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1
European LawEuropean Law
Fundamental Issues of Fundamental Issues of European IntegrationEuropean Integration
Peter Reich/Cornelius Peetz
2
Fundamental Issues of European Fundamental Issues of European IntegrationIntegration
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)
•Effects of Secondary Law on National LawIn 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
V) Impacts of Community Law on National Law
3
The Membership in the European UnionThe Membership in the European Union
European State, Art.49 (1) 1 EU
Democracy, Art.6 (1) EU
Respect of Human and Fundamental Rights, Art.6 (2) EU
Market Economy, Art.4 (1) EC
Ability to assume the acquis communautaire
Conditions of MembershipA
4
Relating to Community Law, Art.49 (1) 2 EU:
•Consulting the Commission
•Assent of European Parliament
•Unanimous decision of the Council
Relating to International Law, Art.49 (2) EU:
•Treaty between Member States and the applicant State (adjustment of the Union Law)
•Ratification by all Contracting States
Procedure for Becoming MemberB
Leaving or ExclusionC
(of) EU are not regulated in the Community or in the Union Law, respectively
5
The Population of the EUThe 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 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
2001: Treaty of Nice
Key Dates in History of European Key Dates in History of European IntegrationIntegration
1995:+ A, S, FIN
1949: Council of Europe
1951/1957: F, D, I, B,
NL, L
1952:European Coal and Steel Comm.1958:Euratom, EEC
1973:+ DK, GB, IRL
1979: European Monetary System (EMS)
1981:+ GR
1986:+ E, P1986:The Single Act
1997: Treaty of Amsterdam1999: Economic and Monetary Union
1959: Start of Reduction of CustomDuties within the Community
1967: The “Merger Treaty” (CommonInstitutions of Communities)
1968: Customs Union
1993:European Union (Maastricht –EU)
from EEC to EC1993:(Introduction of) Internal Market
1994: European Economic Zone
Members Treaties Economy
2004: + PL, CR, H, SK,
LT, LV, SLO,
EST, CY, M
8
DevelopmentDevelopment of European of EuropeanIntegrationIntegration
1952: Europ. Coal and Steel Comm.
1957:EEC/Euratom
Customs Union1968
1. Enlargement 1973DK/IRL/UK
Single Act1986: EEA
4. Enlargement 2004
Treaty of Maastricht1992: EU
Monetary Union1999/2002
Treaty of Amsterdam
1997/1999
Treaty of Nice 2001/ 2003
3. Enlargement1995:A/FIN/S
Internal Market1993
2. Enlargement1981/86: GR/E/P
Treaty establishinga Constitution ?
European MonetarySystem 1979
9
European Internal MarketEuropean Internal Market
Free Movement of Goods
Free Movement of Persons
Free Movement of Services
Free Movement of Capital
Objectives of the four Freedoms: Liberality and Harmony throughout
(Single Market)
Art. 28 Art. 56Art. 49Art. 39, 43
10
““Common Market”Common Market”(in particular Art. 2 EC)(in particular Art. 2 EC)
Freedom inwards
“Internal Market”(in particular Art.14 EC)
The fundamental freedoms
(Art.28, Art.39, Art.43, Art.49, Art.56 EC)
Approximation of laws
(Art.94, Art.95 EC)
Uniformity outwards (Common
Customs Tariff, common com-
mercial policy ...)
free market free competition
11
Treaty on European Union (Maastricht) - EUTreaty on European Union (Maastricht) - EU- main contents -
Economic and Monetary Union
Art.4, Art.8 and Art.98 f. EC
New Competences
(related primarily to culture and social policy, and also
environment, research, health ...)
Strengthening of European Parliament
( for first time participation in decicion-
making power,Art.251 EC)
3 Pillars(see Art.1 (3))
EC Art.11-28 Art.29-42
juridical compe-tences
“political”(not integrated)
Citizenship of the Union
Art.17 f. EC
( Right to vote; free movement and
residence)
12
The Three Pillars of the European UnionThe Three Pillars of the European Union
European Union
The EC:
Customs UnionInternal Market
Agricultural PolicyTrade Policy
Consumer ProtectionHealth
Environmental PolicyMonetary Union
...
Foreign and security policy
Co-operation in justice and home affairs
supranational
(integrated)
intergovernmental
(not integrated)
intergovernmental
(not integrated, but now: new Art.61 f. EC)
13
More actionto combatdiscrimi-
nation(Art.13 EC)
Dataprotection
and right topetition,
Art.286 andArt.21 EC
Protocol onthe
applicationof the
prinziples ofsubsidiarity,
(Art.5 (2)EC)
Extension ofthe scope ofco-decisionprocedure =increasing
Parliamentsinvolvement,Art.251 EC
Extension ofthe decisions
withqualifiedmajority
concerningthe Council,see Art.205
(2) EC
Politicalguidance of
theCommission
President;nominating
of themembers ofCommissionby commonaccord withthe Member
States,Art.214 EC
Improvement of thedecision-making,
Art.11 ff EU
Creation of a specialGeneral Secretary,
Art.26 EU
The Treaty of AmsterdamThe Treaty of Amsterdam- main contents -
Fundamental Principles and Rights
Policy “for the Citizens”
Institutional Reforms
Closer Co-operation
Justice and Home Affairs
Foreign and Security Policy
Strategy ofemployment,
Art.125 ff. EC
StrengtheningCommunity policy
in the fields ofenvironment,
consumer protectionand public health,Art.152, Art.153and Art.174 f. EC
Decision toharmonize
immigration andvisa policies, Art.61
f. EU
Cooperation incriminal matters,
especially Europol,Art.29 f. EU
Different „speeds“ (see Art.43 f. EU)
14
Treaty of NiceTreaty of Nice- some institutional amendments referring to the enlargement -- some institutional amendments referring to the enlargement -
Commission
From 2005 the “large” Member States renounce
second Member of Commission in favour of
candidates
Number of Members of Commission may increase up to 27
After that a rotation system will be installed
(with a number of members below 27 -
adapted by the Council)
Council
Conditions of acting by a qualified majority:
1. About 71% of the - new - weighted (s. extra-transparency) votes
2. Representation of at least 62% of the total population
3. The majority of Member States
(changes might come trough the Treaty establishing a constitution)
Parliament
The number of Members must not exceed 732
(see extra-transparency concerning the (new) distribution of seats)
Committee of Regions / Economic
and Social Committee
Number of Members of each Accession State:
(Member States unchanged)
PL 21RO (15)CR 12H 12BG (12)SK 9LT 9LV 7SLO 7EST 7CY 6M 5
15
Parliament / ParlamentParliament / ParlamentBefore /after Election
13.06.2004Member StatesMember States
Council / RatCouncil / RatWeighting of votes
(before/after enlargement)
Treaty of Nice Treaty of Nice (as amended by the act concerning the accession)(as amended by the act concerning the accession)
Germany 99 ...........99 10 ...........29 United Kingdom 87 ...........78 10 ...........29 France 87 ...........78 10 ...........29 Italy 87 ...........78 10 ...........29 Spain 64 ...........54 8 ...........27 Poland --.............54 --.............27 Romania --.............-- (33) --............. -- (27) Netherlands 31 ...........27 5 ...........13 Greece 25 ...........24 5 ...........12 Czech Republic --.............24 --.............12 Belgium 25 ...........24 5 ...........12 Hungaria --.............24 --.............12 Portugal 25 ...........24 5 ...........12 Sweden 22 ...........19 4 ...........10 Bulgaria --.............-- (17) --............. -- (10) Austria 21 ...........18 4 ...........10 Slowakia --.............14 --............. 7 Denmark 16 ...........14 3 ........... 7 Finland 16 ...........14 3 ........... 7 Ireland 15 ...........13 3 ........... 7 Lithunia --.............13 --............. 7 Latvia --............. 9 --............. 4 Slovenia --............. 7 --............. 4 Estonia --............. 6 --............. 4 Cyprus --............. 6 --............. 4 Luxembourg 6 ........... 6 2 ........... 4 Malta --............. 5 --............. 3
16
COMMISSION25 (30) members:
1 of each MS(until 10/2004: 2 from D, E, F, GB, I and 1 from the
other MS)
Council25 Minister
(1 of each MS)
EuropeanPARLIAMENT732 representatives
COURT of JUSTICECOURT of
AUDITORS
Economic and SocialCommittee
303 members
Committeeof Regions
303 members
proposals
decisions
consulting
Co-decision
Motion of censure
European Council15 Heads of State + President of Commission
General politicalguidelines
Main tasks of integra-tion
Control…
Consulting
( other institutions)
The Institutions of the Community(See Art. 7 EC)
17
Plenum732 Representatives
(Plenum: Strasbourg, Brussels)
Belgium 24
Denmark 14
Germany 99
Finland 14France 87
Greece24
United Kingdom 78Ireland 15
54 Spain
19 Sweden
24 Portugal21 Austria
27 Netherlands
6 Luxembourg
78 Italy
Permanent Committees(Consulting place: Brussels)
Political Groups(Members of all States)
General Secretary(Seat: Luxembourg)
President
Elected for 2 1/2 years
Elected for a term of 5 years by the citizens of the Union
Czech Rep. 24
Poland 54
Hungary 24 7 Slowenia
14 Slowakia
13 Lithuania9 Latvia
5 Malta
Estonia 6
Cyprus 6
The European ParliamentThe European Parliament
18
DG
The European CommissionThe European Commission
Commission25 (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
President1 Member by each Member State(until 10/2004:2 Members by D, F, UK, I, E).
