Extract
[...] The decision « The decision is mandatory in all its elements. [...]
[...] > Finally, we observe a noticeable increase in the normative density of directives: That is to say, instead of being content with the objectives to be achieved and remaining general, the authors of the directives have increasingly developed more precisely the parts of the directive The legislators of the States, at the time of transposing, will do a copy-paste of the directive in the law question of security, no risk 3. [...]
[...] Recommendations and opinions « Recommendations and opinions do not bind » - Article 288 paragraph 5 TFEU > Non-binding measures These are not decision-making acts Only an opinion, a recommendation No obligation > Consequences : - One cannot rely on it - One cannot attack these acts as being illegal before a judge > Measures can be taken by : - The commission (especially, it is used extensively in commercial and budgetary matters) - The EU Council - The Parliament > However, these opinions may invite the competent authorities (European institutions) to adopt such or such binding legal measure? [...]
[...] = this is a first, a unique system of its kind in the world On the contrary, for example, UN resolutions do not integrate into the national law of member states > Speaking of EU law, it's : - Take a look at primary law = Treaties - and secondary law = Law created by institutions Section 1 - Primary Law The content The different types of instruments > On distinguishes : - The foundational (institutive) treaties - The modifying treaties that came to modify them Example of foundational treaty : - TFUE (founded the EEC, otherwise known as the Treaty of Rome of 1957) - TUE (founded the union, otherwise known as the Treaty of Maastricht of 1992) The other treaties are considered as modifying - Example: The accession treaties The acts assimilated (protocols and annexed conventions to the treaties) are also considered as within the founding law The declarations annexed to the treaties also The different types of clauses > Institutional clauses: institutional system (core of the original law) > Substantive clauses: objectives pursued by the treaties and common policies applicable to Member States in different areas (CFSP, Union foreign policy part quantitatively the most important > Formal clauses: concern the applicable procedures (accession of new members, revision of treaties) These clauses can only be changed by unanimous agreement of the member states II- The revision of the original law > Treaties can be revised There are revision procedures - Ordinaries - Specials The ordinary revision procedure > Article 48 TUE - Initiative Member State government, European Commission, or Parliament since the arrival of Lisbon - Transmission of the draft or proposal for revision to the Council of the Union, which submits the text to the European Council for approval Members of Parliament are informed at the same time - Establishment of a convention and preparatory works - Then, convocation of the CIG (intergovernmental conference) which will take place, presided over by the President of the European Council to discuss and vote Adoption by unanimous vote - Then, ratification of the amending treaty by each member state This is a sine qua non condition It is enough that a single member state does not ratify for the process to fail Each state ratifies as it wishes - Then, entry into force Special revision procedures > This concerns simplified procedures provided for by the treaties (no convention or CIG): (The ordinary procedure is heavy, long and complicated - They presuppose a unanimous decision within the European Council - The concerned domains are restricted internal policies and actions within the union - Example the European budget pact of 2012, it is a treaty adopted after the Lisbon Treaty in the restricted field of budgetary matters > Advantage : - Skip the step of the convention and the CIG > Disadvantage : - The treaties adopted cannot extend the competences of the European Union - What pertains to missions and objectives cannot be modified, only administrative matters can be addressed Section 2 - Derived Law > Derived Law : - This is the law that derives from the organs created by the European Union - This is what allows us to distinguish this law from the original law > Precise distinction : The origin of these two types of law - The origin of treaties is conventional, treaties are the product of conventions or agreements between states, fruits of intergovernmental cooperation (each state consents) - Derived law has a very different nature, these are unilateral legal acts Or, the particularity of these acts is that they come from a single will (and not from an agreement) Derived law must be in conformity with the original law The nomenclature of derived law acts Derived law represents quantitatively the most important source among all the sources of European Union law The different types of acts > Article 288 TFEU - « To exercise the powers of the union, the institutions adopt regulations, directives, decisions, recommendations and opinions Enumeration of types of acts They are then defined in paragraphs and 5. [...]
[...] The directive « The directive binds all member states to which it is addressed as to the result to be achieved, while leaving it to the national authorities the power to implement the form and the means > The directives can be taken by the council of the union alone or with the parliament acting jointly The objectives are imposed by the EU for the member states National authorities have a margin of maneuver to achieve the objectives = The directive therefore appears as a kind of framework law Instrument with a double normative degree : - Directive is already a norm because it is binding - Second degree of norm in domestic law established by the Member States > The directive pursues two imperatives : - That of uniforming national rights (the same results are to be achieved for everyone, the fixed deadline is binding) In the event of a breach of this deadline, the Member States risk being condemned for failure to comply with their Community obligations It is up to the Member States to transpose the directives Transposition measures The deadline is also imperative, obligatory - Second imperative: the desire of European institutions to respect the diversity of national legislations Diversity in the way of transposing = we grant a certain freedom to each Member State (we leave a margin of maneuver in the way of transposing) > Remarks regarding the transposition of directives: - The transposition measures must be decisive These acts must have a binding character (possessing legal force, constraining) - Unlike the regulation, directives do not have general scope = directives can be addressed to all Member States or a certain number of Member States BUT in practice it has become common that this applies to all Member States - The directive does not in itself have a principle of general scope or a principle of direct effect (it cannot be invoked by a litigant in support of an appeal before a national judge) unlike the regulation In fact, we will rather invoke the transposition measure in place of the directive BUT the Court recognizes the direct effect of a directive in the case where there would not have been transposition (within the deadlines) ? [...]
