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Overview of the EU legal system

Introduction to the EU legal systemThe EU legal system is sui generis—there is no other legal system it can be compared to, though it draws elements from many. The key to understanding how it works is to avoid trying to subsume it into (or compare it to) a national system and observe its behaviour from different angles.From its inception, the EU (at the time, the EEC) was intended to grow and become more than an economic bloc, which is why the founding Member States agreed to transfer parcels of sovereignty to the newly 'supranational' institutions. Supranational as the word indicates is something placed over a national structure. The term is used to denote the opposite to intergovernmental where decisions are taken by consensus and linked to national government interests.Upon joining the EU, Member States are no longer able to adopt, independently, legislation in the areas delegated by the EU Treaties ie the Treaty on the European Union (TEU) and Treaty on the Functioning of the European Union (TFEU) and their...

European legislative process

EU lawThe EU’s core objective of achieving European unification is based exclusively on the rule of law. EU law is an independent legal system which has primacy (or supremacy) over national legal provisions. A number of key players are involved in the process of implementing, monitoring and further developing this legal system for which a variety of procedures apply. In general, EU law is composed of three different but interdependent types of legislation, ie primary, secondary and tertiary. The combined law of the EU is also known as the ‘acquis communautaire’.Categories and areas of EU competenceCompetence is a term used to denote the power of the EU to undertake specific action where such power is conferred upon it by the Member States in the EU Treaties. The EU’s competences are set out in the EU Treaties, which provide the basis for any actions the EU institutions take. The EU can only act within the limits of the competences conferred on it by the Treaties, and where the Treaties do not...

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What is retained EU law?

What is retained EU law? Retained EU law is a legal concept describing EU-derived legislation, rights and principles the UK plans to preserve in UK law after Brexit. It is a defined term under the European Union (Withdrawal) Act 2018 (EU(W)A 2018). There is no specific list of EU legislation within the scope of the statutory definition of retained EU law. It is a matter of statutory interpretation. Statutory definition of retained EU law In order to work out what qualifies as retained EU law and what is excluded therefrom, the first reference point is sections 2 to 7 of the EU(W)A 2018. EU(W)A 2018, s 6(7) defines retained EU law as ‘anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4’. In other words, this body of retained law includes: • EU-derived domestic legislation, as it has effect in domestic law immediately before exit day • direct EU legislation (including EU...

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The Italian Supreme Court on the validity of a choice of forum clause contained in the general conditions of sale (Serac S.A.S v Fallimento CO.DA.P Cola Dairy Products S.p.A)

Arbitration analysis: This Italian Supreme Court's decision sets out the validity requirements for upholding a choice of jurisdiction clause incorporated into the general terms and conditions under Italian law. The court judgment is of particular interest as the same requirements may apply for establishing the validity threshold of arbitration clauses contained in a separate, standalone document. Serac S.A.S v Fallimento CO.DA.P Cola Dairy Products S.p.A is particularly interesting since it deals with the problem, extremely common in the practice of international trade law, of the validity of a choice of jurisdiction clause contained in the General Conditions attached to the contract and arising from an intra-EU commercial dispute subject to Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). Written by Maura Alessandri, lawyer, arbitrator and mediator.

Intra-EU investment arbitration proceedings—the ECJ pronounces further on the autonomy of EU law (Poland v PL Holdings Sàrl)

Arbitration analysis: A recent judgment of the Eurpoean Court of Justice (ECJ) held that in cases where an arbitration clause in an intra-EU Bilateral Investment Treaty (BIT) is contrary to EU law, domestic Member State law may not allow a Member State and a private party to conclude an ad hoc arbitration agreement with the same content and submit that dispute to an arbitral body with the same characteristics as that envisaged under the BIT, extending the principles established in Achmea v Slovakia (Achmea). The judgment confirms the significance of the Achmea decision and buttresses it so that it may not be circumvented by means of Member State domestic law. It also builds on the approach illustrated in another recent Grand Chamber judgment (Moldova v Komstroy) and makes it clear that Member State domestic courts are under a duty to set aside an arbitration award made on the basis of an arbitration agreement that would violate the Achmea principle. Given the narrow legal context of the case, the judgment also...