Initiatives(Proposals for legislation)
for the further develop-ment of Community Policy
DRIVING FORCE
ControllingWhether Community Law is applied
correctly and obligations arefulfilled by Member States
GUARDIAN
Administeringand implementing Communitylegislation especially in field
of competition law
EXECUTIVE BODY
19
Council of the European UnionCouncil of the European Union
Main tasks:
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
Presidency of Council
Art.203 (2) EC
is held in turn by each Member State for six
months
General Secretariat
(Brussels)
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 JusticeThe European Court of JusticeSeat: Luxembourg
Court of Justice
(tasks see later)
President
(Art.221 EC)
6 Chambers of 3 - 7 Judges
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
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)
Advocates-General
(Art.222 EC)
Assis-tance
21Tasks of the Three European Tasks of the Three European
Institutions:Institutions:
CommissionCommission CouncilCouncil ParliamentParliament
•Right of Initiative
(Art.250 - Art.252 EC)
•Controlling whether Com-munity Law is applied correctly ...
(Art.226 EC)
•Own right of legislation(if empowered by the Council, Art.211 EC)
•Representing the Community (international relationships)
•Issuing legislation
•Responsibility for amendments of the Treaties, decisions of accession ...
(Art.48 and Art.49 EU)
•Coordination
Art.202 EC
•Controlling and supervising the Commission
e.g. Art.216 EC
•Consulting
(e.g. Art.37 (2) EC)
•Controlling
(e.g. Art.201 EC: Vote of no confidence against the Commission)
•Legislation,
Power over the budget, Art.272 EC
in the “co-decision” procedure (Art.251 EC)
•Right of action to ECJ (Art.230 (3) EC)
(“Government”) (“Consultant, controller, co-decider ...”)
