Reka Somssich, Sources of the EU Law and decision making institutional framework in the EU, Ankara 24 May 2016

© OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Workshop on
Transposition of EU Legislation into the Legal System of Turkey:
The ways and means to draft legislation with the aim of transposing
the EU acquis into the national legal system
Sources of the European Union Law
and decision making institutional
framework in the European Union
Réka Somssich, Hungary
Ankara, 24-25 May

PRIMARY LAW
• Founding Treaties (TEU, TFEU + Charter of Fundamental
Rights)
• Accession Treaties
• General Principles of EU Law
SECONDARY LAW
• Any instrument adopted by the EU institutions
CASE-LAW OF THE CJEU
Sources of EU Law

• Objectives:
- Attributing binding force to the Charter
- Establishing transparency and a relative hierarchy of EU
acts
New terminology:
- Legal acts
- Legislative acts, non-legislative acts, delegated acts,
implementing acts
- (contrary to the Constitutional Treaty, it did not change the
name of secondary acts)
Reforms brought by the Lisbon
Treaty

Legal acts of the EU
LEGAL ACTS
LEGISLATIVE ACTS
(Regulations, Directives,
Decisions)
NON LEGISLATIVE ACTS
(Regulations, Directives,
Decisions)
DELEGATED ACTS IMPLEMENTING ACTS

• Acts adopted under the ordinary legislative procedure or
under the special legislative procedure
• Regulation/Directive/Decision of the European Parliament
and the Council….OR Council
Regulation/Directive/Decision….
Legislative acts

• 90% of the legislative procedures
• COM final document (official proposal of the Commission)
• In principle the ordinary legislative procedure might result
in three readings
• The purpose is to have the EU act adopted un the 1st
reading
• National parliaments are also involved (since the Lisbon
Treaty)
• The ECOSOC and the Committee of Regions are consulted
Ordinary legislative procedure

• The Subsidiarity Control Mechanism allows national
Parliaments in the EU to issue Reasoned opinions if they
consider that an EU draft legislative act does not comply
with the principle of subsidiarity.
• Only in shared competences of the EU
• Yellow card procedure: if the reasoned opinions
submitted correspond to at least one third of the votes
assigned to the national Parliaments, the Commission shall
review its proposal
• Orange card procedure: If the reasoned opinions
submitted constitute a majority of the votes assigned to
national Parliaments, the Commission must review the
proposal. If it maintains the proposal, it must jusitify it.
The Council and the EP can remove the proposal from the
agenda
The role of national parliaments

• Acts are adopted by the Council alone
• Types of procedures:
• Consent: the European Parliament has the power to
accept or reject a legislative proposal by an absolute
majority vote, but cannot amend it
• Consultation:the Council adopts a legislative proposal
after the Parliament has submitted its opinion on it.
• Only a few areas are concerned (see: competition,
taxation)
Special legislative procedure

• DELEGATED ACTS
Article 290 TFEU: A legislative act may delegate to the
Commission the power to adopt non-legislative acts of
general application to supplement or amend certain non-
essential elements of the legislative act.
Commission Delegated Regulation/Directive/Decision….
Non-legislative acts

• Special procedure foreseen for the adoption of delegated
acts (clear deifition of the scope, revocation, involvement
of Member States experts, EP)
• See: Common Understanding between the European
Parliament, the Council and the Commission on
Delegated Acts (new version published the 12 of May
2016 as an Annex of Interinstitutional Agreement between
the European Parliament, the Council of the European
Union and the European Commission on Better Law-
Making

• IMPLEMENTING ACTS
Article 291 (2): Where uniform conditions for
implementing legally binding Union acts are needed, those
acts shall confer implementing powers on the
Commission, or, in duly justified specific cases and in the
cases provided for in Articles 24 and 26 of the Treaty on
European Union, on the Council.
Typically: defining of residue limits, chemical subsatences,
entry prices, adoption of preventive phitosanitary
measures, imposition of anti-dumping duties, approval of
national programs etc.

• The control mechanism for the implementing acts is laid
down by Regulation (EU) No 182/2011 of the European
Parliament and of the Council
• Certain EU agencies carry out implementing tasks and
adopt implementing decisions (see: ECHA)

• The purpose of the power to adopt delegated acts is ‘to
achieve the adoption of rules coming within the
regulatory framework’ of the basic act, that of
implementing measures is to provide further detail in
relation to the content of a legislative act, in order to
ensure that is it implemented under uniform conditions
in all Member States’ (C-472/12, Biocide judgment)
• Grey zone problem
The borderline between delegated
acts and implementing acts

• Acts adopted upon the authorisation of the TFEU
• Soft law instruments
Other non-legislative acts

• Both legislative and non-legislative acts can be
- Regulations (directly applicable)
- Directives (addressed to the Member States, to be
transposed)
- Decisions (addressed to the Member States or being of
general application)
The type of acts

• The Commission shall provide, in relation to each
proposal, an explanation and justification to the European
Parliament and to the Council regarding its choice of legal
basis and type of legal act in the explanatory
memorandum accompanying the proposal. The
Commission should take due account of the difference in
nature and effects between regulations and directives.
• (Interinstitutional Agreement between the European
Parliament, the Council of the European Union and the
European Commission on Better Law-Making, 12 of May
2016)
Which type of act to choose?

• „managed centrally by the Commission for the whole of
the EU”
• „The need for legal certainty and predictability calls for
clear and uniform rules and imposes the form of a
regulation. The objectives would be compromised if the
Member States had some discretion with regard to
implementing the rules.”
• „As the original legal provision to be amended is a
Directive, the appropriate legal instrument is therefore
another Directive, in accordance with the principle of
parallel forms.”

• „ To this end, the Treaty specifically envisages the
adoption of directives only.”
• „ A directive is the instrument that best ensures a
coherent minimum level of gender diversity among non-
executive directors in boards of publicly listed companies
across the EU, whilst allowing Member States to adjust the
detailed regulation to their specific situations in terms of
national company law and to choose the most appropriate
means of enforcement and sanctions. It also allows
individual Member States to go beyond the minimum
standard, on a voluntary basis.”

• „ The proposal lays down general objectives and
obligations, while leaving sufficient flexibility to the
Member States as regards the choice of measures for
compliance and their detailed implementation.”
• „amending framework decisions”

• Bad choices of instruments can be reconsidered
• Directive 91/414/EEC on the concerning the placing of
plant protection products on the market (amended by
several hundered times) replaced by a Regulation in 2009
(Regulation (EC) No 1107/2009 of the European
Parliament and of the Council of 21 October 2009
concerning the placing of plant protection products on the
market and repealing Council Directives 79/117/EEC and
91/414/EEC)
Change in the type of legal
instrument

• Can a decision of the European Parliament and the Council
amend a Directive of the same institutions?
• Can a Commission Regulation amend a Regulation of the
European Parliament and the Council?
• Can a Commission Regulation amend a Directive of the
European Parliament and the Council?
Special features of the EU legal
order

amenable
to judicial review
amenable
to judicial review
except
misuse of powers, discretionary
Validity requirements of an EU act
Appropriate legal basis/authorization
Appropriate legislative/non legislative
procedure for adoption
Choice of the appropriate legal instrument

Reka Somssich, Sources of the EU Law and decision making institutional framework in the EU, Ankara 24 May 2016

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Reka Somssich, Sources of the EU Law and decision making institutional framework in the EU, Ankara 24 May 2016