Basics of Law

Łukasz Dawid Dąbrowski, PhD

2023/2024
International Law
Traditional definition

• International law governs relations between states.

• Whatever benefits or burdens international law conferred or imposed on

other entities or individuals were considered to be purely derivative, flowing
to these so-called “objects” of international law by virtue of their relations to
or dependence upon a state.

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States under international law

Montevideo Convention on the Rights and Duties of States

(Date enacted: 1933-12-26, In force: 1934-12-26)

Article 1 - The state as a person of international law should possess the following
qualifications:
• a permanent population
• a defined territory
• government; and
• capacity to enter into relations with the other states.

Article 2 - The federal state shall constitute a sole person in the eyes of international
law.
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Modern definition
International law has a wide reach and is more properly defined as law that
deals “with the conduct of states and of international organizations and with
their relations inter se, as well as with some of their relations with persons,
whether natural or juridical”

Modern subjects

Today intergovernmental international organizations, and even individuals,

albeit to a more limited extend, are and can be the subjects of rights and
obligations under international law.
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International law encompasses many areas, including:

• diplomatic law ,
• International organisations,
• human rights, refugees, migration, the treatment of prisoners,
statelessness
• International criminal law, transnational organized crime,
• the use of force, the conduct of war, disarmament, setelment of disputes
• the environment,
• sustainable development,
• the oceans, outer space, global communications
• world trade and investments

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International and national application
- applications distinguished

• The fact that international law governs inter-state relations does not mean
that it is irrelevant on the national level or that it is not applied there.

• The manner in which international law is applied on the national and on the
international level differs, however, even though the substantive rules as such
may be the same.

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International and national application
- international application
• On the international level, international law is invoked and applied on a daily basis by
states and by international governmental organizations.
• With minor exceptions, it is the only law that applies to the conduct of states and
international organizations in their relations with one another.
• Here international law is a distinct legal system, comparable in its scope and function to
a national legal system.

- national application
• On the national level, international law is not a legal system.
• International law is invoked in national litigation and other context by individuals, private
and public entities, and governmental agencies whenever resort to it appears to be
relevant in this context. www.sgh.waw.pl
International and national application
- supremacy of international law
The rights and obligations which a state has under international law are, on the
international level, superior to any rights or duties it may have under its national
law.

Vienna Convention on the Law of Treaties

(Done at Vienna on 23 May 1969. Entered into force on 27 January 1980).

Article 27 - Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its
failure to perform a treaty. This rule is without prejudice to article 46.

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International and national application
- supremacy of international law
Article 46
Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has
been expressed in violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its consent unless that violation
was manifest and concerned a rule of its internal law of fundamental
importance.

2. A violation is manifest if it would be objectively evident to any State

conducting itself in the matter in accordance with normal practice and in good
faith. www.sgh.waw.pl
International and national application
- supremacy of international law
Article 26 - “Pacta sunt servanda”
Every treaty in force is binding upon the parties to it and must be performed by them
in good faith.

• Whether the decision of a state not to comply with a treaty is compelled by its
supreme court or by a decision of its president, for example, is equally
irrelevant under international law.

• National constitutional law does not on the international level supersede

international law, even though it may take precedence over international law
on the national level, which is the case in most state.
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Relevance and Function of International Law
- uses of international law

• apply by international tribunals and national courts

• states rely on it in diplomatic relations, negotiations and policymaking

• although there may be considerable disagreement in a particular case about

the nature, scope or applicability of a given rule of international law, states
rarely admit to violating international law and hardly ever assert the right to
do so.

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Relevance and Function of International Law
- Application and enforcement

• On the national level, international law tends to be enforced by courts and

administrative agencies in much the same manner as any other national law.

• As a rule, international courts do not have compulsory or automatic

jurisdiction to deal with all international legal disputes that may be ripe for
adjudication.

