About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

50 Rechtstheorie 1 (2019)

handle is hein.journals/recthori50 and id is 1 raw text is: RECHTSTHEORIE 50 (2019), 1-39 Duncker & Humblot, 12165 Berlin LEGAL BASES FOR NORMATIVE ACTS IN EU LAW A Norm-Analytical and Constitutional Study* By Hannes Kraemer, Brussels It is a locus communis of institutional EU law that any act of a Union insti- tution' requires firstly to be based on a provision in written EU law and sec- ondly on the correct one among the various legal bases within that corpus. The objective of this study is, firstly, to re-state those two jurisprudential and doctrinal assertions, using as tools the norm-analytical concepts of norms and normative acts, on the one hand and of principal norms and meta-norms, on the other. Secondly, this study undertakes to analyse the function of the thus re-stated norms in the context of the Union's constitutional structure,2 using as tools the concepts of empowerment norms and decision-making norms. The focus is on legal bases for normative acts, while embedding that issue in the wider one of legal bases for legal acts of the Union institutions at large. Section I explains the conceptual framework outlined above. Section II analyses the constitutional significance of legal bases for normative acts of the EU institutions. Section III deals with the norm-analytical foundations of the formula applicability of a given legal basis and analyses the-mostly unwritten - rules of primary Union law governing the choice of the correct legal basis as meta-norms. The precise content of these rules is then analysed in detail in section IV, in a two-step approach dealing successively with de- termining the relevant legal basis for a given norm and with determining the decision-making norm which is applicable to a given normative act. The following section V examines a more specific issue, namely the dissocia- tion between decision-making and empowerment norms, i. e. the issue of for- mal legal bases. Section VI reverts to a cross-cutting yet procedural issue, namely the constitutional relevance of the obligation to cite a Treaty provision as the legal basis of a normative act. * The author is Legal Adviser at the European Commission. The opinions expressed are personal and do not necessarily reflect the view of the European Commission. 1 In the broad sense of the term, i. e. also covering the bodies, organs and agencies not mentioned in Article 13(1) TEU. 2 Jurisprudence and doctrine concur that the choice of the appropriate legal basis is of constitutional significance, cf. Opinion 2/00, EU:C:2001:664, para. 5; Kieran St Clair Bradley, Powers and procedures in the EU constitution: Legal bases and the Court, in: Paul Craig / GrAinne de Burca (ed.) The evolution of EU law, 2. ed., Oxford 2011, pp. 85-109. RECHTSTHEORIE 50 (2019) 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most