The document discusses EU law and its relationship with national legislation. It covers primary and secondary EU law sources, including treaties and regulations. The key principles are: 1) EU law is supreme over national law based on the Costa v ENEL ruling, establishing that EU law takes precedence in cases of conflict. 2) National courts must disapply conflicting national laws and protect rights conferred by EU law based on the Simmenthal case. 3) The supremacy of EU law applies regardless of the type of law or whether it is older or newer than national law. Member states must repeal conflicting national legislation.

1. EU Law and the relations with
national legislation
Dr Mihalis Kritikos, IES-VUB
April 2017

2. Table of Contents
 Primary and Secondary EU Law
 Main sources and principles of EU
Law
 The relationship between EU Law
and National Law: supremacy
 Introduction to EU Food Law

3. Primary and Secondary EU Law

4. 4
Primary law
The primary law is made up of the set of founding Treaties as
amended and adapted by a variety of other treaties and
instruments.
It consists mainly of:
the Treaties establishing the Communities and the European Union;
the major Treaties amending provisions governing the various
Communities and the Union;
the protocols annexed to those treaties, such as Protocol No 2 annexed to
the Treaty of Amsterdam, integrating the Schengen rules into the
Community;
additional treaties making changes to specific sections of the founding
Treaties;
the Treaties of accession of new Member States to the European
Communities and the European Union.

5. 5
The Treaties establishing the Communities and the Union are:
the Treaty of Paris (18 April 1951);
the Treaties of Rome (Euratom Treaty and the Treaty establishing the European
Economic Community) (25 March 1957);
the Maastricht Treaty on European Union (7 February 1992).
The amending Treaties are:
the Single European Act (17 and 28 February 1986);
the Treaty of Amsterdam (2 October 1997);
the Treaty of Nice (26 February 2001);
the Treaty of Lisbon (13 December 2007)
Primary law

6. 6
Secondary law
Secondary law comprises unilateral acts and agreements.
Unilateral acts can be divided into two categories:
(1) those listed in Article 249 of the Treaty establishing the
European Community:
regulations,
directives,
decisions,
opinions and
recommendations;
(2) Those not listed in Article 249 of the Treaty establishing
the European Community, i.e. "atypical" acts such as
communications and recommendations, and
white and green papers.

7. 7
A regulation is a legislative act of the European Union[that
becomes immediately enforceable as law in all member states
simultaneously.
Regulations are the most direct form of EU law - as soon as
they are passed. National governments do not have to take
action themselves to implement EU regulations.
They are different from:
•Directives - addressed to national authorities, who must
then take action to make them part of national law
• Decisions - apply in specific cases only, involving particular
authorities or individuals.
Regulations are passed either jointly by the EU Council and
European Parliament, and by the Commission alone.

8. 8
EU directives lay down certain end results that must be
achieved in every Member State. National authorities have to
adapt their laws to meet these goals, but are free to decide
how to do so. Directives may concern one or more Member
States, or all of them.
Each directive specifies the date by which the national laws
must be adapted - giving national authorities the room for
manoeuvre within the deadlines necessary to take account of
differing national situations.
Directives are used to bring different national laws into line
with each other, and are particularly common in matters
affecting the operation of the single market (e.g. product
safety standards).

9. 9
Decisions are EU laws relating to specific cases. They
can come from the EU Council (sometimes jointly with the
European Parliament) or the Commission.
They can require authorities and individuals in Member
States either do something or stop doing something, and
can also confer rights on them.
EU decisions are:
• addressed to specific parties (unlike regulations),
• fully binding.

10. Main sources and
principles of EU Law

11. Sources of EU Law
4 sources of EU Law
-Law enacted by Member States which are the founding
Treaties (primary legislation) and law enacted by
the EU (secondary legislation)
-General principles of law recognised by the Court of
Justice
-International agreements (with non-Member States)
-Decisions of the Court of Justice and the General Court

12. Treaties
 Treaties contain the primary sources of
EU Law
 Treaties in all (23) official languages of
the EU are equally authentic
 The current primary sources are the
Treaty of the European Union (TEU)
and the Treaty on the Functioning of
the European Union (TFEU)

13. Secondary Legislation
 A Treaty provision (i.e., Art.288 TFEU,
a primary source) confers the EU
Institutions the power to
propose/adopt secondary legislation
 Secondary legislation is categorised as
binding and non-binding
 Regulations, Directives and Decisions
are the legally-binding binding sources

14. Secondary Legislation
 All secondary legislation is published in
the Official Journal (OJ) of the EU:
Art.297 TFEU
 The binding legislation is published in
the L Series (Legislation)
 Art.296 TFEU requires a statement of
reasons that explains the legal basis on
which the secondary legislation was
enacted

15. General principles of EU Law
In every legal system, the written sources of law do not provide
the answer to every problem which appears before the courts
 The Court of Justice has had to develop general principles
of law to provide a formulation for judgment
Role of General Principles:
-To avoid denial of justice;
-To fill what would otherwise be gaps in EU law;
-To strengthen the coherence of EU law;

16. Origins of General Principles
 EU Treaties
 Legal Systems of the Member States
 Case law of the European Court of Justice

17. General Principles Developed from
EU Treaty Provisions
 Art.5(1) TFEU - principle of conferral (principle of attribution of
competence): all Union actions must be founded upon a legal basis laid
down in the Treaties
 Art.263 TFEU – judicial review; grounds for annulment include infringement
of the Treaty or of any rule of law relating to its application
 Art.340(2) TFEU – principles of EU’s non-contractual liability; the liability
of the Union is based on the general principles common to the laws of the
Member States
 Art.19 TEU – duty of ECJ; the Court shall ensure that in the interpretation
and application of the Treaty, the law is observed
 Art.6 TEU – Charter of Fundamental Rights and European Convention
for the Protection of Human Rights and Fundamental Freedoms

