Diritto dell'Unione Europea Diritto dell'Unione Europea, Schemi e mappe concettuali di Diritto dell'Unione Europea

Scarica Diritto dell'Unione Europea Diritto dell'Unione Europea e più Schemi e mappe concettuali in PDF di Diritto dell'Unione Europea solo su Docsity! EU law in a nutshell The primary law/legislation of the EU is composed by:  TEU;  TFEU;  revision treaties (since the Rome Treaty of 1957, the 1992 Treaty of Maastricht…);  accession treaties;  protocols and annexes (they legislate determined issues, at times of transitory nature, that are linked to specific sectors or States). In the Van Gend en Loos ruling (1963), the Court of Justice outlined the main characteristics of the EU. They are innovative, since they are nowhere to be found in the other treaties of international organisations: - nature of the institutions; - nature of the acts; - jurisdictional organisation (which supervises both interpretations and validity checks). In the EU case: - institutions that do not have an intergovernmental character, eg. EU Parliament; - there is a certain typology, i.e. the regulations, which do not require ratification to be effective; - presence of the Court of Justice (prejudicial competence). The revision process is linked to modifications of the treaties and is regulated by art. 48 TEU. There are various types of revision: - ordinary revision (draft of a project, later discussed in an intergovernmental assembly by the MSs and eventually ratified); - simplified revision (some steps of the process are skipped); - atypical revision (rare, other methods). Are there any limits to the revision process? It is controversial. According to some, the only existing limits are those imposed by general international law and especially the so-called ius cogens, i.e. that customary law that is characterised by non-derogation. According to others, instead, there are a number of super constitutional principles that are untouchable, e.g. modifications may occur only following the predetermined paths, fundamental rights and some essential features of EU institutions such as the competences of the Court. The most relevant modifications to the treaties took place in the last decades. They are:  the Single European Act (SEA), 1986 – it should have strengthened the role of the EP, however it was scaled down by the assembly which worked on it;  the Maastricht Treaty, 1992 – changed the functioning of the union and added two pillars, the PESC and the GAI (Justice and Internal Affairs). It introduced the EU citizenship and erased the mercantilist soul of the union;  the Amsterdam Treaty, 1997 – led back the PESC and GAI to a communitarian level;  the Treaty of Nice, 2001 -  the Lisbon Treaty, 2007 – everything is brought back to the communitarian level (not intergovernmental), except for the economic and currency policies and the foreign policy sector. The admission process to the EU is currently regulated by art. 49 TEU. Firstly, the application for admission is submitted. Secondly, the Commission expresses itself and the EP approval is requested. Thirdly, the Council of the EU must come up with a decision which is to be voted unanimously. Moreover, a transitory phase is foreseen. Before applying for admission, a state must conform to a few parameters, including both economic and political criteria as listed in art. 2 TEU. 1957: Benelux, France, Germany, Italy. 1973: Denmark, Ireland, the UK. 1981: Greece. 1986: Portugal, Spain. 1995: Austria, Finland, Sweden. A first EU reference to human rights was made in the Treaty of Maastricht without however a proper catalogue. It was the Lisbon Treaty which, by modifying art. 6 TEU, equalised the EU Chart on fundamental rights, which had been adopted without being binding during the conference in Nice, to the treaties. Human rights in communitarian law represent a parameter of legitimacy of EU juridical acts. The latter can be brought to the attention of the Court in case of violation of the former. Possible annulment of EU acts under art. 263 TFEU or infraction against MSs under art. 258 ss. TFEU. The function of political control is carried out according to art. 7 TEU. The democratic principle, according to which EU decisions are also an indirect expression of the citizens’ will, is among the rights mentioned in art. 2 TEU. Its only concrete expression is the EP, which at the beginning had just limited powers and it was not elected by direct suffrage. It changed after 1976 thanks to an EU decision, first elections in 1979. Actually, MSs tried to reinforce the principle also by strengthening the power of national Parliaments, mainly through the adoption of two protocols:  Protocol n. 1 on the role of national Parliaments within the EU;  Protocol n. 2 on the implementation of the subsidiarity and proportionality principles. They foresee a more or less strong participation of national Parliaments to the decisional process. Moreover, the Lisbon Treaty introduced the popular legislative initiative (art. 11, par. 4 TEU). The Commission is not bound to sustain the proposal though. EU competences are regulated by art. 5 TEU, more specifically the principle of conferral. According to it, EU institutions can intervene only in the sectors attributed to each of them by the treaties. The only admissible exceptions are the flexibility clause (art. 352 TFEU) and (rarer) the principle of parallelism of competences, as foreseen by the Court of Justice case law. The former foresees that wherever the treaties have given the union a goal to be achieved without providing the instruments, the single act can be adopted by following a special, rigid procedure, which entails the unanimous approval of the Council and the approval of the EP, as envisaged by art. 352 TFEU. The Union however operates following the subsidiarity and proportionality principles and competences can be exclusive, concurrent, supporting, of coordination and completion (these were introduced by the Lisbon Treaty). The institutions of the EU are listed in art. 13 TEU, and they are: the EP, the European Council, the Council of the EU, the European Commission, the Court of Justice, the ECB and the Court of Auditors. The political ones, those that take part in the decisional process, are the European Council, the EP, the Council and the European Commission. Only the last three ones play a key role. The Council is the assembly of the union, where all MSs are represented (one representative each). The European Council is instead constituted by the MSs’ heads of government or of state plus the president of the Commission and the president of the Council itself. The EP is formed by 751 representatives directly elected by EU citizens. Lastly, the Commission is formed by one citizen per MS. Its vice-president is also the high representative for PESC (is appointed by the European Council). The Court of Justice and the Court of Auditors exercise both a control function (in separate fields). Decision-making role: Commission (proposal), EP, Council of the EU. Control function: EP (political) over the Commission (motion of censorship). In addition, it appoints the European mediator and committees of inquiry. Moreover, it has a permanent committee for petitions. Supervisory function: Commission. In addition, it has the option of initiating an infringement procedure, i.e. a procedure aimed at verifying whether a MS has infringed the communitarian law, even before the Court of Justice. Jurisdictional control: Court of Justice. Its main competences: annulment competence; infringement procedure; “competence in shortage” (competenza in carenza); and prejudicial competence (powers on preliminary rulings), which is the only indirect one. The last one is based on a cooperation between a national judge and the Court, whenever a judge has a doubt of interpretative nature or of validity of an EU norm s/he must or can refer to the Court. In this way the Court produced the most important EU case law that enhanced the process of European integration. Within the treaties there are:  ordinary legislative procedure -> the proposal comes from the Commission, then the EP and the Council interact and decide (can have the same weight or not, in the latter case usually the Council is more important);  the single norms foresee special procedures, but then in general the Council decides with an intervention of the EP either in advisory capacity or in approval one; sometimes also other organs can be consulted. An example is the budgetary approval process. The procedure for the conclusion of international agreements (art. 218 TFEU), not for sure a legislative one, foresees a decision by the Council. A variation is described in par. 11, according to which the Court of Justice can express its opinion, which, if negative, does not allow the approval of the agreement until something is changed. The secondary legislation derives its juridical strength from primary law, i.e. mainly the treaties. It is formed by:  typical acts – art. 288 TFEU, diversifies between binding and non-binding. The former are regulations, directives and decisions (a category is that of conclusion of international agreements, which is located between primary and secondary legislation), while the latter are recommendations and opinions;  atypical acts – are not specifically described by the treaty. Characteristics:  typical, binding acts – motivation, legal basis (general ones). Then: