Week 4

Friday, October 14, 2022 1:12 PM

Sources of EU Law
• A structured legal order - comparable to a national/domestic legal order (a hierarchy of sources)
• Based on rule of recognition --> formed by list of sources (you find in the treaties a provision that
tell you what is a eu law source; legally binding as opposed to not binding + Eu law v international
law)
• Partially in the EU treaties and partially outside, in the institutional and judicial practice -->
• Distinctive feaures: not all EU law is made by EU institutions
○ Treaties - MS
○ General principles - CJEU
○ International agreements: jointly made by EU and third countries
• A hierarchy legal order - primary above secondary law (legislative acts and administrative acts) (not
all have the same legal value)
○ International agreements of the EU are somewhere between primary and secondary law;
below primary but not exactly secondary because they need to comply with primary law;
another point of distinction of the EU from an ordinary inernaitonal organization is that you
have the mechanism of systemic judicial review
• The functions of sources:
○ Instrumental - transforming political decisions into legal forms so as to give them effect in
social reality
○ Constraining functions: (shapes exactly what the EU can and cannot do)
 Limiting the choice among legal forms (153 TFEU)
 Creating a systematic order in the mass of EU legal norm (hierarchy of norms concept)
• Primary law = the constitutional charter
○ Create institutions, division of competences, mechanisms of judicial protection, affirm values
of the organization
○ Not *the* constitution but still international treaties between MS
 No constitutional autonomy for the Union in the sense that the institutions cannot
change the treaties themselves and must rely on the MS
 No bill of rights in this "constitution"; no list of fundamental rights
 The Charter of Fundamental Rights is NOT in the treaties and it is NOT a treaties; it
has the same legal value but it is a conscious choice of the MS (constitutional treaty of
Rome would have put it in the treaties but decided to leave it outside the treaties,
making it legally the same but different on a symbolic level)
○ The CharterL
 Art. 6 TEU (same legal value); non treaty component of primary law
 It is not an international treaty
 Secondary law has to comply with the charter
 List of fundamental rights and principles
 Legally binding on the EU institutions and at time also on the MS (art. 51 the MS bonud
by the charter when they act within the scope of EU law)
○ General principles:
 Unwritten
 The CJEU contribution to system of sources
□ Art. 19 TEU "the law is observed"
□ Art 340 TFEU "general principles" on the community's non-contractual liability
 Important tool of judicial review of EU legislation (a bit of a gap filling function)
 Not really used by the institutions for political function
○ Secondary law:
 Legislative acts: regulations, directives, decisions
 Administrative acts: delegated and implemented
□ Lower tier --> must comply with legislative acts on which they are based

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 □ Lower tier --> must comply with legislative acts on which they are based
 Art. 288 TFEU
□ No hierarchy between the 3 binding instruments
□ Choice between the 3:
 Their legal characteristics (what does the EU want to do)
 The legal bases:
◊ Some leave free choice (such as 114 TFEU)
◊ Other impose use of one legal instrument
 When left to EU institutions, factors that shape the choice include:
◊ Level of detail --> regulations tend to include more detailed rules
◊ "addressees" of the legislation --> regulations often used to impose
obligations on private actors
◊ At times, the choice can be a bit random; directives are not
necessarily less precise than regulations and regulations may require
implementation by MS
□ Regulations ==> distinctive supranational feature of the EU legal system
 Allows international legal system to make laws that directly applies in
national legal systems
 No need for transposition by national law, become part of national system
of MS
 Directly applicable but may still require implementation by MS (--> GDPR
or political advertising)
 Used for (almost) complete harmonization of certain area of law; funding
programmes; European-level mechanism: ECI system, surveillance of
national budgetary and econ policies
□ Directives ==> harmonization of national laws; modifying existing national laws:
the content of the modification is established in directive, the actual modification
at the national level
 Content can be as detailed as a regulation
 Directives can also have direct effect in MS despite the silence of the
Treaties on this and with limitations
□ Decisions --> binding in its entirety;
 Individual acts, funding decisions, appointments, conclusion external
agreements
□ Regulations, directive, decisions can be legislative acts OR administrative acts
 How do we know - legislative acts are adopted by a legislative procedure
(or check the title of the source); related to hierarchy between two levels
 Administrative acts:
□ Commission
 Key role in delegation --> delegated regulations and delegated decisions are
the most commonly adopted
□ Council:
 A legislative act is followed by council implementation - 291(2) TFEU
□ Other EU bodies:
 ECB --> governing council an adopt binding decisions (OMT) --> based
directly on TFEU
 EU Agencies - some take binding deciisons (European Banking Authority )
but not all (Fundamental Rights Agency)
 Special and anomalous (non)sources
□ Budgetary sources: (simply called budget not a regulation or a decision); not in the
formal list
□ Legal instruments of the former II & III pillar --> some continue to exist
(European Arrest Warrant Framework Decision); type of source doesn't exist
anymore
□ International agreement of EU (not mentioned in 288)
□ Soft law (mentioned in 288 but not legally binding - recommendations and
opinions)

