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Constitutional Matters Revision Notes

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Law-Making and Constitutional Constraints (Part 1) How does the Union act? (Part 2)

1. Acts of the European Union (Art 288 TFEU)

1.1 Regulations: General measures binding on all, and directly applicable, as soon as adopted, are part of national legal system, no implementation necessary. Must be published in the official Journal,if no date set, on twentieth day following publication (Art 254 EC). Power to make them can be conferred on commission by council regulation. Test if regulation is one of substance not of form (calling it regulation) not enough. Common for individual to argue that regulation is in reality a decision.
*Note: States may need to modify their law in order to comply with a regulation, like when regulation has implications for different parts of national law.

Case Variola v Amministrazione delle Finanze 1973 ECJ: The direct application of regulation is independent of any measure of reception into national law. National law must not obstruct of constrict the effect of it.

Be smart: Don't confuse between directly effective and effective without implementation.

1.2 Directives: Addressed usually to all MS. Binding only as to the result to be achieved, MS choose form and methods, must be implemented by certain deadline. Advantage is flexibility (Craig de Burca). Case e.g Mangold: added that even if Directive not yet binding, MS must refrain from doing anything before the deadline that would jeopardize achieving Directive objective.

1.3 Decisions: Normally far more specific, and more binding in their entirety. Normally specify to whom they are addressed. Binding only on the addressee. Treaty stipulates usage of decisions in eg. Breach of competition rules, or state aids rules. Again, form not name.

1.4 Recommendations and Opinions Have no binding force. Art 211 EC gives Commission general power to formulate recommendations or deliver opinion on matters dealt with Treaty.

1.5. Other methods, soft law: Things like policy guidelines issued by the Commission in area of state aids to indicate how it will exercise its discretion. These methods lauded in EC and recent 2000 Review but also can give rise to problems, e.g., those affected trying to understand what the law actually is in that area. Recourse to informal law may also prevent Council and EP from having effective input into resulting norms.

1.6 Important Points:





Substance not label given. The case-law has in some cases turned Directives into something more like regulations (e.g??) All three kinds of legally binding acts (regulations, directives, decisions) may be adopted by the legislative procedure (either ordinary or special, depending on what the Treaty says), in which case they will be 'legislative acts'. If they are not adopted by legislative procedure, they are 'non-legislative acts' (but they are still binding- so why does the distinction matter: easier to challenge something if non leg after Lisbon) Delegated Acts: In Art 290 you have delegated acts, acts adopted by Commission in exercise of delegated powers. When PLT and Council adopt parent legislation, then commission adopt delegated legislation.

2. Competences in the Treaty: the Principle of Conferral The Union can only exercise its powers legitimately under certain conditions set in Treaty

2.1 Article 5 TEU: Sets out three conditions before Union can doing anything: Competence, subsidiarity and proportionality


Art 5(1). The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.


Art 5(2) Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.


Note: Court of Justice controls if Union acts outside (Some constitutional courts disagree because say European Court lacks kompetenz-kompetenz, i.e, because EC belongs to the Union, should not be EC that has the last word, because there would be bias in the system in favor of the Union


Art 5(3). Principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or

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