18. Principles of the national laws of
the Member States
 The CJ has adopted principles taken from
national laws of Member States
 A principle need not be one of every
Member State
 Whatever the origin of the principle, it
will be applied by the CJ as a principle of
EU law, not national law

19. Legal Certainty
 Case C-110/03, Belgium v Commission – legal
certainty means that the law must be clear and
precise;
 Case 43/75 – no retrospective claims allowed;
 Case 74/74, CNTA v Commission – principle of
legitimate expectations / Union measures
must not violate the legitimate expectations of
those concerned, unless there is an overriding
matter of public interest

20. Proportionality
A public authority may not impose obligations on a citizen
except to the extent to which they are strictly necessary
in the public interest to attain the purpose of the
measure. If the burdens imposed are clearly out of
proportion to the object in view, the measure will be
annuled if challenged in the courts
Is the measure capable of achieving the objective;
Is the measure necessary for the achievement of the
objective; and
Is there a reasonable relationship between the measure
and the objective?

21. Fundamental Human Rights
First general principle to be developed;
The protection of such rights was inspired by the
constitutional traditions common to all the
Member States
3 sources for EU human rights law: EU Charter of
Fundamental Rights, ECHR and the general
principles of EU law
EU human rights standards are binding on the EU
and its institutions and bodies in all of their
activities
Certain rights are absolute rights but in general are
relative rights that may be limited in accordance
with the public interest

22. The relationship between EU
Law and National Law:
supremacy

23. Supremacy of EU Law
 No hierarchy of laws specified in the EEC /
EC Treaties;
 Primacy / Supremacy is a judicial construct
established in Case 6/64, Costa v ENEL;
 Primacy has been confined to a Declaration
attached to the ToL: Declaration 17.

24.  Based on the transfer of sovereign
rights from Member States to the
Union
 ‘That the [EU] is a supranational
system has twofold significance: (1)
rights and duties are created for
individuals…and (2) [EU] law prevails
over national law in the event of a
conflict’ (Plender & Usher)
EU law: a supranational system
24

25.  The Treaties do not expressly provide
for the supremacy of Union law
 Cf Art 4(3) TEU – the ‘loyalty’ clause
 The Final Act of the 2007 IGC which
adopted the Lisbon Treaty includes a
‘Declaration concerning primacy’
Supremacy
25

26.  ‘Pursuant to the principle of sincere
cooperation, the Union and the Member
States shall, in full mutual respect, assist
each other in carrying out tasks which flow
from the Treaties.
The Member States shall take any
appropriate measure, general or particular,
to ensure fulfilment of the obligations arising
out of the Treaties or resulting from the acts
of the institutions of the Union.
The Member States shall facilitate the
achievement of the Union's tasks and refrain
from any measure which could jeopardise the
attainment of the Union’s objectives.’
Art 4(3) TEU – the loyalty clause
26

27. Treaty Articles Implying / Requiring
Supremacy of EU Law
 Art.4(3) TEU (ex.Art.10EC)– MSs under a duty
to comply with EU Law;
 Art.18 TFEU (ex.Art.12EC)– no discrimination
on the grounds of nationality
 Art.288 TFEU (ex.Art.249EC) – direct
applicability of Regulations

28. Case Law Implying / Establishing
Supremacy of EU Law
 Case 26/62, van Gend, which established
Direct Effect also implied supremacy of EU
Law;
 Van Gend noted that ‘the Community constitutes
a new legal order of International law … ’
 But it was Case 6/64, Costa v ENEL that
established supremacy of EU Law

29. Case 6/64, Costa v ENEL
 ‘ … Community law … admits of no
reservation’;
 ‘rights created by the Treaty … cannot
be judicially contradicted by an internal
law, whatever it might be … without
undermining the legal basis of the
Community.’
 ‘The reception [of EU law in each MS]
has, as a corollary the impossibility, for
the MS, to give preference to a unilateral
and subsequent measure against [EU
Law].

30. Case 11/70, I.H.
 Supremacy of [EU] law over the written
constitution of a MS;
 2ndary legislation (Regulations) prevailed of
provisions of the constitution;
 The law stemming from the Treaty, …
cannot … be overridden by rules of
national law, however framed, without
… the legal basis of the Community itself
being called into question’.

31. Other 1970s Cases
 Case 22/70, ERTA, - no concurrent competence
of a MS over a Community policy;
 Case 93/71, Leonesio, Community Regulations
prevailed over a MSs budgetary provisions.
 Case 106/77, Simmenthal, This case, decided
after the UK acceded to the Treaty of Rome,
confirmed supremacy of [EU] law over both
older and subsequent, conflicting national law.

32.  Duty to disapply conflicting national law
 Case 106/77 Simmenthal [1978] ECR 629:
‘any national court must, in a case within its
jurisdiction, apply [EU] law in its entirety and protect
rights which the latter confers on individuals and must
accordingly set aside any provision of national law
which may conflict with it, whether prior or subsequent
to the [Union] rule… and it is not necessary for the
court to request or await the prior setting aside of such
provisions by legislative or other constitutional means’
Supremacy: implications for
national courts
32

33. Case-law and supremacy
 Member States cannot plead force majeure (First Art
Treasures case)
 Supremacy applies regardless of source of law
(Royal Pharmaceutical of Great Britain case)
 Supremacy applies regardless of form of EU Law
 Member States must repeal conflicting legislation
(French Merchant Seamen case)

34. Supremacy
 50 years after the introduction of the
principle of supremacy or primacy, it is
still surrounded with ambiguity;
 Court decisions and the orientation of
the chosen multilevel governance
forms will define its nature and
normative content;