The EU law was formed at the intersection of international law and national law. It is a separate, special sui generis legal system, which combines legal institutions, principles and mechanisms of international and national law, In case 26/62 Van Gend en Loos, the Court of Justice proved that “the Community [the Union] creates a new legal order in international law in favour of which States have restricted their sovereign rights, albeit in limited areas, and which subjects are not only member States but also their citizens”. The same approach was developed in case 6/64 Costa V. ENEL, which emphasized: “Unlike conventional international treaties, the Treaty establihing the European Economic Community has created its own legal system which... has become an integral part of the legal systems of member States and to which their courts are bound.”
The EU law is supranational in nature, as it has the highest legal force in relation to the national law of the member States. In accordance with the principle of the rule of law of the EU, any rule of law of the Union, regardless of its form of existence, has the highest legal force in the national legal order of each member state with respect to any rule of law of such state, regardless of the form of its consolidation.
The EU law has direct effect in the national law of the member States. According to the principle of direct action, the EU law confers subjective rights and obligations not only on member States, but also directly on natural and legal persons who can protect their rights guaranteed by EU law by filing claims in the courts of member States, that is, within the national legal system.
In its focus, the EU law is integrative, as it introduces uniform, unified rules of conduct for all member States, individuals and legal entities under the jurisdiction of the EU.
The EU law has a significant impact on the national law of the member States and determines the development of the national legal systems of the member States. Also, the EU law has a significant impact on the legal systems of third countries. The basis of such influence is international cooperation agreements, including Association agreements, which contain obligations to harmonize national legislation with EU law.
The EU law is characterized by its own structure and sources of law, forms of lawmaking and law enforcement, specific mechanisms of protection against possible violations. The basis of the EU legal system are its constitutive treaties, i.e. the Treaty on European Union (1992) and the Treaty on the Functioning of the European Union (1957), Charter of Fundamental Rights of the European Union (2000) in the wording of the Lisbon Treaty 2007. The provisions of those acts are detailed and specified in numerous acts of secondary law (regulations, directives, decisions, etc.) adopted by the institutions of the EU, the case-law of the Court of justice of the EU.
The competence of the EU. Separation of powers between the EU and Member States
The EU competence is a set of rights and powers necessary for the implementation of the goals, objectives and objectives of the European Union. Member States have delegated a significant part of their powers to the European Union, as enshrined in the founding treaties (Treaty on European Union and Treaty on the Functioning of the European Union). This delegation has occurred in many areas, from commercial to social protection or consumer rights. At the same time, there remain areas within the competence of Member States. These areas are of domestic interest and protected from EU interference, but cannot be implemented by Member States to the detriment of the Union. In particular, those include a form of government, administrative division, system of public authorities, judicial system, citizenship, state borders, national security and defense, and the like.
The division of powers between the EU and the Member States is based on the principles of empowerment and the principle of subsidiarity. In accordance with the principle of the granting of powers (part 1 and 2 of article 5 of the Treaty on EU), the Union acts only within the limits of the powers granted by the Member States and enshrined in its constituent treaties. Consequently, the powers that are not granted to the Union remain with the Member States. According to the principle of subsidiarity (part 2 of article 2 of the Treaty on the Functioning of the EU), either the EU or the Member States can carry out legislative activities and adopt legally binding acts, depending on who will carry it out more effectively. At the same time, Member States shall exercise their powers only to the extent that the Union does not exercise its powers.
Depending on the degree of limitation of the sovereign powers of the Member States, the EU competence is divided into three types (article 2 of the Treaty on the Functioning of the EU):
- additional (auxiliary)
- joint (competing).
In some areas, the European Union has the power to circumvent this classification. For example, the EU's General foreign and security policy does not fall under any of the three categories of competence listed.
Within the framework of its exclusive competence, the European Union (its institutions) is vested with the right to carry out legislative activities and to adopt legally binding regulations for States. Member States have the right to adopt acts only to comply with the relevant EU regulations.
