Understanding Sources of EU Law: Key Insights for Ukrainian Civil Servants

1. Sources of EU Law Course number: EUI25/6.A-2 Lecturer:

2. Aims of the lecture • To familiarize participants with sources of EU Law, • To allow participants to appreciate in which areas of EU law the EU institutions can legislate and how the roles are divided between the European Union and its Member States, • To enhance the general knowledge of EU affairs among the Ukrainian civil servants, • To facilitate understanding of EU decision-making powers and how this translates into choice of EU secondary legislation and determination of its contents.

3. Sources of EU law – an overview • The EU legal system comprises many sources originating from the Member States and EU institutions, • The system has evolved considerably since the early days and has been streamlined by the Treaty of Lisbon (see Article 288 TFEU et al.), • One should not exclude further reforms in the future.

4. Catalogue of sources

5. Primary law

6. Primary law (revision treaties)

7. International law • Public international law is an important source of EU law, • The European Union is a party to hundreds of international agreements with third countries and other international organisations, • Their scope, legal character and parties may vary, • Some agreements are concluded by the EU (and Euratom) acting alone, some by the EU (and Euratom) and Member States, on the one side, and third countries, on the other, • Frequently the EU creates “families” of agreements concluded with countries of a particular region: Euro-Med Agreements, Stabilisation and Association Agreements, Deep and Comprehensive Free Trade Agreements (see the Association Agreements with Ukraine, Georgia and Moldova), Partnership and Co-operation Agreements.

8. EU Secondary legislation • Art. 288 TFEU contains a uniform catalogue of binding sources of secondary legislation. • Secondary legislation is divided into legislative and non-legislative acts, • Legislative acts are adopted by the European Parliament and the Council (or Council acting alone) in accordance with legislative procedures, • Non-legislative acts are adopted by the European Commission, • Depending on their substance and aims they may be classified as delegated or implementing acts.

9. EU Secondary legislation (Art. 288 TFEU)

10. Regulations • Adopted by the European Parliament + Council, Council, Commission and European Central Bank, • Regulations are directly applicable, therefore they are automatically part of the legal systems of Member States, • Their aim is to provide uniform law for all Member States, • Note: in case of Ukraine EU regulations are not applied directly but Ukrainian law needs to be approximated with them.

11. Direct applicability • All regulations are directly applicable, but this does not mean that they may not require implementation at the domestic level, • It is interesting to note that the early jurisprudence of the Court of Justice is extremely restrictive in this respect, • See, for instance, CoJ, Case 39/72 Commission v. Italy; Case 34/73 Fratelli Variola SpA v. AmministrazioneitalianadelleFinanze.

12. Directives • Directives may be adopted by European Parliament + Council, Council or Commission, • Directives are binding as to the aim, which should be achieved and require further implementation measures in the domestic legal systems of Member States, • Their function is to harmonise domestic laws of the Member States.

13. Directives • Directives always have a transposition period (note: it is applicable to the Member States only), • EaA delay or an incomplete transposition may lead to infraction proceedings at the Court of Justice, • In principle, all Member States have to implement directives in their entirety, however this may be subject to some exceptions (for instance optional provisions), • See: CoJ, Case 52/75 Commission v. Italy; Case 102/79 Commission v. Belgium, Case C-144/99 Commission v. The Netherlands.

14. Decisions • Decisions are acts of an individual character, that may be addressed to Member States as well as to individuals (natural or legal persons), • In practice, however, we may also come across EU decisions applicable ergaomnes, • They are 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.

15. Other types of secondary legislation • Common Foreign and Security Policy is regulated in decisions (see Article 25 TEU) • Pre-Lisbon Treaty measures adopted under the so- called Third Pillar (Police and Judicial Co-operation in Criminal Matters) remain in force until they are amended, repealed or replaced by new legislation, • Framework decisions (similar to directives) are of particular importance.

16. General principles of law • The concept of general principles of law was established by the Court of Justice. • The most important principles include: - the principle of loyal co-operation (Art. 4(3) TEU), - fundamental rights, - state liability for breaches of EU law.

17. Soft law • One of idiosyncrasies of EU law are soft law instruments, • Soft law are non-binding acts, which are adopted by EU institutions when: • EU has no competence to adopt binding legislation, • there is no consensus in the Council to adopt binding legislation, • there is no need to adopt binding legislation but it is fitting to have formal acts clarifying the scope and meaning of existing legislation • Soft law instruments are usually adopted by the European Commission.

18. Soft law

19. Judgements of the Court of Justice as well as of General Court are binding for parties, In theory, judgements are not a source of law as in the common law systems, In practice, case-law of the Union courts is of highest relevance, For approximation the most important are preliminary rulings and infringement proceedings. Case-law of the Court