Tag Archives: Secondary legislation

The direct effect of European law

The direct effect of European law

Outline of the Community (European Union) legislation about The direct effect of European law

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Institutional affairs > The decision-making process and the work of the institutions

The direct effect of European law

The direct effect of European law is, along with the principle of precedence, a fundamental principle of European law. It was enshrined by the Court of Justice of the European Union (CJEU). It enables individuals to immediately invoke European law before courts, independent of whether national law test exist.

The direct effect principle therefore ensures the application and effectiveness of European law in the Member States. However, the CJEU defined several conditions in order for a European legal act to be immediately applicable. In addition, the direct effect may only relate to relations between an individual and a Member State or be extended to relations between individuals.

Definition

The direct effect of European law has been enshrined by the Court of Justice in the judgement of Van Gend en Loos of 5 February 1963. In this judgement, the Court states that European law not only engenders obligations for Member States, but also rights for individuals. Individuals may therefore take advantage of these rights and directly invoke European acts before national and European courts. However, it is not necessary for the Member State to adopt the European act concerned into its internal legal system.

Horizontal and vertical direct effect

There are two aspects to direct effect: a vertical aspect and a horizontal aspect.

Vertical direct effect is of consequence in relations between individuals and the State. This means that individuals can invoke a European provision in relation to the State.

Horizontal direct effect is consequential in relations between individuals. This means that an individual can invoke a European provision in relation to another individual.

According to the type of act concerned, the Court of Justice has accepted either a full direct effect (i.e. a horizontal direct effect and a vertical direct effect) or a partial direct effect (confined to the vertical direct effect).

Direct effect and primary legislation

As far as primary legislation is concerned, i.e. the texts at the top of the European legal order, the Court of Justice established the principle of the direct effect in the Van Gend & Loos judgment. However, it laid down the condition that the obligations must be precise, clear and unconditional and that they do not call for additional measures, either national or European.

In the Becker judgment (Judgment of 19 January 1982), the Court of Justice rejected the direct effect where the States have a margin of discretion, however minimal, regarding the implementation of the provision in question (Judgment of 12 December 1990, Kaefer & Procacci).

Direct effect and secondary legislation

The principle of direct effect also relates to acts from secondary legislation, that is those adopted by institutions on the basis of the founding Treaties. However, the application of direct effect depends on the type of act:

  • the regulation: regulations always have direct effect. In effect, Article 288 of the Treaty on the Functioning of the EU specifies that regulations are directly applicable in the Member States. The Court of Justice clarifies in the judgement of Politi of 14 December 1971 that this is a complete direct effect;
  • the directive: the directive is an act addressed to Member States and must be transposed by them into their national laws. However, in certain cases the Court of Justice recognises the direct effect of directives in order to protect the rights of individuals. Therefore, the Court laid down in its case-law that a directive has direct effect when its provisions are unconditional and sufficiently clear and precise (Judgement of 4 December 1974, Van Duyn). However, it can only have direct vertical effect and it is only valid if the Member States have not transposed the directive by the deadline (Judgement of 5 April 1979, Ratti);
  • the decision: decisions may have direct effect when they refer to a Member State as the addressee. The Court of Justice therefore recognises only a direct vertical effect (Judgement 10 November 1972, Hansa Fleisch);
  • international agreements: in the Demirel Judgement of 30 September 1987, the Court of Justice recognised the direct effect of certain agreements in accordance with the same criteria identified in the Judgement Van Gend en Loos;
  • opinions and recommendations: opinions and recommendations do not have legal binding force. Consequently, they are not provided with direct effect.

Unilateral acts

Unilateral acts

Outline of the Community (European Union) legislation about Unilateral acts

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Institutional affairs > The decision-making process and the work of the institutions

Unilateral acts

Through unilateral acts, individual rights are conferred by the institutions acting in an entirely autonomous manner. They are adopted by the institutions in accordance with the founding Treaties of the European Union (EU). Along with conventions and agreements, they constitute the secondary legislation of the (EU).

Nomenclature of unilateral acts

The unilateral acts described in the nomenclature of Article 288 of the Treaty on the Functioning of the EU are:

  • regulations;
  • directives;
  • decisions;
  • opinions and recommendations.

Moreover, Article 289 of the Treaty on the Functioning of the EU establishes a distinction between legislative acts, namely those adopted following a legislative procedure, and acts which are, by default, non-legislative. Generally, the aim of non-legislative acts is to implement legislative acts or certain specific provisions from the Treaties. For example, they relate to the internal regulations of institutions, certain Council decisions, measures adopted by the Commission in the field of competition, etc.

Certain atypical acts can also be classified as unilateral acts. Such acts are considered “atypical” in so far as they do not appear in the Article 288 of the Treaty on the Functioning of the EU. They are provided for by other provisions in the Treaties or have already been created through institutional practice. These acts are frequently used by institutions. For example, they relate to resolutions, conclusions, communications, etc. These acts have a political application, but they are not generally legally binding.

Unilateral acts, instruments at the service of European policies

The European authorities are free to choose the act that they deem most appropriate for implementing their policy. For example, where policies are designed to have an incentive effect, the Council or the Commission may opt for a recommendation.

