Authority (Case 152/84)
• Miss Marshall sought to rely on Art.5 of the
Equal Treatment Directive 76/207 when
she was required to retire at 60 when men
did not have to retire until the age of 65.
Kolpinghuis Nijmegen
BV. Case 80/86
• member state (NL) has not yet adopted the
measures needed to implement the directive
80/777/EEC on the approximation of the laws
of the member states relating to the
exploitation and marketing of natural mineral
waters – implementation period has already
expired
• Criminal proceedings against an undertaking
was initiated for breach of this D
• Undertaking was selling a tap-water as
mineral water
Faccini Dori v Recreb (Case C-
91/92)
• Consumet entered into a contract, later tried
to cancel it.
– Under national law – not possible
– Under EU directive on consumer protection yes,
however, it was not implemented in Italy (5 years
after deadline)
– If Italy did implement it, P could cancel it
• The company replied it does not agree and
that it had assigned its claim to Recreb.
• Recreb sues Paola …
Mangold case C-144/04
• Mangold was a 56-year-old German man employed on a fixed
term contract in a permanent full-time job.
• His employer was an atorney at law Mr. Helm.
• According to German law, fixed term contracts are unlawful
unless they can be objectively justified. However, if the
employee is over 52, that requirement does not apply.
• Mangold sues Mr. Helm and claims that he is a subject of
discrimination
• Mr. Helm and Mangold both agree during the trial that there is
no reason or justification for the contract to be fixed.
• There was a directive Employment Equality Framework
Directive that had to be implemented in 2006
Why should a directive have the
direct effect?
• A way to achieve the goal of the
Community
• The effectiveness principle
Do not forget
• What is a state? – wide interpretation!
When could D. have DE?
• precise in its wording and
• grants rights to individuals, which may be
pleaded before national courts,
• the member state has not abided by the
set deadline.
• It cannot be invoked against but only in
favour of individuals
Directives - indirect effect
• the national court must apply the
legislation adopted for the implementation
of the directive in conformity with EC law,
in so far as it is given discretion to do so,
under national law (14/83 Von Colson)
• The same principle applies as regards
national case law
Marleasing case
• Marleasing – creditor - Barviesa – debtor
• Barviesa establishes La Comercial
• Marleasing sues La Comercial for
declaration that it shall be nullified
• Directive 68/151 limits the cases in which
a company may be nullified
• This directive was not implemented on
time
Marleasing
• .it should be observed that, as the Court pointed out in its
judgment in Case 14/83 Von Colson and Kamann v Land
Nordrhein-Westfalen [1984] ECR 1891, paragraph 26, the
Member States' obligation arising from a directive to achieve
the result envisaged by the directive and their duty under
Article 5 of the Treaty to take all appropriate measures,
whether general or particular, to ensure the fulfilment of that
obligation, is binding on all the authorities of Member States
including, for matters within their jurisdiction, the courts. It
follows that, in applying national law, whether the provisions in
question were adopted before or after the directive, the
national court called upon to interpret it is required to do so,
as far as possible, in the light of the wording and the purpose
of the directive in order to achieve the result pursued by the
latter and thereby comply with the third paragraph of Article
189 of the Treaty.
International Agreements
• International commitments of the
European Union should be respected in
the member states
• They can, in certain circumstances, also
be directly enforceable
• i.e. agreements with association countries
have direct effect
• The GATT provisions are not directly
effective
Conclusion
• EC Treaty provisions Regulations/ Directives,
Decisions and Agreements with third
countries are in principle directly effective,
provided they are clear, unambiguous,
unconditional and no further action is needed
for their implementation. In this case, they
may be invoked before national courts but not
horizontally. However, a compensation for
non-implementation may be asked from the
state.
SUPREMACY
• created by the ECJ
• No reference in EC Treaty.
• based on the effet utile principle (the
effectiveness principle)
Relevant ECJ jugments
• Implicitly mentioned in the Van Gend en Loos case.
• Explicitly mentioned in (6/64 Costa v. Enel)
– It follows from all these observations that the law
stemming from the treaty, an independent source of law,
could not, because of its special and original nature, be
overridden by domestic legal provisions, however framed,
without being deprived of its character as community law
and without the legal basis of the community itself being
called into question
• EC law is supreme even over constitutions
Internationale Handelsgedelschaft)
• Italian Minister of Finance v Simmenthal – lex
posterior shall not be aplied in case of EU and national
law conflicts
Conclusion
• Legislation with direct effect is a source of rights and
obligations.
• A national law contrary to a EU rule of direct effect will lack
enforcing power.
• There is priority of application of EU law/ not cancellation of
the contrary national law.
• National courts are obliged to abstain from applying contrary
national law.
• Not posterior national law, contrary to the EU law is allowed to
be issued.
• National law is neither interpreted, not applied by the ECJ.
National courts judgments may not be attacked there.
• Only exceptionally may national law supplement EU law.
Conclusion
• Since EU law overrides national laws, every
national court is obliged to give immediate
effect to EU law, irrespective of whether it
has national jurisdiction.
• EU Law overrides national law if it is “directly
effective
• If it is not directly effective, the national courts
and authorities should interpret the national
law provision by considering the spirit and
rationale of this EU law provision (indirect
effect)
Conclusion
• National provisions do not become void
but they are not applied in the case in
question. They may still be applied in other
cases to the extent that they are not
contrary to the EU law provisions.
• Member-states are obliged to repeal such
laws to the extent that the community
legislator aims at harmonising national
laws in a given field
Third Pillar application of the
supremacy and direct effect principles
• Does not apply anymore!
• Direct effect was explicitly forbidden
(art.34, § 2 b EU Treaty) – this will,
however, change with the LT
• Application only of indirect effect (no direct
effect) in framework decisions. C-105/03
Maria Pupino.