SOURCES OF LAW

Question 1

EU TREATIES

Answer 1

• primary sources of EU law
• foundational treaties are TEU and TFEU
• the TFEU began as the treaty establishing the European economic community (EEC treaty) in 1958 also known as the treaty of Rome it set out the original aims of establishing a customs union a single market and initial common policies
• the TFEU and TEU form the constitution of the EU and are an important source of U law although they do not claim to create the constitution of a federal state they do have that effect
• yet they do still fall short of creating a federal state
• EU law prevails in MS but the U depends on national courts and enforcement agencies to implement it
• the treaties resemble a constitution as it defines each of its constituent parts, competence of the U itself and some extent citizens rights but not fully

Question 2

FUNDAMENTAL PRINCIPLES

Answer 2

• EU not typical international organisation
• not got autonomous sovereignty (powers given to it by treaties)
• EU has power competences conferred on it by MS this limits sovereign rights of MS and also EU can only exercise powers given to them
• all powers have to be traced back to competences in primary sources (the principle of conferral art 5 TEU)
• see van gend en loos (26/62) described as new legal order
• this ensures certainty

Question 3

HIERARCHY

Answer 3

Treaties 
Charter of fundamental rights
General principles of law 
             | 
Secondary law 
             |
Soft law 
             | 
Case law of the court of justice

Question 4

TREATIES

Answer 4

• treaty of EU
• treaty on the functioning of the EU
• charter of fundamental rights
• Euratom treaty
• accession treaties
• amending treaties (single European act, treaty of maastricht, treaty of Amsterdam, treaty of nice, treaty of Lisbon)

Question 5

GENERAL PRINCIPLES OF LAW

Answer 5

• largely a concept of the court of justice frequently adopted in the treaties and secondary laws
• they come from common principles held by most MS These are:
• principle of loyal co-operation art 4.3 TEU
• equality/non-discrimination
• proportionality
• mutual recognition
• fundamental (human) rights
• state liability for breaches of EU law
• etc.

Question 6

SECONDARY LAW

Answer 6

• art 288 TFEU contains a catalogue of binding sources of secondary legislation
• regulations
• directives
• decisions
• legal acts adopted under one of the legislative procedures are classified as legislative acts vide art 289 TFEU
• arts 290 and 291 TFEU provide for the adoption of delegated or implementing acts (mainly by e commission)

Question 7

REGULATIONS

Answer 7

• art 288 TFEU says regulations are directly applicable therefore automatically become part of the legal systems of all MS
• their aim is to provide uniform law for all MS
• some regulations may require domestic measures usually a procedural nature
• implementing a regulation by a MS in any other way is a breach of EU law

Question 8

DIRECTIVES

Answer 8

• not directly applicable art 288 TFEU
• are binding
• require implementation by MS in their domestic legal system
• harmonise domestic laws of MS

Question 9

FEATURES OF A DIRECTIVE

Answer 9

• can be addressed to all or some MS
• must be implemented by a MS on time
• each directive specifies its transposition deadline and usually requires communication by MS to commission of the implementing measures
• a delay of incomplete transposition may lead to an infraction procedure by commission ultimately at the CJEU art 258 TFEU
• often causes issues for individuals because they are not implemented or not implemented on time

Question 11

SOFT LAW

Answer 11

• non-binding acts such as:
• recommendations
• opinions
• notices
• communications
• information notices
• soft law instruments are usually adopted in the practice of the commission

Question 12

DECISIONS

Answer 12

• decisions are acts of an individual character binding on those to whom they are addressed art 288 TFEU
• may be addressed to MS as well as to individuals (natural or legal persons)
• an important tool in competition policy and state aid policy
• their effective implementation is of particular importance when a repayment of illegally granted state aid is at stake

Question 13

CASE LAW

Answer 13

• judgements of the court of justice as well as of the general court are binding
• role is to ensure that in the interpretation and application of the treaty of law is observed
• judges and advocates general
• teleological approach to interpretation
• in theory judgements are not a source of law as in the common law systems
• in practice case law of EU courts is highly relevant for the interpretation and application of EU law