Under the terms of the principle of conferral, acts must have a legal basis in the Treaty on the Functioning of the EU corresponding to the field in which the European authorities wish to take action. For want of a precise legal basis, they may have recourse to the flexibility clause (Article 352 of the Treaty on the Functioning of the EU), which concerns the EU’s subsidiary powers.

Moreover, the unilateral acts adopted by the European institutions are subject to review by the Court of Justice of the EU.

Legal status of unilateral acts

As to form, acts are required to cite the instruments conferring the power to adopt them (in citations beginning with “having regard to”) and to state the reasons on which they are based (in recitals beginning with “whereas”).

Acts must be published in the Official Journal of the European Union. Parties to whom an act is addressed may also be informed, as is the case with decisions.

As a rule, acts enter into force on the day they are notified or published in the Official Journal. Exceptionally, they may enter into force on the 20th day following that of their publication. They may also provide for implementation on a date later than that of their entry into force.

The decision-making process and the work of the institutions

The decision-making process and the work of the institutions

Outline of the Community (European Union) legislation about The decision-making process and the work of the institutions

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Institutional affairs > The decision-making process and the work of the institutions

The decision-making process and the work of the institutions

In order to implement EU policies, the European institutions adopt legal acts in accordance with the rules and procedures set out in the Treaties. In general, the European Commission proposes the legal acts, which are then adopted by the Council and the European Parliament. The three main procedures are consultation, assent and codecision.
Citizens also have a say in the development of Community policies. In the early 2000s, the Commission launched a major initiative to make the decision-making process more transparent, more efficient and more democratic. The aim of this initiative is to bring the European institutions closer to the citizen.

DECISION-MAKING PROCESS

  • Legislative procedures
  • The citizen’s initiative
  • Financial Regulation
  • A budget for Europe (2014-2020)
  • Towards a new financial framework 2007-2013
  • Interinstitutional Agreement on cooperation in budgetary matters
  • Procedure for the adoption of international agreements
  • The principle of cooperation between the institutions
  • Cooperation between the European Parliament and the European Commission
  • The accession process for a new Member State

LEGAL INSTRUMENTS

  • Sources of European Union law
  • Primary law
  • International agreements
  • The non-written sources of European law: supplementary law
  • Unilateral acts
  • Conventions and agreements
  • Regulations
  • The European decision
  • Directive
  • Atypical acts

ACTIVITIES OF THE INSTITUTIONS

Governance and Community legislation

  • White Paper on governance
  • Action Plan for Better Regulation
  • Strategic review of the “Better Regulation” programme
  • Interinstitutional Agreement on better law-making
  • Simplifying the regulatory environment
  • Reducing administrative costs
  • Fewer administrative formalities for more growth

Communication and debate on the activities of the European Union

  • Plan D for Democracy, Dialogue and Debate
  • Better informed about Europe
  • White Paper on Communication
  • Communicating Europe in partnership

Publication, transparency and access to documents

  • Transparency register
  • Access to European Parliament, Council and Commission documents
  • Public access to documents held by the Institutions
  • European Transparency Initiative (ETI)
  • Green Paper on the European Transparency Initiative

ENFORCEMENT OF COMMUNITY INSTRUMENTS

Transposition, implementation and enforcement

  • The direct effect of European law
  • Precedence of European law
  • The action for annulment
  • Proceedings for failure to fulfil an obligation
  • Proceedings for failure to act
  • The reference for a preliminary ruling
  • The action for damages

Implementing Community instruments

  • The Commission’s implementing powers

Conventions and agreements

Conventions and agreements

Outline of the Community (European Union) legislation about Conventions and agreements

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Institutional affairs > The decision-making process and the work of the institutions

Conventions and agreements

Conventions and agreements, together with unilateral acts, constitute the secondary legislation of the European Union (EU). They generate rights and obligations. They are the product of a consensus between the European institutions or between the latter and a third party. Unlike unilateral acts, therefore, conventions and agreements are not the result of a legislative procedure or the sole will of an institution.

Moreover, the founding Treaties of the EU provide for two main types of convention and agreement:

  • international agreements;
  • interinstitutional agreements.

International agreements

International agreements are agreements concluded between the EU on the one hand and a third country or third-party organisation on the other. Article 216 of the Treaty on the Functioning of the EU lists the cases in which the EU is authorised to conclude such agreements.

Moreover, international agreements have mandatory application throughout the EU. They have a value greater than unilateral secondary acts, which must therefore comply with them.

Interinstitutional agreements

Interinstitutional agreements are concluded between the European institutions. Their aim is to organise and facilitate cooperation between the institutions, specifically the Commission, the Parliament and the Council.

This type of agreement is the result of institutional practice but has been enshrined in the founding Treaties of the EU with the entry into force of the Treaty of Lisbon. Article 295 of the Treaty on the Functioning of the EU recognises the existence of interinstitutional agreements and specifies that they may also be binding. In this case the binding nature of the agreement depends on the wishes of the authors of the act.

Moreover, interinstitutional agreements may for example take the form of codes of conduct, guidelines or declarations.