The ABC of Community law

by Dr Klaus-Dieter Borchardt

European Documentation

The ABC of Com

munity law

Directorate-General for Education and Culture

European Commission

This publication in the ‘European Documentation’ series is available in all official languages of theEuropean Union: Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish andSwedish.

IN THE SAME COLLECTION:Europe from A to Z (1997)Europe in 10 points (1998)The European Commission (1999)

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Luxembourg: Office for Official Publications of the European Communities, 2000

ISBN 92-828-7803-1

© European Communities, 2000Reproduction is authorised.

Printed in Belgium

PRINTED ON WHITE CHLORINE FREE PAPER

The ABCof Community law

by Dr Klaus-Dieter Borchardt

Manuscript completed in September 1999

Cover: Graphic design by Mario Ramos

Fifth edition

INTRODUCTION: FROM PARIS VIA ROME TO MAASTRICHT AND AMSTERDAM

FUNDAMENTAL VALUES OF THE EUROPEAN UNION

• THE EU AS GUARANTOR OF PEACE• UNITY AND EQUALITY AS THE RECURRING THEME• THE FUNDAMENTAL FREEDOMS• THE PRINCIPLE OF SOLIDARITY• RESPECT OF NATIONAL IDENTITY• THE NEED FOR SECURITY• FUNDAMENTAL RIGHTS IN THE EU

THE ‘CONSTITUTION’ OF THE EUROPEAN UNION

• STRUCTURE OF THE EUROPEAN UNION• THE LEGAL CHARACTER OF THE EC AND THE EU• THE TASKS OF THE EU• THE POWERS OF THE EU• THE INSTITUTIONS OF THE EU

European Council — European Parliament — Council of the European Union —European Commission — European Court of Justice and Court of First Instance —Court of Auditors — Other institutions

THE COMMUNITY LEGAL ORDER

• THE EU AS A CREATION OF LAW AND A COMMUNITY BASED ON LAW• THE LEGAL SOURCES OF COMMUNITY LAW

The founding Treaties as the primary source of Community law — The Community legal instruments as the secondary source of Community law —International agreements — Sources of unwritten law — Agreements between theMember States

• THE COMMUNITY’S RANGE OF TOOLSRegulations and ECSC general decisions — Directives and ECSC recommenda-tions — Individual decisions — Non-binding measures by Community institutions— Resolutions, declarations and action programmes

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CONTENTS

5

11

11111212121313

18

1822262730

57

5758

63

• THE LEGISLATIVE PROCESSConsultation procedure — Cooperation procedure — Co-decision procedure —Approval procedure — Simplified procedure — Procedure for implementing mea-sures

• THE SYSTEM OF LEGAL PROTECTIONTreaty infringement proceedings — Actions for annulment — Complaints forfailure to act — Actions for damages — Actions by Community staff — Appealsprocedure — Provisional legal protection — Preliminary rulings

• LIABILITY OF THE MEMBER STATES FOR INFRINGEMENTS OF COMMUNITY LAWMember States’ liability for legal acts or failure to act — Liability for infringementof Community law by the courts

THE POSITION OF COMMUNITY LAW IN RELATION TO THE LEGAL ORDER AS A WHOLE

• AUTONOMY OF THE COMMUNITY LEGAL ORDER• INTERACTION BETWEEN COMMUNITY LAW AND NATIONAL LAW• CONFLICT BETWEEN COMMUNITY LAW AND NATIONAL LAW

Direct applicability of Community law — Primacy of Community law

CONCLUSIONS

TABLE OF CASESNature and primacy of Community law — Powers of the Community — Effects oflegal acts — Fundamental rights — General principles of law

APPENDIX: TABLE OF EQUIVALENCES REFERRED TO IN ARTICLE 12OF THE TREATY OF AMSTERDAM

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949697

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Until shortly after the end of theSecond World War our concept of

the State and our political life had devel-oped almost entirely on the basis ofnational constitutions and laws. It was onthis basis in our democratic States that therules of conduct binding not only on citi-zens and parties but also on the State andits organs were created. It took thecomplete collapse of Europe and its polit-ical and economic decline to create theconditions for and give a new impetus tothe idea of a new European order.

In overall terms, moves towards unifica-tion in Europe since the Second WorldWar have created a confusing mixture ofnumerous and complex organisations thatare difficult to keep track of. For example,the OECD (Organisation for EconomicCooperation and Development), WEU(Western European Union), NATO (NorthAtlantic Treaty Organisation), the Councilof Europe, the European Union (whichstarted life as the European Coal and SteelCommunity, the European Atomic EnergyCommunity and the European Commu-nity) coexist without any real linksbetween them. The number of membercountries in these various organisationsranges from 19 (WEU) to 40 (Council ofEurope).

This variety of institutions only acquires alogical structure if we look at the specific

aims of these organisations; these can bedivided into three main groups:

• The Euro-Atlantic organisations

The Euro-Atlantic organisations came intobeing as a result of the alliance betweenthe United States of America and Europeafter the Second World War. It was nocoincidence that the first European organi-sation of the post-war period, the OEEC(Organisation for European EconomicCooperation), founded in 1948, wascreated at the initiative of the UnitedStates. The US Secretary of State at thetime, George Marshall, called on thecountries of Europe in 1947 to join forcesin rebuilding their economies andpromised American help. This came in theform of the Marshall Plan, which providedthe foundation for the rapid reconstructionof western Europe. At first, the main aim ofthe OEEC was to liberalise trade betweencountries. In 1960, when the United Statesand Canada became members, a furtherobjective was added, namely to promoteeconomic progress in the Third Worldthrough development aid. The OEEC thenbecame the OECD.

In 1949, NATO was founded as a militaryalliance with the United States andCanada. In 1954, the Western EuropeanUnion (WEU) was created to strengthensecurity cooperation between the coun-tries of Europe. It brought together the 5

INTRODUCTION: FROM PARIS VIA ROMETO MAASTRICHT AND AMSTERDAM

countries that had concluded the BrusselsTreaty (United Kingdom, France, Belgium,Luxembourg and the Netherlands) withthe addition of the Federal Republic ofGermany and Italy. Portugal, Spain andGreece are now also members of theWEU. The organisation offers its membersa platform for close cooperation on secu-rity and defence, and thus serves both tostrengthen Europe’s political weight in theAtlantic alliance and to establish a Euro-pean identity in security and defencepolicy.

.• The Council of Europe and theOSCE

The feature common to the second groupof European organisations is that they arestructured to enable as many countries aspossible to participate. At the same time,there was an awareness that these organi-sations would not go beyond customaryinternational cooperation.

These organisations include the Council ofEurope, which was founded as a politicalinstitution on 5 May 1949. Its Statute doesnot make any reference to moves towards

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a federation or union, nor does it providefor the transfer or merging of sovereignrights. Decisions on all important ques-tions require unanimity, which means thatevery country has a power of veto; thesame set-up is to be found in the UnitedNations (UN) Security Council. TheCouncil of Europe is therefore designedonly with international cooperation inmind. Numerous conventions have beenconcluded by the Council in the fields ofeconomics, culture, social policy and law.The most important — and best known —of these is the Convention for the Protec-tion of Human Rights and FundamentalFreedoms (ECHR) of 4 November 1950.The Convention not only enabled aminimum standard for the safeguarding ofhuman rights to be laid down for themember countries; it also established asystem of legal protection which enablesthe bodies established in Strasbourg underthe Convention (the European Commissionon Human Rights and the European Courtof Human Rights) to condemn violationsof human rights in the member countries.

This group of organisations also includesthe Organisation for Security and Cooper-ation in Europe (OSCE), founded in 1994at the Conference on Security and Cooper-ation in Europe. The OSCE is bound bythe principles and aims set out in the 1975Helsinki Final Act and the 1990 Charter ofParis. Alongside measures to build up trustbetween the countries of Europe, theseaims also include the creation of a ‘safetynet’ to enable disputes to be settled bypeaceful means. As events of the recentpast have shown, Europe still has a longway to go in this respect.

• The European Union

The third group of European organisationscomprises the European Union, whichitself has grown out of the European Coaland Steel Community, the EuropeanAtomic Energy Community and the Euro-pean Community.

The feature that is completely new in theEU and distinguishes it from the usual typeof international association of States is thatthe Member States have ceded some oftheir sovereign rights to the EC at thecentre and have conferred on it powers toact independently. In exercising thesepowers, the EC is able to issue sovereignacts which have the same force as laws inindividual States.

The foundation stone of a EuropeanCommunity was laid by the then FrenchForeign Minister, Robert Schuman, in hisdeclaration of 9 May 1950, in which heput forward the plan he had worked outwith Jean Monnet to pool Europe’s coaland steel industries. This would, hedeclared, constitute a historic initiative foran ‘organised and vital Europe’, whichwas ‘indispensable for civilisation’ andwithout which the ‘peace of the worldcould not be maintained’. The ‘SchumannPlan’ finally became a reality with theconclusion of the founding Treaty of theEuropean Coal and Steel Community(ECSC) by the six founding States(Belgium, Germany, France, Italy, Luxem-bourg and the Netherlands) on 18 April1951 in Paris (Treaty of Paris) and its entryinto force on 23 July 1952. A furtherdevelopment came some years later with 7

the Treaties of Rome of 25 March 1957,which created the European EconomicCommunity (EEC) and the EuropeanAtomic Energy Community (Euratom);these began their work when the Treatiesentered into force on 1 January 1958.

The creation of the European Union (EU)by means of the Treaty of Maastrichtmarked a further step along the path to thepolitical unification of Europe. Althoughthe Treaty was signed in Maastricht on 7February 1992, a number of obstacles inthe ratification process (approval by thepeople of Denmark only after a secondreferendum; legal action in Germany tohave Parliament’s approval of the Treatydeclared unconstitutional) meant that itdid not enter into force until 1 November1993. The Treaty refers to itself as ‘a newstage in the process of creating an evercloser union among the peoples ofEurope’. As well as making a number ofchanges to the E(E)C Treaty and theEuratom Treaty, it contains the instrumentestablishing the European Union —although it does not bring this process tocompletion. Like the creation of the EC, itis a first step on the path leading ulti-mately to a European constitutionalsystem which will embrace the EC assuch. The EU saw a further developmentin the form of the Treaty of Amsterdamwhich was signed on 2 October 1997 andentered into force on 1 May 1999 aftercompletion of the ratification process inthe Member States. One innovation whichdeserves special mention here is the newprovisions of the EU Treaty concerningflexibility, whereby Member States whichintend to establish closer cooperation may

make use of the institutions, proceduresand mechanisms laid down in the Treaties,subject to the provisos specified. This ulti-mately opens the way for a multi-speedEurope, albeit with restrictions. The resul-tant European Union does not, contrary tosome accounts in the media, replace theEuropean Communities but instead placesit under the same umbrella as the new‘policies and forms of cooperation’ (Article47 EU). Hence the ‘three pillars’ uponwhich the European Union is built: theEuropean Communities; common foreignand security policy; and justice and homeaffairs. These will be considered in somedetail in a separate chapter on the consti-tution of the EU.

The Member States of the EU comprisefirst of all the six founder members of theEC, namely Belgium, Germany (includingthe territory of the former GDR followingthe reunification of the two Germanys on3 October 1990), France, Italy, Luxem-bourg and the Netherlands. On 1 January1973, the United Kingdom, Denmark(now excluding Greenland, which in areferendum in February 1982 voted by anarrow majority not to remain in the EC)and Ireland joined the Community;Norway’s planned accession was rejectedin a referendum in October 1972 (53.5 %against EC membership). In 1976 and1977, Greece, Portugal and Spain appliedfor membership. This ‘enlargement to thesouth’ was completed on 1 January 1986with the accession of Portugal and Spain;Greece had already been a member of theCommunity since 1 January 1981. Thenext enlargement took place on 1 January1995 when Austria, Finland and Sweden8

joined what had by then become the Euro-pean Union (EU), thanks to the Treaty ofMaastricht that had entered into force on 1November 1993. In Norway, a referendumled to a repeat of the outcome 22 yearsbefore, with a small majority (52.4 %)against Norwegian membership of the EU.The EU has therefore comprised 15Member States since 1 January 1995.Applications for membership have alsobeen received from Turkey (1987), Cyprus(1990), Switzerland (1992 — the applica-tion is not being processed at themoment), Hungary (1994), Poland (1994),Romania (1995), Latvia (1995), Slovakia(1995), Estonia (1995), Lithuania (1995),Bulgaria (1995), the Czech Republic(1996), Slovenia (1996) and Malta (appli-cation renewed in 1998). In its ‘Agenda2000’ document, the Commission in July1997 set out for the Council of the EU itsposition regarding the applications. TheEuropean Council met in Luxembourg inDecember 1997 and laid down the overallframework for the enlargement process,which encompassed all applicant coun-tries (except Switzerland). This processconsists of three stages:

• The European Conference, which metfor the first time on 12 March 1998 inLondon, provides a multilateral frameworkencompassing the 10 central and eastEuropean countries (CEECs), Cyprus andnow also Malta. It will offer a forum forpolitical consultations on questions ofcommon foreign and security policy(CFSP), justice and home affairs,economic cooperation and collaborationbetween regions.

• The accession process has beenlaunched with the 10 CEECs, Cyprus andMalta. The idea is that these countriesshould become members of the EU on thebasis of the same criteria, and should besubject to the same conditions for partici-pation in the accession process. A special‘pre-accession strategy’ is to be used toenable all applicants to bring themselves,as far as possible, into line with EU lawprior to their accession. As part of areview procedure, the Commissionprovides the Council with regular reports(the first of which was submitted at theend of 1998) on the progress being madeby the CEECs on their way towardsmembership, where appropriate with recommendations on the start of accessionnegotiations.

• Accession negotiations began on 31March 1998 with the six countries recom-mended by the Commission (Cyprus,Hungary, Poland, Estonia, the CzechRepublic and Slovenia). Negotiations arebeing conducted bilaterally with the indi-vidual applicant countries and may beconcluded at different times.

The legal order created by the EuropeanCommunity has already become an estab-lished component of our political life.Each year, on the basis of the CommunityTreaties, thousands of decisions are takenthat crucially affect the Member States andlives of their citizens. The individual haslong since ceased to be merely a citizen ofhis country, town or district; he is also aCommunity citizen. For this reason aloneit is of crucial importance that theCommunity citizen should be informed 9

about the legal order that affects his dailylife. Yet the complexities of the Commu-nity and its legal order are not easy tograsp. This is partly due to the wording ofthe Treaties themselves, which is oftensomewhat obscure, with implicationswhich are not easy to appreciate. An addi-tional factor is the unfamiliarity of many

concepts with which the Treaties sought tobreak new ground. The following pagesare an attempt to clarify the structure ofthe Community and the supporting pillarsof the European legal order, and thus helpto lessen the incomprehension prevailingamong the citizens of the EU (1).

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(1) Following the Treaty of Amsterdam, the arti-cles of the Treaty were renumbered. The newnumbering has been used in this booklet.The table of equivalences in the appendix isintended to help locate familiar articleswhich are now numbered differently.

The foundations of a united Europewere laid on fundamental ideas and

values to which the Member States alsosubscribe and which are translated intopractical reality by the Community’s oper-ational institutions. These acknowledgedfundamental values include the securingof a lasting peace, unity, equality,freedom, security and solidarity. The EU’sdeclared aims are to safeguard the princi-ples of liberty, democracy and the rule oflaw which are shared by all the MemberStates (Article 6(1) EU). Together with theprotection of human rights and basic free-doms, these principles have been rein-forced in the EU Treaty in that, for the firsttime, it makes provision for measures tobe taken if these principles are violated(Articles 7 and 8 EU). In practical terms,this means that if the Heads of State andGovernment, acting on a proposal by onethird of the Member States or by theCommission, and after obtaining theassent of the European Parliament, declarethat a serious and persistent breach of theEU’s underlying principles has occurred,the Council may, acting by a qualifiedmajority, suspend certain of the rightsderiving from the application of the EUTreaty and EC Treaty to the Member Statein question, including voting rights in theCouncil. When doing so, however, theCouncil must give particular considerationto the possible consequences of such adecision for the rights and obligations ofnatural and legal persons. On the other

hand, the obligations on the Member Statein question under the EU Treaty and ECTreaty continue to be binding.

• THE EU AS GUARANTOR OF PEACE

There is no greater motivation for Euro-pean unification than the desire for peace.In Europe this century, two world warshave been waged between countries thatare now Member States of the EuropeanCommunity. Thus, a policy for Europemeans at the same time a policy for peace,and the establishment of the Communitysimultaneously created the centrepiece ofa framework for peace in Europe thatrenders a war between the Community’sMember States impossible. More than 40years of peace in Europe are proof of this.

• UNITY AND EQUALITY AS THERECURRING THEME

Unity is the recurring theme. Present-dayproblems can be mastered only if theEuropean countries move forward alongthe path that leads them to unity. Manypeople take the view that without Euro-pean integration, without the EuropeanCommunity, it would not be possible tosecure peace (both in Europe and world-wide), democracy, law and justice,economic prosperity and social security,and guarantee them for the future. Unem-ployment, inadequate growth and envi-ronmental pollution have long ceased to 11

FUNDAMENTAL VALUES OF THE EUROPEAN UNION

be merely national problems; nor can theybe resolved at national level. It is only inthe context of the Community that a stableeconomic order can be established andonly through joint European efforts that wecan secure an international economicpolicy that improves the performance ofthe European economy and contributes tosocial justice. Without internal cohesion,Europe cannot assert its political andeconomic independence from the rest ofthe world, win back its influence in theworld and retrieve its role in world poli-tics.

Unity can endure only where equality isthe rule. No citizen of the Communitymay be placed at a disadvantage ordiscriminated against because of hisnationality. Discriminatory treatment onthe grounds of gender, race, ethnic origin,religion or beliefs, disability, age or sexualorientation must be stopped. All Commu-nity citizens are equal before the law. Asfar as the Member States are concerned,the principle of equality means that noState has precedence over another andnatural differences such as size, popula-tion and differing structures must beaddressed only in accordance with theprinciple of equality.

