Transcript Community Law

1
European Law
Fundamental Issues of
European Integration
Peter Reich/Cornelius Peetz
2
Fundamental Issues of European
Integration
History; Institutions; Legal Sources of Community Law and the Relationship to National Law;
Significance of Community Law for Administrative Authorities
I)
Membership
II)
Legal Character of the EU / Historical Key Dates
III)
The Institutions of the EU
•Tasks and Competences
IV)
The Legal Sources of Community Law and Relationship to National
Law (Overview)
V)
Impacts of Community Law on National Law
•Effects of Secondary Law on National Law
In particular: Directives
- possible direct effect
- Member State liability for damages in case of
late or non-implementation
•Effects of Primary Law on National Law
-Fundamental Freedoms
VI)
Significance of the Community Law for the Administration
•Execution of the Community Law by Administrative Authorities (Overview) “European Duties” of Civil Servant
3
The Membership in the European Union
A
European State,
Art.49 (1) 1 EU
Conditions of Membership
Democracy,
Art.6 (1) EU
Market Economy,
Art.4 (1) EC
Respect of Human and
Fundamental Rights,
Art.6 (2) EU
Ability to assume the
acquis communautaire
4
B
Procedure for Becoming Member
Relating to Community Law, Art.49 (1) 2
EU:
Relating to International Law, Art.49
(2) EU:
•Consulting the Commission
•Assent of European Parliament
•Treaty between Member States and
the applicant State (adjustment of the
Union Law)
•Unanimous decision of the Council
•Ratification by all Contracting States
C
Leaving or Exclusion
(of) EU are not regulated in the Community or in the Union Law, respectively
5
The Population of the EU
Until 1 of May 2004:
15 Member States with
a total population of
circa 380 million
6
The EU after 1. of May 2004
EC-members
EC-members from
01.05.2004 (except
Bulgaria and Romania)
EU-candidates still not
in entry negotiations
7
Key Dates in History of European
Integration
Members
1951/1957:
F,
NL,
Treaties
D,
L
I,
Economy
1949: Council of Europe
B, 1952: European Coal and Steel Comm.
1958: Euratom, EEC
1967: The “Merger Treaty” (Common
Institutions of Communities)
1959: Start of Reduction of Custom
Duties within the Community
1968: Customs Union
1973: +
DK,
GB,
IRL
1979: European Monetary System (EMS)
1981: +
GR
1986: +
E,
1986: The Single Act
P
1993: European Union (Maastricht –EU) 1993: (Introduction of) Internal Market
from EEC to EC
1994: European Economic Zone
1995: +
A,
S,
FIN
1997: Treaty of Amsterdam
2001: Treaty of Nice
2004: +
PL,
CR,
H,
LT,
LV,
SLO,
EST,
CY,
M
SK,
1999: Economic and Monetary Union
8
Development of European
Integration
1952: Europ. Coal
and Steel Comm.
1957:EEC/Euratom
Customs Union
1968
1. Enlargement 1973
DK/IRL/UK
European Monetary
System 1979
3. Enlargement
1995:A/FIN/S
Internal Market
1993
Treaty of Maastricht
1992: EU
Single Act
1986: EEA
2. Enlargement
1981/86: GR/E/P
Treaty of
Amsterdam
1997/1999
Monetary Union
