Transcript Regional Policy Part I. The History

European Union Law vs.
National Law
Mr.Sc Drino Galicic
European Academy Bolzano (EURAC)
Representing Office Sarajevo; [email protected]
Centre André Malraux, Sarajevo, 29 October 2010
European Law; Community Law or
EU Law ?
• European Law – ECHR (CoE)
• Community Law (Law of European
Communities) – all legal norms stemming
from fundamental Treaties, binding legal
acts and co-operation procedures
• Law of the EU, since the Lisbon Treaty
(2009)
EU Law
• Primary EU Law
1) Treaty on EU - TEU (Lisbon 2009)
2) Treaty on the functioning of the EU - TFEU
(Rome Treaty 1957, modified)
• Secondary or ‘community’ Law (Regulations,
Directives etc.)
• Case Law (CJEU)
This all makes the EU a single legal order, having primacy
over member states’ order, whenever it is based on the
principle of subsidiarity
Fundamental Treaties
The Lisbon Treaty, entered into force on 1.12.2009
• Enshrines 7 ‘european institutions’
(Parliament, European Commission, European
Council, Council of the EU, European Central
Bank, Court of Justice of the EU, Court of
Auditors)
• Other (advisory) bodies: European Ombudsman,
Committee of Regions, European Investment
Bank etc.
• Provides EU with a LEGAL PERSONALITY
Fundamental Treaties
• Abandoned or substituted terminology:
1) Community – Union
2) CJEC – CJEU (First instance tribunal –
Tribunal)
3) Co-decision – ordinary legislative procedure
but “community law” ou “Acquis communautaire”
is still mentioned:
a) CL – case law prior to entry into force of the
Lisbon Treaty
b) AC – in the context of enlargement
Most common confusions
• European Council; Council of the EU (Council),
Council of Europe
• President of the European Council; EU
Presidency (of the EU Council); EU Troika
• EU High Representative (CFSP); High
Representative and EU Special Representiative
(EUSR)
• EU Charter of Fundamental Rights; Convention
for the Protection of Human Rights and
Fundamental Freedoms
• EU Court of Justice – Court of Justice
“Council”
• Council of the EU (officially not “council of
ministers)
• Sitting in configurations (General Affairs,
Foreign Affaires; ECOFIN, Agriculture and
Fisheries etc)
• GAERC; since 2009 GAC, FAC
• Directive of the “Council”
• But... European Council – Full time fixed
president
Treaty on the funtioning of the EU
• EX- Rome Treaty on “establishing the
European Community”
• Division of powers between Union and
MS: exclusive, shared and supporting
• Principle of subsidiarity: the Union does
not take action (except in the areas which
fall within its exclusive competence)
unless it is more effective than action
taken at national, regional or local level
Secondary Law
• Regulations – directly applicable acts
• Directives – acts to be “implemented”
through national laws
• Decisions – limited number of
addressees
• Recommendations and opinions – non
binding legal acts, but may help at
interpreting the community law or national
laws
Direct effect
• ‘direct effect’ – enables European citizens to rely
directly on rules of European Union law before
their national courts.
• Vertical effect – against the member State (only
accepted by CJEU rulings)
• Horizontal effect – between individual persons
• Automatic direct effect: regulations, decisions
(individuals) international agreements signed by
the EU
Direct effect of EU Directives
• Transposition – deadline – reliance : only
member states are bound, not the individual
citizens
• Position CJEU (CJEC) 1974: Directives can be
directly relied upon by individuals if clear,
precise and unconditional, even before the
deadline for transposition, confer specifi rights
• Position UK: yes, but it is up to national courts to
determine whether a Directive can be relied
upon
EU Directives:
primacy over national law?
• Set objectives to be reached – binding results!!!
• Up to member states to choose the format and
means of transposing into the national law – UK:
Act of Parliament or Statutory Instrument
• BUT, can be directly relied upon before domestic
courts as EU law takes precedence over
national law (CJUE, 1974)
• UK, yes as long as it respects key principles of
domestic law
Proceedings with CJEU
CJEU controls enforcement of the EU Law
through 5 types of proceedings:
•
•
•
•
•
References for preliminary rulings
Action for annulment
Action for failure to fulfill obligations
Action for failure to act
Action for liability
Composition of the CJEU
• The General Court (ex First Instance
Court)
• Civil Service Tribunal
• Court of Justice (ex CJCE)
• 27 Judges, 8 General Advocates
• Registrar
ALLTOGETHER MAKE THE CJEU
The General Court
• Direct actions filed by natural and legal persons
against acts of institutions or bodies of the EU.
• Persons acting must be addressees of the
contested acts, which must directly and
personally infringe their rights: ex- a company
filing action against a decision adjudicating fines
to it)
• Actions filed by the member States against the
European Commission;
Civil Service Tribunal
• Specialised court in the field of EU civil
service disputes
• New court, actions previously managed by
the CJEU and since 1989 by the First
Instance Court
• Administrative dispute between civil
servants and bodies of the EU
Court of Justice
• First instance court for certain type of
proceedings
• Appeal jurisdiction (on points of law only)
against decisions of the General Court
References for preliminary
rulings
• Domestic courts can file a reference on
interpretation of treaties (primary law) and
of the secondary law
• Compulsory for courts of appelate
jurisdiction (Appeal Courts and House of
Lords – see case study)
• Exception: if EU legal act is precise
“beyond reasonable doubt”
Actions for annulment
• Member states, Council and Commission
may seek annulment of the EU acts by the
Court of Justice
• Natural and legal persons may file action
with General Court for annulment of the
legal acts of EU institutions affecting them
personally and directly (ex. Companies
having been notified for infringment of EU
competition rules)
Actions for failure to act
• Member states and other EU institutions may
request the Court to fine the EU institution which
was in obligation to take appropriate measures,
but failed to do so
• Natural and legal persons must prove both the
legal interest to act and the fact that failure in
question has affected them directly and
personally
• Powers of the Court of Justice and General
Court to open proceedings are devided
according to the same principle as for action for
annulment
Action for failure to fulfill obligations
• Commision against member states
• Inteded to enforce obligations of the
member states
• Consequence: either legislative, following
multiple condamnations of members
states (Directive Bolkenstein), or financial
(fixed or periodic pecuniary penalty – fine)
Action for liability
• Available to any natural and legal person
affected by acts of EU institutions or civil
servants
• Contractual liability – under jurisdiction of
national courts
• Torts – under jurisdiction of EU courts
• Intended to seek reparation for damages
and pay compensation
Liability of Member states towards
individual citizens
• New concept developed by the CJEC in 1991,
Francovich and others vs. Italy
• European citizens can bring an action for damages
against a State which infringes a Community rule
• Two Italian citizens who were owed pay by their
insolvent employers had brought actions against Italian
State for failure to transpose Community provisions
protecting employees in the event of their employers'
insolvency.
• On a reference from an Italian court, the Court stated
that the directive in question was designed to confer on
individuals rights which they had been denied as a result
of the failure to act of the State which had not
implemented the directive.
Where we are (in BiH)?
• Legal (contractual) relationship: SAA –
Stabilistation and Association Agreement
(2008)
• Between whom?
• Between ‘european communities and
their member states’ and BiH
• If signed in 2010, between the “EU and its
member states”
Copenhagen Criteria
• Taken over in the Lisbon Treaty (art.49)
1) stability of institutions guaranteeing democracy, the rule
of law, human rights, respect for and protection of
minorities (political criteria)
2) existence of a functioning market economy as well as
the capacity to cope with competitive pressure and
market forces within the Union (economic criteria)
3) ability to take on the obligations of membership
including adherence to the aims of political, economic
and monetary union + capacity to absorb “acquis
communautaire”.
Acquis Communautaire
• Left in original French, not translated
• Common body of all rights and obligations
binding all member states by virtue of their
belonging to the EU
• Consists of binding acts within “community
law” as well as acts stemming from other
“pillars” (until 2009)
• Divided into 35 Chapters
‘Screening’
• Is not translated either
• Analytical examination of the Acquis, by the
Commission and Candidate State, which
constitutes preparatory phase of the accession
negotiations
• Candidate states get familiar with the Acquis,
and demonstrate implementation capacities
• Identify areas of the Acquis in which progress
still has to be made before member state’s
legislation becomes compatible with
“community” rules
The end
Thank you for your attention