• THE FUNDAMENTALFREEDOMS

Freedom results directly from peace, unityand equality. Creating a larger entity bylinking 15 States immediately affordsfreedom of movement beyond nationalfrontiers. This means, in particular,freedom of movement for workers,

freedom of establishment, freedom toprovide services, free movement of goodsand freedom of capital movements. Thesefundamental freedoms under the foundingTreaties guarantee businessmen freedomof decision-making, workers freedom tochoose their place of work and consumersfreedom of choice between the greatestpossible variety of products. Freedom ofcompetition permits businessmen to offertheir goods and services to an incompa-rably wider circle of potential customers.Workers can seek employment andchange their place of employmentaccording to their own wishes and inter-ests throughout the entire territory of theEU. Consumers can select the cheapestand best products from the far greaterwealth of goods on offer that results fromincreased competition.

• THE PRINCIPLE OF SOLIDARITY

Solidarity is the necessary corrective tofreedom, for inconsiderate exercise offreedom is always at the expense ofothers. For this reason, if a Communityframework is to endure, it must alsoalways recognise the solidarity of itsmembers as a fundamental principle, andshare both the advantages, i.e. prosperity,and the burdens equally and justly amongits members.

• RESPECT OF NATIONALIDENTITY

The national identities of the MemberStates is respected (Article 6(3) EU). Theidea is not for the Member States to be12

‘dissolved’ into the EU, but rather for themto contribute their own particular quali-ties. It is precisely this variety of nationalcharacteristics and identities that lends theEU its moral authority, which is in turnused for the benefit of the Community as awhole.

• THE NEED FOR SECURITY

Lastly, all these fundamental valuesdepend on security. In the most recentpast, a period of movement and change —and one in which many unknown chal-lenges had to be faced — security hasbecome a basic need which the Commu-nity must also try to satisfy. Every actionby Community institutions must bear inmind that people and firms needconstancy, consistency and reliability interms of job security, general economic

and business conditions and social secu-rity.

• FUNDAMENTAL RIGHTS INTHE EU

Against the background of fundamentalvalues and the concepts that underliethem, the question necessarily arises of thefundamental rights of individual citizensof the Community, especially since thehistory of Europe has, for more than 200years, been characterised by continuingefforts to enhance the protection of funda-mental rights. Starting with the declara-tions of human and civil rights in the 18thcentury, fundamental rights and civil liber-ties have now become firmly anchored inthe constitutions of most civilised States.This is especially true of the EU MemberStates, whose legal systems are 13

constructed on the basis of the rule of lawand respect for the dignity, freedom andright to self-development of the individual.There are also numerous internationalconventions on the protection of humanrights, among which the EuropeanConvention for the Protection of HumanRights and Fundamental Freedoms (ECHR)of 4 November 1950 is of very greatsignificance.

A search through the Community Treatiesfor express provisions concerning thefundamental rights of individual Commu-nity citizens is disappointing. In contrast tothe legal systems of the Member States,the Treaties establishing the EuropeanCommunities do not contain any enumer-ation of fundamental rights. However, theEuropean Parliament, the Council and theCommission, as the policy-making bodiesof the EU, solemnly issued a joint declara-tion on fundamental rights on 5 April1977. They underscored the importanceof securing these rights in the Communityand undertook to preserve them in theexercise of their powers and in the pursuitof the Community’s objectives. At theCopenhagen European Council on 7 and 8April 1978, the Heads of State or Govern-ment of the Member States issued a decla-ration on democracy in which theyendorsed the 1977 declaration. The twodeclarations may not generate directlyexercisable rights for the Community’s citi-zens, but they are of great political signifi-cance as evidence of the status accordedto human rights in the Community. TheEU Treaty now also gives this commitmentlegally binding form by stipulating that theEU shall respect ‘fundamental rights, as

guaranteed by the European Conventionfor the Protection of Human Rights andFundamental Freedoms signed in Romeon 4 November 1950 and as they resultfrom the constitutional traditions commonto the Member States, as general princi-ples of Community law’ (Article 6(2) EU).

However, a Community legal order safe-guarding fundamental rights was relativelylate in coming; it was not until 1969 thatthe Court of Justice of the EuropeanCommunities had established a body ofcase law to serve as a basis. This wasbecause in the early years the Court hadrejected all actions relating to basic rightson the grounds that it need not concernitself with matters falling within the scopeof national constitutional law. The Courthad to alter its position not least because itwas itself the embodiment of the primacyof Community and its precedence overnational law; this primacy can only befirmly established if Community law issufficient in itself to guarantee the protec-tion of basic rights with the same legalforce as under national constitutions.

The starting point in this case law was the‘Stauder’ judgment, in which the point atissue was the fact that a recipient ofwelfare benefits for war victims regardedthe requirement that he give his namewhen registering for the purchase of butterat reduced prices at Christmas time as aviolation of his human dignity and theprinciple of equality. Although the Courtof Justice came to the conclusion, in inter-preting the Community provision, that itwas not necessary for recipients to givetheir name so that, in fact, consideration14

of the question of a violation of a funda-mental right was superfluous, it declaredfinally that the general fundamental prin-ciples of the Community legal order,which the Court of Justice had to safe-guard, included respect for fundamentalrights. This was the first time that the Courtof Justice recognised the existence of aCommunity framework of fundamentalrights of its own.

Initially, the Court developed its safe-guards for fundamental rights from anumber of provisions in the Treaties. Thisis especially the case for the numerousbans on discrimination which, in specificcircumstances, address particular aspectsof the general principle of equality. Exam-ples are the prohibition of any discrimina-tion on grounds of nationality (Article 12EC), preventing people being treateddifferently on the grounds of gender, race,ethnic origin, religion or beliefs, disability,age or sexual orientation (Article 13 EC),the equal treatment of goods and personsin relation to the four basic freedoms(freedom of movement of goods — Article28 EC; freedom of movement of persons— Article 39 EC; the right of establishment— Article 43 EC; and freedom to provideservices — Article 50 EC), freedom ofcompetition (Article 81 f. EC) and equalpay for men and women (Article 141 EC).The four fundamental freedoms of theCommunity, which guarantee the basicfreedoms of professional life, can also beregarded as a Community fundamentalright to freedom of movement andfreedom to choose and practise a profes-sion. Specific guarantees are also provided

for the right of association (Article 137 ECand Article 48(1) ECSC), the right to peti-tion (Article 21 EC and Article 48(2) ECSC)and the protection of business and profes-sional secrets (Article 287 EC, Article 194Euratom and Article 47(2) and (4) ECSC).

The Court of Justice has steadily devel-oped and added to these initial attempts atprotecting fundamental rights throughCommunity law. It has done this by recog-nising and applying general legal princi-ples, drawing on the concepts that arecommon to the constitutions of theMember States and on the internationalconventions on the protection of humanrights to whose conclusion the MemberStates have been party. Prominent amongthe latter is the ECHR, which helped toshape the substance of fundamental rightsin the EC and the mechanisms for theirprotection. On this basis, the Court hasrecognised a number of freedoms as basicrights secured by Community law: right ofownership, freedom to engage in an occu-pation, the inviolability of the home,freedom of opinion, general rights ofpersonality, the protection of the family(e.g. family members’ rights to join amigrant worker), economic freedom,freedom of religion or faith, as well as anumber of fundamental procedural rightssuch as the right to due legal process, theprinciple of confidentiality of correspon-dence between lawyer and client (knownas ‘privileged communications’ in thecommon-law countries), the ban on beingpunished twice for the same offence, andthe requirement to provide justification fora Community legal act.

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One particularly important principle,regularly invoked in disputes with theCommunity, is the principle of equal treat-ment. Put simply, this means that likecases must be treated alike, unless there issome objectively justifiable ground fordistinguishing them. But the Court ofJustice has held, contrary to internationalcustom, that this principle does notpreclude nationals and home-producedgoods from being subjected to stricterrequirements than citizens or productsfrom other Member States. This ‘reversediscrimination’ is the inevitable result ofthe limited scope of the Community’spowers. Under the Court’s judgmentsissued up to now, the Community rulesrequiring liberalisation, which flow fromthe fundamental freedoms, apply only tocross-border trade. Rules regulating theproduction and marketing of home-produced goods or the legal status ofnationals in their own Member State areaffected by Community law only if theCommunity has introduced harmonisationmeasures.

The cases decided by the Court of Justicehave given the Community an extensivebody of quasi-constitutional law. In prac-tical terms, the principle of proportionalityis foremost among these. What this meansis that the objectives pursued and themeans deployed must be weighed up andan attempt made to keep them in properbalance so that the citizen is not subjectedto excessive burdens. Among the otherfundamental principles underlyingCommunity law are the general principlesof administrative law and the concept of

due process: legitimate expectations mustbe protected, retroactive provisionsimposing burdens or withdrawing legiti-mately acquired advantages are precludedand the right to due legal process —natural justice is the traditional term forthis — must be secured in the administra-tive procedures of the Commission andthe judicial procedures of the Court ofJustice. Particular value is also attached togreater transparency, which means thatdecisions should be taken as openly aspossible, and as closely as possible to thecitizen. An important aspect of this trans-parency is that any EU citizen or legalperson registered in a Member State mayhave access to Council or Commissiondocuments.

With all due respect for the achievementsof the Court of Justice in the developmentof unwritten fundamental rights, thisprocess of deriving ‘European funda-mental rights’ has a serious disadvantage:the Court of Justice is confined to theparticular case in point. The result of thiscan be that it is not able to develop funda-mental rights from the general legal princi-ples for all areas in which this appearsnecessary or desirable. Nor will it be ableto elaborate the scope of and the limits tothe protection of fundamental rights asgenerally and distinctively as is necessary.As a result, the Community institutionscannot assess with enough precisionwhether they are in danger of violating afundamental right or not. Nor can anyCommunity citizen who is affected judgein every case whether one of his funda-mental rights has been infringed.

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For a long time, EC accession to the ECHRwas regarded as a way out of this situa-tion. In its Opinion 2/94, however, theCourt held that, as the law now stands, theEC has no competence to accede to theConvention. The Court stated that respectfor human rights was a condition for thelawfulness of Community acts. However,accession to the Convention would entaila substantial change in the presentCommunity system for the protection ofhuman rights in that it would involve theCommunity entering into a distinct inter-national institutional system as well asintegration of all the provisions of theConvention into the Community legalorder. The Court took the view that such amodification of the system for the protec-tion of human rights in the EC, withequally fundamental institutional implica-tions for the Community and for theMember States, would be of constitutionalsignificance and would therefore gobeyond the scope of the dispositive

powers provided for in Article 308 of theEC Treaty.

The only possible way to solve once andfor all the question of fundamental rightsin the EC is to create a body of such rightsapplying specifically to the EU by meansof amendments to the existing EC and EUTreaties. The European Parliament’s‘Declaration of fundamental rights andfreedoms’, which set out a comprehensivecatalogue of human rights, could serve asa basis for this. This is the only way toeffectively enhance the protection ofhuman rights in the EU — assuming, ofcourse, that all Member States are inagreement about the nature and scope ofthese rights. It is quite obvious that thisconsensus has been lacking up to now;the Member States have not gone anyfurther than a general, but neverthelessbinding, commitment to respect and safe-guard fundamental freedoms in thecontext of the EU.

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Every social organisation has a constitu-tion. A constitution is the means by

which the structure of a political system isdefined, i.e. the relationship of the variousparts to each other and to the whole isspecified, the common objectives aredefined and the rules for making bindingdecisions are laid down. The constitutionof the EU, as an association of States towhich quite specific tasks and functionshave been allotted, must thus be able toanswer the same questions as the constitu-tion of a State.

Unlike most of the constitutions of itsMember States, the EU constitution is notlaid down in a comprehensive constitu-tional document, but arises from thetotality of rules and fundamental values bywhich those in authority perceive them-selves to be bound. These rules are to befound partly in the founding Treaties or inthe legal instruments produced by theCommunity institutions, but they also restpartly on custom.

In the Member States the body politic isshaped by two overriding principles: therule of law and democracy. All the activi-ties of the Union, if they are to be true tothe fundamental requirements of law anddemocracy, must have both legal anddemocratic legitimacy: the elements onwhich it is founded, its structure, itspowers, the way it operates, the position

of the Member States and their institutions,and the position of the citizen.

What answers, then, does the Communityorder afford to these questions concerningits structure, its fundamental values and itsinstitutions?

• STRUCTURE OF THE EURO-PEAN UNION: THE ‘THREEPILLARS’

First pillar: the European Communities

The first pillar is made up of the threeEuropean Communities (E(E)C, Euratom,ECSC), which have been deepened andenlarged by economic and monetaryunion. When the EU was established, the‘European Economic Community’ wasrenamed the ‘European Community’. TheEEC Treaty became the EC Treaty. Thischange was intended to give expression tothe transition from a purely economiccommunity to a political union. However,this change of name did not affect thethree existing Communities (ECSC,Euratom, EC) since it did not entail anyformal unification of them. In the courseof the establishment of the EU, some insti-tutions of the EC changed their names.The ‘Council of the European Communi-ties’ has since 8 November 1993 beenreferred to as the ‘Council of the EuropeanUnion’. The ‘Commission of the EuropeanCommunities’ has become the ‘European18

THE ‘CONSTITUTION’ OF THE EUROPEAN UNION

The European Union

19

First pillar: the European Communities

Second pillar: common foreign

and security policy

Third pillar: cooperation in justice

and home affairs

EC•Customs union and

single market•Agricultural policy•Structural policy•Trade policy

New or amendedprovisions on:•EU citizenship•Education and

culture•Trans-European

networks•Consumer protection•Health•Research and

environment•Social policy•Asylum policy•External borders•Immigration policy

EuratomECSC

Foreign policy•Cooperation,

common positionsand measures

•Peacekeeping•Human rights•Democracy•Aid to non-member

countries

Security policy•Drawing on the

WEU: questionsconcerning the security of the EU

•Disarmament•Financial aspects of

defence•Long-term:

Europe’s securityframework

•Cooperation betweenjudicial authorities incivil and criminal law

•Police cooperation•Combating racism and

xenophobia•Fighting drugs and the

arms trade•Fighting organised

crime•Fighting terrorism•Criminal acts against

children, trafficking inhuman beings

Commission’. On 17 January 1994, the‘Court of Auditors’ was renamed the ‘Euro-pean Court of Auditors’. However, thelegal acts of the respective bodies stillconstitute legal acts of the Community atany given time.

The first pillar embodies Community juris-diction in its most highly developed form.Within the framework of the EC, theCommunity institutions may draw uplegislation in their respective areas ofresponsibility which applies directly in theMember States and may claim precedenceover national law. At the heart of the EC isthe single market with its four basic free-doms (free movement of goods, freemovement of workers, freedom to provideservices and free movement of capital andpayments) and its rules on competition.Policy areas for which the Community isresponsible include: economic and mone-tary affairs (centred around the singleEuropean currency, the euro); agriculture;visa requirements, asylum and immigra-tion; transport; taxation; employment;trade; social welfare, education and youthwelfare; culture; consumer protection andhealth; trans-European networks; industry;economic and social cohesion; researchand technology; the environment; anddevelopment aid.

Second pillar: common foreign and security policy

Before the Treaty on European Unioncame into being, political cooperationbetween the Member States was on thebasis of the ‘European political coopera-tion’ (EPC) arrangements set up in 1970,

which were enhanced and expandedupon under the Single European Act in1986/87. These arrangements involvedregular consultations between foreignministers and ongoing contacts betweentheir government departments. The aim ofEPC was to bring about better communi-cation and greater convergence of theMember States’ positions on all majorforeign policy issues and, if possible, ajoint course of action. All decisions had tobe taken unanimously, however. Whensecurity-related issues were involved,cooperation was limited to the politicaland financial aspects. Recent politicalcrises (the Gulf War, the civil war informer Yugoslavia, the break-up of theSoviet Union) made it very apparent thatthis foreign and security policy instrumentwas not sufficient to enable the EU, as thelargest trading power in the world, tobring its weight properly to bear on worldaffairs. In the EU Treaty, the Heads of Stateor Government have now agreed to gradu-ally develop a common foreign and secu-rity policy with the following declaredaims:

• safeguarding the commonly held values,fundamental interests and indepen-dence of the EU;

• strengthening the security of the EU andits Member States;

• securing world peace and increasinginternational security in line with theprinciples set out in the Charter of theUnited Nations, and the principles andaims of the 1975 Helsinki Final Act andthe 1990 Charter of Paris, which in20

1994 were embodied in the Organisa-tion for Security and Cooperation inEurope (OSCE);

• promoting international cooperation;

• promoting democracy and the rule oflaw, and safeguarding human rights andbasic freedoms.

Since the EU is not an individual State,these aims can only be achieved step bystep. Traditionally, foreign and especiallysecurity policy are areas in which theMember States are particularly keen toretain their own (national) sovereignty.Another reason why common interests inthis area are difficult to define is that onlyFrance and the United Kingdom havenuclear weapons. Another problem is thatsome Member States are not in NATO(Ireland, Austria, Finland, Sweden) or theWEU (Denmark, Greece, Ireland). Most‘common foreign and security policy’decisions are therefore still currently takenon the basis of cooperation betweenStates. In the meantime, however, a rangeof tools has emerged in its own right; thiswas reflected in the Treaty of Amsterdamand has acquired a firm legal frameworkthrough cooperation between States. Forexample, decisions of principle are passedin the context of the second (and third)pillars, common positions are set out, jointactions and measures carried out andframework decisions passed. Frameworkdecisions in particular are similar inessence to an EC directive although, likethe other tools available to the EU, they

are not valid or directly applicable in theMember States. Nor can these decisionsand measures be challenged before theEuropean Court of Justice.

Third pillar: cooperation in justiceand home affairs

The aim underlying cooperation betweenpolice and judicial authorities is to affordcitizens freedom, security and justice byjointly preventing and combating crime(especially terrorism, trafficking in humanbeings, illicit drug and arms trafficking,corruption and fraud), racism and xeno-phobia (Articles 29 and 30 EU). The direc-tive on money-laundering and thecreation of a European police authority,Europol, which has been operative since1998, are two very positive steps that havebeen taken.

Judicial cooperation is also concernedwith facilitating and accelerating coopera-tion in relation to proceedings and theenforcement of decisions, facilitatingextradition between Member States, estab-lishing minimum rules relating to theconstituent elements of criminal acts andto penalties in the fields of organisedcrime, terrorism and illicit drug trafficking(Articles 31 and 32 EU).

As with foreign and security policy, coop-eration in this area takes place outside thedecision-making procedures of the EC andon the basis of collaboration betweenindividual countries.

21

• THE LEGAL CHARACTER OFTHE EC AND EU

Any consideration of the legal nature ofthe EC and the EU must start by looking attheir respective characteristic features.

1. The legal character of the EC

The legal nature of the EC was set out intwo precedent-setting judgments by theEuropean Court of Justice in 1963 and1964.

• Van Gend & Loos

In this legal dispute, the Dutch transportcompany Van Gend & Loos filed an actionagainst the Netherlands customs authori-ties for imposing an import duty on achemical product from Germany whichwas higher than duties on earlier imports.The company considered this an infringe-ment of Article 12 of the EEC Treaty (nowArticle 25 of the EC Treaty), whichprohibits the introduction of new importduties or any increase in existing customsduties between the Member States. Thecourt in the Netherlands then suspendedthe proceedings and referred the matter tothe European Court of Justice for clarifica-tion as regards the scope and legal impli-cations of the abovementioned Article ofthe Treaty establishing the EC.

The European Court of Justice used thiscase as an opportunity to set out a numberof findings of a fundamental natureconcerning the legal nature of the EC. Inits judgment, the Court stated that:

‘The objective of the EEC Treaty, which isto establish a common market, the func-tioning of which is of direct concern tointerested parties in the Community,implies that this Treaty is more than anagreement which merely creates mutualobligations between the contractingStates. This view is confirmed by thepreamble to the Treaty, which refers notonly to governments but to peoples. It isalso confirmed more specifically by theestablishment of institutions endowedwith sovereign rights, the exercise ofwhich affects Member States and also theircitizens. The conclusion to be drawn fromthis is that the Community constitutes anew legal order of international law forthe benefit of which the States havelimited their sovereign rights, albeit withinlimited fields, and the subjects of whichcomprise not only Member States but alsotheir nationals.’

• Costa/ENEL

Just a year later, the ‘Costa/ENEL’ casegave the Court an opportunity to set out itsposition in more detail. The facts of thiscase were the following: in 1962, Italynationalised the production and distribu-tion of electricity and transferred the assetsof the electricity undertakings to theNational Electricity Board (ENEL). As ashareholder of Edison Volt, one of thecompanies that was nationalised, MrCosta considered that he had beendeprived of his dividend and consequentlyrefused to pay an electricity bill for ITL 1 926. In proceedings before the arbi-tration court in Milan, one of the argu-ments put forward by Mr Costa to justify22

his conduct was that the nationalisationinfringed a number of provisions of the ECTreaty. In order to be able to assess MrCosta’s submissions in his defence, thecourt requested the European Court ofJustice to interpret various aspects of theEC Treaty. In its judgment, the Court statedthe following in relation to the legal natureof the EC:

‘By contrast with ordinary internationaltreaties, the EEC Treaty has created its ownlegal system which ... became an integralpart of the legal systems of the MemberStates and which their courts are bound toapply. By creating a Community of unlim-ited duration, having its own institutions,its own personality, its own legal capacityand capacity of representation on the

international plane and, more particularly,real powers stemming from a limitation ofsovereignty or a transfer of powers fromthe States to the Community, the MemberStates have limited their sovereign rights ...and have thus created a body of lawwhich binds both their nationals andthemselves.’

On the basis of its detailed observations,the Court reached the following conclu-sion:

‘It follows from all these observations thatthe law stemming from the Treaty, an inde-pendent source of law, could not, becauseof its special and original nature, be over-ridden by domestic legal provisions,however framed, without being deprived 23

of its character as Community law andwithout the legal basis of the Communityitself being called into question. Thetransfer by the States from their domesticlegal system to the Community legalsystem of the rights and obligations arisingunder the Treaty carries with it a perma-nent limitation of their sovereign rights,against which a subsequent unilateral actincompatible with the concept of theCommunity cannot prevail.’

In the light of these judgments, theelements which together typically charac-terise the special legal nature of the ECare:

• the institutional set-up, which ensuresthat action by the EC is also charac-terised by the overall European interest,i.e. is reflected in or influenced by theCommunity interest as laid down in theobjectives;

• the transfer of powers to the Communityinstitutions to a greater degree than withother international organisations, andextending to areas in which Statesnormally retain their sovereign rights;

• the establishment of its own legal orderwhich is independent of the MemberStates’ legal orders;

• the direct applicability of Communitylaw, which makes provisions ofCommunity law fully and uniformlyapplicable in all Member States, andbestows rights and imposes obligationson both the Member States and theircitizens;

• the primacy of Community law, whichensures that Community law may not berevoked or amended by national law,and that it takes precedence overnational law if the two conflict.

The EC is thus an autonomous entity with itsown sovereign rights and a legal order inde-pendent of the Member States, to whichboth the Member States themselves andtheir nationals are subject within the EC’sareas of competence.

2. The legal nature of the EU

The EU is no longer merely a plannedobjective of the integration process, butrather an international organisation in itsown right established by the Treaty ofMaastricht.

What is unusual about this organisation isits function as an ‘umbrella’ for the threeEuropean Communities, its complemen-tary policies and the forms of cooperationbetween the Member States.

The EU’s legal order nevertheless falls along way short of that of the EC. Forexample, the principles of autonomy,direct applicability and primacy ofCommunity law, which are so essential tothe legal order of the EC, do not apply tothe other two pillars of the EU. Instead,these pillars basically consist ofprogrammes and declarations of intentwhich are translated into practice throughcooperation between governments andare deliberately not allowed to go beyondthe preliminary stage of a subsequent,‘institutionalised’ Union. The fact that the24

EU uses the institutions of the EC whencarrying out its tasks does not alter thissituation because, as ‘institutions of theUnion’, these may only act in accordancewith the Treaty on European Union, i.e.only in the context of cooperationbetween the Member States in the secondand third pillars. The Treaty on EuropeanUnion does not constitute an ‘EU constitu-tion’ regulating all aspects of that Union.

3. Distinctness from other types of political organisation

The EC and the EU have, by their verynature, certain features in common withthe usual kind of international organisa-tion or federal-type structure, and anumber of differences.

The EU is itself not yet a ‘finishedproduct’; it is in the process of evolvingand the form it finally takes still cannot bepredicted.

The only feature that the EU has incommon with other international organi-sations is that it, too, came into being as aresult of an international treaty. However,the anchoring of the EC within the EU’sorganisational structure has in itself madethe EU a considerable departure from thetraditional kind of international ties. This isbecause, although the Treaties establishingthe EC were based on internationaltreaties, they led to the creation of inde-pendent Communities with their ownsovereign rights and responsibilities. TheMember States have ceded some of their

sovereign powers to these Communities.In addition, the tasks which have beenallotted to the EC are very different fromthose of other international organisations.While the latter mainly have clearlydefined tasks of a technical nature, the EChas areas of responsibility which togetherconstitute essential attributes of statehood.

Through these differences between the ECand the normal type of internationalorganisation, the EC and thus also the EU,is in the process of acquiring a statussimilar to that of an individual State. Inparticular, the Member States’ partialsurrender of sovereign rights was taken asa sign that the EU was already structuredalong the lines of a federal State.However, this view fails to take intoaccount that the EU’s institutions onlyhave powers in certain areas to pursue theobjectives specified in the Treaties. Thismeans that they are not free to choosetheir objectives in the same way as asovereign State; nor are they in a positionto meet the challenges facing modernStates today. The EU has neither thecomprehensive jurisdiction enjoyed bysovereign States nor the powers to estab-lish new areas of responsibility (‘jurisdic-tion over jurisdiction’).

The EU is therefore neither an interna-tional organisation in the usual sense noran association of States, but rather anautonomous entity somewhere in betweenthe two. In legal circles, the term ‘suprana-tional organisation’ is now used.

25

• THE TASKS OF THE EU

The list of tasks entrusted to the Commu-nity resembles the constitutional order of aState. These are not the narrowly circum-scribed technical tasks commonlyassumed by international organisations,but fields of competence which, taken as awhole, form essential attributes of state-hood.

Under the EC Treaty, the task of the EU is,by establishing a common market thatunites the national markets of the MemberStates and on which all goods and servicescan be offered and sold on the sameconditions as on an internal market, andby the gradual approximation of nationaleconomic policies in all sectors, to weldthe Member States into a community.

The concept of establishing a commonmarket was revitalised by the programmeaimed at completion of the internal marketby 1992. This programme was born of therealisation that, on the one hand, thereremained a series of national obstacles tothe full establishment of the freedoms onwhich the common market is based andthat, on the other, important sectors of theeconomy such as telecommunications andpublic procurement were not included inthe common market. In its White Paper onthe completion of the internal market, theEuropean Commission presented theHeads of State or Government of the(then) 10 Member States in June 1985 withsome 300 proposals for legal instruments,complete with a detailed timetable,designed to remove all intra-Communitybarriers by the end of 1992. At the Milan

Summit in the same year, the Heads ofState or Government entrusted theCommission with the political task ofimplementing the single marketprogramme. However, to achieve in justseven years what the original MemberStates had failed to achieve in nearly threedecades, a mere declaration of politicalintent and the adoption of a programmewas not enough: the substance of Project1992 had to be incorporated into theTreaties of Rome. This was done by theSingle European Act, which added to theE(E)C Treaty various new provisions,including an Article stipulating that theCommunity should take all the necessarymeasures to establish the internal marketprogressively by 31 December 1992(Article 14, ex Article 7a EU, and prior tothat Article 8a EC). In all major respects,this was achieved within the required timeframe, with the Community institutionssucceeding in laying down a legal frame-work for a properly functioning singlemarket. This framework has now beenfleshed out very largely by national trans-position measures, with the result that thesingle market has already become areality. This single market also makes itselffelt in everyday life, especially when trav-elling within the EU, where identitychecks at national borders were long sincediscontinued.

The Treaty on European Union repre-sented a step into a new economic andsocial dimension for the EC. The introduc-tion of the euro (Article 121(4) EU) as thesingle European currency in 11 of the 15Member States (Denmark Sweden and theUnited Kingdom declined to participate,26

whilst Greece is still trying to meet thecriteria for eligibility) on 1 January 1999was another clear sign of the interpenetra-tion of the Member States’ economies andfurther strengthened the EU. As the onlylegal currency within the EU, the eurowill, on 1 January 2002, replace thenational currencies in all general paymenttransactions, thereby becoming thecurrency of all EU citizens. The introduc-tion of the concept of citizenship of theUnion (Article 17 ff. EC) further enhancedthe rights and interests of nationals of theMember States within the EU. Citizensenjoy the right to move freely within theUnion (Article 18 EC), the right to voteand stand as a candidate in municipalelections (Article 19 EC), entitlement toprotection by the diplomatic and consularauthorities of any Member State (Article20 EC), the right to petition the EuropeanParliament (Article 21 EC) and, in thecontext of the general ban on discrimina-tion, the right to be treated by all MemberStates in the same way as they treat theirown nationals (Article 17(2) in conjunc-tion with Article 12 EC). The unemploy-ment situation in the EU, which has beena source of concern for a number of years,has meant that the need to devise anemployment strategy has become apriority task. With this in mind, a separatenew Title relating to employment (TitleVIII, Articles 125–130) was added to theEC Treaty. This calls on the Member Statesand the EC to develop a strategy foremployment and particularly to promote askilled, trained and adaptable workforce,in addition to which labour marketsshould be made adaptable to economicchange. Employment promotion is

regarded as a matter of common concern,and requires Member States to coordinatetheir national measures within theCouncil. The EC will contribute to a highlevel of employment by encouragingcooperation between Member States and,if necessary, complementing their actionwhile respecting their competences.

The EU Treaty also provides for new poli-cies and forms of cooperation on foreignand security policy, and on police andjudicial cooperation.

• THE POWERS OF THE EU

Neither the Treaties establishing the ECnor the Treaty on European Union conferon the Community and its institutions anygeneral power to take all measures neces-sary to achieve the objectives of theTreaty, but lay down in each chapter theextent of the powers to act (principle ofspecific conferment of powers). Thismethod has been chosen by the MemberStates in order to ensure that the surrenderof their own powers can be more easilymonitored and controlled. The range ofmatters covered by the specific confer-ments of power varies according to thenature of the tasks allotted to the EC andEU.

In the EC, the scope of the powers is veryfar-reaching. For instance, in the commontransport policy any appropriate provi-sions may be enacted (Article 75(1) EC)and in agricultural policy (Article 34(2)EC) and in the sphere of freedom of move-ment of workers (Article 40 EC) all neces-sary measures may be taken. On the other 27

hand in competition law (Article 81 ff.EC), culture and education (Articles 150and 151 EC), public health and consumerprotection (Articles 152 and 153 EC) andenvironment policy (Article 175 EC), thescope for discretion on the part of theCommunity and its institutions is limitedby narrowly defined conditions.

In addition to these special powers to act,the Community Treaties also confer on theinstitutions a power to act when thisproves necessary to attain one of theobjectives of the Treaty (Article 308 EC,Article 203 Euratom, Article 95(1) ECSC —subsidiary power to act). These articles donot, however, confer on the institutionsany general power enabling them to carryout tasks which lie outside the objectiveslaid down in the Treaties, and thesubsidiarity principle further debars theCommunity institutions from extendingtheir powers to the detriment of those ofthe Member States. In practice, the possi-bilities afforded by this power have beenused with increasing frequency since theEC has, over time, been faced repeatedlywith new tasks that were not foreseen atthe time the founding Treaties wereconcluded, and for which accordingly noappropriate powers were conferred in theTreaties. Examples are the protection ofthe environment and of consumers, thenumerous research programmesconcluded since 1973 outside the Euro-pean Atomic Energy Community, or theestablishment of a European RegionalFund as a means of closing the gapbetween the developed and underdevel-oped regions of the Community. Now,however, the Single European Act and the

EU Treaty specifically give the Communityjurisdiction in the abovementioned fields.These specific provisions on the powers ofthe EC have meant that the practicalimportance of the subsidiary power to acthas very much declined.

Finally, there are further powers to takesuch measures as are indispensable for theeffective and meaningful implementationof powers that have already beenexpressly conferred (implied powers).These powers have acquired a specialsignificance in the conduct of externalrelations. They enable the Community toassume obligations towards non-membercountries or other international organisa-tions in fields covered by the list of tasksentrusted to the Community. Anoutstanding example is provided by the‘Kramer’ case decided by the Court ofJustice. This case concerned the Commu-nity’s capacity to cooperate with interna-tional organisations in fixing fishing quotasand, where considered appropriate, toassume obligations on the matter underinternational law. Since there was nospecific provision laid down in the ECTreaty, the Court inferred the necessaryexternal competence of the Communityfrom its internal competence for fisheriespolicy under the common agriculturalpolicy.

But the exercise of these powers by the ECis governed by the subsidiarity principle,taken over from Roman Catholic socialdoctrine, which has acquired virtuallyconstitutional status through beingembodied in the EC Treaty (Article 5).There are two facets to it: the affirmative28

statement that the EC must act where theobjectives to be pursued can be betterattained at Community level, whichenhances its powers; and the negativestatement that it must not act where objec-tives can be satisfactorily attained by theMember States acting individually, whichconstrains them. What this means in prac-tice is that all Community institutions, butespecially the Commission, must alwaysdemonstrate that there is a real need forCommunity rules and common action. Toparaphrase Montesquieu, when it is notnecessary for the Community to takeaction, it is necessary that it should takenone. If the need for Community rules isdemonstrated, the next question that arisesconcerns the intensity and the form thatthey should take. The answer flows fromthe principle of proportionality that hasentered Community law through the deci-sions of the Court of Justice. It means thatthe need for the specific legal instrumentmust be thoroughly assessed to seewhether there is a less constraining meansof achieving the same result. The mainconclusion to be reached in general termsis that framework legislation, minimumstandards and mutual recognition of theMember States’ existing standards shouldalways be preferred to excessivelydetailed Community rules. The applica-

tion of the subsidiarity principle wasfurther clarified in a Protocol annexed tothe Treaty of Amsterdam. The Protocol setsout all the procedural and materialrequirements deriving from the principleof subsidiarity which have to be met bythe Community’s legal acts. Very specificcriteria for the application of this principlenow exist, and at the same time theCommunity institutions’ task of monitoringcompliance with it has been made easier.

Under the second and third pillars of theEU (common foreign and security policy,and cooperation between police and judi-cial authorities in criminal matters) thepowers of the Community institutions arelimited to encouraging and supportingcollaboration agreed on between theMember States themselves in the Council.There has been no transfer — either inwhole or in part — of powers from theMember States to the Community institu-tions; instead, the Member States remaindirectly responsible for their joint foreignand security policy and for cooperationbetween their police and judicial authori-ties in fighting crime. They have neverthe-less also given undertakings to cooperatefurther and pursue joint courses of actionat EU level while working within theCommunity’s institutional framework.

29

• THE INSTITUTIONS OF THE EU

30

European Court of Justice15 Judges

European Council15 Heads of State orGovernment and the

President of the Commission

Court of Auditors15 members

Committee of theRegions

222 members

Council of the EU15 ministers

European Commission20 members

European Parliament626 members

Economic and SocialCommittee

222 members

GermanyFranceItalyUnited KingdomSpainBelgiumGreeceNetherlandsPortugalAustriaSwedenDenmarkIrelandFinlandLuxembourg

1010101085555443332

11.3611.3611.3611.369.095.685.685.685.684.544.543.413.413.412.27

21.9615.6315.3915.7510.532.722.814.162.662.162.371.410.971.370.11

222221111111111

Percentage of total votes

Votes inthe Council

of Ministers

Percentage of total population

Members of theCommission

European InvestmentBank

European Central Bank

The third question arising in connectionwith the constitution of the EuropeanCommunity is that of its organisation.What are the institutions of the Commu-nity? Since the Community exercises func-tions normally reserved for States, does ithave a government, a parliament, admin-istrative authorities and courts like thosewith which we are familiar in the MemberStates? Action on the tasks assigned to theCommunity and the direction of the inte-gration process was intentionally not leftto Member States or to international coop-eration. The EC has an institutional systemthat equips it to give new stimuli andobjectives to the unification of Europe andto create a body of Community law that isuniformly devised and applied in all theMember States.