1999/2002
Treaty of Nice
2001/ 2003
4. Enlargement
2004
Treaty establishing
a Constitution ?
9
European Internal Market
Free Movement
of Goods
Art. 28
Objectives of the
four Freedoms:
Free Movement
of Persons
Art. 39, 43
Free Movement
of Services
Free Movement
of Capital
Art. 49
Art. 56
Liberality and Harmony throughout
(Single Market)
10
“Common Market”
(in particular Art. 2 EC)
Uniformity
outwards
(Common
Customs Tariff,
common commercial policy ...)
Freedom inwards
free market
free competition
The fundamental freedoms
Approximation of laws
(Art.28, Art.39, Art.43,
Art.49, Art.56 EC)
(Art.94, Art.95 EC)
“Internal Market”
(in particular Art.14 EC)
11
Treaty on European Union (Maastricht) - EU
- main contents -
3 Pillars
(see Art.1 (3))
EC
juridical
competences
Art.11-28 Art.29-42
Economic and
Monetary Union
Art.4, Art.8 and Art.98
f. EC
“political”
(not integrated)
Strengthening of
European Parliament
( for first time
participation in decicionmaking power,
Art.251 EC)
Citizenship of the
Union
Art.17 f. EC
( Right to vote; free
movement and
residence)
New Competences
(related primarily to culture
and social policy, and also
environment, research,
health ...)
12
The Three Pillars of the European Union
European Union
The EC:
Customs Union
Internal Market
Agricultural Policy
Trade Policy
Consumer Protection
Health
Environmental Policy
Monetary Union
...
Foreign and security
policy
Co-operation in justice
and home affairs
supranational
intergovernmental
intergovernmental
(integrated)
(not integrated)
(not integrated, but now:
new Art.61 f. EC)
13
The Treaty of Amsterdam
- main contents Fundamental
Principles and Rights
More action
to combat
discrimination
(Art.13 EC)
Data
protection
and right to
petition,
Art.286 and
Art.21 EC
Protocol on
the
application
of the
prinziples of
subsidiarity,
(Art.5 (2)
EC)
Policy “for the
Citizens”
Strategy of
employment,
Art.125 ff. EC
Strengthening
Community policy
in the fields of
environment,
consumer protection
and public health,
Art.152, Art.153
and Art.174 f. EC
Institutional Reforms
Extension of
the scope of
co-decision
procedure =
increasing
Parliaments
involvement,
Art.251 EC
Extension of
the decisions
with
qualified
majority
concerning
the Council,
see Art.205
(2) EC
Political
guidance of
the
Commission
President;
nominating
of the
members of
Commission
by common
accord with
the Member
States,
Art.214 EC
Closer Co-operation
Different „speeds“ (see Art.43 f. EU)
Foreign and Security
Policy
Improvement of the Creation of a special
decision-making,
General Secretary,
Art.11 ff EU
Art.26 EU
Justice and Home
Affairs
Decision to
Cooperation in
harmonize
criminal matters,
immigration and
especially Europol,
visa policies, Art.61
Art.29 f. EU
f. EU
14
Treaty of Nice
- some institutional amendments referring to the enlargement -
Commission
Council
Parliament
From 2005 the “large”
Member States renounce
second Member of
Commission in favour of
candidates

Conditions of acting by a
qualified majority:
The number of Members
must not exceed 732
1. About 71% of the - new
- weighted (s. extratransparency) votes
(see extra-transparency
concerning the (new)
distribution of seats)
Number of Members of
Commission may
increase up to 27

2. Representation of at
least 62% of the total
population
3. The majority of
Member States
After that a rotation
system will be installed
(changes might come trough
(with a number of
the Treaty establishing a
members below 27 adapted by the Council) constitution)
Committee of
Regions / Economic
and Social
Committee
Number of Members of
each Accession State:
PL 21
RO (15)
CR 12
H
12
BG (12)
SK
9
LT 9
LV 7
SLO 7
EST 7
CY 6
M
5
(Member States
unchanged)
15
Treaty of Nice
(as amended by the act concerning the accession)
Member States
Germany
United Kingdom
France
Italy
Spain
Poland
Romania
Netherlands
Greece
Czech Republic
Belgium
Hungaria
Portugal
Sweden
Bulgaria
Austria
Slowakia
Denmark
Finland
Ireland
Lithunia
Latvia
Slovenia
Estonia
Cyprus
Luxembourg
Malta
Parliament / Parlament
Before /after Election
13.06.2004
99 ...........99
87 ...........78
87 ...........78
87 ...........78
64 ...........54
--.............54
--.............-- (33)
31 ...........27
25 ...........24
--.............24
25 ...........24
--.............24
25 ...........24
22 ...........19
--.............-- (17)
21 ...........18
--.............14
16 ...........14
16 ...........14
15 ...........13
--.............13
--............. 9
--............. 7
--............. 6
--............. 6
6 ........... 6
--............. 5
Council / Rat
Weighting of votes
(before/after enlargement)
10 ...........29
10 ...........29
10 ...........29
10 ...........29
8 ...........27
--.............27
--.............-- (27)
5 ...........13
5 ...........12
--.............12
5 ...........12
--.............12
5 ...........12
4 ...........10
--.............-- (10)
4 ...........10
--............. 7
3 ........... 7
3 ........... 7
3 ........... 7
--............. 7
--............. 4
--............. 4
--............. 4
--............. 4
2 ........... 4
--............. 3
16
The Institutions of the Community
(See Art. 7 EC)
European Council
15 Heads of State + President of Commission
COMMISSION
25 (30) members:
1 of each MS
(until 10/2004: 2 from D,
E, F, GB, I and 1 from the
other MS)
proposals
decisions
Council
consulting
25 Minister
(1 of each MS)
European
PARLIAMENT
Co-decision
732 representatives
General
political
guidelines
Main tasks
of integration
Motion of censure
COURT of JUSTICE
Economic
and Social
Committee
303 members
COURT of
AUDITORS
Committee
of Regions
303 members
Control…
Consulting
( other
institutions)
17
The European Parliament
President
General Secretary
(Seat: Luxembourg)
Permanent Committees
Political Groups
Elected for 2 1/2 years
(Consulting place: Brussels)
(Members of all States)
Estonia 6
6 Luxembourg
Cyprus 6
Belgium 24
27 Netherlands
Plenum
732 Representatives
Denmark 14
19 Sweden
(Plenum: Strasbourg, Brussels)
Germany 99
Finland 14
France 87
Greece24
24
Portugal
21
Austria
54 Spain
14 Slowakia
Poland 54
Czech Rep. 24
Ireland 15
United Kingdom 78
5 Malta
78 Italy
9 Latvia
7 Slowenia
13 Lithuania
Hungary 24
Elected for a term of 5 years by the citizens of the Union
18
The European Commission
1 Member by each
Member State
(until 10/2004:
2 Members by D,
F, UK, I, E).
President
Commission
25 (30) Members
(including President)
Nominated by the governments
of the Member States and
after approval at the European Parliament
appointed by common accord for 5 years
DG
Initiatives
(Proposals for legislation)
for the further development of Community Policy
DRIVING FORCE
Controlling
Administering
Whether Community Law is applied and implementing Community
correctly and obligations are
legislation especially in field
fulfilled by Member States
of competition law
GUARDIAN
EXECUTIVE BODY
19
Council of the European Union
Main tasks:
Presidency of
Council
Art.203 (2) EC
is held in turn by each
Member State for six
months
General
Secretariat
(Brussels)
Issuing legislation
Coordination of
policies ...
is made up of representatives
of each Member State at
ministerial level
with composition varying
according to the subject
discussed
Committee of the
Permanent
Representatives of
the Member States
From 01.11.2004:
 Weighting of Votes where
the Council is required to act
by a qualified majority
(Art.205 (2) EC): 232/321
 Majority of Member States
 Representation of at least
62% of the total population, if
requested by 1 Member
(Act of Accession)
20
The European Court of Justice
Seat: Luxembourg
Court of Justice
(tasks see later)
AdvocatesGeneral
(Art.222 EC)
Assistance
President
6 Chambers of 3 - 7 Judges
(Art.221 EC)
Governments of
the Member States
appoint 15 (25)
Judges and 8 (9)
Advocates-General
by common accord
for the term of six
years
(Art.223 EC)
Court of First Instance
(Art.225 EC)
All actions for annulment,
complaints for failure to act, and
actions for damages brought by
natural and legal persons;
competition proceedings; actions
by Community staff
21
Tasks of the Three European
Institutions:
Commission
(“Government”)
Council
(“Legislator”)
Parliament
(“Consultant, controller, codecider ...”)
•Right of Initiative
•Issuing legislation
•Consulting
(Art.250 - Art.252 EC)
(e.g. Art.37 (2) EC)
•Controlling whether Community Law is applied
correctly ...
•Responsibility for
amendments of the
Treaties, decisions of
accession ...
(Art.226 EC)
(Art.48 and Art.49 EU)
(e.g. Art.201 EC: Vote of no
confidence against the
Commission)
•Own right of legislation
(if empowered by the
Council, Art.211 EC)
•Coordination
•Legislation,
Art.202 EC
 Power over the budget,
Art.272 EC
•Representing the
Community (international
relationships)
•Controlling and supervising
the Commission
e.g. Art.216 EC
•Controlling
 in the “co-decision”
procedure (Art.251 EC)
•Right of action to ECJ
(Art.230 (3) EC)
22
The Legislative Process
- Forms of participation of the European Parliament and domains of
application -
Consultation
(“conventional”,
Art.250 EC)