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 opinions)
□ Acts of the MS --> they produce an effect on the EU legal order; international
agreements among MS
 International agreements of the EU
□ Not mentioned in 288
□ 216 TFEU --> binding
 Concluded BY the EU - not agreements between MS (although in case of
'mixed agreements' MS are also parts to those agreements; the international
treaty is then concluded by the EU + 27 MS + one or more third
countries)
 Bilateral, multilatera trade agreements, associations agreements,
□ Part of the EU legal order; monist system - int'l agreements do not need to be
transformeed into EU law, they are bindign and incorporated "as such"
 Contested by the courts in strictness of allowing a direct effect of
international agreements but in terms of sources they become EU law att
he moment of conclusion
□ Peculiar position in the system of sources (again 216 TFEU)
□ Can also create common organs (EU-Turkey Association Council)
 Decision of those organs are also binding and part of EU legal order
 Soft law - not unique to the EU
□ Explicitly mentioned two types in 288; legal acts but have no binding force
□ Recommendations - used to guide MS action where no EU law making
competence exists
□ Content is similar to directives but not binding
□ Opinions: evaluation of situation + possible actions; sometimes prescribed by
Treaties (49 TEU)
□ Guidelines (148(2) TFEU), council resolutions, commission communications
 Acts of the MS - MS governments may adopt acts that have influence on the EU legal
order
□ As EU institutions: Council and European Council (inside Eu legal order)
□ As the representatives of the governments of the MS (next to)
 Key role in Treaty revision process - 48 TEU
 Determines by common accord the amendments
 Final product is an international agreement between MS amending the
Treaties
 Nomination of CJEU judges and AG - art 253 TFEU (Sharpton cases)
 Determination of seats of institutions - 341 TFEU (EMA and ELA cases)
□ As States (outside)
 Outside the system with one important exception - Treaty revision treaties
 Not sources of EU law but some are in very clsoe relation to the EU legal
order (ESM)
 Bilateral or multilateral or even between all MS
 Used as complementary instrument of European integration
□ In principle, distinction between these roles is clear but in practice not so
much --> EU-Turkey statement (hybridity)

Tutorial Notes

In the tutorial, we strive to go beyond the formal sources of EU law and look at how the national
governments of the Member States may try to shape Union law and policies in a variety of ways. In some
occasions, they act within the EU institutional framework with the national governments sitting as EU
institutions (the European Council or the Council); in other circumstances they take action in grey areas at
the boundaries of the EU legal order (what Spaventa calls ‘hybridity’); and in yet other cases, they may act
purely on the international scene, concluding international agreements among
themselves, but those agreement may still be in close connection with the EU legal order. We will explore
three cases in which decisions taken by the Member States acting collectively (to put it broadly) have an
impact on the EU legal and political order and try to grasp the legal and political effects of those decisions.

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impact on the EU legal and political order and try to grasp the legal and political effects of those decisions.

1. The Member States in the European Council

The Heads of State and Government of the 27 Member States meet regularly in the European Council, By
the letter of the law (see Art. 15 TEU) the European Council ‘shall not exercise legislative functions’. Yet,
the practice reveals that, in the past few years, many key legislative dossiers have been unlocked only after
an agreement was reached at the highest political level in a European Council meeting and presented in the
EuCo Conclusions. Examples are the ‘Relocation’ decisions during the migration and asylum crisis, the
NextGenEU recovery Plan, and the ‘compromise’ on the Budgetary (or Rule of Law) Conditionality
Regulation reached in December 2020. Often, in its Conclusions, the European Council offers detailed
guidance to the Commission and the legislators, determining key aspects of the legislative proposals to be
introduced.
In the Conclusions of December 2020 on the budgetary conditionality regulation, the EuCo might
have gone even a step further: its Conclusions have been interpreted as a breach of the principle of
institutional balance as they would have de facto amended the legislative text of the proposed
Regulation and delayed its entry into force.

