Unit 3

THE LEGAL ACTS OF THE UNION

Discussion

1. Explain what is meant by the term ‘competence’ in Legal English.

2. Who or what confers competences upon the EU?

3. What types of Union Acts do you remember?

4. What is the difference between the European Treaties and the Legal Acts of the Union?

Legal terms

1	limits of Union competences	границы полномочий Евросоюза
2	principle of conferral	принцип передачи полномочий
3	principle of subsidiarity	принцип дополнительности
4	principle of proportionality	принцип пропорциональности
5	to fall within the competence	входить в компетенцию
6	regulation	постановление
7	be binding in its entirety	быть обязательным в полном объеме
8	posterior to the Union act	следующий за изданием законодательного акта Евросоюза
9	prevent application	препятствовать применению
10	have direct effect	оказывать непосредственное воздействие
11	to uphold rights	соблюдать права
12	to impose an obligation	налагать обязательство
13	directive	директива
14	to implement the measures	применять меры
15	to impose criminal penalties for	устанавливать уголовную ответственность за что-либо
16	to cause loss and damage	причинять ущерб и убытки
17	decision	решение
18	recommendation	рекомендация
19	opinion	заключение
20	to invoke a right in the court	ссылаться на к.-л. право в суде
21	to review the legality	пересмотреть законность
22	to exercise the powers	осуществлять полномочия
23	statement of reasons	изложение причин

For those who are subject to Union law, the main question with regard to the acts is to be able to determine whether or not they are binding on them and, if so, whether the institution issuing them is indeed competent to do so. According to the Court, an act is binding when it, “brings about a distinctive change in the legal position of a party”. Regarding the competence of the issuing institution, it is extremely important to note that, “the limits of Union competences are governed by the principle of conferral”. This is further emphasised in the TFEU as follows:

“Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.”

It must be noted that the principle of subsidiarity and the principle of proportionality also apply to the exercise by the institutions of the powers conferred upon them by the Treaties.

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, or, by reason of the scale or effects of the proposed action, can be better achieved at Union. This principle must be applied as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

Under the principle of proportionality, the content and form of Union action may not exceed what is necessary to achieve the objectives of the Treaties. This principle must be applied by the institutions as laid down in the above-mentioned Protocol.

Binding acts provided for in the treaties: legal acts/legislative acts

A regulation has general application, it is binding in its entirety and is directly applicable in all the member States. Regulations may be adopted by the Council or by the Council jointly with Parliament under the ordinary legislative procedure, by the Council with the participation of Parliament or by Parliament with the participation of the Council under a special legislative procedure, by the Commission and by the European Central Bank. The criterion for the distinction between a regulation and other acts, especially decisions, must be sought in its “general application”. Being essentially of a “legislative nature, a regulation is applicable, not to a limited number of persons, defined and identifiable, but to categories of persons viewed abstractly and in their entirety”.

---

Secondly, a regulation is “binding in its entirety”. This distinguishes it from a directive which only imposes on the Member States to which it is addressed the obligation to achieve specific results. The Court has considered that it cannot be accepted in an incomplete and selective manner.

Finally, a regulation is “directly applicable” in all the member States. This means that it does not require a national measure, such as ratification, to become binding upon institutions, States, undertakings and natural persons all over the Union. Directly applicable also means that the national authorities and national legal or administrative measures, even those posterior to the Union act, cannot prevent its application. By this is meant the precedence of Union law over national law.

Direct applicability must not be confused with “direct effect”. Union measures have direct effect when they create, for those who are subject to Union law, rights that the national judge is bound to uphold. This is the case every time Union rules impose, in a clear and unconditional way, an obligation (affecting a third party) upon a Member State, an institution or a natural or legal person. The beneficiaries of those obligations can invoke them in the national courts and tribunals to protect the rights which result from these obligations, and those courts and tribunals are under Treaty obligation to uphold them.

Directives are issued by the Council, by the Council jointly with Parliament or by the Commission. They constitute the appropriate measure when existing national legislation must be modified or national provisions must be enacted, in most cases for the sake of harmonization. Directives are binding upon the Member States to which they are addressed, as to the results to be achieved. Although this means that Member States are obliged to take the national measures necessary to achieve the results set out in the directive, they are free to decide how they “transpose” this piece of Union legislation into national law. When transposing a directive into national law, Member States must take care to rely on an interpretation of the directive which allows a fair balance to be struck between the various fundamental rights protected by the Union’s legal order. Furthermore, when implementing the measures transporting the directive, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with the directive, but also make sure that they do not rely on an interpretation which would be in conflict with those fundamental rights or with the other general principles of Union law, such as the principle of proportionality.