The main actors on the Community stageare the European Council and the EC insti-tutions — the European Parliament, theCouncil of the EU, the European Commis-sion, the European Court of Justice and theCourt of Auditors. There are also a numberof ancillary bodies: the European CentralBank and the European Investment Bank,and also the Economic and SocialCommittee and the Committee of theRegions. Of these institutions the Court ofJustice and Parliament, or ‘Assembly’ as itused to be called, were from the outsetcommon to the three Communities. Thiswas provided for in a Convention betweenthe original six Member States that wassigned in 1957 at the same time as theRome Treaties. The process of creatingcommon institutions was completed inJuly 1967 by the Treaty establishing asingle Council and a single Commission of

the European Communities (the ‘MergerTreaty’). Since then all three Communitieshave had one and the same institutionalstructure.

European Council (Article 4 EU)

The European Council grew out of theSummit Conferences of Heads of State orGovernment. At the Paris Summit inDecember 1974 it was decided that meet-ings should be held three times a year anddescribed as the European Council. In1987, the Single European Act (Article 23)formally incorporated the EuropeanCouncil in the Community’s institutionalset-up. It is now a body of the EuropeanUnion (Article 4 EU).

The Heads of State or Government and thePresident of the Commission meet at leasttwice a year in this context. They areaccompanied by the Foreign Ministers anda Member of the Commission (Article 4(2)EU).

The function of the European Council is toestablish policy guidelines for Europeanintegration in relation to both the EC andthe EU. In the Community context, it doesso by taking basic policy decisions andissuing instructions and guidelines to theCouncil or the Representatives of theMember States meeting in the Council.The European Council has in this waydirected work on economic and monetaryunion, the European Monetary System,direct elections to Parliament and anumber of accession applications.

31

European Parliament (Articles 189–201 EC)

Under the Treaties, the European Parlia-ment (EP) represents the peoples of theMember States of the Community (Article189(1) EC). It is an amalgamation of theECSC joint assembly, the EEC assemblyand the Euratom assembly, which werecombined to form an ‘Assembly’ under the1957 convention on certain institutionscommon to the European Communities(first Merger Treaty). The name was notofficially changed to ‘European Parlia-ment’ until the EC Treaty was amended bythe Treaty on European Union, althoughthis step merely reflected what wasalready common usage dating back to theAssembly’s own change of its name to‘European Parliament’ in 1958.

• Composition and election

The EP is currently made up of 626 ‘repre-sentatives of the peoples of the MemberStates of the Community’. The number ofseats may not exceed 700.

Before 1979 these representatives wereselected from the membership of nationalparliaments and delegated by them. Thedirect general election of MEPs by thepeoples of the Member States wasprovided for in the Treaties, but the firstdirect elections were not held until June1979, a number of earlier initiativeshaving been fruitless. Elections are nowheld every five years, which correspondsto the length of a ‘legislative period’, butthere is still no uniform electoral proce-dure as required by the Treaties. As in

1979, national systems continued to beused in the most recent direct elections inJune 1999. The United Kingdom, forexample, retained its ‘first-past-the-post’system for European elections until 1994and only joined the other Member Statesin 1999 elections in using proportionalrepresentation.

The composition of Parliament is shown ingraphic form on page 34; this is the situa-tion following the most recent elections in1999.

The President, Vice-Presidents andQuaestors make up the Bureau, which iselected by Parliament for terms of two anda half years. Another body, the Conferenceof Presidents, also includes the chairmenof the political groups and is responsiblefor the organisation of Parliament’s work,relations with the other EU institutions andwith non-Union institutions.

The allocation of a given number of seatsto each country means that, in purelymathematical terms, Germany has oneMEP for every 808 000 citizens whereasLuxembourg has one representative inParliament for about every 60 000 citi-zens.

Now that it is directly elected, Parliamentenjoys democratic legitimacy and cantruly claim to represent the people of theCommunity. But the mere existence of adirectly elected Parliament cannot satisfythe fundamental requirement of a demo-cratic constitution, which is that all publicauthority must emanate from the people.That does not only mean that the decision-32

33

making process must be transparent andthe decision-making institutions represen-tative; parliamentary control is required,and Parliament must lend legitimacy tothe Community institutions involved in thedecision-making process. It is precisely inthis respect that the current organisation ofthe Community leaves something to bedesired, despite the progress made overrecent years. It is therefore rightlydescribed as a still underdevelopeddemocracy. The European Parliamentpossesses only a few of the functions of atrue parliament in a parliamentary democ-racy. Firstly, it does not elect a govern-ment. This is simply because no govern-ment in the normal sense exists atCommunity level. Instead, the functionsanalogous to government provided for inthe Treaties are performed by the Counciland the Commission, according to a formof division of labour. Nevertheless, the EUTreaty gave Parliament the power to influ-ence appointments to the Commissionand the appointment of its President (‘rightof investiture’). However, Parliament hasno influence over the membership of theCouncil. The Council is subject to parlia-mentary control only in so far as each ofits members, as a national minister, isanswerable to the national parliament.

• Tasks

Parliament’s functions can be divided upinto three areas, as follows.

Decision-making functions. Parliament’srole in the decision-making process wasconsiderably strengthened by the intro-duction of two new legislative procedures,

namely the cooperation procedure (intro-duced by the Single European Act in1987; Article 252 EC) and the co-decisionprocedure (introduced by the Treaty onEuropean Union in 1993; Article 251 EC),both of which will be considered ingreater detail in the section on theCommunity legislative process. These twoprocedures enable Parliament to not onlyput forward amendments to Communitylegislation at various readings and, withincertain limits, get them accepted by theCouncil, but also to act as a co-legislatoron an equal footing with the Council inthe context of the co-decision procedure.

Traditionally, Parliament has also played amajor role in the budgetary procedure. Forexample, it has the final say on ‘non-mandatory EC expenditure’, i.e. expendi-ture not specifically provided for underCommunity rules: the institutions’ admin-istrative expenses (especially the ‘opera-tional expenditure’ on the structuralfunds), research policy, energy policy,transport policy or environmental protec-tion. This expenditure accounts for almosthalf the EC budget (46.3 % in 1999). Italso has a decisive influence on the waythe Community develops in that it is adetermining factor (among others) asregards progress and consolidation offundamental Community policies (such associal, regional, research, environmentaland transport policy) and is a basic pre-requisite for new policy measures in thefields of education or consumer protec-tion, for example. Parliament may makechanges to the way in which this expendi-ture is allocated and, within limits, mayincrease its overall amount. This ensures

34

27

1630

4248

5018

0233

EUROPEAN PARLIAMENT

President14 Vice-Presidents and 5 Quaestors

Group of the European People’s Party, EPP (Christian Democrats), and European Democrats

Group of the Party of European Socialists, PES

Non-attached

As at September 1999.

Group of the European Liberal,Democrat and Reform Party, ELDR

The Green Group in theEuropeanParliament/European FreeAlliance, GREENS/EFA

Confederal Group ofthe European UnitedLeft/Nordic Green Left,GUE/NGL

Union for a Europe ofNations, UEN

Group for a Europe of Democracies and Diversities, EDD

17 committees carryout the preparatorywork for the plenarysessions

D99

F87

I87

UK87

E64

NL31

B25

EL25

P25

S22

A21

DK16

FIN16

IRL15

L6

626

35

1. AFET: Committee on foreign affairs, human rights, common security anddefence policy

2. BUDG: Budgets

3. CONT: Budgetary control

4. LIBE: Citizens’ freedoms and rights, justice and home affairs

5. ECON: Economic and monetary affairs

6. JURI: Legal affairs and the internal market

7. INDU: Industry, external trade, research and energy

8. EMPL: Employment and social affairs

9. ENVI: Environment, public health and consumer policy

10. AGRI: Agriculture and rural development

11. PECH: Fisheries

12. REGI: Regional policy, transport and tourism

13. CULT: Culture, youth, education, the media and sport

14. DEVE: Development and cooperation

15. AFCO: Constitutional affairs

16. FEMM: Women’s rights and equal opportunities

17. PETI: Petitions

17 committees carry out the preparatory work for the plenary sessions

that Parliament exerts a considerableinfluence on how funds are earmarked forCommunity policies financed by means ofnon-mandatory expenditure. The otherhalf of the EC budget consists of ‘compul-sory expenditure’, i.e. expenditure whichis mandatory under Community rules(which basically means expenditure onthe common agricultural policy). Parlia-ment may propose amendments relatingto this expenditure. Provided that theoverall ceiling is not exceeded, theseamendments are deemed accepted unlessthe Council rejects them by a qualifiedmajority. Finally, Parliament is also enti-tled to reject the entire budget, and isresponsible for granting formal dischargefor the Commission’s budget managementfor the previous year.

Parliament has a right of assent to allmajor international Treaties (Article 300(3)EC) and to the accession Treatiesconcluded with new Member States layingdown the conditions of admission (Article49 EU). Parliament ’s assent is alsorequired for the appointment of the Presi-dent and members of the Commission,any amendments to the Statute of theEuropean Central Bank, and also for thedecision on the standard procedure forParliamentary elections.

Advisory functions. Parliament exercisesadvisory functions primarily through theTreaty provisions requiring it to beconsulted by the Council and theCommission (mandatory consultation) oron the basis of optional consultation. Upuntil the introduction of the cooperationand co-decision procedures, this consulta-

tion ensured that Parliament was involvedin the only Community legislative proce-dure existing at the time, namely theproposal procedure. Before a decision waspassed by the Council, Parliament had toor could give its views. Now that theactual instances in which the proposalprocedure is used have, as we will see,become less common, Parliament’s advi-sory functions have tended to give way toits decision-making functions, at least asfar as the formal legislative procedure isconcerned.

Supervisory functions. Parliament hassupervisory powers only over theCommission. These are exercised mainlythrough the fact that the Commissionmust answer parliamentary questions,defend its proposals before Parliamentand present it with an annual report onthe activities of the Communities fordebate. Parliament can, by a two-thirdsmajority of its members, pass a motion ofcensure and thereby compel theCommission to resign as a body (Article201 EC). Five motions of censure have sofar been tabled (most recently in January1999), three of which were put to thevote and rejected. Since the Treaty onEuropean Union came into being, thismotion of censure has increased inimportance in that, by virtue of the rightof investiture granted by the EU Treaty,Parliament is involved in the appoint-ment of the Commission which has beenthe object of its criticisms. Since in prac-tice the Council also answers parliamen-tary questions, Parliament has the oppor-tunity for direct political debate with thetwo law-making institutions. The Treaty36

on European Union substantially boostedParliament’s supervisory powers. It isnow also empowered to set up specialcommittees of inquiry to look specifi-cally at alleged cases of infringement ofCommunity law or maladministration. Acommittee of this kind was used, forexample, to look into the Commission’sresponsibility for the delay in respondingto ‘mad cow disease ’ in the UnitedKingdom, which represented a threat tohuman life and health. Also written intothe Treaties is the right of any natural orlegal person to address petit ions toParliament, which are then dealt with bya standing committee on peti t ions.Finally, Parliament has also made use ofits power to appoint an Ombudsman towhom complaints about maladministra-tion in the activities of Community insti-tutions or bodies, with the exception ofthe Court of Justice, can be referred. TheOmbudsman may conduct enquiries andmust inform the insti tution or bodyconcerned of such action, and mustsubmit to Parliament a report on theoutcome of the inquiries.

• Working procedures

The basic rules governing the workings ofParliament are set out in its Rules ofProcedure.

The MEPs form political groups. GivenParliament’s status as a Community insti-tution, these are Community-wide party-political groupings that cut across nationallines.

Parliament also has 17 standing commit-tees. The members of the Commission ortheir representatives must appear beforethe relevant committee for their area ofresponsibility in order to provide clarifica-tion about Commission decisions, docu-ments for the Council and the positionadopted by the Commission in theCouncil. This gives the committees awide-ranging insight into the activities ofthe Commission and, given that the detailsof Commission meetings are not usuallymade public, Parliament thus acquires fullaccess even to what is sometimes confi-dential information. The committees arethus able to monitor the Commissioneffectively. They are also responsible forpreparing Parliament’s opinions onproposals from the Commission, Parlia-ment’s proposed amendments to any‘common position ’ drawn up by theCouncil, and Parliament’s resolutionsdrawn up on its own initiative. With this inmind, the Committees regularly consultindependent experts or representatives ofthe organisations or economic sectorsconcerned.

Parliament holds its week-long plenarysessions in Strasbourg once every month,except in August. Additional sessions mayalso be held, particularly in connectionwith the budget. Shorter emergencysessions (lasting one or two days) may beheld in Brussels to deal with current majorissues, enabling Parliament to set out itsposition on matters of importance (such asCommunity affairs, international affairs,violations of human rights, etc.). Allplenary sessions are open to the public.

37

• Decision-making

An absolute majority of the votes cast isusually sufficient for a decision to be taken.As Parliament increases in importance,however, the Treaty imposes ever stricterrequirements as regards MEPs’ attendance.The Treaty now provides for a whole rangeof decisions which may only be adopted ifsupported by an absolute majority of allMembers of Parliament. Following theincrease in the number of MEPs to 626, thismajority will in future be 314 votes. Finally,any motion of censure against the Commis-sion must not only be backed by a majorityof MEPs but also requires two-thirds of thevotes cast to be in favour.

• Seat

The Edinburgh European Council agreedthat Parliament’s seat was to be in Stras-bourg and thus ended the provisionalstatus of an arrangement that had been inplace for 30 years. It had become estab-lished practice for plenary sessions to beheld in Strasbourg and Brussels, meetingsof the political groups and committees tobe held in Brussels during weeks whenParliament was not sitting, and for Parlia-ment’s Secretariat-General to be based inLuxembourg. The decision on the locationof the seats of the institutions taken at theEdinburgh European Council confirmedthe validity of these arrangements subjectto the proviso that the 12 periods ofmonthly plenary sessions should be heldin Strasbourg. However, there is still atendency within Parliament for anincreasing number of plenary meetings tobe held in Brussels, and it is therefore not

absolutely certain that Strasbourg willnecessarily be the venue for all 12sessions each year. Indeed, the decisiontaken at the Edinburgh European Councilin principle allows sessions to be held atlocations other than Strasbourg, i.e.primarily in Brussels.

Council of the European Union(Articles 202–210 EC)

• Composition and Presidency

The Council is made up of representativesof the governments of the Member States.All 15 Member States send one or morerepresentatives — as a rule, though notnecessarily, the departmental or juniorminister responsible for the matters underconsideration. It is important that theserepresentatives are empowered to act withbinding effect on their governments. Thevery fact that governments may be repre-sented in various way obviously meansthat there are no permanent members ofthe Council; instead, the representativessitting in the Council vary according to thesubject under discussion. The Council ofForeign Ministers, which normally meetsonce a month, functions as a ‘GeneralAffairs Council’ to deal with general policyquestions. In addition, the various Coun-cils of Ministers meet around 80 times ayear to deal with matters in their respec-tive areas of competence, which arereferred to in the names by which they areknown: Ecofin Council (Council ofEconomics and Finance Ministers),Council of Agriculture Ministers, Councilof Transport Ministers, Council of Minis-

38

39

COMPOSITION OF THE COUNCIL

One representative of each Member State at ministerial level,with composition varying according to the subject discussed, for example:

General AffairsCouncil

Economic andFinancial Affairs(Ecofin) Council

Transport Council Agriculture Council

Permanent Representatives Committee‘Coreper I and II’

Special Committee for Agriculture

Working groups

General Secretariat (approximately 2 200 officials)

Tasks

Drawing uplegislation

Coordination ofeconomic policy

Budgetarycontrol

Appointments Externalrelations

ters for Social Affairs, Council of Environ-ment Ministers, etc.

The Presidency of the Council is held inturn by each Member State for six months.The order in which the office of Presidentis held is decided unanimously by theCouncil on the basis of the principle thatlarge and small Member States shouldalternate. The Presidency changes handson 1 January and 1 July each year. In1999, it was first of all held by Germany,which was succeeded by Finland. In2000, it is the turn of Portugal and France.Given this fairly rapid ‘turnover ’, amodicum of continuity is ensured by the‘troika’ consisting of the previous, currentand next incumbents. The Presidency ismainly responsible for overall coordina-tion of the work of the Council and thecommittees providing it with input. It isalso important in political terms in that theMember State holding the EU Presidencyenjoys an enhanced role on the worldstage, and small Member States in partic-ular are thus given an opportunity to rubshoulders with the ‘major players’ andmake their mark in European politics.

The seat of the Council is in Brussels.

• Tasks

In the EC and Euratom, the Council’s maintask is to lay down and implement legisla-tion (Article 202 EC). With regard to theECSC, on the other hand, it is anendorsing body that has to deal with afew, especially important, decisions. TheCouncil is also responsible for ensuringcoordination of the economic policies of

the Member States (Article 202 EC). Actionin this field may take the form of non-binding resolutions or legally bindingdecisions. The Council’s powers in thisarea were considerably strengthened andtheir scope broadened as a result of movestowards the creation of a Europeaneconomic and monetary union asprovided for in the EU Treaty. Forexample, the Council’s powers to enforceits ‘broad guidelines of economic policies’were enhanced in that a procedure wasintroduced under which it may makerecommendations to any Member Statewhose economic policies are inconsistentwith those guidelines (Article 99(4) EC).The Council may also issue ‘warnings’ andeven impose ‘sanctions’ (Article 104(9)and (11) EC). It also establishes the draftbudget on the basis of the preliminarydraft from the Commission (Article 272(3)EC), issues a recommendation to Parlia-ment on giving discharge to the Commis-sion in respect of the implementation ofthe budget (Article 276(1) EC), and isresponsible for appointing the members ofthe Court of Auditors, the Economic andSocial Committee and the Committee ofthe Regions. In addition, the Council is thesupreme administrative authority for allofficials and servants of the EC, and isresponsible for concluding agreementsbetween the Community and non-membercountries or international organisations(Articles 300 and 310 EC).

• Working procedures

The Council’s working procedures are setout in detail in its rules of procedure. In40

practice, the Council’s activities are basi-cally made up of three stages, as follows.

1. Preparation for Council meetings

Preparatory work for Council meetings iscarried out by two permanent bodieswithin its organisational structure: thePermanent Representatives Committeeand the General Secretariat.

The Permanent RepresentativesCommittee, which is referred to asCoreper, a contraction of its French titleComité des représentants permanents,prepares the ground for the Council’s workand performs the tasks assigned to it bythe Council. To enable it to carry out thesetasks, it is divided up into Coreper I(comprising the Deputy Permanent Repre-sentatives and primarily responsible forpreparatory work on more technicalmatters dealt with by the various Councils)and Coreper II (comprising the PermanentRepresentatives themselves and basicallyresponsible for all policy matters). Agricul-ture is the one area not subject to this divi-sion of tasks; a Special Committee forAgriculture (also known by its Frenchabbreviation CSA — Comité spécial del’agriculture) was set up in 1960 andassumed Coreper’s tasks on agriculturalmatters.

Preparations for Council meetings byCoreper and the CSA are of two kinds:firstly, efforts are made to reach agreementat committee level, in connection withwhich the committees can draw on theassistance of around 100 permanentsector-specific working groups within the

Council. They may also call on theservices of ad hoc groups which areassigned to deal with a particular problemwithin a specified period. Secondly,preparatory work must ensure that theissues to be discussed and decided on atCouncil meetings have been worked outin advance, and that the Council membersare properly briefed. These dualapproaches are reflected in the agenda ofmeetings: issues on which it was possibleto reach agreement are referred to as ‘Aitems’ and those questions which areundecided and need to be discussedfurther are known as ‘B items’ (see below).

The General Secretariat provides adminis-trative assistance to the Council (and alsoCoreper and the CSA). In particular, ithandles the technical side of preparationsfor meetings of the Council, is in charge ofproviding interpretation facilities (therepresentatives of the Member Statesspeak in their own languages), ensuresthat any required translations areprovided, provides legal advice to theCouncil and the committees, and adminis-ters the Councils’s budget.

2. Meetings of the Council

Meetings of the Council are convened byits President (the representative of theMember State holding the Presidency ofthe Council) on his own initiative, at therequest of one of its members, or at therequest of the Commission. The Presidentdraws up a provisional agenda for eachmeeting, consisting of a Part A and a PartB. Part A contains all items on whichagreement has been reached in Coreper or 41

the CSA and which can be adoptedwithout further debate. Part B containsthose items with outstanding issues anddifferences of opinion which need furtherdebate by the Council members them-selves. It is possible that, in the course of ameeting, an A item turns into a B item if aCouncil member or the Commissionpresses for a discussion when the A item isin the process of being adopted. The itemconcerned is then removed from theagenda and appears as a B item at asubsequent meeting.

The Council only discusses and reachesdecisions on documents and drafts whichare available in all 11 official languages. Ifa matter is urgent, this rule may bedispensed with by unanimous agreement.This also applies to proposals for amend-ments tabled and discussed in the courseof a meeting.

Apart from the meetings at which the Pres-idency presents its six-monthly workprogramme and the Commission itsannual work programme, Council meet-ings are not open to the public.

It is in the Council that the individualinterests of the Member States and theoverall Community interest are balanced.Even though the Member States defendtheir interests in the Council, its membersare at the same time obliged to take intoaccount the objectives and needs of theCommunity as a whole. The Council is aCommunity institution and not an inter-governmental conference. Consequently itis not the lowest common denominatorbetween the Member States that is sought

in the Council’s deliberations, but ratheran optimum balance between theCommunity’s and the Member States’interests.

3. Decision-making

Under the Community Treaties, majorityvoting in the Council is the rule. Unlessotherwise specified, a simple majority issufficient, and each member of theCouncil has one vote. Normally, however,the Treaties provide for ‘other arrange-ments’, namely qualified majority voting,whereby votes are weighted so that largerMember States have a greater influence.

The importance of majority voting lies notso much in the fact that it prevents smallStates from blocking important decisions,as such States could normally be broughtinto line by political pressure. What themajority principle actually does is to makeit possible to outvote large Member Statesthat would withstand political pressure. Inwhat has become known as the ‘IoanninaCompromise’, however, a safety-net wasintroduced for the benefit of the ‘large’Member States in the event of smallmajorities in a Council in which thenumber of ‘small’ Member States willprobably increase in the future. If Councilmembers accounting for 23 to 25 votesstate that they will oppose a decisionadopted by a qualified majority, theCouncil must, within an appropriateperiod, do everything in its power to find asatisfactory solution which can beapproved with at least 65 votes in favour.In addition, the Luxembourg Agreementremains a major political factor, at least as42

43

THE COUNCIL: WEIGHTING OF VOTES

10 Germany10 France10 Italy10 United Kingdom8 Spain5 Belgium5 Greece5 Netherlands

5 Portugal4 Austria4 Sweden3 Denmark3 Ireland3 Finland2 Luxembourg

Qualified majority: 62/87

far as voting practice is concerned. Itgrants the right to veto a Communitymeasure in cases where a Member Stateconsiders that its vital national interestsare at stake. This was used to solve a crisiswhich arose in 1965 when France, afraidthat its national interests in the financingof the common agricultural policy werethreatened, blocked decision-making inthe Council for over six months by a‘policy of the empty chair’.

In the case of decisions to be taken inespecially sensitive political areas, theTreaties require unanimity, which meansthat all members of the Council must bepresent or represented by other members.The adoption of a decision cannot beblocked by means of abstentions.Unanimity is required for decisions ontaxes, the free movement of workers, orthe rights and obligations of employees.

1 Belgium1 Denmark2 Germany1 Greece2 Spain2 France1 Ireland2 Italy

1 Luxembourg1 Netherlands1 Austria1 Portugal1 Finland1 Sweden2 United Kingdom

20 Membersincluding

1 President2 Vice-Presidents

Responsibilities

European Commission (Articles 211–219 EC)

• Composition (Articles 213 and 214 EC)

Since the accession of Austria, Finlandand Sweden on 1 January 1995, theCommission has consisted of 20 members(two members each from Germany,France, the United Kingdom, Italy andSpain, and one from each of the otherMember States). The number of membersmay be changed by a unanimous decisionof the Council.

The Commission is headed by a Presidentwho is assisted by two Vice-Presidents.The Treaty of Amsterdam considerablystrengthened the President’s positionwithin the Commission. He is no longer

‘first among equals’ and enjoys a promi-nent position in that the Commission mustwork ‘under the political guidance’ of itsPresident (Article 219(1) EC). The Presi-dent thus has a ‘power to provide guid-ance’, which is reflected in his organisa-tional responsibilities, his right to take partin the selection of the other members ofthe Commission, and his membership ofthe European Council.

The members of the Commission areappointed ‘by common accord’ of thegovernments of the Member States for arenewable term of five years. Here theinvestiture procedure provided for in theEU Treaty comes into play, whereby thegovernments of the Member States mustseek Parliament’s approval of any personthey are envisaging appointing as

44

COMPOSITION OF THE EUROPEAN COMMISSION

Initiatives for thefurther development ofCommunity policy

Monitoring observanceand proper applicationof Community law

Administering andimplementingCommunity legislation

Representing theCommunity ininternationalorganisations

Commission President (Article 214(2) EC).In agreement with the President-designatethey then designate the other members ofthe Commission. The President andmembers of the Commission are thensubject as a body to a vote of approval byParliament. Once Parliament has given itsapproval, they are then appointed by thegovernments of the Member States.Members of the Commission can servemore than one term of office.

The members of the Commission must bechosen ‘on the grounds of their generalcompetence’ and be ‘completely indepen-dent in the performance of their duties’(Article 213(2) EC). They may neither seeknor take instructions from any govern-ment.

The seat of the European Commission is inBrussels.

• Tasks

The Commission is first of all the ‘drivingforce’ behind Community policy. It is thestarting point for every Community action,as it is the Commission that has to presentproposals and drafts for Community legis-lation to the Council (this is termed theCommission’s right of initiative). TheCommission is not free to choose its ownactivities. It is obliged to act if theCommunity interest so requires. TheCouncil (Article 208 EC) and Parliament(Article 197(2) EC) may also ask theCommission to draw up a proposal. Underthe ECSC Treaty, however, the Commis-sion also has law-making powers. Incertain circumstances these are subject to

the assent of the Council, which enables itto overrule Commission measures. Underthe EC Treaty and the Euratom Treaty, theCommission has primary powers toinitiate legislation in certain areas (such asthe EC budget, the Structural Funds,measures to tackle tax discrimination, theprovision of funding, and safeguardclauses). Much more extensive, however,are the powers for the implementation ofCommunity rules conferred on theCommission by the Council (Article 202,third indent, EC).

The Commission is also the ‘guardian ofthe Community Treaties’. It monitors theMember States’ application and imple-mentation of primary and secondaryCommunity legislation, institutes infringe-ment proceedings in the event of anyviolation of Community law (Article 226EC) and, if necessary, refers the matter tothe Court of Justice. The Commission alsointervenes if Community law is infringedby any natural or legal person andimposes heavy penalties. Over the last fewyears, efforts to prevent abuse of Commu-nity rules have become a major part of theCommission’s work.

Closely connected with the role ofguardian is the task of representing theCommunity’s interests. As a matter of prin-ciple, the Commission may serve no inter-ests other than those of the Community. Itmust constantly endeavour, in what oftenprove to be difficult negotiations withinthe Council, to make the Communityinterest prevail and seek compromisesolutions that take account of that interest.In so doing, it also plays the role of medi- 45

ator between the Member States, a role forwhich, by virtue of its neutrality, it isparticularly suited and qualified.

Lastly, the Commission is — albeit to alimited extent — an executive body. Thisis especially true in the field of competi-tion law where the Commission acts as anormal administrative authority, checkingfacts, granting approval or issuing bansand, if necessary, imposing penalties. TheCommission’s powers in relation to theStructural Funds and the EC budget aresimilarly wide-ranging. As a rule,however, it is the Member States them-selves that have to ensure that Communityrules are applied in individual cases. Thissolution, chosen by the Treaties, has theadvantage that citizens are brought closerto what is still to many of them the

‘foreign’ reality of the European systemthrough the workings, and in the familiarform, of their own national system.

The Commission represents the Commu-nity in international organisations and is incharge of the day-to-day running ofCommunity diplomatic missions outsideand within the EU. On the basis of powersconferred on it by the Council, theCommission is responsible for negotiatingagreements with international organisa-tions and non-member countries,including accession treaties with applicantStates. The Commission represents theCommunity in the courts of the MemberStates and — possibly together with theCouncil — before the European Court ofJustice.

46

47

ADMINISTRATIVE STRUCTUREOF THE EUROPEAN COMMISSION

Economic and Financial Affairs DG

Enterprise

Competition DG

Employment and Social Affairs DG

Agriculture DG

Transport DG

Environment DG

Research DG

Joint Research Centre

Information Society DG

Fisheries DG

Internal Market DG

Regional Policy DG

Energy DG

Taxation and Customs Union DG

Education and Culture DG

Health and Consumer Protection DG

Justice and Home Affairs DG

External Relations DG

Trade DG

Development DG

Enlargement DG

Common Service for External Relations

Humanitarian Aid Office

Eurostat

Personnel and Administration DG

Inspectorate General

Budget DG

Financial Control DG

European Anti-Fraud Office

Joint Interpreting and Conference

Service

Translation Service

Publications Office

Commission (20 members)Cabinets

Secretariat General

Legal Service

Press and Communication Service

European Court of Justice and Courtof First Instance (Articles 220–245 EC)

A system will endure only if its rules aresupervised by an independent authority.What is more, in a community of Statesthe common rules — if they were subject

to control by the national courts — wouldbe interpreted and applied differently fromone State to another. The uniform applica-tion of Community law in all MemberStates would thus be jeopardised. Theseconsiderations led to the establishment ofa Community Court of Justice as soon asthe ECSC was created.

48

COMPOSITION OF THE EUROPEAN COURT OF JUSTICE

Actions for failure to fulfil

obligations under the Treaties:

Commission v Member State

(Article 226);

Member State v Member State

(Art. 227)

Actions for annulment

and actions on grounds

of failure to act

brought by a Community

institution or a Member State in

connection with an illegal act

or failure to act

(Articles 230 and 232)

Cases referred from national

courts for preliminary rulings

to clarify the meaning and

scope of Community law

(Article 234)

Governments of theMember States appoint the

15 Judgesand

8 (9) Advocates-Generalby common accord for

a term of six years

Types of proceeding

The Court of Justice currently consists of15 Judges and 8 (9) Advocates Generalwho are appointed ‘by common accord ofthe governments of the Member States’ fora renewable term of six years. EachMember State sends one Judge. In order toensure a degree of continuity, partialreplacement of half the Judges and Advo-cates General takes take place every threeyears at the beginning of the judicial yearon 6 October.

The Court is assisted by eight AdvocatesGeneral whose term of office correspondsto that of the Judges; they enjoy judicialindependence. Four of the eight Advo-cates General are always from the ‘large’Member States (Germany, France, Italyand the United Kingdom) and theremaining four come from the remainingMember States on an alternating basis.The office of the ninth Advocate Generalwas only created for the period from 1January 1995 to 6 October 2000. This wasbecause the accession of Austria, Swedenand Finland led to there being an oddnumber of Judges (15), which in turnmeant that the additional Judge requiredwhen there were 12 Member States couldno longer be retained. For this reason, thesecond Italian Judge, who had only beenappointed as the 13th Judge in October1994 for a term of six years, was made anAdvocate General. The office of AdvocateGeneral is clearly based on that of theCommissaire du Gouvernement in theCouncil of State (Conseil d’État) andadministrative courts in France. It wasintroduced in the Court to counterbalancethe ‘single-tier’ nature of court proceed-ings, i.e. the absence of any appeal proce-

dures. the task of the Advocates General isto submit ‘opinions’ to the Court in theform of (non-binding) proposals for aCourt decision based on a fully indepen-dent and non-partisan survey of the ques-tions of law raised in the case concerned.The opinions are an integral part of theoral procedure (Article 59(1) and (2) of therules of procedure of the Court of Justice)and are published together with the judg-ment in the Court reports. AdvocatesGeneral can only influence judgmentthrough the strength of the arguments intheir opinions; they are not involved inany deliberations or voting on the judg-ment.

• Selection of Judges and AdvocatesGeneral

The Judges and Advocates General arechosen from persons whose independenceis beyond doubt, and who possess thequalifications required for appointment tothe highest judicial offices in their respec-tive countries or who are legal experts ofrecognised competence (Article 223(2)EC). This means that Judges, public offi-cials, politicians, lawyers or universitylecturers from Member States may beappointed. The variety of professionalbackgrounds and experience is beneficialto the Court in that it helps to provide ascomprehensive an assessment as possibleof both the theoretical and practicalaspects of the facts and points of law thathave to be considered. In all MemberStates, the choice of who should beproposed by the government for appoint-ment as a Judge or Advocate General, andthe procedure by which this is done, is a 49

50

matter for the executive. The proceduresdiffer greatly and range from the not-very-transparent to the totally impenetrable.

• Procedure

When a case has been referred to theCourt, the President appoints a JudgeRapporteur who, until a final judgment isissued, is responsible for taking the neces-sary decisions and proposing solutions inthe course of the proceedings. Thisincludes the proposal as to the formationin which the Court should hear the caseand give judgment. The Court sits in thefollowing possible formations: the fullCourt (15 Judges), the ‘small plenum’ (11Judges), two chambers of 7 Judges (ofwhich only 5 pass judgment)s and 4chambers of 3 or 4 Judges (of which only3 pass judgment).

Apart from the cases which, if a MemberState or Community institution sorequests, must be heard by the full Court,the decision on which chamber will heara case is taken when the written proce-dure is completed and the report of theJudge-Rapporteur and the views of theAdvocate General have been considered.This decision is taken in accordance withinternal rules laying down certain criteria,among which the legal complexity, theexistence of firmly established precedents,and the financial implications of proceed-ings are of crucial importance. A case maybe referred back to the plenary Court atany time — even during or followingdeliberations on judgment. If this happens,however, the oral procedure is reopenedbefore the full Court.

• Tasks

The European Court of Justice is thehighest and at the same time the sole judi-cial authority in matters of Communitylaw. In general terms, its task is to ‘ensurethat in the interpretation of (the) Treaty thelaw is observed’ (Article 220 EC).

This general description of responsibilitiesencompasses three main areas:

1. monitoring the application of Commu-nity law, both by the Community insti-tutions when implementing the Treaties,and by the Member States and individ-uals in relation to their obligationsunder Community law;

2. interpretation of Community law;

3. further shaping of Community law.

In carrying out these tasks, the Court’swork involves both legal advice and adju-dication. Legal advice is provided in theform of binding opinions on agreementswhich the EU wishes to conclude withnon-member countries or internationalorganisations. Its function as a body forthe administration of justice is much moreimportant, however. In exercising thatfunction, it operates in matters that in theMember States would be assigned todifferent types of court, depending on thenational system. The Court of Justice actsas a constitutional court when disputesbetween Community institutions arebefore it or legislative instruments are upfor review for legality; as an administrativecourt when reviewing the administrative 51

acts of the Commission or of nationalauthorities applying Community legisla-tion; as a labour court or industrialtribunal when dealing with freedom ofmovement, social security and equalopportunities; as a fiscal court whendealing with matters concerning thevalidity and interpretation of directives inthe fields of taxation and customs law; asa criminal court when reviewing Commis-sion decisions imposing fines; and as acivil court when hearing claims fordamages or interpreting the Brusselsconvention on the enforcement of judg-ments in civil and commercial matters.

Like all courts, the European Court ofJustice is overburdened. The number ofcases referred to it has increased steadilyand will continue to grow, given thepotential for disputes that has beencreated by the huge number of directiveswhich have been adopted in the contextof the single market and transposed intonational law in the Member States. Thesigns are already there that the Treaty onEuropean Union has raised further ques-tions which will ultimately have to besettled by the Court. This is why, in 1988,a Court of First Instance (CFI) was estab-lished under the Single European Act totake the pressure off the Court of Justice.