a) Are the co-legislators legally bound to follow what is agreed in the EuCo Conclusions? What is
the view of the Court of Justice on this issue?
b) As for the December 2020 EuCo Conclusions, do you agree that they were a breach of the
principle of institutional balance?
c) Looking back also at the discussion in week 3 on the possible right of initiative of the European
Parliament, is the growing role of the EuCo concerning from an institutional balance and
democratic perspective? What challenges does it create, if any?
- Poland v European Parliament and Council ==> (para 72-91)
○ Alleged infringement of the powers of the European Council (art. 15 TEU) and infringement
on the obligation of sincere cooperation (76)
○ Art. 15(1) TEU defines the European Council's task as being to provide the Union with the
necessary impetus for its development and define the general political directions and priorities
thereof and it shall not exercise legislative functions
○ Art. 14(1) and 16(1) TEU which reflect the principle of conferred powers under 13(2) TEU,
means that it is for those institutions alone (EP + Council) to decide the content of a measure
○ the alleged effect of the ‘political’ nature of the European Council’s conclusions on both the
Parliament and the Council’s legislative power cannot be a ground on which the Court may
annul the contested decision
○ interpreting the reference made to the 2014 Commission proposal as an order from the
European Council not to introduce the MSR until 2021 would effectively lead, first, to the role
of the Parliament and the Council being considered to be no more than rubber stamping the
conclusions of the European Council and, second, to the European Council being given the
power to interfere directly in the legislative sphere, contrary to the principle of the conferral of
powers laid down in Article 13(2) TEU. (85)
 the consequence of the Member State’s proposed interpretation is that the Parliament
and the Council’s powers would be compromised in favour of following the political
will expressed by the European Council (89)
○ sincere cooperation between EU institutions, as provided for in Article 13(2) TEU, is to be
exercised within the limits of the powers granted by the Treaties to each institution. The
obligation arising under that provision is therefore not capable of modifying those powers (90)
- Slovak Republic and Hungary v Council ==>
○ Art. 289(3) TFEU --> legal acts adopted by legislative procedure are to constitute legislative
acts; non-legislative acts are those that are adopted by a procedure other than a legislative
procedure
○ Art. 289(1) + 294(1) TFEU --> OLP applies only where the provision of the Treaties forming
the legal basis for the act in question makes reference to that legislative procedure
○ A legal act can be classified as a legislative act only if it has been adopted on the basis of a
provision of the Treaties which expressly refers to either OLP or special legislative procedure
○ Art. 78(3) TFEU --> Council is to adopt provisional measures on a proposal from the
Commission and after consulting EP; it does not contain an express reference to either OLP
or SLP

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 or SLP
○ Art. 78(2) TFEU --> express reference to OLP
○ Measures which are capable of being adopted on the basis of art. 78(3) TFEU must be
classified as non-legislative acts because they are not adopted at the end of a legislative
procedure
- Conclusions of the European Council are not legally binding; only legal acts published in the official
journal are binding; something which carries a political incentive/strategy is not law. Nevertheless, it
carries legal consequences stemming from its interpretive nature
○ The European Council acted ultra vires, infringing on the principle of institutional balance by
undermining the prerogatives of the Parliament, Council, Commission, and Court of Justice
○ (keeping in mind the powers vested through 15(1) TEU, 13(1) TEU, 14(1), and 16(1) TEU)
the legal basis of the draft RoL Regulation is art. 322(1)(a) TFEU which prescribes OLP; by
requiring the Commission to adopt guidelines and conditioning the application of the
mechanism to the finalization of such guidelines, the EUCO has de facto amended a draft
legislative act
○ The EUCO decision includes the effective date from which the mechanism can be applied -->
this power belongs to the EP + Council, thus not only did the European Council act ultra
vires but also infringed on the other institutions' prerogatives and thus the institutional balance
○ The principle of institutional balance --> the European Council did not directly decide on the
suspension of the application of the rule of law mechanism, and instead comes from the
action for annulment that Poland and Hungary have announced they will bring
 This will take several months, thus the EUCO conclusions containing the interpretative
declaration effectively give suspensive effect to an action for annulment, yet under 278
TFEU actions before the ECJ shall not have suspensory effect
 While the European Council can provide the necessary impetus it cannot give
instructions (reflected in 17(3) TEU) but that's what EUCO does - even if it would
invoke an established practice to "task" the Commission, it is established jurisprudence
of the court that practice cannot override the Treaty provisions (Commission v Council,
para 42)
○ Approach to fix it --> EP can ignore the EUCO conclusions and take the principled position
that only the actual text of the regulation matters; it can adopt a declaration to be annexed to
the regulation stating the obvious (adopted timely and in good faith by all relevant actors, it is
the COM duty to implement the mechanism in compliance with the terms of the regulation
17(3), it reserves the right to itself to institute an action for failure to act under 265 TFEU if
the COM does not take the measures required under the regulation)

