© OECD

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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, HungaryAnkara, 24-25 May

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PRIMARY LAW• Founding Treaties (TEU, TFEU + Charter of Fundamental

Rights)• Accession Treaties• General Principles of EU LawSECONDARY LAW• Any instrument adopted by the EU institutions CASE-LAW OF THE CJEU

Sources of EU Law

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• 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

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Legal acts of the EU

LEGAL ACTS

LEGISLATIVE ACTS(Regulations, Directives,

Decisions)

NON LEGISLATIVE ACTS(Regulations, Directives,

Decisions)

DELEGATED ACTS IMPLEMENTING ACTS

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• 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

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• 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

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• 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

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• 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

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• 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

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• 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

Non-legislative acts

CELEX%3A32016Q0512%2801%29%3AEN%3ATXT.pdf

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• 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.

Non-legislative acts

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• 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)

Non-legislative acts

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• 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

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• Acts adopted upon the authorisation of the TFEU • Soft law instruments

Other non-legislative acts

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• 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

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• 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?

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• „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.”

Which type of act to choose?

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• „ 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.”

Which type of act to choose?

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• „ 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”

Which type of act to choose?

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• 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

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• 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

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amenable to judicial review

amenable

to judicial review

except misuse of powers, discretionary

Validity requirements of an EU actAppropriate legal basis/authorization

Appropriate legislative/non legislative procedure for adoption

Choice of the appropriate legal instrument