La búsqueda de la ley en el ordenamiento jurídico de la Unión: las limitaciones del acto legislativo europeo

Abstract

Although the «law» has never been included among the legal acts of the European legal order, due to its state-bound or federal connotations, this has not prevented doctrine and case-law from using it as an analytical reference when characterising certain Union acts—either because of the generality of their normative structure or because of the internormative relations between them (hierarchy). Ultimately, the Treaty on the Functioning of the European Union established the category of the legislative act, which is conferred upon regulations, directives and decisions adopted in accordance with a legislative procedure. This formal criterion of definition must be complemented, in substantive terms, by the rule whereby the essential elements of a given policy area are reserved to the legislative act, such that their regulation cannot be entrusted to delegated acts or implementing acts. Moreover, the normative scope of legislative acts is determined in each legal basis of the Treaty. In this way, the legislative act constitutes a specific category that attributes legislative status to binding Union legal acts as an expression of the democratic principle, thereby strengthening the legitimacy of the European Union. Despite this democratic foundation, legislative nature does not confer upon the act a position of centrality or pre-eminence within the European legal order; nor does it allow it to fulfil the functions commonly associated with the formal notion of law, such as legally articulating the Union’s most important decisions or guaranteeing fundamental rights, since both functions are shared with non-legislative acts of original and autonomous character.