2. The grey area: the Member States acting collectively

In her article, Spaventa discusses different types of collective acts of the Member States that have a close
connection with the EU legal order. She highlights in particular cases of functional and legal hybridity as
the most challenging ones for the EU legal order.

a) What is it meant with functional and legal hybridity?

- Functional hybridity ==> where a collective decision of the Member States was both determinative
of, and could only happen because of, EU level action
- Legal hybridity ==> the decision taken by the MS acting collectively upon instruction in the Treaties
○ Applicable in instances where the Treaties clarify that a certain act or decision must be taken
by the MS by common accord, such as in the case of decisions which are closely or structurally
linked to the functioning of the EU
○ Only in this case can the collective act of the MS have legal status within the EU legal system

Look in particular at the EU-Turkey statement case.

b) Why did the GC find the case inadmissible? Do you find the assessment by the Court credible?
Why does Spaventa criticize the approach of the Court?
- EU-Turkey statement ==> an agreement to secure the return of irregular migrants, including failed
asylum applicants, from the Greek islands to Turkey and in exchange Turkey receives financial
support;

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 support;
- NF v European Council ==> On appeal, the GC and the ECJ declared that an action for annulment
against the agreement was inadmissible, since the latter was ascribable to the MS acting collectively,
despite it being published only on the website of the Council
○ Therefore --> the act is sheltered from judicial review at EU level
○ Findings of the Court --> the act originated from the MS collectively and was hence excluded
from its jurisdiction; it relied on formal considerations, such as the fact that the previous acts
had been entitled as adopted by the heads of State and government, the fact that the meeting
had been scheduled in certain way, the fact that it was the intention of the Heads of MS to
meet in configuration, etc
- Spaventa criticism --> the GC did not consider the substance of the act, which is what normally
drives the classification of acts for the purpose of judicial review
○ Ignored the transactional nature that establishes a direct link between the EU budget and
Turkey's acceptance of asylum seekers from Greece; also unclear how the MS acting together,
and not in their capacity as members of the European Council, could commit EU funds
○ This basically gives a blank cheque to EU institutions and MS as now "acts adopted collective
by the MS" exists in a judicial vacuum as they cannot be reviewed by the European judiciary
even when they are structurally linked with and could not exist without the EU

Earlier this year, the Court of Justice decided a set of cases on the location of the seats of the European
Medicines Agency (EMA) and of the European Labour Authority (ELA). The decisions on the location of
the two bodies were taken by the representatives of the governments of the Member States in 2017 and
2019 respectively, but were challenged before the CJEU. Look in particular at the Court decision in case
C-743/19 on the seat of the ELA (the parallel decision on the EMA case is almost identical).

c) What did the Court decide on the admissibility of the case(s)? (Parliament v Council C-743/19)
According to the Court, does the decision of the Member State on the seat of the Authority
produce legal effects?
- Action for annulment brought under 263 TFEU; the EU Courts have jurisdiction only to review the
legality of acts attributable to the institutions, bodies, offices and agencies of the Union. (37)
- acts adopted by Representatives of the Governments of the Member States acting, not in their
capacity as members of the Council or of the European Council, but as representatives of their
governments, and thus collectively exercising the powers of the Member States, are not subject to
judicial review by the EU Courts
○ However, it is not enough that the decision which is the subject of an action should be
formally presented as being a decision of the Member States for that act to be excluded from
the review of legality established by Article 263 TFEU. In order for such an act to be excluded
from review, it must still, having regard to its content and all the circumstances in which it was
adopted, not in reality be a decision of the Council (38)
- the relevant criterion used by the Court to exclude the jurisdiction of the EU Courts to hear and
determine an action brought against acts adopted by the Representatives of the Governments of the
Member States is solely that relating to their author, irrespective of their binding legal effects (83)
○ EP argument to interpret the meaning of authors of the acts referred to under 263 TFEU
broadly cannot be upheld without contravening the clear wording of that article (84)
○ To extend the concept of challengeable acts under Article 263 TFEU to acts adopted, even by
common accord, by the Member States would ultimately amount to allowing direct review by
the EU Courts of acts of the Member States and, therefore, to circumventing the legal
remedies specifically provided for in the event of failure of Member States to fulfil their
obligations under the Treaties. (86)
- the contested decision is not an act of the Council but an act of a political nature without any
binding legal effects, taken by the Member States collectively, with the result that it cannot be the
subject of an action for annulment under Article 263 TFEU. (91)
○ Action dismissed as being directed against an act the legality of which the Court does not have
the jurisdiction to review on the basis of art. 263 TFEU (92)