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COMPOSITION OF THE COURT OF FIRST INSTANCE

Actions for annulment andcomplaints of failure to actfiled by natural and legalpersons on the grounds of

illegality or absence ofCommunity legal acts(Articles 230 and 232)

Actions for damageson the grounds of contractual or

non-contractual liability(Articles 235 and 288(1) and (2))

Actions by Community staff(Article 236)

Governments of the Member States appoint the15 Judges

by common accord for a term of six years

Types of proceeding

The CFI is not a new Community institution butrather a constituent component of the Court ofJustice. Nevertheless, it is an autonomous bodyseparate from the Court of Justice in organisa-tional terms. It has its own registry and rules ofprocedure. Cases handled by the CFI are identi-fied by means of a ‘T’ ( for tribunal), whilst thosereferred to the Court of Justice are coded with a‘C’( for court) (e.g. C-1/99).

The CFI consists of 15 members whose qualifica-tions, appointment and legal status are subject tothe same requirements and conditions as Judgesat the Court of Justice. Although their main func-tion is to sit as ‘Judges’, they may also beappointed as ‘advocates general’ on an ad hocbasis in cases before the full Court, or in casesbefore one of the chambers if the facts of the caseor its legal complexity require this. This facilityhas been used very sparingly up to now.

The CFI may sit as a full Court (15 Judges) or infive chambers of 5 Judges or five chambers of 3Judges. Cases are heard by the full Court only inexceptional circumstances; it is usually the cham-bers which hear cases and give judgment.

Although the CFI was originally responsible foronly a limited range of cases, a review of itsresponsibilities carried out in 1993 means that itis now the court of first instance for all directactions against Community legal acts brought bynatural and legal persons, albeit subject to thelegal supervision of the Court of Justice.

Court of Auditors (Articles 246–248 EC)

The European Court of Auditors was set up bythe Treaty of 22 July 1975 and began work inLuxembourg in 1977. It consists of 15

Members, corresponding to the presentnumber of Member States; they are appointedfor six years by the Council following consul-tation with the European Parliament.

The Court of Auditors’ task is to examinewhether all revenue has been received and allexpenditure incurred in a lawful and regularmanner and whether financial managementhas been sound. Unlike the courts of auditorsor similar bodies in the Member States, it hasno jurisdiction to enforce its control measuresor to investigate suspicions of irregularityarising from its investigations. However, it iswholly autonomous in its decisions regardingwhat it examines and how. It can, forinstance, examine whether the use made ofCommunity financial support by private indi-viduals is in compliance with Communitylaw.

The chief weapon in armoury of the Court ofAuditors is the fact that it can publicise itsfindings. The results of its investigations aresummarised in an annual report at the end ofeach financial year, which is published in theOfficial Journal of the European Communitiesand thus brought to public attention. It mayalso make special reports on specific areas offinancial management, and these are alsopublished.

Other institutions

Economic and Social Committee (Articles 257–262 EC)

The purpose of the Economic and SocialCommittee (ESC) is to give the variouseconomic and social groups (especiallyemployers and employees, farmers, 53

carriers, businessmen, craftsmen, theprofessions and managers of small andmedium-sized businesses) representationin a Community institution. It alsoprovides a forum for consumers, environ-mental groups and associations.

The ESC is made up of 222 members(advisors), drawn from representativeorganisations in the individual MemberStates, who are appointed by the Council(following an opinion from the Commis-sion) for four years.

The allocation of seats is:

Belgium 12Denmark 9Germany 24Greece 12Spain 21France 24Ireland 9Italy 24Luxembourg 6Netherlands 12Austria 12Portugal 12Finland 9Sweden 12United Kingdom 24

The members are divided up into threegroups (employers, workers and ‘variousinterests’). Opinions to be adopted atplenary sessions are drawn up by ‘studygroups’ consisting of ESC members (inwhich their alternates may also participateas experts). The ESC also works closelywith the committees of the EuropeanParliament.

The ESC, which was established under theTreaty, must in certain circumstances beconsulted by the Council acting on aproposal from the Commission. It alsoissues opinions on its own initiative. Theseopinions represent a synthesis of some-times very divergent viewpoints and arevery useful for the Commission and theCouncil because they show what changesthe groups directly affected by a proposalwould like to see. The ESC’s own-initiativeopinions have on a number of occasionshad considerable political implications,one example being that of 22 February1989 on basic social rights in the Commu-nity, which provided the basis for the‘Social Charter’ proposed by the Commis-sion (and adopted by 11 of the MemberStates).

Committee of the Regions (Articles 263–265 EC)

A new advisory body was set up alongsidethe ESC by the EU Treaty: the Committeeof the Regions (COR). Like the ESC, it isnot strictly a Community institution, as itsfunction is purely advisory and it has nopower to produce legally binding deci-sions in the same way as the fully fledgedinstitutions (Council, Parliament, Commis-sion, Court of Justice, Court of Auditors).

Like the ESC, the Committee of theRegions consists of 222 representatives ofregional and local authorities in theMember States. Seats are allocated to theMember States using the same weightingas for the ESC. The members areappointed by the Council for four yearsacting unanimously on proposals from the54

respective Member States (and followingan opinion from the Commission).

There are a number of areas in whichconsultation by the Council or theCommission, is required (‘mandatoryconsultation’): education; culture; publichealth; trans-European networks; trans-port, telecommunications and energyinfrastructure; economic and social cohe-sion; employment policy; and social legis-lation. The Council also consults theCommittee regularly, but without any legalobligation, in connection with variousdraft legislation (‘non-mandatory consulta-tion’).

European Investment Bank (Articles 266–267 EC)

As financing agency for a ‘balanced andsteady development’ of the commonmarket, the Community has at its disposalthe European Investment Bank, whichprovides loans and guarantees in alleconomic sectors, especially to promotethe development of less-developedregions, to modernise or convert undertak-ings or create new jobs and to assistprojects of common interest to severalMember States.

European Central Bank (Articles 105–115 EC)

The European Central Bank (ECB) is at theheart of economic and monetary union(EMU). Its task is to maintain the stabilityof the European currency, the euro, andcontrol the amount of currency in circula-tion (Article 106 EC).

In order to carry out its task, the ECB’sindependence is guaranteed by numerouslegal provisions. When exercising theirpowers or carrying out their tasks andduties, neither the ECB, nor a nationalcentral bank, may take instructions fromCommunity institutions, governments ofMember States or any other body. TheCommunity institutions and the MemberStates’ governments will not seek to influ-ence the ECB (Article 108 EC).

The ECB consists of a Governing Counciland an Executive Board. The GoverningCouncil comprises the governors of thenational central banks and the members ofthe Executive Board of the ECB. The Exec-utive Board, which is made up of the Pres-ident, the Vice President and four othermembers, is effectively in charge ofrunning the ECB. Its President andmembers are appointed from amongpersons of recognised standing and expe-rience in monetary or banking matters bycommon accord of the governments of theMember States, on a recommendationfrom the Council after it has consulted theEuropean Parliament. Their term of officeis eight years which, in the interests ofensuring the independence of the Execu-tive Board members, is not renewable(Article 112 EC).

The European System of Central Banks(ESCB) is composed of the ECB and of thecentral banks of the Member States(Article 107 EC). It has the task of definingand implementing the monetary policy ofthe Community, and has the exclusiveright to authorise the issue of banknotesand coins within the Community. It also 55

holds and manages the official foreignreserves of the Member States and

promotes the smooth operation ofpayments systems (Article 105(2) EC).

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The constitution of the EU describedabove, and particularly the funda-

mental values it embodies, can be broughtto life and given substance only throughCommunity law. This makes the EU alegal reality in two different senses: it iscreated by law and it is a communitybased on law.

• THE EU AS A CREATION OF LAW AND A COMMUNITYBASED ON LAW

The European Union is an entirely newcreation which is distinguished fromearlier efforts to unite Europe in that itworks, not by means of force or domina-tion, but simply by means of law. Law isintended to succeed where ‘blood andiron’ have for centuries failed. For onlyunity based on a freely made decision canbe expected to last: unity founded onfundamental values such as freedom andequality, and protected and translated intoreality by law. That is the insight under-lying the Treaties that created the Euro-pean Communities and the EuropeanUnion.

The EU is not merely a creation of law; italso pursues its objectives purely bymeans of law. It is a Community based onlaw. The common economic and sociallife of the peoples of the Member States isgoverned not by the threat of force but bythe law of the Community. This is the

basis of the institutional system. It laysdown the procedure for decision-makingby the Community institutions and regu-lates their relationship to each other. Itprovides the institutions with the means —in the shape of regulations, general ECSCdecisions, directives, ECSC recommenda-tions and individual decisions — ofenacting legal instruments binding on theMember States and their citizens. Thus theindividual himself becomes a main focusof the Community. Its legal order directlyaffects his daily life to an ever-increasingextent. It accords him rights and imposesduties on him, so that as a citizen both ofhis State and of the Community he isgoverned by a hierarchy of legal orders —a phenomenon familiar from federalconstitutions. Like any legal order, that ofthe Community provides a self-containedsystem of legal protection for the purposeof recourse to and the enforcement ofCommunity law. Community law alsodefines the relationship between theCommunity and the Member States. TheMember States must take all appropriatemeasures to ensure fulfilment of the obli-gations arising from the Treaties orresulting from action taken by the institu-tions of the Community. They must facili-tate the achievement of the Community’stasks and abstain from any measure thatcould jeopardise the attainment of theobjectives of the Treaties. The MemberStates are answerable to the citizens of theEU for any harm caused by violations ofCommunity law.

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THE COMMUNITY LEGAL ORDER

• THE LEGAL SOURCES OFCOMMUNITY LAW

The term ‘legal source’ is ambiguous: in itsoriginal meaning, it refers to the reason forthe emergence of a legal provision, i.e. themotivation behind the creation of a legalconstruct. According to this definition, the‘legal source’ of Community law is the willto preserve peace and create a betterEurope through closer economic ties —the two cornerstones of the EC. In legalparlance, on the other hand, ‘legal source’refers to the origin and embodiment of thelaw.

Sources of Community law

1. Primary legislation:– Treaties establishing the

Communities– General principles of law

2. The EC’s international agreements

3. Secondary legislation:– (Implementing) regulations– Directives/ECSC recommendations– General and individual decisions

4. General principles of administrative law

5. Conventions between the Member States

The founding Treaties as the primarysource of Community law

The first source of Community law in thissense is the three Treaties, with the variousannexes and protocols attached to them,and later additions and amendments, i.e.the founding legal acts of the EC and EU.The founding Treaties and instrumentsamending and supplementing them —chiefly the Single European Act, thevarious accession treaties and the Treatieson European Union — contain the basicprovisions on the EC’s objectives, organi-sation and modus operandi, and the bulkof its economic law. They thus set theconstitutional framework for the life of theEC, which is then fleshed out in theCommunity interest by legislative andadministrative action by the Communityinstitutions. The Treaties, being legalinstruments created directly by theMember States, are known in legal circlesas primary legislation.

The Community legal instruments asthe secondary source of Communitylaw

Law made by the Community institutionsin exercising the powers conferred onthem by the Treaties is referred to assecondary legislation, the second greatsource of Community law.

It consists primarily of the legal acts listedand defined in Article 249 of the ECTreaty, Article 161 of the Euratom Treatyand Article 14 of the ECSC Treaty. Asbinding legal acts, these include both

58

general and abstract legal provisions onthe one hand and specific, individualmeasures on the other. They also providefor the Community institutions to issuenon-binding statements.

These lists are not exhaustive, however.Secondary legislation also encompassesother legal acts which do not fit into cate-gories. Foremost among these are legalacts regulating the internal workings of theCommunity or its institutions, such asagreements or arrangements betweenCommunity institutions or bodies, orinternal rules of procedure. The prepara-tion and public announcement ofCommunity action programmes shouldalso be mentioned here. There are consid-erable differences between legal actsunder secondary Community legislation interms of the procedures involved, theirlegal effect and those to whom they areaddressed; these differences will be dealtwith in more detail in the section on theCommunity’s range of tools.

The creation of secondary Communitylegislation is a gradual process. The emer-gence of secondary legislation lendsvitality to the Community’s ‘constitution’deriving from primary legislation, andprogressively generates and enhances theEuropean legal order.

International agreements

A third source of Community law has todo with the EC’s role at international level.As one of the focal points of the world,Europe cannot confine itself to managing

its own internal affairs; it has to concernitself with economic, social and politicalrelations with the world outside. TheCommunity therefore concludes agree-ments in international law with non-member countries and with other interna-tional organisations; these range fromtreaties providing for extensive coopera-tion in trade or in the industrial, technicaland social fields, to agreements on tradein particular products.

Three kinds of agreement between theCommunity and non-member countriesare particularly worth mentioning.

Association agreements

Association goes far beyond the mereregulation of trade and involves closeeconomic cooperation and wide-rangingfinancial assistance from the EC for thecountry concerned (Article 310 (ex Article238) EC). A distinction may be drawnbetween three different types of associa-tion agreement.

• Agreements that maintain special linksbetween certain Member States andnon-member countries.

One particular reason for the creation ofthe association agreement was the exis-tence of overseas countries and territorieswith which some of the founding MemberStates maintained particularly close ties asa legacy of their colonial past. The intro-duction of a common external tariff in theCommunity would have seriouslydisrupted trade with these countries, 59

which meant that special arrangementswere needed so that the system of unre-stricted Community trade could beextended to them. At the same time, tariffson goods originating in these countrieswere progressively dismantled. Financialand technical assistance from the Commu-nity was channelled through the EuropeanDevelopment Fund.

• Agreements as preparation for accession to the Community or for theestablishment of a customs union.

Association arrangements are also used inthe preparation of countries for possiblemembership of the Community. Thearrangement serves as a preliminary stagetowards accession during which the appli-cant country can work on converging itseconomy with that of the Community. Thisproved successful in the case of Greece,which was associated with the Commu-nity from 1962. Another association agree-ment with a view to future accession wasconcluded with Turkey in 1964. The‘Europe Agreements’ with Poland,Hungary, the Czech Republic, Slovakia,Bulgaria, Romania, Slovenia and the threeBaltic States (Lithuania, Estonia and Latvia)make it clear that Community member-ship is the ultimate goal for these countriesmaking the transition to a marketeconomy. The purpose of the associationwith them is to help them meet the condi-tions required for membership within theforeseeable future. The EC has establishedcustoms unions with Malta (1971), Cyprus(1973) and Turkey (1996).

• Agreement on the European EconomicArea (EEA)

The EEA Agreement brings the (remaining)EFTA States (Norway, Iceland, Switzerlandand Liechtenstein) into the internal marketand, by requiring them to incorporatenearly two thirds of the EC’s legislation,lays a firm basis for subsequent accession.In the EEA, on the basis of the acquiscommunautaire (the body of primary andsecondary Community legislation), there isto be free movement of goods, persons,services and capital, uniform rules oncompetition and State aid, and closercooperation on horizontal and flankingpolicies (environment, research and devel-opment, education).

Cooperation agreements

Cooperation agreements are not as far-reaching as association agreements, beingaimed solely at intensive economic coop-eration. The Community has such agree-ments with the Maghreb States (Morocco,Algeria and Tunisia), the Mashreq States(Egypt, Jordan, Lebanon and Syria) andIsrael, for instance (Article 300 EC).

Trade agreements

The Community also has a considerablenumber of trade agreements with indi-vidual non-member countries, groupingsof such countries or with internationaltrade organisations relating to tariffs andtrade policy. The most important tradeagreements are: the Agreement estab-lishing the World Trade Organisation(WTO Agreement) and the multilateral60

trade agreements deriving from it,including in particular the General Agree-ment on Tariffs and Trade (GATT 1994),the Antidumping and Subsidies Code, theGeneral Agreement on Trade in Services(GATS), the Agreement on Trade-RelatedAspects of Intellectual Property Rights(TRIPS) and the Understanding on Rulesand Procedures Governing the Settlementof Disputes.

Sources of unwritten law

The sources of Community law describedso far share a common feature in that theyall produce written law. Like all systems oflaw, however, the Community legal ordercannot consist entirely of written rules:there will always be gaps which have tobe filled by unwritten law.

General principles of law

The sources of unwritten Community laware the general principles of law. Theseare rules reflecting the elementaryconcepts of law and justice that must berespected by any legal system. WrittenCommunity law for the most part dealsonly with economic and social matters,and is only to a limited extent capable oflaying down rules of this kind, whichmeans that the general principles of lawform one of the most important sources oflaw in the Community. They allow gaps tobe filled and questions of the interpreta-tion of existing laws to be settled in thefairest way.

These principles are given effect when thelaw is applied, particularly in the judg-

ments of the Court of Justice, which isresponsible for ensuring that ‘in the inter-pretation and application of this Treaty thelaw is observed’. The main points of refer-ence for determining the general princi-ples of law are the principles common tothe legal orders of the Member States.They provide the background againstwhich Community rules can be devel-oped.

Alongside the principles of autonomy,direct applicability and the primacy ofCommunity law, other legal principlesinclude the guarantee of basic rights, theprinciple of proportionality, the protectionof legitimate expectations, the right to aproper hearing and the principle that theMember States are liable for infringementsof Community law.

Legal custom

Unwritten Community law also encom-passes legal custom. This is understood tomean a practice which has been followedand accepted and thus become legallyestablished, and which adds to or modifiesprimary or secondary legislation. Thepossible establishment of legal custom inCommunity law is acknowledged in prin-ciple. There are considerable limitationson its becoming established in the contextof Community law, however. The firsthurdle is the existence of a special proce-dure for the amendment of the Treaties(Article 48 EU). This does not rule out thepossible emergence of legal custom, but itdoes make the criteria according to whicha practice is deemed to have been 61

followed and accepted for a substantialperiod much harder to meet. Anotherhurdle to the establishment of legalcustom in the Community institutions is

the fact that any action by an institutionmay derive its validity only from theTreaties, and not from that institution’sactual conduct or any intention on its part

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to create legal relations. This means that,at the level of the Treaties, legal customcan under no circumstances be estab-lished by the Community institutions; atmost, only the Member States can do this— and then only subject to the stringentconditions mentioned above. Practicesfollowed and accepted as part of the lawby Community institutions may, however,be drawn on when interpreting the legalrules laid down by them, which mightalter the legal implications and scope ofthe legal act concerned. However, theconditions and limitations arising fromprimary Community legislation must alsobe borne in mind here.

Agreements between the MemberStates

The final source of Community lawcomprises agreements between theMember States. Agreements of this kindmay be concluded for the settlement ofissues closely linked to the Community’sactivities, but no powers have been trans-ferred to the Community institutions; thereare also full-scale international agree-ments (treaties and conventions) betweenthe Member States aimed especially atovercoming the drawbacks of territoriallylimited arrangements and creating lawthat applies uniformly throughout theCommunity (Article 293 EC). This isimportant primarily in the field of privateinternational law. These agreementsinclude: the convention on jurisdictionand the enforcement of judgments in civiland commercial matters (1968), theconvention on the mutual recognition of

companies and legal persons (1968), theconvention on the elimination of doubletaxation in connection with the adjust-ment of transfers of profits between associ-ated enterprises (1990), the convention onthe law applicable to contractual obliga-tions (1980) and the convention on theCommunity patent (1989).

• THE COMMUNITY’S RANGEOF TOOLS

The system of legislative acts had to bedevised afresh when the Community wasset up. It had to be decided first and fore-most what forms Community legislationshould take and what effects these shouldhave. The institutions had to be able toalign the disparate economic, social andnot least environmental conditions in thevarious Member States, and do so effec-tively, i.e. without depending on the good-will of the Member States, so that the bestpossible living conditions could becreated for all the citizens of the Commu-nity. On the other hand, they were not tointerfere in the domestic systems of lawany more than necessary. The Communitylegislative system is therefore based on theprinciple that where the same arrange-ment, even on points of detail, must applyin all Member States, national arrange-ments must be replaced by Communitylegislation, but where this is not necessarydue account must be taken of the existinglegal orders in the Member States.

Against this background a range of toolswas developed that allowed the Commu- 63

nity institutions to impact on the nationallegal systems to varying degrees. The mostdrastic action is the replacement ofnational rules by Community ones. Thereare also Community rules by which theCommunity institutions act on theMember States’ legal systems only indi-rectly. Measures may also be taken thataffect only a defined or identifiableaddressee, in order to deal with a partic-ular case. Lastly, provision was also madefor legal acts that have no binding force,either on the Member States or on the citi-zens of the Community. These basic cate-gories of legal act are to be found in allthree Community Treaties. There aredifferences in the actual form they take,and in their titles, between the ECSCTreaty on the one hand and the EC and theEuratom Treaties on the other. The ECSCTreaty makes provision for only three typesof legal act: decisions, recommendationsand opinions (Article 14 ECSC); the EC

and Euratom Treaties provide for fiveforms: regulations, directives, decisions,recommendations and opinions (Article249 EC and Article 161 Euratom). Thechanges in the pattern arose because itwas recognised that the forms developedfor the ECSC would not adequately meetthe needs of the EC and Euratom. The newtitles were intended to avoid the concep-tual shortcomings in the legal actsprovided for in the earlier Treaty. It wasfelt that the distinctions between the twosets of concepts would simply have to betolerated until the merger of the threeCommunities, which was to take place ata later date.

If we look at the range of Community legalinstruments in terms of the person towhom they are addressed and their prac-tical effects in the Member States, they canbe broken down as follows:

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ECSC Treaty EC Treaty Euratom Treaty

Article 14 Article 249 Article 161

Decisions (general) Regulation Regulation

Recommendation Directive Directive

Decision (individual) Decision Decision

Recommendation Recommendation

Opinion Opinion Opinion

Regulations and ECSC general decisions

The legal acts that enable the Communityinstitutions to encroach furthest on thedomestic legal systems are regulations inthe EC and Euratom Treaties, and generaldecisions in the ECSC Treaty. Two featuresvery unusual in international law markthem out.

• Their Community character, whichmeans that they lay down the same lawthroughout the Community, regardless ofinternational borders, and apply in full inall Member States. A Member State has nopower to apply a regulation incompletelyor to select only those provisions of whichit approves as a means of ensuring that aninstrument which it opposed at the time ofits adoption or which runs counter to itsperceived national interest is not giveneffect. Nor can it set up provisions or prac-tices of domestic law to preclude themandatory application of a regulation.

• Direct applicability, which means thatthe legal acts do not have to be transposedinto national law but confer rights orimpose duties on the Community citizenin the same way as national law. TheMember States and their governing institu-tions and courts are bound directly byCommunity law and have to comply withit in the same way as with national law.

The similarities between these legal actsand statute law passed in individualMember States are unmistakable. If theyare enacted with the involvement ofParliament (as part of the co-decision

procedure — see next section), they maybe described as ‘European legislation’.Parliament has no responsibility for regu-lations and general decisions, which areonly enacted by the Council or theCommission and thus, from a proceduralpoint of view at least, they lack the essen-tial characteristics of legislation of thiskind.

Directives and ECSC recommendations

The EC/Euratom directive, which has theECSC recommendation as its equivalent, isthe most important legislative instrumentalongside the regulation. Its purpose is toreconcile the dual objectives of bothsecuring the necessary uniformity ofCommunity law and respecting the diver-sity of national traditions and structures.What the directive aims for, then, is notthe unification of the law, which is theregulation’s purpose, but its harmonisa-tion. The idea is to remove contradictionsand conflicts between national laws andregulations or gradually iron out inconsis-tencies so that, as far as possible, the samematerial conditions obtain in all theMember States. The directive is one of theprimary means deployed in building thesingle market.

A directive is binding on the MemberStates as regards the objective to beachieved but leaves it to the nationalauthorities to decide on how the agreedCommunity objective is to be incorpo-rated into their domestic legal systems.The reasoning behind this form of legisla-

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tion is that it allows intervention indomestic economic and legal structures totake a milder form. In particular, MemberStates can take account of specialdomestic circumstances when imple-menting Community rules. What happensis that the directive does not supersede thelaws of the Member States but places theMember States under an obligation toadapt their national law in line withCommunity rules. The result is a two-stagelaw-making process.

First, at the Community stage, the directivelays down the objective that is to beachieved by any or all Member State(s) —or even by an individual Member State inthe case of ECSC recommendations — towhich it is addressed within a specifiedtime-frame. The Community institutionscan actually spell out the objective in suchdetailed terms as to leave the MemberStates with scant room for manoeuvre, andthis has in fact been done in directives ontechnical standards and environmentalprotection.

Second, at the national stage, the objec-tive set at Community level is translatedinto actual legal or administrative provi-sions in the Member States. Even if theMember States are in principle free todetermine the form and methods used totranspose their Community obligationsinto domestic law, Community criteria areused to assess whether they have done soin accordance with Community law. Thegeneral principle is that a legal situationmust be generated in which the rights andobligations arising from the directive can

be recognised with sufficient clarity andcertainty to enable the Community citizento rely on or, if appropriate, challengethem in the national courts. This normallyinvolves enacting mandatory provisions ofnational law or repealing or amendingexisting rules. Administrative custom on itsown is not enough since it can, by its verynature, be changed at will by the authori-ties concerned; nor does it have a suffi-ciently high profile.

Apart from cases where ECSC recommen-dations are specifically addressed to afirm, directives and ECSC recommenda-tions addressed to one or more MemberStates do not as a rule directly conferrights or impose obligations on theCommunity citizen. They are expresslyaddressed to the Member States alone.Rights and obligations for the citizen flowonly from the measures enacted by theauthorities of the Member States to imple-ment the directive or recommendation.This point is of no importance to thecitizen as long as the Member States actu-ally comply with their Community obliga-tions. But there are disadvantages for theCommunity citizen where a Member Statedoes not take the requisite implementingmeasures to achieve an objective set in adirective or recommendation that wouldbenefit him, or where the measures takenare inadequate. The Court of Justice hasrefused to tolerate such disadvantages,and a long line of cases has determinedthat in such circumstances the Communitycitizen can plead that the directive orrecommendation has direct effect inactions in the national courts to secure the

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rights conferred by it. Direct effect isdefined by the Court as follows:

• the provisions of the directive or ECSCrecommendation must lay down therights of the EU citizen/firm with suffi-cient clarity and precision;

• the alleged rights are not conditional;

• the national authorities may not begiven any room for manoeuvreregarding the content of the rules to beenacted;

• the time allowed for implementation ofthe directive/ECSC recommendation hasexpired.

The decisions of the Court of Justiceconcerning direct effect are based on thegeneral view that the Member State isacting equivocally and unlawfully if itapplies its old law without adapting it tothe requirements of the directive orrecommendation. This is an abuse ofrights by the State and the recognition ofdirect effect of the directive seeks tocombat it by ensuring that the Statederives no benefit from its violation ofCommunity law. Direct effect thus has theeffect of penalising the offending MemberState. In that context it is significant thatthe Court of Justice has applied the prin-ciple solely in cases between a citizen anda Member State, and then only when thedirective was for the citizen’s benefit andnot to his detriment — in other wordswhen the citizen’s position under the lawas amended under the directive was morefavourable than under the old law (knownas ‘vertical direct effect’). The direct effect

of directives/ECSC recommendations inrelations between citizens themselves(‘horizontal direct effect’) has not beenaccepted by the Court of Justice. TheCourt concludes from the punitive natureof the principle that it is not applicable torelations between private individuals sincethey cannot be held liable for the conse-quences of the State’s failure to act. Whatthe citizen needs to rely on is certainty inthe law and the protection of legitimateexpectations. The citizen must be able tocount on the effect of a directive beingachieved by national implementationmeasures.

Nevertheless, once the period allowed fortransposition has expired, the directivesacquire full legal force and effect in thatall State bodies are obliged to interpretand apply national law in accordancewith the directives (‘interpretation in linewith Community law’).

In its judgments in Francovich and Boni-faci in 1991, the European Court of Justicewent further, holding that Member Statesare liable to pay damages where loss issustained by reason of failure to transposea directive in whole or in part. Both caseswere brought against Italy for failure totranspose Directive 80/987/EEC on theprotection of employees in the event ofthe employer’s insolvency, which soughtto protect the employee’s rights to remu-neration in the period preceding insol-vency and dismissal on grounds of insol-vency. To that end, guarantee funds wereto be established with protection fromcreditors; they were to be funded byemployers, the public authorities, or both. 67

The problem facing the Court was that,although the aim of the directive was toconfer on employed workers a personalright to continued payment of remunera-tion from the guarantee funds, this rightcould not be given direct effect by thenational courts, meaning that they couldnot enforce it against the national authori-ties, since in the absence of measures

transposing the directive the guaranteefund had not been established and it wasnot possible to ascertain who was thedebtor in connection with the insolvency.The Court finally held that, by failing toimplement the directive, Italy haddeprived the employed workers in ques-tion of their rights and was accordinglyliable to damages. Even if the duty to68

compensate is not written into Communitylaw, the Court of Justice sees it as an inte-gral part of the Community legal ordersince its full effect would not be securedand the rights conferred by it would not beprotected if Community citizens did nothave the possibility of seeking andobtaining compensation for invasion oftheir rights by Member States acting incontravention of Community law.

Individual decisions

A third category of Community legal actsconsists of EC or Euratom decisions andindividual ECSC decisions. In some casesthe Community institutions may them-selves be responsible for implementing theTreaties, or regulations and general ECSCdecisions, and this will be possible only ifthey are in a position to take measuresbinding on particular individuals, firms orMember States. The situation in theMember States’ own systems is more orless the same; legislation will be appliedby the authorities in an individual case bymeans of an administrative decision.

In the Community legal order this functionis fulfilled by the individual decision,which is the means normally available tothe Community institutions to order that ameasure be taken in an individual case.The Community institutions can thusrequire a Member State or an individual toperform or refrain from an action, or canconfer rights or impose obligations onthem.

The basic characteristics of a decision canbe summed up as follows.

• It is distinguished from the regulation bybeing of individual application: thepersons to whom it is addressed must benamed in it and are the only ones boundby it. This requirement is met if, at thetime the decision is issued, the categoryof addressees can be identified and canthereafter not be extended. Reference ismade to the actual content of the deci-sion, which must be such as to have adirect, individual impact on the citizen’ssituation. Even a third party may fallwithin the definition if, by reason ofpersonal qualities or circumstances thatdistinguish him from others, he is indi-vidually affected and is identifiable assuch in the same way as the addressee.

• It is distinguished from the directive inthat it is binding in its entirety (whereasthe directive simply sets out objectivesto be attained).

• It is directly applicable to those towhom it is addressed. A decisionaddressed to a Member State may, inci-dentally, have the same direct effect inrelation to the citizen as a directive.

Instances in which decisions are usedinclude, for example, the granting orrefusal of State aid (Articles 87 and 88 EC),the annulment of agreements or arrange-ments contrary to fair competition (Article81 EC) and the imposition of fines or coer-cive measures.

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Non-binding measures by Community institutions

Non-binding measures consist of opinionsand EC and Euratom recommendations.This category of legal measures is the lastone explicitly provided for in the Treaties;they enable the Community institutions toexpress a view to Member States, and insome cases to individual citizens, which isnot binding and does not place any legalobligation on the addressees.

In the EC and Euratom Treaties these non-binding legal measures are called recom-mendations or opinions, but under theECSC Treaty only the term opinions isused. Unhappily, in the ECSC system, a‘recommendation’ is a binding legal act,corresponding to the directive in the ECand Euratom Treaties. In any event, whileEC and Euratom recommendations urgethe addressees to adopt a particular formof behaviour, opinions are used where theCommunity institutions are called upon tostate a view on a current situation orparticular event in the Community or theMember States.

In recommendations, the party to whomthey are addressed is called on, but notplaced under any legal obligation, tobehave in a particular way. For example,in cases where the adoption or amend-ment of a legal or administrative provisionin a Member State causes a distortion ofcompetition within the Community, theCommission may recommend to the Stateconcerned such measures as are appro-priate to avoid this distortion (Article97(1), second sentence, EC).

Opinions, on the other hand, are issued bythe Community institutions when givingan assessment of a given situation ordevelopment in the Community or indi-vidual Member States. In some cases, theyprepare the way for subsequent, legallybinding acts, or are a prerequisite for theinstitution of proceedings before the Courtof Justice (Articles 226 and 227 EC).

The real significance of these recommen-dations and opinions is political andmoral. In providing for legal acts of thiskind, the draftsmen of the Treaties antici-pated that, given the prestige of theCommunity institutions and their broaderview and wide knowledge of conditionsbeyond the narrower national framework,those concerned would voluntarilycomply with recommendations addressedto them and would react appropriately tothe Community institutions’ assessment ofa particular situation. Recommendationsand opinions can have indirect legal effectwhere they are a preliminary to subse-quent mandatory instruments or where theissuing institution has committed itself,thus generating legitimate expectationsthat must be met.

Resolutions, declarations and actionprogrammes

Alongside the legal acts provided for inthe Treaties, the Community institutionsalso have available a variety of otherforms of action for forming and shapingthe Community legal order. The mostimportant of these are resolutions, decla-rations and action programmes.

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Resolutions. These may be adopted by theEuropean Council, the Council of the EUand the European Parliament. They set outjointly held views and intentions regardingthe overall process of integration andspecific tasks within and outside theCommunity. Resolutions relating to theinternal working of the Community areconcerned, for example, with basic ques-tions regarding political union, regionalpolicy, energy policy, economic andmonetary union (particularly the EuropeanMonetary System). The primary signifi-cance of these resolutions is that they helpto give the Council’s future work a polit-ical direction. As manifestations of acommonly held political will, resolutionsmake it considerably easier to achieve aconsensus in the Council, in addition towhich they guarantee at least a minimumdegree of correlation between decision-making hierarchies in the Community andthe Member States. Any assessment oftheir legal significance must also takeaccount of these functions, i.e. theyshould remain a flexible tool and not betied down by too many legal requirementsand obligations.

Declarations. There are two differentkinds of declaration: if a declaration isconcerned with the further developmentof the Community, such as the Declarationon the EU, the Declaration on Democracyand the Declaration on FundamentalRights and Freedom, it is more or lessequivalent to a resolution. Declarations ofthis type are mainly used to reach a wide

audience or a specific group ofaddressees. The other type of declarationis issued in the context of the Council’sdecision-making process and sets out theviews of all or individual Councilmembers regarding the interpretation ofthe Council’s decisions. Interpretive decla-rations of this kind are standard practice inthe Council and are an essential means offinding compromises. Their legal signifi-cance should be assessed under the basicprinciples of interpretation, according towhich the key factor when interpreting themeaning of a legal provision should in allcases be the underlying intention of itsoriginator. This principle is only valid,however, if the declaration receives thenecessary public attention; this is because,for example, secondary Community legis-lation granting direct rights to individualscannot be restricted by secondary agree-ments that have not been made public.

Action programmes. These programmesare drawn up by the Council and theCommission on their own initiative andserve to put into practice the legislativeprogrammes and general objectives laiddown in the Treaties. If a programme isspecifically provided for in the Treaties,the Community institutions are bound bythose provisions when planning it. Otherprogrammes are in practice merelyregarded as general guidelines with nolegally binding effect. They are, however,an indication of the Community institu-tions’ intended actions.

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• THE LEGISLATIVE PROCESS

Whereas in a State the will of the peoplewill usually be expressed in parliament, itwas for a long time the representatives ofthe Member States’ governments meetingin the Council who played the decisiverole in expressing the will of the EC. Thiswas simply because the Community doesnot consist of a ‘European nation’ butowes its existence and form to thecombined input of its Member States.These did not simply transfer part of theirsovereignty to the EC, but pooled it on theunderstanding that they would retain thejoint power to exercise it. But as theprocess of Community integration hasdeveloped and deepened, this division ofpowers in the Community decision-making process, originally geared towardsthe defence of national interests by theMember States, has evolved into some-thing much more balanced, with regularenhancements of the status of the Euro-pean Parliament. The original procedurewhereby Parliament was merely consultedwas first of all broadened to include coop-eration with the Council, and Parliamentwas eventually given powers of co-deci-sion in the EC’s legislative process. TheTreaty of Amsterdam made these co-deci-sion powers ‘the general rule’, therebyfurther enhancing the EC’s democraticcredentials. The long-established principleof division of powers used in the MemberStates has not, however, been applied tothe EC’s legislative system, which isinstead based on the ‘principle of institu-tional balance’, which ensures that all theCommunity institutions involved in

expressing the will of the EC participate inthe legislative process to an equal degree.