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Relevance and Function of International Law
- enforcement and compliance

• International tribunals that adjudicate disputes between states do not have a

sheriff or police force who can be ordered to enforce a judgement.

• National level - Governments comply with national court decisions not

because the courts have the actual police or military power to force
compliance. The extant of compliance tends, rather, to be a function of the
political legitimacy and moral credibility that sustain the entire fabric of
governmental authority and produce the expectation that law will be obeyed.

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Relevance and Function of International Law
- enforcement and compliance
• The absence of a formal centralized lawmaking authority, coupled with de
debilitating jurisdictional defects of international courts, weaken the
expectations of compliance in comparison with the situation that exists on
the national level.
• International level – non-complying governments with international courts
decisions open themselves up to costly retaliatory measures by other
governments.
• The likelihood of such retaliation, whether it be political or economic, is an
element that has an important impact on compliance by states with their
international obligations.

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Question:

• What is supremacy of public international law?

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Case 1
A national of country A married a national of country B.
The wedding took place in Sicily and the spouses went on their honeymoon to
Rhodes.
On their return to State A (in State A they live together), it became clear that the
marriage was not going well and the couple decided to divorce.

Question:
1) Will the case be decided on the basis of public international law?

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Private international law
Definie what is private international law ?

International private law or private international law is a set of rules of

procedural law that regulates the relationships between physical and judicial
persons of different nationalities. It determines which legal system and the law
of which jurisdiction will apply to a legal dispute among private individuals
involving a foreign element. It is also called as conflict of laws.

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Case 2
A non-governmental organization (operating in country P) has concluded an
agreement with another organization of the same nature (operating in country
B) on their mutual cooperation.
The organizations decided to register this agreement with the Secretariat of the
United Nations in order to be able to settle any future disputes through the ICJ.

Question:
1) Is such an agreement an international agreement?

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Vienna Convention on the Law of Treaties
Done at Vienna on 23 May 1969
Article 2
Use of terms

1. For the purposes of the present Convention:

(a) “treaty” means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation;

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Vienna Convention on the Law of Treaties between States and International
Organizations or between International Organizations, 1986

Article 2
Use of terms
1.For the purposes of the present Convention:
(a) “treaty” means an international agreement governed by international law and
concluded in written form:
(i) between one or more States and one or more international organizations; or
(ii) between international organizations,
whether that agreement is embodied in a single instrument or in two or more
related nstruments and whatever its particular designation;

NGOs acting under the national law.

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Sources of international law
At the national level as the formal sources of law we have;
1) Constitution – in a civil law system
2) Decisions of judicial tribunals (case law) – in common law system (where the
doctrine of binding precedent (stare decisis) prevails.

The international community lacks a constitution that can be viewed as a

fundamental source of law.

There exist no institution comparable to national legislature with power to

promulgate laws of general applicability, and also no administrative agencies to
produce regulations.
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Sources of International Law
How then do we know whether a given rule is international law?

This question can be answered only by reference to the sources of international

law and by analyzing the manner in which international law is made how it
becomes law binding on the international level.

Article 38 (1) of the I.C.J Statute

1) Primar sources

2) Secondary sources

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Article 38 (1) of the I.C.J Statute
This provision is generally considered to be the most authoritative enumeration
of the sources of international law.
It reads as follows:
1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. (…), judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination
of rules of law.
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Primary sources
Article 38 was included in the I.C.J Statute to describe the nature of international
law that the Court was to apply.

Article 38(1) indicates that international law consists of or has its basis in:
1) international conventions (treaties)
2) international custom
3) general principles of law.

Simultaneously, the regulations states that a rule can not be deemed to be

international law unless it is derived from one of these three sources

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Secondary sources
“Judicial decisions” and the “teachings” of the publicists are not sources of law as such.

They can be only a subsidiary tool. They are “subsidiary means” for findings what the
law is.

International lawyers look to these authorities as evidence to determine whether a

given norm can be deemed to have been accepted as a rule of international law.

