EU LAW: The EU legal system consists of The Treaties (primary law) Secondary law (regulations, directives, etc.

) Law that is made by the EU institutions within the treaty. The treaty gives the EU institutions power to create regulations,directives. Unwritten General Principles, developed by the CJEU. You will only find this developed by the court of justice. Costa vs. ENEL. Are actually higher than the secondary law. landmark decision of the European Court of Justice which established thesupremacy of European Union law over the laws of its member states. _ GENERAL PRINCIPLES Where do they come from? : CJEU has sources of inspiration, namely Member States constitutional traditions International agreements In particular, the ECHR European Courts of Human Rights. There is not really a link to the EU. At the beginning EU and ECHR were different. ECHR had 50 members, EU 27. The two courts are sometimes competitors. ECHR is one of the inspiration of the CJEU. They sometimes look how ECHR is doing. Every single member of the EU is also member of the ECHR. Therefore the court of justice, can say that all the member states has already accepted something from the convention.

What are they? Human rights (= fundamental rights) No reference to HR and values in the original treaties: 1957 Treaty was restricted to economic integration only, after the failure of the attempts towards a political union in 1954 (French assembly) over the years, the CJEU developed an unwritten bill of rights within the EU -> general principles. The treaty itself are silent, but they develop general principles through court of justice. Art 6(3) TEU: Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Unions law.

Why are they there? (1)Functional story: the GPs make sense and are useful additional rules For example HR: -Different from 1957, EU law has been penetrating into private law, consumer law, culture, health, education; The scope of the Union law has expanded much, than back from 1957. -doctrine of direct effect (i.e. direct legal impact on private economic and commercial interests). EU law can be directly effective. -> need to protect for individuals

(2)Political story: GPs were invented by the CJEU in order to fend off pressure from MS For example HR: -German Constitutional Courts rebellion against a supreme legal system without HRs (Solange I & Solange II); Other memberstates, cant follow the German example they have to create their own law. Solange = As long as. Solange II we will not control EU Law anymore. But only as long as, there is a human rights standard. The court of justice was forced to create human rights, so that they wouldnt lose their supremacy. Equality principles Procedural rights ____________ General Principles What GPs have been recognised? Human rights (see the ECHR and the CFR) the most important, in the charter. Non-discrimination (see now Arts 18 ff TFEU and Art 20 CFR) -> week 45. Underlying principle in EU. It started with nondiscriminiation of nationality. The very basic from the 1950. Discrimination is a very big field and is now in the treaty and the charter. Right to judicial review, right of defence (cf Arts 6, 13 ECHR) Confidentiality/legal privilege.Important for lawyers. Competition law Legal certainty, Non-retroactivity (cant invent new laws that will affect the existing), Legitimate Expectations Effectiveness of EU law (see Art 4(3) TEU) Liability of EU institutions; liability of MS for breach of EU law (cf Art 340(2) TFEU)

Proportionality (now Art 5(4) TEU) if the EU acts, it should do it proportionally. If there are several options to choose, it should choose the least intrusive. Controversial GPs Abuse of law __

Supremacy of EU law. What is supremacy (or primacy)? EU law is supreme over, i.e. higher-ranking than national law More specifically: Every instrument of EU law (from Treaty to Decision) overrules every instrument of national law (including national constitutions) Where do we find anything about this? Only in the case-law of the CJEU (judge-made law) Not in the Treaties Indirect reference in Art 4(3) TEU or Arts 18, 288, 344 TFEU? Provision in the Constitutional Treaty 2004 Declaration

Possible solutions -Constitutionalism i.e. legal principles to decide in cases of conflict. Constitution eg. Germany. Spain created the constitution after the model of Germany. Active supreme court of justice. -Pluralism No legal answer (1) Avoid conflict (2) If conflict, political solution needed.