These areas include (part 1 of article 3 of the Treaty on the Functioning of the EU):
- customs Union;
- establishment of competition rules necessary for the functioning of the domestic market;
- monetary policy (only for member States whose currency is the Euro);
- conservation of marine biological resources as part of the overall fisheries policy;
- common commercial policy.
Despite the fact that the above list of areas is quite small and it seems that the EU has exclusive powers in a very narrow range of issues, the EU has been very productive in terms of the final result, if we do not take into account the pidgaluzevogo distribution of norms.
In the field of external affairs, the EU also has the exclusive competence to conclude international agreements if:
- such agreements are provided by the legislative act of the Union, or
- it is essential that the Union be able to exercise its internal competence or
- its conclusion may affect common rules or alter their scope.
This is often controversial, regardless of whether a separate international Treaty should be concluded by the EU, which acts independently, or by the European Union together with its member States.
The recent decision of the EU court of Justice on the free trade agreement between the EU and Singapore (Conclusion 2/15) is a good example of the legal challenges faced in determining the competence to conclude an international Treaty. The Court held the Conclusion that although many of the matters regulated in the FTA between the EU and Singapore were within the exclusive competence of the EU, indirect foreign investment fell within the General competence. Therefore, the relevant transaction can only be concluded as a mixed transaction (as well as the Association Agreement between Ukraine and the EU).
Shared competence covers areas within which both the EU and Member States can operate. Most EU legislation acts falls under the category of Shared competence. This list is given in article 4 of the Treaty on the Functioning of the EU:
- domestic market;
- social policy;
- economic, social and territorial unity;
- agriculture, fisheries (except for the conservation of marine biological resources);
- consumer protection;
- trans-European networks;
- space of freedom, security and justice;
- shared safety issues in health matters (regarding aspects defined in the Treaty on the Functioning of the EU).
This list is not exhaustive and is based on a residual principle: the areas of competence of the EU that are not covered by its exclusive and subsidiary competence are areas of joint competence.
Even a very short assessment of the above list makes it clear that most of the EU secondary legislation, to which Ukraine is obliged to bring its legal norms closer, falls under one of these categories. Therefore, it is extremely important to understand how joint competence affects the content of regulations and directives specified in the Association Agreement between Ukraine and the EU.
Within the Shared competence of both the EU and the Member States, legislation can be adopted. This provision, however, has reservations. Member States may exercise their competence to the extent that the Union has not used its own. At the same time, Member States should exercise their competence to the extent that the Union has decided to end its activities. Thus, competencies are not only transferred from EU Member States, but can also be returned to Member States. This may have consequences for the process of adaptation of EU legislation in Ukraine and affect the efforts of authorities in the process of their implementation.
The EU legislation acts often consist of General provisions with many gaps that are filled by the national legislator. This means that the Ukrainian authorities have to develop many internal regulations to fill such gaps. Without this work, the legislative framework will be incomplete.
The determination of which Part (EU or Member States) will adopt legally binding acts in the areas of joint competence is based on the principle of subsidiarity. This means that the EU will act legislatively only if the specific objective cannot be achieved if the member States acted separately. This principle is permanent and affects the content of EU legislation.
The principle of subsidiarity is tested at many stages of the EU decision-making process. The verification process involves not only EU institutions, but also national parliaments, which have the right to monitor compliance with the principle of subsidiarity.
According to article 6 of the Treaty on the Functioning of the EU, the EU subsidiary competence covers the following areas:
- protection and improvement of human health;
- education, training, youth and sports;
- civil protection;
- administrative cooperation.
In these areas, the EU can carry out activities aimed at supporting, coordinating or complementing the actions of Member States, but not replace their competence. In article 2(5) of the Treaty on the functioning of the EU clearly stated that legally binding norms of the EU, adopted on the basis of the provisions of the treaties relating to these areas, should not lead to harmonization of the legislation or regulations in the member States of the EU. Thus, the EU's competence in these areas is rather limited.