BPP Study Manual Chapter 3 - Sources of Law

Question 1

What are the primary sources of EU law?

Answer 1

The various treaties and amendments that formed the EU, as well as treaties signed between the EU and third parties.

Question 2

What are the secondary sources of EU law?

Answer 2

measures like regulations, directives, decisions, recommendations and opinions

Question 3

What gives EU instititions the power to make secondary legilations?

Answer 3

Article 288 TFEU

Question 4

What are the characteristics of EU regulations?

Answer 4

• binding
• apply to all MS
• ‘directly applicable’ ie they become law instantly in each MS without any need for implementation - though not necessarily ‘directly effective’.

Question 5

What are the characteristics of EU directives?

Answer 5

• applies to all MS
• binding as to the result that must be achieved
• not directly applicable. Each MS decides how to apply the law most effectively to achieve the specified result. Eg in the UK through Acts of Parl or statutory instruments

Question 6

What are the characteristics of EU decisions?

Answer 6

• binding on their addressees only
• do not require further implementation by MS
• may be addressed to MS individually or collectively, or individuals/undertakings
• relatively uncommon

Question 7

What are the characteristics of EU recommendations/opinions?

Answer 7

• not binding and not legal decisions or acts; “soft law”

- relatively uncommon

Question 8

What article requires Union institutions to provide the reasoning for decisions?

Answer 8

Article 296 TFEU (2009)

Question 9

What are the ‘general principles of EU law’?

Answer 9

the principles used by the CJEU to interpret EU law. CJ uses them to determine cases views them as underlying the application of EU law

Question 10

How can the ‘general principles’ be used?

Answer 10

• aid to interpretation
• by MS and individuals to challenge Union action
• more rarely, to challenge a MS’s actions
• to support a claim for damages against the Union

Question 11

Name the ‘general principles’

Answer 11

• equality
• legal certainty
• legitimate expectation
• the right to a hearing
• legal professional privilege
• proportionality
• human rights

Question 12

What does the principle of legal certainty mean?

Answer 12

Union measures cannot generally be retroactive, though some can be retrospective in exceptional cases

Question 13

What does the principle of legitimate expectation mean?

Answer 13

Union law must not violate the ‘legitimate expectation’ (ie the expectation of a reasonable man) of those affected by it.

Question 14

What does the right to a hearing entail?

Answer 14

those perceptibly affected by a decision taken by a public authority have the right to have an opportunity to make their views known

Question 15

What is the principle of proportionality?

Answer 15

any measure taken by the EU must be proportionate to and suitable for the purposes which are to be achieved.

Question 16

In what case did the CJ accept that the protection of fundamental human rights was part of the general principles of EU law?

Answer 16

Stauder v City of Ulm [1969]

Question 17

In what case did a German court state that they could declare EU laws inapplicable in Germany? What were the effects of this?

Answer 17

Solange I [1974].

Undermined EU law’s supremacy and encouraged the CJ to embrace HR law.

Question 18

What EU treaty now incorporates a statement of Human Rights? What is the statement called?

Answer 18

Article 6 TOTEU 2009 (treaty of the european union).

EU Charter of Fundamental Rights

Question 19

What are the three sources of EU law?

Answer 19

• primary sources (treaties and amendments)
• secondary sources (delegated legislation; regulations, etc)
• General principles of EU law.