Private and Public law
lesson 4
The European integration process
and the European legal order
(overview)
INDEX
1. on which conditions is the EU
entitled to act?
2. what are the main types of EU
legislation?
1. on which conditions is the EU
entitled to act?
When is the Union entitled to act in a policy area?
_______________________________________
The principle of conferral
The principle of subsidiarity
The principle of proportionality
1. the principle of conferral
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According to the principle of conferral, the Union
has only those competences that are conferred
upon it by the Treaties
- exclusive competences
- competences shared with member States
2. the principle of subsidiarity
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The principle of subsidiarity aims at determining the
level of intervention that is most relevant in the
areas of competences shared between the EU and
the Member States.
According to the principle of subsidiarity, the EU
may only intervene if it is able to act more
effectively than Member States.
(follows) the principle of subsidiarity
_________________________________
- Does the action have transnational aspects that cannot
be dealt with by Member States?
- Would national action or the absence of action be
contrary to the aims/requirements of the EU Treaty?
- Does action at European level have clear advantages?
Added value of the European action, taking into
consideration the size and effects of the action at stake
(follows) the principle of subsidiarity
_________________________________
- According to the Protocol No. 2 attached to the Lisbon
Treaty, the national Parliaments are entitled to supervise the
EU actions in the light of the principle of subsidiarity; obligation
of the European bodies to keep national Parliaments informed
and updated
- All acts issued at the European level must be justified in the
light of the principle of subsidiarity / proportionality (however,
in the decision Germany v. Council, the European Court of
Justice held that an act may be “implicitly” justified => recitals)
- each Member State / its Parliament may challenge a
European Act adopted in conflict with the principle of
subsidiarity (before the European Court of Justice)
(follows) the principle of subsidiarity
_________________________________
- The Court of Justice is entitled to declare invalidity of a
European act adopted in contrast with the principle of
subsidiarity
Does this entail a discretionary evaluation? Is the Court
entitled to evaluate the merits of the EU decision? (“added
value” brought by the European act)
(follows) the principle of subsidiarity
_________________________________
National
Parliaments
Simple
majority of
votes
granted to
Parliaments
1/3 of all
votes
granted to
Parliaments
veto
Opinion against
approval of an
European act
3. the principle of proportionality
___________________________________
According to the principle of proportionality, the
means used by the EU cannot go beyond what is
necessary to meet the objectives set by the Treaties
3. the principle of proportionality
(follows)
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- Proportionality affects both the form (i.e., type of
legislation: directives, regulations, etc.) and the
content of EU acts (e.g., sanctions must be
proportionate/adequate to the punished behavior)
- a claim may be brought before the Court of Justice
- the principle of proportionality applies to all
competences of the EU (not only shared
competences)
Summing-up conclusions
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The Union can only act in a policy area if:
1. the action falls within the competences conferred upon
the EU by the Treaties (principle of conferral);
2. in the context of competences shared with Member
States, an intervention by the Union is legitimate if the goal
could be not achieved (or would be inefficiently achieved) at
a national level (principle of subsidiarity);
3. the content and form of the action do not exceed what is
necessary to achieve the objectives set by the Treaties
(principle of proportionality).
2. what are the main types of EU
legislation?
Sources of EU law
______________________________
- regulations
- directives
- decisions
- recommendations
- opinions
- “atypical” deeds
The importance of identifying the
category of act
_________________________________
- The act may directly applicable
in domestic law
- Procedure to be followed to challenge each act
The importance of identifying the
category of act
_________________________________
In order to identify the applicable category, we
should make reference to:
- its title (if the act makes reference to a particular
form or procedure)
- its actual contents and subject matter
Creation of a EU act
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The legislator’s duty to provide a “rationale”: factual
and legal basis of the act (“whereas…”)
in absence of a justification, an act may be held as
invalid, since, in case of dispute, the Court is not in a
position to consider and analyze its rationale
Creation of a EU act
_________________________________
The legislator’s duty to provide a “rationale”: factual and
legal basis of the act (“whereas…”)
the legislator does not necessarily need to include a full
description of the factual background (the context in
which the act is born may be held as implicit)
REGULATIONS
_________________________________
Regulations:
1- have general application
2- are binding in their entirety
3- are directly applicable in all Member States
REGULATIONS
_________________________________
- Regulation have general application. But what if a
Regulation envisages specific persons? The case of
regulations against terrorism
- Regulations do not need any implementation measure.
But what if a regulation needs some enactment decision
(specifying practical aspects), to be approved by Member
States? May/should Member States provide for sanctions
to be applied in case that citizens act in breach of an EU
Regulation?
- Regulations directly apply in all Member States. But
what if a Regulation applies to some of them only?
REGULATIONS
_________________________________
Regulations create rights which are directly
enforceable by each individual before
domestic Courts, both against other individuals
(“horizontal” relationships), and against the State /
public bodies (“vertical” relationships).
DIRECTIVES
_________________________________
Directives:
1- do not necessarily have general application
2- are addressed to Member States only
3- require implementation measures to be adopted by
Member States
4- are binding as to the result to be achieved; Member
States remain free to choose the forms and methods to
implement directives into domestic law. Directives are
generally more in line with the principles of subsidiarity
and proportionality
DIRECTIVES
_________________________________
- Directives need to be implemented into national laws.
What if a directive already contains a detailed and
complete regulation of the relevant policy area? Are
“detailed” directives illegitimate?
- Member States must implement directives by a given
deadline. Is there any obligation before the elapse of the
deadline? What if a directive is not implemented (or it is
inadequately implemented) by the deadline? Infringement
proceeding + possible restoration of damages in favor of
individuals
- Member States are free to choose the most appropriate
methods to implement directive. Is this freedom absolute?
DIRECTIVES
_________________________________
- A directive may have direct effect in Italy and, thus, create
rights directly enforceable by individuals against the State
before local Courts. This subject to:
(A) the directive being sufficiently “clear and precise”;
(B) the directive imposing an unconditional obligation on the
Member States;
(C) the directive being aimed at creating rights in favor of
individuals;
(D) the deadline for implementation being expired and the
Directive being not implemented in the Member State
DIRECTIVES
_________________________________
Directive, however, may “direct effect” with respect to
“vertical” relationships only
DECISIONS
_________________________________
Decisions:
1- are binding in their entirety
2- may either specify their addressees or not (after the
Treaty of Lisbon)
3- may be addressed to either Member States (e.g.,
decisions regarding State aids) or to individuals (e.g.,
decisions regarding competition among undertakings)
4- depending on each specific case, may have direct effect
in Italy