1. on which conditions is the EU entitled to act?

Private and Public lawlesson 4 – The European integration process and the European legal order (overview)-March 21, 2014-

INDEX1. on which conditions is the EU entitled to act?2. what are the main types of EU legislation?

1. on which conditions is the EU entitled to act?

When is the Union entitled to act in a policy area? _______________________________________ The principle of conferral The principle of subsidiarity The principle of proportionality

1. the principle of conferral_________________________________ According to the principle of conferral, the Union has only those competences that are conferred upon it by the Treaties

2. the principle of subsidiarity _________________________________ The principle of subsidiarity aims at determining the level of intervention that is most relevant in the areas of competences shared between the EU and the Member States. According to the principle of subsidiarity, the EU may only intervene if it is able to act more effectively than Member States.

(follows) the principle of subsidiarity _________________________________ - Does the action have transnational aspects that cannot be resolved by Member States?- Would national action or an absence of action be contrary to the aims/requirements of the EU Treaty?- Does action at European level have clear advantages?

3. the principle of proportionality • ___________________________________ According to the principle of proportionality, the means used by the EU in order to meet the objectives set by the Treaties cannot go beyond what is necessary

Summing-up conclusions • ___________________________________ The Union can only act in a policy area if:1. the action falls within the competences conferred upon the EU by the Treaties (principle of conferral);2. in the context of competences shared with Member States, an intervention by the Union is legitimate if the goal could be not achieved (or would be inefficiently achieved) at a national level (principle of subsidiarity);3. the content and form of the action does not exceed what is necessary to achieve the objectives set by the Treaties (principle of proportionality).

2. what are the main types of EU legislation?

Sources of EU law • ______________________________ - regulations- directives- decisions- recommendations- opinions“atypical” deeds

The importance of identifying the category of act _________________________________ - The act may directly applicable in domestic law- Procedure to be followed to challenge each act

The importance of identifying the category of act _________________________________ In order to identify the applicable category, we should make reference to: - its title (if the deed makes reference to a particular form or procedure)- its actual contents and subject matter

Creation of a EU act _________________________________ The legislator’s duty to provide a “rationale”: factual and legal basis of the act (“whereas…”) in absence of a justification, an act may be held as invalid, since, in case of dispute, the Court is not in a position to consider and analyze its rationale

Creation of a EU act _________________________________ The legislator’s duty to provide a “rationale”: factual and legal basis of the act (“whereas…”) the legislator does not necessarily need to include all factual background (the context in which the act is born may be implicit)

REGULATIONS_________________________________ Regulations:1- have general application2- are binding in their entirety 3- are directly applicable in all Member States

REGULATIONS_________________________________ - Regulation have general application. But what if a Regulation envisages specific persons? The case of regulations against terrorism- Regulations do not need any implementation measure. But what if a regulation needs some enactment decision (specifying practical aspects), to be approved by Member States? May/should Member States provide for sanctions to be applied in case that citizens act in breach of an EU Regulation?- Regulations directly apply in all Member States. But what if a Regulation applies to some of them only?

REGULATIONS_________________________________ Regulations create rights which are directly enforceable by each individual before domestic Courts, both against other individuals, and against the State / public bodies.

DIRECTIVES_________________________________ Directives:1- do not necessarily have general application2- are addressed to Member States only3- require implementation measures by Member States4- are binding as to the result to be achieved; Member States remain free to choose the forms and methods to implement directives into domestic law

DIRECTIVES_________________________________ - Directives need to be implemented into national laws. What if a directive already contains a detailed and complete regulation of the relevant policy area?- Member States must implement directives by a given deadline. Is there any obligation before the elapse of the deadline? What if a directive is not implemented (or it is inadequately implemented) by the deadline? Infringement proceeding + possible restoration of damages in favor of individuals- Member States are free to choose the most appropriate methods to implement directive. Is this freedom absolute?

DIRECTIVES_________________________________ - A directive may have direct effect in Italy and, thus, create rights directly enforceable by individuals against the State before local Courts (the directive was not implemented in Italy). This subject to:(A) the directive being sufficiently “clear and precise”; (B) the directive imposing an unconditional obligation on the Member States;(C) the directive being aimed at creating rights in favor of individuals.

DIRECTIVES_________________________________ - Local Courts must construe and apply all domestic law in accordance with the EU directives. However, if domestic law is not in line with a directive, local Courts are generally not entitled to disregard national norms.

DECISIONS_________________________________ Decisions:1- are binding in their entirety2- may either specify their addressees or not (after the Treaty of Lisbon)3- may be addressed to either Member States (e.g., decisions regarding State aids) or to individuals (e.g., decisions regarding competition among undertakings)4- depending on each specific case, may have direct effect in Italy

1. on which conditions is the EU entitled to act?