Only what we can do with “Judicial decisions” and the “teachings” is seeking there a
clues if a norm is a law or not, and how to understand the law.

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Examples of these general principles of law are:
• good faith – is a general presumption that the parties to a contract will deal with each other
honestly, fairly, and in good faith, so as to not destroy the right of the other party or parties to
receive the benefits of the contract;
• res judicata – Generally, res judicata is the principle that a cause of action may not be relitigated
once it has been judged on the merits. "Finality" is the term which refers to when a court
renders a final judgment on the merits;
• the impartiality of judges - the term ‘impartial’ means ‘not prejudiced towards or against any
particular side or party.

Modern international law consist principally of conventional and customary

international law.
Customary law to became a law need quite a lot of time and is less suited for the fast
peace of modern life.
General principles play more marginal role as a source of law.
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Introduction to European Union
institutions, law and regulations
EU is international organization but of a specific character.

This special character makes EU the Supranational Organization.

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Supranational organizations
An international organizations with „supranational powers” is generally regarded
as one that has the power to bind its member states by its decisions. As such,
they have more governmental authority and law-making power in relation to
their member states than do traditional international organizations. One key
indicator of supranationality is the authority of the organization to make its law
directly applicable and enforceable within the territory of the member states
without further execution by the national governments.

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 International – Supranational
States create
States create and implement
and implement policies and
policies and laws among its
laws among its members
members

The authority to make

States
States undertakes States create its law directly undertakes
States create
international
activities international applicable and activities
governing the norms for enforceable within the governing the
norms for
affairs of nations
activities like
to prevent
activities like territory of the member affairs of nations
trade, business trade, business states without further to prevent
conflicts and investments conflicts
and investments execution by the
(sanctions) (sanctions)
national governments.

States
States maintain maintain
regional stability
regional
stability
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European Union
Initiatives for European Cooperation

The European Union (EU) resulted from transformations of earlier organizations,

such as:
1. the European Coal and Steel Community (ECSC),
2. the European Economic Community (EEC), and
3. the European Atomic Energy Community (Euratom).

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Schuman Initiative
After the IIWW Europe was divided into an Eastern and a Western part;
In 1950 initiative of the French Foreign Minister Robert Schuman - Schuman
proposed that:

Franco-German production of coal and steel as a whole be placed under a

common High Authority, within the framework of an organization open to the
participation of the other countries of Europe.

This proposal was inspired by the desire to improve relations between France
and Germany and to prevent a new war between these two countries by
combining their coal and steel production outputs. Since coal and steel were
crucial resources for warfare, uniting the production of these two resources
would make a new war between the involved countries less likely.
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From the European Coal and Steel Community to EU
the European Coal and Steel Community
The development that led to the EU started with the ECSC. The ECSC was
founded in 1951 by six states: the German Federal Republic (West Germany),
France, Italy, the Netherlands, Belgium, and Luxembourg.

the European Economic Community

In 1957, the six states that founded the ECSC founded two additional
organizations, namely the European Atomic Energy Community (Euratom) and
the EEC. Euratom has never played an important role. On the contrary, the EEC
is by far the most prominent organization of the three main supranational
European organizations.

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In 1967, the Merger Treaty unified the main institutions of the ECSC, the EEC,
and Euratom.
In 1992, the three communities were joined as “the communities” by means of
the Maastricht Treaty or the Treaty on European Union (TEU).

Amending treaties are:

• Single European Act (1986)
• Treaty of Amsterdam (1997)
• Treaty of Nice (2001)
• Treaty of Lisbon (2007).

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Fundamental values, aims and freedoms
Article 2 TEU (values of the Union)

The Union is founded on the values of respect for human dignity, freedom, democracy,
equality, the rule of law and respect for human rights, including the rights of persons
belonging to minorities. These values are common to the Member States in a society in
which pluralism, non-discrimination, tolerance, justice, solidarity and equality between
women and men prevail.

