Basic EU LawProf.dr.sc. Hana Horak

Siječanj, 2010.

Why EU law? Summary of the European Integration The European Communities and the

European Union The Institutions The Doctrines, Principles and Sources of the

Community Law Conclusion

Structure of the lecture

1951 -the Treaty of Paris establishing the European Coal and Steel Community (ESCS) was signed by six countries Germany, France, Italy, the Netherlands, Belgium and Luxembourg

The ECSC received international legal status and separate and autonomous institutions, control over production and distribution of coal and steel, legislative and administrative powers in the area concerned

1957 -the same six countries signed two Treaties of Rome establishing the European Atomic Energy Community (Euratom) and the European Economic Community (EEC, now -EC), the latter one with a view of creating a "common marker'

The birth of the European Communities

Remain legally distinct (the ECSC was created for 50 years, it therefore expired in 2002);

Originally each of three Communities had a set of autonomous institutions, but in 1967 institutions were merged (a single Council, a single Assembly, and a single Commission were created);

The powers and functions of the institutions depend upon provisions of the Treaty under which they act.

Further we will mainly discuss the European Economic Community (now the 'European Community'). Most of the times we will refer to it as the 'Community'. The Treaty establishing this community will be referred to as the 'EC Treaty'.

The three Communities:

1986 - signing of the Single European Act (with objective of completion of 'internal market', i.e. 'an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured', Art. 14(2) of the EC Treaty)

Further growth:

1992 - signing of the Treaty of Maastricht (the 'European Union Treaty', or the 'EU Treaty'), entered into force on November 1, 1993;

Provided for a European Union with main objectives being the establishment of an economic and monetary union ultimately including a single currency, a common foreign and security policy, the introduction of the citizenship of the European Union, co-operation in justice and home affairs, the maintenance of the acquis communautaire, etc.

The birth of European Union:

May 1, 1999 the Treaty of Amsterdam entered into force (in particular, changed the numeration of the Articles);

2001 -the Treaty of Nice (amended the EU Treaty, and the Treaties establishing the European Communities);

July 18, 2003 -draft Constitution was presented to the European Council of Rome (later ratified by the Parliament and by ten Member States, but rejected at referenda in France and the Netherlands. In July 2005 the ratification process was temporary suspended as the Member States decided that they needed a 'period of reflections' to unable a broad debate in each country).

As from January 1, 1973 the United Kingdom, Ireland, and Denmark are members of the Community;

January 1, 1981 -Greece is a Community member; January 1, 1986 -Spain and Portugal are full members; January 1, 1995 -Austria, Sweden and Finland joined the

European Union; May 1,2004 - the biggest enlargement ever, bringing 10

new Member States (Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovenia, Slovakia);

January 1, 2007 -the EU is joined by Bulgaria and Romania.

The enlargement process:

The EU is said to be based on three 'pillars':(i) The Communities constitute the first pillar of the European Union,(ii) The Common Foreign and Security Policy (CFSP) forms the second pillar, (iii) Police and Judicial Cooperation in Criminal Matters (PJCC) constitutes the third pillar of the EU.

However, only the first pillar is governed by the Community law (Community is supranational in nature),the rest -fly intergovernmental cooperation, and, therefore, these areas are outside of the jurisdiction of the Community institutions;

The European Union is wider than the European Community.

Three pillars under One Roof:

Preamble TITLE I Common provisions TITLE /I -Provisions amending the Treaty establishing the

European Economic Community with a view to establishing the European Community

TITLE III Provisions amending the Treaty establishing the European Coal and Steel Community

TITLE IV Provisions amending the Treaty establishing the European Atomic Energy Community

TITLE V Provisions on a common foreign and security policy TITLE VI Provisions on police and judicial cooperation in

criminal matters TITLE VII Provisions on enhanced cooperation TITLE VIII Final provisions

The EU Treaty – contents:

Five principal institutions (Art.7 of the EC Treaty);◦ the European Parliament; ◦ the Council; ◦ the Commission; ◦ the Court of Auditors; ◦ the Court of Justice. Other. the European Council , the Economic and

Social Committee, the Committee of the Regions, the EC‘s monetary institutions (Ch. 20), and agencies.

The Institutions

Consists of representatives of the peoples of the Member States, since 1979 elected by direct universal suffrage for a term of 5 years;

There are 785 MEPs (until the end of the 2004-2009 session, after that there will be 736 seats);

Generally speaking, the seats are allocated depending upon the population of the State (today Germany has 99 seats, France, Italy and the United Kingdom -78, Poland and Spain -54, etc.);

MEPs are grouped by political affinity and not by nationality.