Although directives are not directly applicable, since they must first be transposed into national law, certain of their provisions can nevertheless have direct effect. This must be ascertained on a case by case basis, taking into account their nature, background and wording. According to the Court, provisions are capable of producing direct effect in the legal relationship between the addressee of the act and others, i.e. the Member States and third parties, for instance their citizens.

Once a directive has been properly transposed into national law, Member States are entitled to impose criminal penalties for breach of national legislation implementing that directive, even if this is not provided by the directive.

The obligation imposed upon Member States to transpose directives into national legislation makes these Member States responsible for the consequences of their failure to do so. In other words the State is liable for loss and damage caused to individuals as a result of a breach of Union law for which the State can be held responsible. This obligation applies provided that three conditions are fulfilled. First, the purpose of the directive must be to grant rights to individuals. Second, it must be possible to identify the content of those rights on the basis of the provisions of the directive and, finally, there must be a causal link between the breach of the State’s obligation and the damage suffered.

As for a decision, it is binding in its entirety upon those to whom it is addressed. The addressee can be a Member State or a legal or natural person. A decision can be taken by the Council, by the Council jointly with Parliament, by Parliament with the participation of the Council or by the Council with the participation of Parliament, under the ordinary or special procedure, by the Commission and by the ECB. Decisions are normally of an administrative nature, implementing other Union rules, e.g. granting of an exemption or authorization, or imposing fines. There are no requirements as to the form of the decision, so that it may, in certain cases, be doubtful whether a given act constitutes a binding decision or not. Obviously, the institutions must ensure that a decision is recognisable as a binding act by its very form.

The TFEU also provides for recommendations and opinions, which, however, have no binding force. Nonetheless, according to recent case law, recommendations should not be dismissed as having no legal effect whatsoever. They do not, it is true, create rights which can be invoked in the courts, but the national judges must take recommendations into consideration when solving cases submitted to them. This is especially so if the recommendations can help with the interpretation of other national or Union legal measures. Generally speaking, recommendations aim at obtaining a given action or behaviour from the addressee. An opinion, on the other hand, expresses a point of view, often at the request of a third party. Having no binding effect, the legality of recommendations and opinions cannot, in theory, be reviewed by the Court. Neither can they be submitted to the Court for a preliminary ruling concerning their validity or interpretation. The Court has nevertheless agreed to examine whether recommendations had legal effect when a Member State failed to take the recommended action.

---

Regulations, directives and decisions must be reasoned

Regulations, directives and decisions must state the reasons on which they are based and must refer to the proposals and opinions which were required to be obtained pursuant to the Treaties.

Reasons must be understood as referring both to the Treaty provision which entitle the institution to take the measure in question and the reasons which motivated the institution to act. The mention of the provision is particularly important since the Union institutions may only exercise those powers which are explicitly conferred upon them by the Member States.

As for the motives which prompted the institution to act, they must be mentioned in order to make it possible for the interested parties and for the Court to reconstruct the essential elements of the institution’s reasoning, thereby permitting the parties to defend their rights, the Court to exercise its control, and the Member States (and in the same way all the interested citizens) to know the conditions under which the institution has applied the Treaty.

To attain those objectives, it is sufficient for the act to set out, in a concise but clear and relevant manner, the principal issues of law and fact upon which it is based and which are necessary in order that the reasoning which has led the institution to its decision may be understood. The extent of this requirement depends on the nature of the measure in question. The condition can also be considered as fulfilled when reference is made to the reasons developed in an earlier act. Furthermore, the question whether a statement of reasons satisfies the requirements must be assessed with reference not only to the wording of the measure but also to its context and to the whole body of legal rules governing the matter in question. If the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for each of the technical choices made by the institution.

Reading Comprehension and Vocabulary Work

Exercise 1. Look through the text and answer the following questions.

1. What Union act is considered to be binding?

2. What is meant by the legal term ‘principle of conferral’?

3. Name two more principles which apply to the exercise of the powers conferred by the Treaties.

4. What are the main types of Union legal acts which have binding force? Name other types of Union acts which having no binding force, are not totally deprived of legal effect.

5. Give a brief definition of the term ‘regulation’.

6. Give a brief definition of the term ‘directive’.

7. Give a brief definition of the term ‘decision’.

8. Explain how the term ‘reason’ must be understood in the context of Union law.

Exercise 2. Suggest Russian equivalents of the following expressions. Use them in your own sentences.

A be subject to Union law; to issue an act; to confer competences; to exercise powers; to have general application; be applicable to; to affect a third party; to transpose a directive into national law; be in conflict with; to suffer damage; to grant an exemption; to grant an authorization; to dismiss a recommendation; to be submitted to the Court; to make a technical choice

B the scale or effects of the proposed action; directly applicable; undertaking; precedence of Union law over national law; beneficiary of the obligations; interpretation of the directive; wording of the case; preliminary ruling; validity; institution’s reasoning; issues of law and fact

C with regard to; therein; in so far as; in a clear and unconditional way; for the sake of; as to; furthermore; in a manner consistent with the directive; nonetheless; whatsoever; pursuant to; thereby

Exercise 3. Answer the questions on the text.

1. What is the main question with regard to the Union acts for those who are subject to Union law?

2. Why is the principle of conferral so important for Union law?

3. Explain the meaning of the principle of subsidiarity and the principle of proportionality.

4. What are the three distinguishing features of regulations as compared to other Union acts?

5. Explain why the notion ‘direct applicability’ must not be confused with ‘direct effect’.

6. What are the distinguishing features of the directives?

7. What are the three conditions which, if fulfilled, lead to the State being liable for loss and damage caused to individuals?

8. What is the nature of decisions?

9. What legislative bodies issue regulations, directives and decisions?

10. Why are recommendations and opinions different from other types of Union acts?

11. What is necessary for the Court to reconstruct the essential elements of the institution’s reasoning?

12. Name the requirements referring to the statement of reasons. In what way are these requirements assessed?

Exercise 4. Read the text and choose the best suitable word to fill in the gaps. Say what you have learned from the text.

---

Since regulations are of a legislative nature and therefore concern an unidentifiable group to whom they 1, they must be published in the Official Journal of the European Union, which 2 in the 23 official languages of the Union. The same applies to directives and decisions since they are binding acts and may 3 persons other than the one(s) to whom the act is addressed.

Publications must, as indicated, necessarily take place in all the official languages of the Union and cannot be 4 by electronic versions; the absence of publication 5 the obligations contained in Union legislation from being 6 on individuals, even though those persons are could have learned of that legislation by other means.

Acts enter into force on the day 7 therein or, in the absence thereof, on the twentieth day following their publication. This rule raises the question of possible retroactive effect. In this regard, the Court 8 that:

“Although in general the principle of legal certainty precludes a [Union] measure from 9 effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and the legitimate expectations of those concerned are duly respected.”

1	A	inflict	B	impose	C	apply	D	refer
2	A	exists	B	appears	C	publishes	D	renders
3	A	touch	B	represent	C	refer	D	concern
4	A	replaced	B	changed	C	transferred	D	transmitted
5	A	suspends	B	precludes	C	omits	D	revokes
6	A	checked	B	applied	C	changed	D	imposed
7	A	quoted	B	expressed	C	mentioned	D	specified
8	A	ruled	B	said	C	imposed	D	applied
9	A	making	B	taking	C	loosing	D	showing

Exercise 5. Read the text and fill in the gaps with the required prepositions provided below. Then say whether the statements below are true, false or incomplete. Finally, say what you have learned about the role of the acts of the Union in the development of Union law.

by (3); down; for (5); from; in (5); out; to (3)

Nevertheless, the acts expressly provided 1 2 the Treaties (regulations, directives, decisions, agreements) play, 3 far, the most important role. The conditions laid 4 5 the decision-making process and 6 the contents of those acts must be seen as so many guarantees 7 lawfulness and judicial control and the protection of the rights of the citizens.

The Treaties invest 8 the Council, the Parliament and the Commission the responsibility 9 implementing the objectives of the Union. To carry 10 this task, they have empowered them to adopt regulations, directives, decisions, recommendations and opinions; 11 those must be added, although not mentioned 12 the same Treaty provision, “international agreements”.

Furthermore, each one of those acts fulfils a specific function 13 the development of Union law, and the Treaties therefore explicitly provide, 14 many cases, what kind of act must be adopted, 15 which institution, and 16 which circumstances. Different rules apply 17 each category of acts and, more important, the extent of the legal protection afforded legal and natural persons varies widely 18 one category 19 another.

1. The acts expressly provided for by the Treaties are regulations, directives, decisions and regulations.

2. The responsibility for implementing the objectives of the Union is invested in the Parliament and the Courts.

3. Each of the Union acts fulfils a specific function in the development of Union law.

4. The legal protection provided for by each of the acts is equal for all categories of acts.

5. The contents of the acts of the Union must be seen as guarantees for lawfulness and judicial control.

Exercise 6. Read the text. Use the words in the box on the right to form one word that fits in the gap.

Union acts are not limited to regulations, directives and decisions. Judgments of the courts are also binding upon the parties and can be _______. As for agreements _______ by the Union with third countries or international organizations, they are _______ upon the institutions of the Union and on the Member States and may be _______ by persons in court. Somewhat different is the position of international agreements concluded by the Member States with third countries. These agreements can be _______ to the control of legality exercised by the Court when the Union is a party to them and they constitute rules of law relating to the application of the Treaty; the result being that regulations, directives and decisions can be annulled in case of _______ of these rules. These agreements can also have direct effect, which means that natural and legal persona can ask the national judge to _______ the rights that derive from these agreements even against their own national authorities. Besides the acts already mentioned, there are the decisions of the _______ of the Governments of the member States within the Council; these cannot be submitted to the Court since they do not emanate from the Council, the Parliament or the Commission, but they can be binding within the whole Union. However it will have to be established on a case by case basis whether those decisions are binding only for the Member States or also for the _______ of the Union and even for natural or legal persons. Besides _______ from the Court’s control, these acts do not require a Commission _______ or an opinion of Parliament. Of course, nothing can prevent the latter from trying to exercise its political control over these acts anyway.

force; conclusion bind invoke submit fringe hold present institute immune propose

---

Exercise 7. Read the text and fill in the gaps with the appropriate words from the box. Then answer the questions below the text.

create acts bodies procedures provides publishes multiply constitute

As for the various forms which the Union acts can take, it should be pointed out from the onset that the actual practice does sometimes differ from what the Treaty provides. The TEFU 1 only for regulations, directives, decisions and agreements as binding acts. However, the tendency, it seems, has been to 2 the forms of the Union acts, the procedures leading up to them and the 3 issuing them. Indeed, besides those acts already mentioned, there are joint actions, common positions, Communiqués, Declarations and Conclusions of the European Council. Furthermore one finds: Programmes, Resolutions, Recommendations, and especially Communications. Then there are also the Notices of the Commission by which it 4 Guidelines or gives definitions in the competition field. Since, generally speaking, these acts are not binding, i.e. do not 5 rights and obligations for those who are subject to Union law, not all of the above-mentioned measures 6 Union ‘acts’ whose legality the court can review. Nonetheless these acts shape essential Union policies and consequently the development of the Union itself. They are part of the acquis communautaire. It sometimes appears that the more important the decision, politically speaking, the less formal the 7 that lead to them and the forms of the 8.

1. What acts may be considered as additional union acts, i.e. the acts which are not provided for by the TEFU but exist as a result of the legal practice of the EU?

2. Explain the difference between Union acts covered by the TEFU and joint actions, common positions, Communiqués etc.

3. What is the legal and political role of such acts?

Exercise 8. In the text in this exercise certain parts have been taken out and reshuffled. Restore the text by filling in the gaps meaningfully. What information does the text contain?

Supremacy of the EU law

A which conflict with European Union law

B there is a conflict between the laws of Member States and European Union law

C until recently

D there is a conflict between the laws of Member States and European Union law

E if there is one

F which has relevant provisions in these areas

In Costa v ENEL [1964] ECR 585 the European Court of Justice held that in situations where 1, European Union law prevails, because "a subsequent unilateral act incompatible with the concept of the Community cannot prevail". However, 2 the European Union does not prevent Member States from maintaining or introducing more stringent laws on working conditions, social policy, consumer protection and the environment, so long as these laws are compliant with the Treaty of Rome, 3. Some courts in Member States have resented the supremacy doctrine though it is not commonly challenged and the European Court of Justice has encouraged legal interpretation in light of European Union law by courts in Member States as alternative to repealing or amending laws of Member States 4. A source of tension has historically been the relationship between the constitutions of member states and European Union law. Unlike the UK, most continental European Member States have written constitutions and some have constitutional courts with the exclusive power to interpret the national constitution. The European Court of Justice has rules that such courts must apply European Union law in its entirety, to avoid any conflicting provisions of national law. 5 the French constitutional court has regarded itself not empowered to review administrative measures, as it did not recognise the review power and duty provided to it by European Union law. The German and Italian constitutional courts initially refused to strike down national laws which conflicted with European Union law. The legal system of the European Union depends heavily on the courts in Member States to acknowledge and uphold European Union law, and to follow the interpretation of the European Court of Justice 6. The supremacy doctrine has found widespread acceptance, though the direct and indirect application of European Union law still needs to fully establish itself.

Research task

Exercise 9. Find out the details of the case Costa v ENEL [1964] ECR 585 and discuss them in class.

Writing

Exercise 10. Basing on the main ideas of the text, draw a scheme showing all the types of Union acts. Then, write down short explanations referring to each act.

Exercise 11. Write a plan and a short summary of the text.

Speaking

Exercise 12. Discuss the particularities of the main legislative bodies of the EU: the Council, the Parliament and the Commission.

---

Смотрите также файлы

• Pravo_na_zhizn_Evropeyskie_i_Rossiyskiy_standarty_Churkina.pdf

• Printsipy_evropeyskogo_dogovornogo_prava_-_Istoria-Status-Polozhenia_-_Sirotkina_-_2003_-_23.pdf

• razresh_mezhd_investits_sporov-1.docx

• RPUD_Pravo_Evropeyskogo_Soyuza.pdf

• shpargalka_evropeiskoe_pravo-1.docx