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Fundamental values, aims and freedoms
Article 3 TEU (aims of the Union)

• The Union shall offer its citizens an area of freedom, security and justice without
internal frontiers, in which the free movement of persons is ensured in conjunction
with appropriate measures with respect to external border controls, asylum,
immigration and the prevention and combating of crime.
• The Union shall establish an internal market. It shall work for the sustainable
development of Europe based on balanced economic growth and price stability, a
highly competitive social market economy, aiming at full employment and social
progress, and a high level of protection and improvement of the quality of the
environment. It shall promote scientific and technological advance.
• It shall promote economic, social and territorial cohesion, and solidarity among
Member States.
• The Union shall establish an economic and monetary union whose currency is the
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euro.
Fundamental freedoms

Article 26 TFUE (Internal Market)

1. The Union shall adopt measures with the aim of establishing or

ensuring the functioning of the internal market, in accordance with the
relevant provisions of the Treaties.

2. The internal market shall comprise an area without internal frontiers in

which the free movement of goods, persons, services and capital is
ensured in accordance with the provisions of the Treaties.

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Free Movement of Goods

Article 28 TFUE
The Union shall comprise a customs union which shall cover all trade in goods and
which shall involve the prohibition between Member States of customs duties on
imports and exports and of all charges having equivalent effect, and the adoption of
a common customs tariff in their relations with third countries.

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Free Movement of Goods

• Prohibit quantitative restrictions on trade or—in general—movement of goods

between EU Member States.
Quantitative restrictions are explicit limits which are usually expressed by volume,
giving the amount of a specified product or commodity which may be imported into
a particular country. When compared with tariffs, quantitative restrictions are more
predictable. They are, in effect, quotas, which can also be used to favour particular
sources of supply.
• Another one is prohibition of taxes, in a broad sense, on the transportation of
goods from one Member State to another.

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Free Movement of Persons
Article 45 TFUE
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality
between workers of the Member States as regards employment, remuneration and other conditions
of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public
security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions
governing the employment of nationals of that State laid down by law, regulation or
administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject
to conditions which shall be embodied in regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service. www.sgh.waw.pl
Free Movement of Persons – right of establishment
Article 49 TFUE
• Within the framework of the provisions set out below, restrictions on the
freedom of establishment of nationals of a Member State in the territory of
another Member State shall be prohibited. Such prohibition shall also apply to
restrictions on the setting-up of agencies, branches or subsidiaries by nationals
of any Member State established in the territory of any Member State.
• Freedom of establishment shall include the right to take up and pursue
activities as self-employed persons and to set up and manage undertakings, in
particular companies or firms within the meaning of the second paragraph of
Article 54, under the conditions laid down for its own nationals by the law of
the country where such establishment is effected, subject to the provisions of
the Chapter relating to capital. www.sgh.waw.pl
Free Movement of Services

Article 56 TFUE
• Within the framework of the provisions set out below, restrictions on freedom to
provide services within the Union shall be prohibited in respect of nationals of
Member States who are established in a Member State other than that of the person for
whom the services are intended.
• The European Parliament and the Council, acting in accordance with the ordinary
legislative procedure, may extend the provisions of the Chapter to nationals of a third
country who provide services and who are established within the Union.

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Free Movement of Services
Article 57 TFUE
• Services shall be considered to be "services" within the meaning of the Treaties where
they are normally provided for remuneration, in so far as they are not governed by the
provisions relating to freedom of movement for goods, capital and persons.
• "Services" shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
• Without prejudice to the provisions of the Chapter relating to the right of
establishment, the person providing a service may, in order to do so, temporarily
pursue his activity in the Member State where the service is provided, under the same
conditions as are imposed by that State on its own nationals.
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Free Movement of Capital
Article 63 TFUE
• Within the framework of the provisions set out in this Chapter, all restrictions on the
movement of capital between Member States and between Member States and third
countries shall be prohibited.