The European Parliament

Holds annual sessions (i.e. lasting 12 months), meets on the second Tuesday in March;

May also meet in extraordinary session and so-called 'additional‘ sessions;

Has its seat in Strasbourg, however, the periods of additional plenary sessions shall be held in Brussels, the Committees of the Parliament meet in Brussels, and the Secretariat of the Parliament and its departments remain in Luxembourg;

President of the European Parliament (now-Hans-Gert Pottering) is elected for a renewable term of two and a half years, represents the Parliament to outside world and in its relations with other Community institutions.

The European Parliament - 2

Previously, advisory and supervisory powers, however, the role increased by the Single European Act (introduced the co-operation procedure), and by the Treaty of Amsterdam ('co-decision' power);

Yet, does not fully exercise the attributes of an elected representative body (legislating and raising of taxes);

Main tasks and powers: ◦ to participate in the legislative process, ◦ to approve the nomination of the President and the members of the

Commission, ◦ to participate in budgetary procedure, ◦ to initiate procedures in the Court of Justice against the Council or the

Commission, in case the latter fail to act, ◦ to put questions to the Council, to the Commission and to the Presidency

of the Common Foreign and Security policy.

The task and powers of the European Parliament:

Consultation (the European Parliament is merely consulted on the issue, instances are few nowadays),

Co-operation (in fact, more elaborate consultation procedure under Art. 252 of the EC Treaty),

Co-decision (due to this procedure the Parliament now shares with the Council real legislative power, see Art.251 of the EC Treaty),

Assent (in a way, a veto right, when assent is required the Council can only act after obtaining the agreement of the Parliament).

Current legislative procedures:

consists of a representative of each MS at ministerial level who is authorized to commit the government of that State (art. 203 of the EC Treaty),

meets when convened by the President of the Council, or at the request of one of its members, or at the request of the Commission,

approx. 80 Council meetings per year (most of the times in Brussels),

meetings arranged by subject-matter with different ministers attending (the General Affairs and External Relations Council (GAERC) as a rule attended by foreign ministers, the Economics and Finance Council (Ecolin) -finance ministers, etc.),

Currently 9 Council configurations (Employment, Social Policy, Health and Consumer Affairs; Environment, Education, Youth and Cultures, etc.).

The Council

Presidency of the Council is held in turn by each MS for a six months period (Art. 203 of the EC Treaty), currently -by Portugal;

Since the Council meets no more than a few days a month, a more 'permanent' national presence in Brussels was required. Therefore, on a day-to-day basis the various Community activities are followed by Permanent Representatives who are high level civil servants with the rank of Ambassador. Together they form the Committee of Permanent Representatives, or so-called 'Coreper' (Comite des Representants Permanants) . They prepare the work of the Council and carry out the tasks that have been assigned to them by the Council.

the head of General Secretariat of the Council (direct administrative support to the Council);

also acts as High Representative for the EU's foreign and security policy;

assists the Council in Foreign Policy matters, through contributing to the formulation, preparation and implementation of the European policy decisions;

acts on behalf of the Council in conducting political dialogue with third parties;

currently -Mr. Javier Solana.

Secretary – general of the Council of the European Union

Composed of the Heads of State or of Government of the Member States and the President of the Commission, assisted by the Ministers of Foreign Affairs and a Member of the Commission;

According to Art. 4 of the EU treaty, it provides the Union with the necessary impetus for s development, defines the general political guidelines thereof;

In particular, defines the principles and general guidelines for the Common Foreign and Security Policy, and decides on common strategies to be implemented by the Union in areas where Member States have important interests in common;

issues general guidelines (but not binding decisions as the 'normal' Council does);

meets four times per year.

The European Council

Decision-making powers (in the whole spectrum of the Community's activities, in accordance with the provisions of the EC Treaty),

has to ensure coordination of the general economic policies of the Member States,

Co-ordinated strategy for employment (promotion of economic and social progress and a high level of employment were set as one of the objectives of the EU, therefore, the Member States and the Community work together towards 'developing a co-ordinated strategy for employment and promoting a skilled, trained and adaptable workforce and labour markets responsive to economic changes'. Yearly discussions at the EU level, and guide lines to the Member States.)