Art.94 EC
(Harmonizing the
Common Market);
Art.37 (2) EC
(Agricultural Policy);
Art.157 (3) EC
(Industrial Policy)
4 different procedures
Cooperation
Co-Decision
(Art.252 EC)

after coming into
force of the Treaty of
Amsterdam little
relevance: e.g. Art.103
(2), Art.106 (2) EC
Approval
(Art.251 EC)

(not explicitly
mentioned)
= most frequent
procedure

e.g.:
•Art.40 EC (Free
movement of workers)
e.g.:
•Art.18 (2) EC (Free
movement of persons)
•Art.44 EC (Freedom of
establishment)
•Art.190 (4) EC
(Election procedure)
•Art.153 EC (Consumer
Protection)
•Art.214 (2) EC
(Appointment of the
members of the
Commission)
•Art.95 EC
(Approximation of laws
to realise the internal
market)
•Art.175 EC (Protection
of environment)
 growing involvement of the Parliament
23
(Legislative) Competences of Community
A No (clear) distinction of policies between Member States and EC
B But: Limits on the powers of the EC
Art.5 Abs.1 EC
Art.5 Abs.2 EC
(principle of specific conferment of powers)

(principle of subsidiarity)

i.e. competent only within the conferred powers of the
Treaty
i.e. competent only if the purposes of the intended
measures can not be achieved by the Member States (in
a comparable way)
e.g. Art.47 (1), Art.175 EC: activity in a special field;
but: except “exclusive competences”
but on the other hand e.g. Art.95 (1) EC: “open, dynamic”
competence;
moreover:
these are (pursuant to the jurisdiction of the ECJ):
•the common commercial policy
•the policy in the sphere of fisheries
•the fixing of the Common Custums Tariff
•the subsidies-control
•the doctrine of the “implied powers”
and
•Art.308 EC
and domains in which the Community has already made
use of its powers completely, e.g. in the policy of
agriculture (vague distinction)
24
Purposes and Activities of EC
Purposes (Art.2 EC)
Harmonious
development of
economic activities
Sustainable and
non-inflationary
growth
Convergence of
economic
performance
High level of
employment
Raising the
quality of life
High level of
protection of the
environment
Social protection
Economic and
social solidarity
25
Purposes and Activities of EC
Means (to achieve the purposes)
Establishing a
common market
Establishing an
economic and
monetary union
Policy and
measures
pursuant to
Art.3, 4 EC
(= activities of
the EC)
26
The Legal Sources of Community Law
- Overview -
Secondary Law
Primary Law
Foundation
Treaties
General
Principles
(ECSC,
EEC(EC),
Euratom, EU)
(developed by
the ECJ):
especially
fundamental
rights (derived
from the
ECHR)

binding on the
Community
institutions and
the Member
States (MS);
some
provisions with
direct effect
for individuals
(e.g. Art.28,
Art.39 EC)

bind above all
the
Community
institutions
(see Art.249 EC)
Regulation
Directive
Decision



binding and
directly
applicable in
all MS and for
the citizens
binding on the
MS as regards
the objective to
be achieved
(leaving to the
MS the choice
of form and
method);
however: by
the way of
exception
direct effect in
the MS
without
implementing
measures
directly
applicable and
binding on those
(MS or person)
to whom it is
addressed
(individual
measure)
Recommendation /
Opinion