3. International agreements concluded by the Member States

In order to react to the Eurocrisis, a number of international agreements were concluded to supplement

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In order to react to the Eurocrisis, a number of international agreements were concluded to supplement
EU law. See De Witte’s paper on the reasons explaining this recourse to non-EU legal instruments
supporting the EU’s project of Monetary and Economic Union.

a) Why were those agreements concluded between less than all the Member States? Can the EU
Member States simply decide to ‘leave’ the EU institutional framework and conclude international
agreements among themselves outside the EU legal order?
- European Financial Stability Facility (EFSF) in 2010:
○ Perceived inability of the EU-law instrument (EFSM) to deal conclusively with the crisis; the
EU itself did not possess sufficient firepower to deal with a massive sovereign debt crisis
 The upper limit included in the EFSM was the max available at that time, while EFSF's
capacity was made much larger
○ When the Eu budget is used, non-euro countries are indirectly called to fund an operation
which aims at ensuring the stability of the Euro area
 Hence the decision to "go outside" the institutional framework of the EU and to build
more powerful financial guarantee instrument by means of a separate agreement
between euro area countries themselves
- European Stability Mechanism (ESM) in 2012:
○ Successor; a fully-fledged treaty between the 17 euro states, rather than an urgently created
legal mechanism
○ The choice of establishing the permanent stability mechanism by means of an international
treaty followed logically from the European Council decision to amend art. 136 TFEU which
states that MS whose currency is the euro may establish a stability mechanism to be activated
if indispensable to safeguard the stability of the euro area as a whole
 Reason for amendment --> doubts about the legality of the rescue package adopted
previously
- Fiscal Compact:
○ Could have been adopted through EU legislation
○ The new commitment to budgetary stability seemed more permanent if contained in a treaty
which cannot be 'bent' later on, whereas EU legislation was more liable to be softened through
later amendments
○ Disagreement in European Council led by France and Germany, some MS decided to 'exit'
from the EU institutional framework and to go for a separate international agreement instead
in order to avoid the British veto
 Still could have been done through the enhanced cooperation so that it remains in the
EU mechanism but whatever

In particular, the euro area states adopted, in 2013, a treaty creating the European Stability Mechanism
(ESM; In order to situate the ESM Treaty in the context of the Euro crisis reforms, read the relevant pages
of the chapter by Hinarejos). One striking feature of the ESM Treaty is that, although it is not formally part
of the EU legal order, it nevertheless contains provisions that give tasks to three EU institutions, namely
the Commission, the ECB and the Court of Justice.

c) What is the Mechanism in legal terms: is it an EU agency or is it something else?

- ESM ==> permanent and more powerful intergovernmental mechanism established outside the
framework of the Treaties
○ Intergovernmental nature - manifestation of a wider trend since the beginning of the crisis
(MS attempting to address different aspects of it through intergovernmental means outside the
EU legal order but through EU institutions)
○ Lack of proper enforcement
○ Lack of transparency, judicial control and democratic legitimacy since negotiations are
conducted behind closed doors with only national executives
- Pringle v Commission --> ESM is an instrument of economic policy, therefore complements the
EU's competence in economic policy without encroaching it; the Union only has a coordinating
competence in the area, and it would lack the power to establish a permanent emergency mechanism
like ESM
○ MS however are able to create such a mechanism themselves as long as they comply with EU
law in doing so

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 law in doing so
- Based on their website, they describe themselves as 'an intergovernmental organization'

d) Can the ‘borrowing’ of EU institutions be justified in the light of Article 13(2) TEU, and is it
politically appropriate in your view?

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