Tasks and powers of the Council:

As from January 1, 2005 one Commissioner from each Member State, further on (on reaching 27 Members) the number of Commissioners will be changed (will be less than a number of Member States, exact number to be set by the Council acting unanimously, rotation system will be in place);

Headed by the President (Mr. Jose Manuel Barroso) who is a 'first among equals'.

The Commission

appointed by the govemments of the MSs, must then be approved by the European Parliament;

Art. 217 of the Treaty of Nice: 'the Commission shall work under the political guidance of its President;

decides internal organisation of the Commission, allocates responsibilities to the Commissioners (portfolios can be reshuffled);

plays important role in shaping overall policy of the Commission, negotiating with the Council and the Parliament;

represents the Commission.

The President of the Commission

chosen on grounds of their general competence, independent from respective national governments (do not represent their own MSs),

serve for 5 years, the term can be renewed, each is in charge of particular policy area

(consumer protection, competition, trade, taxation and customs union, fisheries and maritime affairs, research, science and enlargement, etc.).

The commissioners

enforcement of the Community law, formulating recommendations and

delivering opinions, exercising its own power of decision, participation in the legislative process, negotiation of international agreements and

representation of the Community.

Main task and powers of the Commission

Presently consists of 27 judges (one from each MS) assisted by eight Advocates General chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries... , appointed by common accord of the governments of the MSs for a term of six years (Art. 223 01the EC Treaty);

Judges and Advocates General are partiality replaces every three years;

The President of the Court (currently Judge Vassilios Skouris) is elected by Judges themselves for a renewable term of three years;

The ECJ meets as plenary body, or as a grand chamber of 13 judges, or in chamber of three of five judges;

Located in Luxembourg (together with the Court of First Instance).

The European Court of Justice ( the ECJ )

The ECJ and the CFI shall ensure that in the interpretation and application of the EC Treaty the law is observed (Art. 220 of the EC Treaty),

It arbitrates conflicts between the institutions of the Community, between the Community and the Member States, reviews the validity of legislative and administrative acts;

May be called upon by the courts of the Member States to decide on the interpretation of Community laws, or on validity of Community legislation when those courts need to resolve a dispute pending before them in which a question of Community law arises ('preliminary rulings' procedure).

The function and jurisdiction of the Court

Established in October 1988 to assist the ECJ with ever increasing load of cases;

Comprises of at least one judge from each Member State (currently 27), but has no own Advocates General;

Jurisdiction:◦ actions brought by any natural or legal persons against acts of

the Community instituitons;◦ actions brought by the MSs against the Commission;◦ actions seeking compensation for damage caused by the

Community institutions or their staff;◦ some other cases

The rulings of the CFI may be subject to appeal to the ECJ; For your information: The prefic C indicates a case before

the ECJ, and the prefix T – a case before the CFI

The Court of First Instance (the CFI)

The supremacy of Community law (the Community law prevails over national law, the national court must set aside any provisions of the national law which may conflict with the law of the Community);

Principle of proportionality (any action of the Community shall not go beyond what is necessary to achieve the objectives of the Treaty, Art. 5 of the EC Treaty).

Doctrines and principles of Community law:

Principle of subsidiarity (in areas outside its exclusive competence, the Community shall take action only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore... be better achieved by the Community, Art. 5);

The doctrine of direct effect (developed by' the ECJ; generally speaking, the Community law confers the rights on individuals and can be invoked by them in national courts).

Treaties; Regulation -has general application, binding in its

entirety, and directly applicable in all Member States (Art. 249 of the EC Treaty);

Directive -binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods (Art. 249);

Decision -binding in its entirety upon those to whom it is addressed (Art. 249);

Recommendation and opinions have no binding force.

Sources of Community law:

The European Union online: http://europa.eu The EU at glance: http://europa.eulabclindex_en.htm Homepage of the European Parliament:

http://wwW.europarl.europa.eu Homepage of the Council of the European Union:

htlp://www.consilium.europa.eu Homepage of the European Commission:

htlp://ec.europa.eu Homepage of the European Court of Justice:

http://curia.europa.eu

Useful links

P.S.R.F. Mathijsen, A guide to European Union Law (9th ed., London: Sweet & Maxwell, 2007), pp. 1-155.

P. Craig and G. de Burca, EU Law: Text, Cases, and Materials (4th ed., Oxford [etc.]: Oxford University Press, 2008 [Le. 2007])

http://europa.eul

Sources that have been used: