The capacity to act (through secondary or tertiary law) requires a respective competence of the EU
The EU competences are defined by primary law
Power of conferral
When Member transfers power to EU, the state loses power
Principle of subsidiarity
EU should only act if they do it better at the EU level than that of the member states
Limited by the principle of proportionality
EU should use its competences only if it’s necessary to achieve a specific aim
There are 3 main types of competences
Exclusive competences
The only person allowed to act is EU
Shared competences
Competencies to support, coordinate or supplement the actions of the MS
EU legal acts
Primary Law
Treaties under international law
Agreed upon by the Member States
Secondary Law
Legal acts based upon primary law
Eg regulations, directives
Tertiary Law
Legal acts based upon secondary law
Eg decisions
Can be general or individual
Decisions can have a legislative nature (general)
Usually it’s the commission deciding
Binding Acts
Binding acts can be adopted in the form of regulations, directives, decisions
Non-Binding Acts
Can be adopted in the form of recommendations and opinions (TFEU) and others
Judicial Protection in EU
Three procedures are most important
Infringement proceedings
Member State is found to have failed to fulfill an obligation under EU law
Member State fails to comply with judgment → ECJ may impose lump sum or penalty payment
Annulment Actions
Legislative acts of an EU institution that produces legal effects vis-a-vis third parties
Another form within the EU about violating EU law
If laws at some level violate the law above
Tertiary violating secondary
Secondary violating primary
Grounds: lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application or misuse of power
Preliminary Reference Procedure
Questions concerning the interpretation and validity of EU law
National Courts can and national courts of last instance must refer, if such questions arise in proceedings before them
“Infringement procedure of the European citizen”
EU Law as “Supranational Law”
EU law has direct effect
Usually the states have to implement everything
EU law enjoys supremacy vis-a-vis national law
Dynamics of EU Integration
Regional transformation of unprecedented dynamism because of:
Formal Principles
Direct Effect
Supremacy
Preliminary Reference Procedure
Substantive Principles
Internal market law
Principle of mutual recognition
If you got permission for a product in one country, you can bring it to market it in another country
These are the fundamental Principles that contribute to a self-sustaining transformation process
Internal market
Markets of all Member States form one common market
Daily experience of EU citizen means that they can freely decide where to work
You can decide where you buy your goods or services
Forms of Economic Integration
Free Trade Area
Eliminate customs duties and other restrictive regulations
Different national tariffs for goods imported from third countries
Need to determine origin of products and to impose compensating tariffs
Customs Union
Common customs tariff and trade policy vis a vis third countries
Internal Market
Free movement of all factors of production
EU: fundamental freedoms
Optimal allocation of factors of production, incurring and international division of labor, economies of scale and an increase in wealth
Stabilization of Europe through highly increased political and social integration
Positive and Negative Integration
Positive Integration entails harmonization
The EU is adoption legislation in order to harmonize regulations across Europe
How can the EU harmonize to affect the internal market?
EU needs a competence
Art 114 TFEU
EU measures must contribute to removing appreciable obstacles to trade or distortions of competition and may also address anticipated problems as well as non-economic concerns
Exceptions Art 114 para. 4 & 5
Member state can keep their own legislation if the state needs their own rule to maintain something on legitimate grounds
Public health, safety, etc
Must notify the commission and the commission will tell the member if they are allowed to keep it
After the adoption of EU harmonization, the member discovers new scientific evidence that the EU law will affect that specific member state
Negative integration is driven forward by individuals interested in their internal market rights and by courts
If we have an Austrian company who wants to sell its products to another EU state (Belgium) and the company learns that in Belgium, specific requirements for the product are still enforced.
The Austrian company can go to Belgian courts and say that their freedom for free movement of goods has been violated
Fundamental Freedoms
Common Structures
Scope of Protection
Preliminary Question: Is there a cross-border economic activity
Relevant for any application of fundamental freedom
In-country, fundamental freedoms aren’t applied
Interference
Discrimination
Direct
If a person or a product or a service or good are subject to discrimination or disadvantages explicitly on the basis of foreign origin
Indirect
Disadvantage on grounds of criteria that regularly disadvantages people of foreign origin