Presentation by Reka Somssich, Hungary, on the Sources of the EU Law and decision making institutional framework in the EU, given at the workshop organised by SIGMA with the Turkish Ministry for EU Affairs on the Transposition of EU legislation into the legal system of Turkey, Ankara 25 May 2016.

1. © OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Workshop on
Transposition of EU Legislation into the Legal System of Turkey:
The ways and means to check the draft legislation as to their
conformity with the EU acquis
Sources of the European Union law
and decision making institutional
framework in the European Union
Réka Somssich, Hungary
Ankara, 25 May 2016

2. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
PRIMARY LAW
• Founding Treaties (TEU, TFEU + Charter of Fundamental
Rights)
• Accession Treaties
• General Principles of EU Law
SECONDARY LAW
• Any instrument adopted by the EU institutions
CASE-LAW OF THE CJEU
Sources of EU Law

3. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• 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

4. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Legal acts of the EU
LEGAL ACTS
LEGISLATIVE ACTS
(Regulations, Directives,
Decisions)
NON LEGISLATIVE ACTS
(Regulations, Directives,
Decisions)
DELEGATED
ACTS
IMPLEMENTING
ACTS

5. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• 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

6. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• 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

7. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• 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 justify it. The Council and
the EP can remove the proposal from the agenda.
The role of national parliaments

12. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
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

13. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
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

14. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• Special procedure foreseen for the adoption of
delegated acts (clear definition 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 Inter-institutional Agreement
between the European Parliament, the Council of the
European Union and the European Commission on Better
Law-Making
Non-legislative acts

15. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
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 substances,
entry prices, adoption of preventive phitosanitary
measures, imposition of anti-dumping duties, approval of
national programs etc.
Non-legislative acts

16. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• 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

17. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• 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

18. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• Acts adopted upon the authorisation of the
TFEU
• Soft law instruments
Other non-legislative acts

19. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
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

20. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• 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.
(Inter-institutional 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?

21. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• „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?

22. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
„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?

23. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• „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?

24. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• 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 hundred 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

25. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
• 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

26. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
amenable
to judicial review
amenable
to judicial review
except
misuse of powers, discretionary
Validity requirements of an EU act
Appropriate legal basis/authorization
Appropriate legislative/non legislative
procedure for adoption
Choice of the appropriate legal instrument