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Kraemer, H (2019). Legal Bases for Normative Acts in EU Law. Rechtstheorie, 50(1), 1-39. https://doi.org/10.3790/rth.50.1.1
Kraemer, Hannes (2019). "Legal Bases for Normative Acts in EU Law" Rechtstheorie, vol. 50no. 1, 2019 pp. 1-39. https://doi.org/10.3790/rth.50.1.1
Kraemer, H (2019). Legal Bases for Normative Acts in EU Law. Rechtstheorie, Vol. 50 (Issue 1), pp 1-39. https://doi.org/10.3790/rth.50.1.1

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Legal Bases for Normative Acts in EU Law

A Norm-Analytical and Constitutional Study

Kraemer, Hannes

Rechtstheorie, Vol. 50 (2019), Iss. 1 : pp. 1–39

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Hannes Kraemer, Brussels

Abstract

It is a locus communis of institutional EU law that any act of a Union institution1 requires firstly to be based on a provision in written EU law and secondly 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 normsand 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 ofempowermentnormsanddecision-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.

Table of Contents

Section Title Page Action Price
Hannes Kraemer: Legal Bases for Normative Acts in EU Law 1
I. Conceptual framework 2
1. Norms and normative acts, principal norms and meta-norms 2
2. Decision-making norms and empowerment norms 4
II. The constitutional significance of legal bases for normative acts of the EU institutions 7
1. The principle of conferral 7
2. The twofold constitutional function of legal bases: Empowerment norms and sector specific decision-making norms 1
3. Legal bases as sector specific decision-making norms, “derived legal bases” and tertiary normative acts 1
III. What does “applicability of a given legal basis” mean ? – Norm-analytical foundations 1
IV. Rules determining the applicable legal basis in positive EU law 1
1. Determining the (actually) relevant legal basis for a given norm 1
a) Abstract meta-norms: Speciality and abstract subsidiarity – including Titanium dioxide (I) 1
b) Concrete subsidiarity I: The “centre of gravity” 2
2. Determining the decision-making norm applicable to a given normative act 2
a) Starting point: Plurality of (actually) relevant legal bases for the norm‍(s) enshrined in a normative act 2
b) Meta-norm for inhomogeneous normative acts: Concrete subsidiarity II (“centre of gravity”) 2
c) Incompatible decision-making norms 2
aa) Starting point: Axiological incompatibility and its consequences 2
bb) Constellations 2
(1) Axiological incompatibility: Titanium dioxide (II) 2
(2) No axiological incompatibility between legislative and non legislative decision-making norms 2
3. A related yet separate issue: Axiological incompatibility between norms enshrined in a normative act 2
a) Starting point 2
b) Constellations 2
aa) Axiological incompatibility where different norms produce different specific legal effects 2
bb) No axiological incompatibility where legislative and non-legislative legal bases, respectively, are relevant for different norms 3
V. Decision-making norms dissociated from empowerment norms: “Formal legal bases” for acts relating to international agreements 3
VI. The constitutional relevance of the obligation to cite a Treaty provision as the legalbasis of a normative act 3
VII. Conclusion 3