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

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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)