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The Union's founding principles


The legal acts


Introduction
The typology of legal acts
Legislative delegation and implementing acts
Particular rules
Summary table

INTRODUCTION

Simplification of the instruments at the Union's disposal in its action is a vital point of the Laeken Declaration on the future of the Union, which set out the Convention's mandate .
The Convention's work, which has been taken over by the Intergovernmental Conference (IGC), made this possible by clarifying the existing system. From now on the typology of acts is limited to six instruments: law, framework law, regulation, decision, recommendation and opinion. The Constitution has thus put an end to the proliferation of acts, which had progressively led to the use of more than fifteen of them: the five basic acts provided for in the EC Treaty and numerous "atypical acts", such as resolutions, guidelines, etc.
Thus, Article I-33 enumerates the six new legal acts and distinguishes between legislative and the non-legislative acts; this is without precedent in the current Treaties.

Moreover, unlike the current Treaties, each legal basis in the Constitution specifies the type of instrument which must be used to implement it. This new approach will avoid hesitation when choosing the type of act to be used.

As regards the implementing acts, the Commission's role is reinforced to the extent that it is in principle conferred with implementing powers. However, the Council may still adopt implementing acts in the area of the common foreign and security policy (CFSP) and in "specific cases duly justified". In addition, it is now the Member States rather than the Council which will monitor the exercise of implementing powers by the Commission. The Constitution distinguishes between the exercise of legally binding Union acts (Article I-37) and the delegation to the Commission of the power to adopt "delegated regulations" to supplement or amend certain non-essential elements of legislative acts, under the supervision of the legislator (Article I-36).

The provisions relating to the signature, publication and entry into force of the Union's acts are identical to those of the EC Treaty (Article I-39). Likewise, Article I-38 is in line with the equivalent rules in the existing treaties as regards the grounds on which the acts are based and the freedom of the institutions to choose the type of act to adopt, when the texts do not specifically stipulate it.

Finally, acts in the framework of the second and third pillars disappear together with the pillar structure which justified their existence. Consequently, it will be possible to use only the six types of acts mentioned above, also in the case of these specific domains.

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THE TYPOLOGY OF THE LEGAL ACTS

Article I-33 distinguishes between legislative acts and non-legislative acts. Each category is addressed in a specific article: Article I-34 for legislative acts and I-35 for non-legislative acts.

There are two types of legislative acts -- laws and framework laws.

At present, Article 249 of the EC Treaty lists the five existing basic acts (directive, regulation, decision, recommendation and opinion) and states their effects. Correspondences can be established between these acts and the new names.
Hence, the definition of a European law corresponds to what is currently known as a regulation. Like a regulation, a European law is directly applicable in all Member States and does not need to be transposed into domestic law.
The definition of a European framework law corresponds to that of directive. It lays down the results to be achieved but leaves it to the Member States to choose the measures to be taken to achieve these results within a given time limit.
Article I-34 lays down the procedures for adopting laws and framework laws, in most cases on the basis of the ordinary legislative procedure.

There are four types of non-legislative acts (Article I-35): European regulations, European decisions, recommendations and opinions.
According to the Constitution, a European regulation is a non-legislative act of general application for the implementation of legislative acts and of certain specific provisions of the Constitution. It may also take the form of delegated European regulations or implementing regulations.
These regulations may be binding in their entirety or binding only as regards the result to be achieved.
Moreover, according to the new definition, a European decision includes both a decision addressed to specified recipients and a general decision, which is not the case under Article 249 of the EC Treaty, according to which decisions are binding only on those to whom they are addressed.
Finally, non-legislative acts also include recommendations and opinions, which have no binding force.
The last paragraph of Article I-35 reaffirms the Commission's general power to adopt recommendations, as provided for in Article 211 of the EC Treaty, and extends it to the Council (Article I-35).

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LEGISLATIVE DELEGATION AND IMPLEMENTING ACTS

The Constitutional Treaty divides the implementing powers currently enshrined in Article 202 of the EC Treaty into delegated European regulations (Article I-36) and implementing acts as such (Article I-37).

The Commission becomes the only body responsible for adopting delegated European regulations designed to supplement or amend certain non-essential elements of a law or framework law (Article I-36 specifies that "a delegation may not cover the essential elements of an area"). Hence, definition of the most technical aspects of legislative acts may be delegated to the Commission, in compliance with the implementing conditions set out in the relevant laws or framework laws (content, scope and duration of delegation). Moreover, this delegation may only be performed under the control of the two branches of the legislative power --the Parliament or the Council may decide to revoke the delegation and its entry into force may be suspended with the tacit agreement of the co-legislators. These new provisions represent an important innovation with regard to the EU's decision-making system, even though in practice the Commission had already been given such powers in certain areas, such as the single market and the environment. In addition, they strengthen the role of the European Parliament, which is now, together with the Council, in charge of the exercise of legislative delegation.

Article I-37, which is devoted to implementing acts as such, recalls that the de facto implementation of Community rules is normally a matter for the Member States. If the Union's intervention is justified by the need for uniform implementation, implementing powers may in principle be conferred on the Commission or even on the Council in relation to the CFSP and in specific cases which are duly justified. The Union's implementing acts take the form of European implementing regulations or European implementing decisions.
To the extent that the Commission exercises a power which, in principle, is derived from the Member States; it makes sense that it should be assisted by committees of representatives of the Member States, whose task is to deliver an opinion on the draft implementing measures proposed by the Commission. This control system is known under the term "comitology".
Article I-37 stipulates that the general rules of comitology are laid down by a European law adopted under the ordinary legislative procedure and hence no longer by the Council alone, as is the case at present. In addition, pursuant to the wording of this article, these will be mechanisms for control "by Member States" and no longer by the Council.

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PARTICULAR RULES (CFSP, CSDP AND JHA)

In the existing treaties, legal acts of a non-Community nature may be adopted in the field of common foreign and security policy (CFSP), European security and defence policy (ESDP) and freedom, security and justice (JHA), i.e. in the second and third pillars based on intergovernmental cooperation and not the Community method. Hence, in the field of the CFSP, Article 13 of the Treaty on European Union (EU Treaty) stipulates that the Council shall recommend common strategies and implement them, in particular by adopting joint actions and common positions. Besides, Article 34 of the EU Treaty lists the acts which the Council may adopt in the field of JHA. These include common positions, decisions and framework decisions, and conventions.

Following the disappearance of the pillar structure in the Constitution, these various acts are eliminated. As regards CFSP , ESDP and JHA , the acts which will be used in future must correspond to the new typology (Article I-33).
Article I-40 confirms that only European decisions are used in the field of CFSP and that "European laws and European framework laws are excluded". As regards ESDP, under Article I-41, only European decisions may be used. Finally, as regards JHA, the former acts used are eliminated and replaced by laws and framework laws (Article I-42).

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SUMMARY TABLE

Articles Subject Comments
I-33 The legal acts of the Union (new typology) New provisions
I-34 The legislative acts Significant changes
I-35 The non-legislative acts
I-36 Delegated European regulations Significant changes
I-37 Implementing acts
I-40 Particular rules concerning CFSP Significant changes
I-41 Particular rules concerning ESDP
I-42 Particular rules concerning JHA

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The fact sheets are not legally binding on the European Commission. They do not claim to be exhaustive and do not represent an official interpretation of the text of the Constitution.


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