Effet utile du contrôle préventifby Hybrid Legislative Procedures

Abstract

EU law has known coordination since its beginnings. A careful study of the Treaty on the Functioning of the European Union (in the following: Treaty or TFEU; seeOfficial JournalNo C 326 from 26 October 2012, pp. 0001– 0390) and numerous secondary law acts results in a variety of Member States’ obligations in connection with coordination. Through the years, relevant secondary legislation has been issued. In recent years, EU legislature has established new rules in sensitive – from Member States’ point of view – areas of national budget law. The coordination of budgetary policies constitutes both a new and a crucial instrument. Over the years, first the Contracting States and then EU legislature established tens of obligations to consult EU institutions on national draft laws. These mechanisms assume increasing importance. This very remarkable and at the same time under-discussed category deserves its own legal terms and definitions. The current article reviews legal uncertainties resulting from the application of procedural rules, suggests solutions, and coins new terms such as hybrid legislative procedures (Section 2) andeffet utile du contrôle préventif(Section 3) that are crucial for a new dogmatic approach regarding the obligations to consult. Because national and EU legislative procedures overlap in the case of obligations to consult, many mistakes may occur at any stage. Current research tries to determine the consequences of violations of obligations to consult EU institutions on national legislative procedures (Section 4). In this respect, it deals with the settled case law of the Court of Justice of the European Union (hereinafter: Court or CJEU). The current article argues that the control of EU institutions over national law drafts is preventive and that the violation of a procedural obligation to consult can thus have only an indicative effect with regard to internal market disruption. New barriers to the internal market should not arise with the coming into force of a new law. This article introduces a new dogmatic approach towards obligations to consult, with the aim of avoiding legal uncertainty for national legislatures and practitioners.