no binding
force
27
The fundamental freedoms
Free Movement of Goods
No custom duties on imports and
Exports; no charges having equivalent
effects (Art. 25 EC)
No quantitative restrictions on imports
and exports; no measures having
equivalent effects (Art. 28, 29 EC)
 Any charge imposed on goods
whilst crossing the boarder
 All measures which restrict the
import or export of goods by number,
weight or value
 All measures which are capable to
impede the free circulation of goods
directly or indirectly, possibly or
effectively (“Dassonville”)
Derogations:
Art. 30 EC
No derogations possible!
Mandatory
requirements
(“Cassis de Dijon”)
28
The fundamental freedoms
Free Movement of Workers
Art. 39 EC
Conditions for being a “worker”:
 performing services of economic
value for a certain period of time
 under the direction of the
employer
 receiving a measure of
remuneration in return
Limitations Art. 39 (3) EC:
grounds of public policy,
public security, public
health
Derogation: Art. 39 (4) EC
“public policy
 very strict conditions!
29
The fundamental freedoms
Free Establishment
Art. 43 EC
Conditions for having an “establishment”:
 performing services of economic
value for a unlimited period of time
 under own direction against remuneration
 from a place situated in the Member State
Limitations:
 activities connected with
the exercise of public
authority (Art. 45 (1) EC)
grounds of public policy,
public security, public
health (Art. 46 (1) EC)
30
The fundamental freedoms
Free Movement of Services
Art. 49 EC
Conditions:
 offering services of economic
value for a limited period of time
 under own direction against remuneration
 with the service somehow crossing the
boarder:
o Service is requested from outside
the Member State
o Service is offered from outside the
Member State
o Service itself crosses the boarder
Limitations: Art. 55  45, 46 EC
31
Impacts of Community Law on
National Legal System
A Primary Law
The national legislator is obliged to
observe the exclusive areas of
competence of the Community (see Art.5
(2) EC in this context)
Directly applicable Community
provisions (especially the nondiscrimination principle, the four
freedoms and Art.141 EC) commit the
domestic administration and courts as if it
were national law
B Secondary Law
I) Regulations
are directly applicable within the Member States without any national implementing
measure (Art.249 (2) EC) and can be compared with national laws
II) Decisions
which are addressed to a Member State can have direct effect for other organisations
or individuals (with a resulting right of legal grievance by individual citizen)
32
Impacts of Community Law on
National Legal System
III) Directives
before expiry of
the implementation period

no direct
applicability; the
MS remains free
as to achieve the
aim of the
directive (Art.249
(3) EC)
after expiry of the implementation period
not implemented
incorrectly implemented
implemented
if the
interpretation
if possible:
eventually:
liability for
national law interpretation in conformity
damages of the
is not
with the
must be
MS as to its interpreted in possible:
if
directive
citizens
same
•sufficiently clear
the light of
and precise (aim)
wording and consequences
•obligation in
purpose of the as if not
favour of
(misimple- implemented
individuals (and
no obligation on
mented
an individual)
provision of
the) directive
attention: no
direct
applicable
(provision),
“horizontal”
application (=
individual against
individual or a
non-State entity)
= interpretation
in conformity
with the
directive
33
Court of Justice
- Types of proceedings Actions for
annulment
Actions for
failure to act
Actions for
damages
Preliminary
rulings
(review of
the legality
of
Community
acts)
(against
Parliament,
Council or
Commission)
(against
Community
institutions or
servants)




to clarify the
meaning, the
scope and the
validity of
Community law
(cases referred
from national
courts)

Commission v.
Member State
(Art.226 EC)
Art.230, 231 EC
Art.232 EC
Art.235,
Art.288 (2) EC
Actions for
failure to
fulfil
Treaty
obligations
Member State v.
Member State
(Art.227 EC)
(s. especially
Art.230 (4) EC)
Art.234 EC
34
“European Obligations” of the Civil Servant
The Civil Servant is obliged to:
1) know all relevant Primary and Secondary Community Law concerning his/her tasks
2) observe the primacy of the directly applicable provisions of the Primary Law and of
regulations (i.e. ignore national law in case of conflict)
3) determine and apply primarily the eventual directly applicable provisions of a
directive after the expiry of its implementation period in case of failure to act on the
part of national legislator
4) interpret national law that implements a directive in conformity with the directive
5) apply national law concerning administration procedure in cases related to
Community Law so that an effective execution of the Community Law is guaranteed
35
Execution of Community Law by
Administrative Authorities
(Starting-point is the principle of Art.10 EC: Obligation to fulfill Community Law and the primacy of
directly applicable Community Law)
A Primary Law
•The main directly applicable provisions are:
•Art.12 EC (principle of non-discrimination)
•Art.28 EC (prohibition of quantitative restrictions and measures of equivalent effect)
•Art.39 EC (free movement of workers)
•Art.141 EC (equal pay for man and woman)
•Moreover, the general principles of Community Law (especially fundamental rights) must
be observed - in order to interpret the Secondary Law
36
Execution of Community Law by
Administrative Authorities
B Secondary Law
1) Direct execution
•Regulations
•Directives
if directly applicable
to be determined observing the criteria developed by ECJ
•Implementation of directives by administration acts (as exception)
2) Indirect execution
•National law implemented a directive must be interpreted in the light of wording and
purpose of the directive (derived from Art.10 EC)
•National law concerning the administration procedure in cases related to Community
Law must be applied so that an effective execution of Community Law is ensured