• Within the framework of the provisions set out in this Chapter, all restrictions on
payments between Member States and between Member States and third countries
shall be prohibited.

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Free Movement of Capital
Article 65 TFUE
The provisions of Article 63 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers
who are not in the same situation with regard to their place of residence or with regard to
the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national law and
regulations, in particular in the field of taxation and the prudential supervision of
financial institutions, or to lay down procedures for the declaration of capital movements
for purposes of administrative or statistical information, or to take measures which are
justified on grounds of public policy or public security. www.sgh.waw.pl
The fundamental freedoms the competition rules are therefore crucial to create an
internal market.

While the fundamental freedoms aim at preventing Member States from interfering
with the market mechanism, the competition rules also contain provisions for
private undertakings.

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From Communities to Union
1) Treaty of Paris (1951) – ECSC
2) Treaty of Rome (1957) – Treaty on the European Economic C
3) Merger Treaty (1965)
4) Single European Act (1986)
5) Treaty of Maastricht (1992) - Treaty on European Union
6) Treaty of Amsterdam (1997)
7) Treaty of Nice (2001)
8) Treaty of Lisbon (2007)
EU treaties currently in force:

Consolidated version of the

The Treaty on
Treaties, Protocols, Declarations European Union
annexed to the Final Act of the (TEU)
Intergovernmental Conference
which adopted the Treaty of
Lisbon.

The Treaty
The Treaty on establishing the
the Functioning European Atomic
of the European Energy
Union (TFEU) Community
(EAEC Treaty)

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 Sources of EU Law
• Primary EU Law
– Treaties of Maastricht,
– Treaties of Am­sterdam,
– Treaties of Nice
– Treaties of Lisbon

• Secondary EU Law
– Regulations,
– Directives,
– Decisions,
– Recommendations,
– Opinions,
– Resolutions. www.sgh.waw.pl
Sources of EU Law
The law of the EU can be divided into two main categories:
• Primary EU Law
• Secondary EU Law

On the one hand, there are the treaties upon which the EU was founded. The
most important treaties for the EU in its present form are the treaties of
Maastricht (1992), Amsterdam (1997), Nice (2001), and Lisbon (2007). These
treaties were concluded by the Member States of the EU. Together they form
what is called the primary EU law.

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Secondary EU Law
On the other hand, there is the law that was created by the EU itself.
There are three ways in which the EU, through its institutions, can create
binding legal effects, namely by means of
• regulations,
• directives,
• decisions.
Moreover, the EU can also give nonbinding
• recommendations and
• opinions.
Together with the case law of the Court of Justice of the European Union, they
form what is called the secondary EU law.

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Regulations
Regulations contain rules, just like “ordinary” legislation. They have general
application and are binding and directly applicable in all Member States. This
means that they directly create rights and duties for individual persons and
organizations in the Member States.

Regulation (EU) 2017/920 of the European Parliament and of the Council of 17

May 2017 amending Regulation (EU) No 531/2012 as regards rules for
wholesale roaming markets; OJ L 147, 9.6.2017, p. 1–8.

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Directives
Directives are a special type of legislation, directed to the Member States, obligating
them to bring about a legal situation conforming to the contents of the directive in
their national law. In a sense, directives contain rules, but these rules are not directly
imposed by the EU. It is left to the Member States to implement them in their
national systems.

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004
on the right of citizens of the Union and their family members to move and reside
freely within the territory of the Member States (…);

Article 5 “The right of all Union citizens to move and reside freely within the territory
of the Member States should, if it is to be exercised under objective conditions of
freedom and dignity, be also granted to their family members, irrespective of
nationality. For the purposes of this Directive, the definition of “family member”
should also include the registered partner if the legislation of the host Member State
treats registered partnership as equivalent to marriage.”
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Decisions
Where regulations are meant to be general, decisions are typically meant for
specific cases. A decision is binding, but decisions that specify their addressee(s)
only bind that addressee(s).

A "decision" is binding on those to whom it is addressed (e.g. an EU country or

an individual company) and is directly applicable. For example, the Commission
issued a decision on the EU participating in the work of various counter-
terrorism organisations. The decision related to these organisations only.

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Main Institutions of the EU
The EU consists of several smaller organizations. The more important of these
smaller organizations are called “institutions,” and these institutions can still be
subdivided into main institutions and “the rest.”

• Commission,
• European Parliament,
• European Council,
• Council of Ministers,
• Court of Justice of the European Union.

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The Commission
The seat of the Commission is in Brussels. The Commission is led by the
President of the European Commission, a function that is presently fulfilled by
Ursula von der Leyen.
To fulfill its many tasks, the Commission avails over a bureaucratic apparatus of
around 26,000 members.

Members
Every Member State of the EU has one representative in the Commission.
Commissioners are not representatives of their states: they are there to
promote the general Union interest.
The Commission must answer to the European Parliament, and the Parliament
has the power to dismiss the Commission.

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The Commission
Tasks
Article 17 TEU describes the tasks of the Commission as follows:
The Commission shall promote the general interest of the Union and take
appropriate initiatives to that end.
It shall ensure the application of the Treaties, and of measures adopted by the
institutions pursuant to them.
It shall oversee the application of Union law under the control of the Court of Justice
of the European Union.
It shall execute the budget and manage programmes.
It shall exercise coordinating, executive and management functions, as laid down in
the Treaties.
With the exception of the Common Foreign and Security Policy (CFSP), and other
cases provided for in the Treaties, it shall ensure the Union’s external representation.
It shall initiate the Union’s annual and multi-annual programming with a view to
achieving inter-institutional agreements.
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The European Parliament
Tasks
The European Parliament (EP) has three main functions:
• It is involved in the legislative process.
• It must approve the annual EU budgets.
• It supervises the EU executive.

These tasks are briefly described in Article 14, Section 1 TEU:

The European Parliament shall, jointly with the Council, exercise legislative and
budgetary functions. It shall exercise functions of political control and
consultation as laid down in the Treaties. It shall elect the President of the
Commission.

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The European Parliament
Members
The current 705 members of the European Parliament (MEPs) are directly
elected by voters in the EU Member States.

The EP has its seat in Brussels, Luxembourg, and Strasbourg. By way of a

political compromise, the EP holds plenary meetings, on average once a month,
in Strasbourg for a week and spends the rest of its time in Brussels where other
meetings are held. The Luxembourg seat is used mainly for administrative
purposes.

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The Council of Ministers
Members
The Council of Ministers, also called the “EU Council,” consists of Ministers from the
Member States. Which Ministers are included depends on the issue that is at stake. If,
for instance, the Common Agricultural Policy (CAP) of the EU must be discussed, the
Ministers of Agriculture will represent their national governments in the Agriculture
and Fisheries Council, while Ministers of Justice typically participate in the Justice and
Home Affairs Council.

Task
The main responsibility of the Council of Ministers is to take policy and legislative
decisions, often in cooperation with other EU institutions. Because the Commission is
not as well staffed as national governments are, much of the real execution of EU
policies must take place through the apparatus of the Member States. The EU Council
functions as an intermediary between the world of Brussels and the national
governments.
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The European Council
Tasks
Where the task of the Commission is to promote the general interest of the Union,
the members of the European Council represent their national states in negotiations
and decision making, which determines the general course of development of the EU.

Members
The members of the European Council are the Heads of State (or government) of the
Member States; they are usually Prime Ministers, sometimes Presidents. These Heads
of State are supplemented by the President of the European Council and the Chair of
the Commission. The current President of the European Council is Charles Michael.
The President of the European Council should not be confused with the President of the
European Commission.

The European Council meets at least twice in every 6 months. These meetings are
called the “Euro summits.”

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The Court of Justice of the European Union
This court is seated in the city of Luxembourg.
The CJEU consists of: the (European) Court of Justice, the General Court.
Both the ECJ and the GC consist of 27 judges, each from a different Member State.
The judges are effectively appointed by their respective national governments for a
mandate of 6 years.

Tasks The tasks of the two courts are manifold, but two important ones are
1) To give preliminary rulings concerning the interpretation of the TEU and the TFEU,
and the validity and interpretation of acts of the institutions, bodies, offices and
agencies of the EU (Article 267 TFEU).
2) To review the legality of legislative acts, of acts of the Council, of the Commission,
and of the European Central Bank, other than recommendations and opinions,
and of acts of the European Parliament and of the European Council intended to
produce legal effects vis-a`-vis third parties (Article 263 TFEU).

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The Ordinary Legislative Procedure
If an EU rule creates the competence to make EU legislation, it also specifies which
legislative procedure is to be followed. The procedure that is usually adopted is the
“ordinary legislative procedure,” which is described in Article 294 TFEU. In this
procedure, the Commission, the Council, and the European Parliament must
cooperate in order to create new legislation. If these three institutions agree, the
procedure is quite simple:
1. The Commission submits a proposal to the European Parliament and the Council.
2. The European Parliament adopts its position and communicates it to the Council.
3. If the Council approves the European Parliament’s position, the act concerned is
adopted in the wording that corresponds to the position of the European
Parliament.

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If the Council and the European Parliament disagree, the legislative proposal
may be sent back and forth several times between these two institutions and
the Commission. The decision-making procedure within the Council may change
from unanimity to qualified majority voting. However, in the end, the Council
and the European Parliament must agree if a legislative proposal is to be
adopted.

Article 16, Section 4 TEU:

As from 1 November 2014, a qualified majority shall be defined as at least 55 %
of the members of the Council, comprising at least fifteen of them, and
representing Member States comprising at least 65 % of the population of the
Union. A blocking minority must include at least four Council members, failing
which the qualified majority shall be deemed attained.
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Division of competences within the European Union
The EU may only act within the limits of the competences conferred upon it by
the EU countries in the Treaties to attain the objectives provided therein.
Competences not conferred upon the EU in the Treaties remain with the EU
countries.
The Treaty of Lisbon clarifies the division of competences between the EU and
EU countries. These competences are divided into 3 main categories:
• exclusive competences;
• shared competences;
• supporting competences.

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Exclusive competences
areas in which the EU alone is able to legislate and adopt binding acts. EU
countries are able to do so themselves only if empowered by the EU to
implement these acts. The EU have exclusive competence in the following areas:
• customs union;
• the establishing of competition rules necessary for the functioning of the
internal market;
• monetary policy for euro area countries;
• conservation of marine biological resources under the common fisheries
policy;
• common commercial policy;
• conclusion of international agreements under certain conditions.

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Shared competences
the EU and EU countries are able to legislate and adopt legally binding acts. EU countries exercise
their own competence where the EU does not exercise, or has decided not to exercise, its own
competence. Shared competence between the EU and EU countries applies in the following
areas:
• internal market;
• social policy, but only for aspects specifically defined in the Treaty;
• economic, social and territorial cohesion (regional policy);
• agriculture and fisheries (except conservation of marine biological resources);
• environment;
• consumer protection;
• transport;
• trans-European networks;
• energy;
• area of freedom, security and justice;
• shared safety concerns in public health matters, limited to the aspects defined in the TFEU;
• research, technological development, space;
• development cooperation and humanitarian aid.
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Supporting competences
the EU can only intervene to support, coordinate or complement the action of
EU countries. Legally binding EU acts must not require the harmonisation of EU
countries’ laws or regulations. Supporting competences relate to the following
policy areas:
• protection and improvement of human health;
• industry;
• culture;
• tourism;
• education, vocational training, youth and sport;
• civil protection;
• administrative cooperation.

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