(“Legislator”)
22The Legislative ProcessThe Legislative Process
- Forms of participation of the European Parliament and domains of application -
4 different procedures
Consultation
(“conventional”, Art.250 EC)
Art.94 EC (Harmonizing the Common Market);
Art.37 (2) EC (Agricultural Policy);
Art.157 (3) EC (Industrial Policy)
Co-Decision(Art.251 EC)
= most frequent procedure
e.g.:
•Art.40 EC (Free movement of workers)
•Art.44 EC (Freedom of establishment)
•Art.153 EC (Consumer Protection)
•Art.95 EC (Approximation of laws to realise the internal market)
•Art.175 EC (Protection of environment)
Cooperation
(Art.252 EC)
after coming into force of the Treaty of Amsterdam little
relevance: e.g. Art.103 (2), Art.106 (2) EC
Approval(not explicitly
mentioned)
e.g.:
•Art.18 (2) EC (Free movement of persons)
•Art.190 (4) EC (Election procedure)
•Art.214 (2) EC (Appointment of the members of the Commission)
growing involvement of the Parliament
23
(Legislative) Competences of Community(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
(principle of specific conferment of powers)
i.e. competent only within the conferred powers of the Treaty
Art.5 Abs.2 EC
(principle of subsidiarity)
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 on the other hand e.g. Art.95 (1) EC: “open, dynamic” competence;
moreover:
•the doctrine of the “implied powers”
and•Art.308 EC
but: except “exclusive competences”
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
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 ECPurposes and Activities of EC
Purposes (Art.2 EC)
Harmonious development of
economic activities
High level of employment
Sustainable and non-inflationary
growth
Convergence of economic
performance
Raising the quality of life
High level of protection of the
environment
Economic and social solidaritySocial protection
25
Means (to achieve the purposes)
Establishing a common market
Policy and measures
pursuant to
Art.3, 4 EC
(= activities of the EC)
Establishing an economic and
monetary union
Purposes and Activities of ECPurposes and Activities of EC
26
The Legal Sources of Community LawThe Legal Sources of Community Law- Overview -
Primary Law Secondary Law
Foundation Treaties
(ECSC, EEC(EC),
Euratom, EU)
binding on the Community
institutions and the Member States (MS);
some provisions with direct effect for
individuals (e.g. Art.28, Art.39 EC)
General Principles
(developed by the ECJ): especially
fundamental rights (derived
from the ECHR)
bind above all the
Community institutions
Regulation
binding and directly
applicable in all MS and for
the citizens
Directive
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
Decision
directly applicable and
binding on those (MS or person) to whom it is
addressed (individual measure)
Recommen-dation / Opinion
no binding force
(see Art.249 EC)
27
The fundamental freedoms
Free Movement of Goods
No custom duties on imports andExports; no charges having equivalenteffects (Art. 25 EC)
Any charge imposed on goods whilst crossing the boarder
No quantitative restrictions on importsand exports; no measures havingequivalent effects (Art. 28, 29 EC)
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”)
No derogations possible!Art. 30 EC Mandatory
requirements(“Cassis de Dijon”)
Derogations:
28
The fundamental freedoms
Free Movement of WorkersArt. 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 EstablishmentArt. 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 ServicesArt. 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 Impacts of Community Law on National Legal SystemNational Legal System
A Primary Law
B Secondary LawI) 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)
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 non-
discrimination principle, the four freedoms and Art.141 EC) commit the
domestic administration and courts as if it were national law
32
III) Directives
before expiry of the implementa-
tion period
no direct applicability; the MS remains free as to achieve the
aim of the directive (Art.249
(3) EC)
not implemented incorrectly implemented implemented
direct applicable
(provision),
if
•sufficiently clear and precise (aim)
•obligation in favour of individuals (and no obligation on an individual)
-
attention: no “horizontal” application (= individual against individual or a non-State entity)
eventually: liability for
damages of the MS as to its
citizens
if possible: national law
must be interpreted in the light of
wording and purpose of the
(misimple-mented
provision of the) directive
= interpretation in conformity
with the directive
if the interpretation
is not possible:
same consequences
as if not implemented
interpretation in conformity
with the directive
after expiry of the implementation period
Impacts of Community Law on Impacts of Community Law on National Legal SystemNational Legal System
33
Court of JusticeCourt of Justice
- Types of proceedings -- Types of proceedings -
Actions for failure to
fulfil Treaty
obligations
Commission v. Member State (Art.226 EC)
Member State v. Member State (Art.227 EC)
Actions for annulment
(review of the legality
of Community
acts)
Actions for failure to act
(against Parliament, Council or
Commission)
Actions for damages
(against Community
institutions or servants)
Preliminary rulings
to clarify the meaning, the scope and the
validity of Community law (cases referred from national
courts)
Art.230, 231 EC
(s. especially Art.230 (4) EC)
Art.232 EC
Art.235, Art.288 (2) EC
Art.234 EC
34
““European Obligations” of the Civil ServantEuropean Obligations” of the Civil Servant
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
The Civil Servant is obliged to:
35
Execution of Community Law by Execution of Community Law by Administrative AuthoritiesAdministrative 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
B Secondary Law1) Direct execution
•Regulations
•Directives
if directly applicable
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
Execution of Community Law by Execution of Community Law by Administrative AuthoritiesAdministrative Authorities
to be determined observing the criteria developed by ECJ
•Implementation of directives by administration acts (as exception)