The EC legislative process operates on fourmain levels, with different proceduresapplying at each of them:

1. for instruments of general validity (regu-lations and directives), there is theconsultation procedure, the coopera-tion procedure, the co-decision proce-dure and the approval procedure;

2. implementing measures are adopted byspecific procedures;

3. there is a simplified procedure forbinding individual decisions and non-mandatory instruments;

4. ECSC instruments are subject to theirown specific procedures.

Consultation procedure

The consultation procedure was theearliest legislative process within theCommunity. It has become less and lessimportant since the cooperation and co-decisions procedures came into being,and is now only used in instances whereneither of the other two procedures arespecifically required, including the adop-tion of provisions to combat discrimina-tion on the grounds of gender, race, ethnicorigin, religion or belief, disability, age orsexual orientation (Article 13 EC);strengthening and adding to the rightsderiving from EU citizenship (Article 22(2)

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EC); implementing the common agricul-tural policy (Article 37(2) EC); liberalisingcertain services (Article 52(2) EC);applying for a transitional period of fiveyears in relation to visas, asylum andimmigration (Article 67(1) EC); relating tocompetition (Articles 83 and 89 EC) andtaxation (Article 93 EC); laying downguidelines for employment policies(Article 128(2) EC); extending foreigntrade policy to include services and intel-lectual property rights (Article 133 EC);relating to social security, protection ofworkers’ interests and the improvement ofworking conditions (Article 137(3) EC); onthe establishment of joint undertakings forthe execution of research, technologicaldevelopment and demonstrationprogrammes (Article 172 EC); and provi-sions in the environmental field relating to

fiscal matters, town and country planning,land use or water management, as well asmeasures concerning a Member State’schoice between different energy sourcesand the general structure of its energysupply (Article 175(2) EC).

The work involved in the consultationprocedure is shared between the Commis-sion and the Council: the Commissionsubmits proposals and the Council makesthe decisions. Before any decision is takenby the Council, however, various stagesmust be completed which, depending onthe field concerned, also involve the Euro-pean Parliament, the Economic and SocialCommittee and the Committee of theRegions in addition to the Commissionand the Council.

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Formulation stage

The machinery is set in motion by theCommission, which draws up a proposalfor the measure in question (known as the‘right of initiative’). A proposal is preparedon the responsibility of a Member of theCommission by the Commission depart-ment dealing with the particular field;frequently the department will also

consult national experts at this stage. Thissometimes takes the form of deliberationsin specially convened committees; alter-natively, experts may have questions putto them by the relevant departments of theCommission. In practice, this consultationis particularly important in that it enablesthe Commission, while it is still in theprocess of drawing up a proposal, toassess its chances of being approved by74

CONSULTATION PROCEDURE

Commission

Proposal

Opinion

European Parliament

Adoption of decision by the Council afterconsultation with Coreper

Committee of the Regions Economic and Social Committee

>>

>>

the Council and, if necessary, seekcompromises at this early stage. However,the Commission is not obliged to acceptthe advice of national experts whendrawing up its proposals. The draft drawnup by the Commission, setting out thecontent and form of the measure to thelast detail, goes before the Commission asa whole, when a simple majority isenough to have it adopted. It is now a‘Commission proposal’, and is sent to theCouncil with detailed explanatoryremarks.

Consultation stage

The Council has to check whether it mustconsult other Community bodies beforedeciding on the proposal. The Treatiesgive the European Parliament the right tobe consulted on all politically importantmeasures (compulsory consultation).Failure to consult Parliament in suchcases is a serious irregularity for whichproceedings for cancellation may beinstituted (Article 230 EC), which mayresult in the proposal being annulled.Apart from compulsory consultation ofthis kind, Parliament is in practice alsoconsulted on the (now rare) draft legisla-tion which may be passed by the Councilalone on the basis of a proposal from theCommission (optional consultation).Examples of this type of proposal includeharmonisation of the national systems forgranting aid for exports to non-membercountries (Article 132(1) EC) and fixing ofCommon Customs Tariff duties (Article26 EC). By way of consultation, theCouncil officially forwards the Commis-

sion’s proposal to the President of theEuropean Parl iament and formallyrequests Parliament to set out its position.The President passes the proposal on to aParliamentary coordination committeefor further consideration. The outcome ofthe committee’s deliberations is thendiscussed at a plenary session of Parlia-ment, and is set out in a report whichmay accept or reject the proposal orpropose amendments. The Council is notlegally obliged to take account of theopinions or amendments emanating fromParliament. These opinions are neverthe-less of considerable political importancein that they enable Parliament to pointout any legal shortcomings or call forfurther Community measures, therebygiving new impetus to the policy of Euro-pean integration.

As well as the European Parliament, theTreaties in some cases oblige the Councilto consult the Economic and SocialCommittee and the Committee of theRegions. As with Parliament, the opinionsof the Economic and Social Committeeand the Committee of the Regionsregarding the proposal are sent to theCouncil and the Commission, and thisends their part in the process. However,the Committees’ opinions, like that ofParl iament, are not binding on theCouncil.

Enactment stage

After Parliament, the Economic andSocial Committee and the Committee ofthe Regions have been consulted, the 75

Commission proposal is once more putbefore the Council, perhaps amended bythe Commission in the light of the opin-ions of Parliament and the committees,where it is discussed by the PermanentRepresentatives Committee (Coreper). Inthe Coreper, all the technical details ofdecisions to be taken by the Council areworked out in advance by specialisedworking groups. As soon as a measure is‘ready for adoption’, it is entered as an ‘Aitem’ on the agenda of the next Councilmeeting and is adopted without furtherdebate. If, however, there are irreconcil-able differences of opinion within theCoreper about the actual provisions ofthe measure concerned, the outstandingissues are entered on the agenda as ‘Bitems ’ for further discussion by theCouncil in order to find a solution. Adop-tion of the proposal by the Council is thefinal stage in the legislative process.

Publication

The final text, in all 11 official languagesof the Community (Spanish, Danish,German, Greek, English, French, Italian,Dutch, Portuguese, Finnish and Swedish),is adopted by the Council, signed by thePresident of the Council , and thenpublished or notified to the person towhom it is addressed (Article 254(1) and(3) EC).

Cooperation procedure (Article 252 EC)

The cooperat ion procedure largelyfollows the same lines as the proposalprocedure described above, but involvesa much stronger role for Parliament inthe decision-making process and oper-ates rather more quickly. In practice, thisprocedure is only relevant in relation toeconomic and monetary union (Articles99(5) and 106(2) EC); in al l otherscenarios in which it used to be used, ithas now been replaced by the co-deci-sion procedure.

The cooperation procedure basicallyintroduces a second reading by Parlia-ment and the Council into the legislativeprocess.

First reading. The procedure begins witha Commission proposal, which is sentnot just to the Council, but also to Parlia-ment. The idea behind Parliament ’sinvolvement at this early stage is to giveit an opportunity, in the interests of effec-t ive part icipation in the legislat iveprocess, to give the Council its views onthe Commission proposal before the‘common position’ is drawn up. TheEconomic and Social Committee and theCommittee of the Regions may also beconsulted at this stage.

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COOPERATION PROCEDURE

Commission

Council

proposal

opinion

common position

Parliament(first reading)

Parliament(second reading)

COR ESC

amendment byabsolute majority

approval/noaction

rejection byabsolute majority

adoption ofcommon

position by qualifiedmajority

adoptiononly by

unanimity

EP’s amendments accepted

adoption by qualified majority

EP’s amendmentsnot accepted

adoption onlyby unanimity

Council Council

Council

Commission

>>

>>

>

> >>>

>

On the basis of the opinions submitted,the Council then adopts, by qualifiedmajority, a common position. This setsout the Council’s position in the light ofthe Commission’s proposal and the opin-ions. It is therefore not a compromisedocument but rather a reflection of theCouncil’s view arrived at independently.

Second reading. The common position isthen sent to Parliament for its secondreading. Parliament has three months totake one of the following courses ofaction.

If Parliament accepts the common posi-tion or gives no response within thedeadline, the Council then adopts thecommon position.

Parliament may, however, reject thecommon position or propose amend-ments. In either instance, the Councilmay proceed with its adoption, albeit intwo different ways.

• If the common position is rejected,unanimity is required for adoption bythe Council. Given the difficulty ofachieving unanimity in the Council, theproposal is effectively blocked. Onlyrarely will Parliament block legislationin this way.

• Parliament usually proposes amend-ments. The question is then whetherthe Commission accepts its amend-ments. If it does, the Council mayadopt the instrument in the usual way,by a quali f ied majority or ( i f i t isdepart ing from the Commission ’s

proposal) unanimously. If the Commis-sion does not accept Parliament ’samendments, their adoption by theCouncil requires a unanimous vote.Parliament has to get the Commissionon its side in order to lend weight to itsarguments. In any event, the Councilmay still exercise a veto by not takingany decision on the amendmentsproposed by Parliament or on theamended Commission proposal,thereby blocking the legislation inquestion.

Co-decision procedure (Article 251 EC)

The concept of the co-decision proce-dure is one step further on from thecooperat ion procedure. Whils t theCouncil may unanimously overrideParliament’s views under the coopera-tion procedure, the Treaty of Amsterdamdesigned the co-decision procedure tocreate ‘equali ty of arms ’ betweenCouncil and Parliament. The co-decisionprocedure denies the Council the right toadopt its common position if efforts toreach agreement with Parliament fail.This increases the incentive to reach acompromise as the entire legislativeprocess must otherwise be abandoned.

The co-decision procedure has becomeby far the most important element in thelegislative process. It is used in connec-tion with the ban on discrimination ongrounds of nationality (Article 12 EC),provisions facilitating the exercise of theright of residence (Article 18(2) EC),78

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CO-DECISION PROCEDURE

Commission

Council

proposal

opinion

no amendments by Parliament or approval of all amendments by Councilinstrument adopted

or

COMMON POSITION

Parliament(first reading)

Parliament(second reading)

COR ESC

amendmentby absolute majority

approval/noaction

adoption ofcommon position by

qualified majority

rejectionby absolute majority

Parliament’samendments accepted

adoption by qualified majority

Parliament’s amend-ments

not accepted

adoption onlyby unanimity

amendmentsrejected

agreement no agreement

CouncilEnd of the legislative

process

Council

Conciliation Committee convenedby Council and Parliament

outcome confirmed byCouncil and Parliament

(third reading)

instrument deemed rejected

end of the legislativeprocess

Commission

> >>

>>

>

>>> >

>

>>

measures to bring about freedom ofmovement (Article 40 EC), measures toensure social security when exercisingthe right to move freely (Article 42 EC),directives on freedom of establishment(Articles 44(2) and 47(1) EC), freedom toprovide services (Article 55 EC), trans-port policy (Articles 71(1) and 80 EC),creation of a single market (Article 95EC), social policy, including measures tobring about equality of the sexes (Arti-cles 137, 141 and 148 EC), measures topromote education and vocationaltraining (Article 149 EC), culture (Article151 EC), public health (Article 152 EC),specific measures to protect consumers(Article 153 EC), guidelines and projectsof common interest relating to trans-European networks (Article 156 EC),regional funds (Art icle 162(1) EC),research programmes (Article 172(2) EC),pursuit of the environmental protectionobjectives referred to in Article 174 EC(Article 175(1) EC) and implementationof environmental protection programmes(Article 175(3) EC), development cooper-ation measures (Article 179 EC), formu-lation of general principles on access todocumentation (general principles oft ransparency, Art icle 280 EC), theproduction of statistics (Article 285 EC)and the establishment of an independentsupervisory body to monitor data protec-tion (Article 286 EC).

The following is a simplified descriptionof the co-decision procedure.

First reading. Here again, the startingpoint is a Commission proposal that is sentto the Council, Parliament and any

committees to be consulted. Parliamenttakes its first reading and sends its opinionto the Council. The Economic and SocialCommittee and the Committee of theRegions are also given an opportunity toset out their position at this stage.

If Parliament does not make any amend-ments to the Commission’s proposal, orthe Commission accepts all amendmentsproposed by Parliament, the instrumentmay be adopted at this stage of the proce-dure. Otherwise, a second reading beforeParliament is required.

Second reading. On the basis of theCommission’s proposal and Parliament’sand the committees’ opinions and its owndeliberations, the Council adopts acommon position by a qualified majority.The common position is then sent toParliament for its second reading. Parlia-ment now has three months in which todo one of three things.

1. If it accepts the Council’s common posi-tion or gives no response within threemonths, the instrument is deemed tohave been adopted as set out in thecommon position.

2. If it rejects the common positionoutright (for which an absolute majorityof MEPs would be required), the legisla-tive process is at an end. The Councilno longer has the option of conveningthe Conciliation Committee.

3. If it makes amendments to the Council’scommon position the following proce-dure is then used. The Council first of all80

has the opportunity to adopt thecommon position as amended by Parlia-ment, in which case all the proposedchanges must be accepted. If, however,the Council rejects certain amendmentsor the majority needed for their adoptioncannot be obtained (e.g. unanimity in theevent that the Commission rejects Parlia-ment’s proposed amendments), then thePresident of the Council, acting inconsultation with the President of theParliament, must within six weeksconvene a Conciliation Committeeconsisting of 15 representatives eachfrom the Council and Parliament toconsider the Council’s common positionin the light of Parliament’s proposedamendments. The aim is to achieve aworkable compromise which can beadopted by the required majorities in theCouncil and Parliament.

Third reading. I f the Concil iat ionCommittee accepts a joint draft of thelegal instrument, the Council and Parlia-ment must confirm its acceptance in athird reading within six weeks. Irrespec-t ive of the Commission ’s posit ionregarding the draft compromise, a quali-fied majority in the Council is sufficientfor its adoption (unless unanimity isrequired under the Treaties). Adoption byParliament requires an absolute majorityof the votes cast. The instrument is thendeemed accepted by Parliament and theCouncil, which is also clearly indicatedin its title (e.g. Parliament and Councilregulation).

If the conciliation procedure fails, theinstrument is deemed not to have been

accepted. The legislative process is thenat an end. Failure of the procedure thusleads the same result as rejection of thecommon position by the Council andParliament at the third reading. Thisarrangement does away with the proce-dure applying prior to the Treaty ofAmsterdam whereby the Council wasable to adopt its common position if theconciliation procedure ended in failureand Parliament could only prevent thisby means of a blocking resolution whichrequired an absolute majority of itsmembers.

The co-decision procedure representsboth a challenge and an opportunity forParliament. If the procedure is to operatesuccessfully, there must be an agreementin the Conciliation Committee, but thereare the beginnings of a radically newrelationship between Parliament and theCouncil. For the first time, the two insti-tutions are placed on an equal footing inthe legislative process. It will now be upto Parliament and the Council to demon-strate their capacity for compromise andto direct their energies in the ConciliationCommittee towards coming to an agree-ment.

Approval procedure

The principal form of Parliamentaryinvolvement in the legislative process isthe approval procedure, whereby a legalinstrument can only be adopted with theprior approval of Parliament. This proce-dure does not, however, give Parliamentany scope for directly influencing the 81

nature of the legal provisions. Forexample, it cannot propose any amend-ments or secure their acceptance duringthe approval procedure; its role isrestricted to accepting or rejecting thelegal instrument submitted to it.

Provision is made for this procedure inconnection with the accession of newMember States (Article 49 EU), the conclu-sion of association agreements and othercornerstone agreements with non-membercountries (Article 300(3), second para-graph, EC), the transfer of further specifictasks to the ECB (Article 105(6) EC),amendments to the Statute of ESCB(Article 107(5) EC) and the appointment ofthe President of the Commission and themembers of the Commission as a body(Article 214(2) EC).

Simplified procedure

Under the simplified procedure, noCommission proposal is needed to initiatethe legislative process.

• This procedure applies to measureswithin the Commission’s own powers(such as approval of State aid).

• The simplified procedure is also used forthe adoption of non-mandatory instru-ments, especially recommendations andopinions issued by the Commission orthe Council. The Commission is notrestricted to what is expressly providedfor in the Treaties, but can also formulaterecommendations and deliver opinionswhere it considers it necessary (Article

211, second, indent, EC; Article 124subpara. 2 Euratom). In the ECSC, on theother hand, only the Commission maydeliver opinions.

Procedure for implementingmeasures

The general rule is that the Councilconfers on the Commission the power toissue measures implementing its instru-ment. Only in special cases may theCouncil reserve implementing powers foritself (Article 202, third indent, EC). Whenexercising its implementing powers theCommission may neither amend norsupplement the Council instrument;compliance with the framework condi-tions laid down by the Council is ensuredthrough committees. In 1999, the deci-sion-making procedure was redesigned tomake for greater simplicity and trans-parency, and not least greater Parliamen-tary involvement. The number of decision-making procedures was reduced from fiveto three. Parliament was brought into theprocedures concerning the adoption ofimplementing measures with which it hadbeen involved as part of the co-decisionprocedure. Parliament may, in theseinstances, deliver a reasoned opinionstating that the planned measure exceedsthe scope of the legal instrument to beimplemented, and may require theCommission to modify the implementingmeasure accordingly. In addition, theCommission is subject to wide-rangingobligations to keep Parliament informedand properly notified. The threecommittee procedures, whose application

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is specified in the enabling instrument, areused as follows.

Advisory Committee procedure. Thisprocedure applies chiefly to the imple-mentation of Council instruments for thesingle market.

The Advisory Committee is made up ofrepresentatives of the Member States andchaired by a Commission representative.

The Commission representative presents adraft of the measures to be taken, and theCommittee gives its opinion on themwithin a time limit set by the Commissionaccording to the urgency of the matter.The Commission is expected, though notobliged, to take the fullest possibleaccount of the opinion; it informs theCommittee of the action taken on itssuggestions and proposed amendments.

Management Committee procedure. Thisprocedure has been used for measuresimplementing the common agriculturalpolicy or the common fisheries policy, orprogrammes with serious budgetary impli-cations.

Before adopting its planned measures, theCommission must first consult a Manage-ment Committee composed of representa-tives of the Member States, which gives anopinion by qualified majority (Article205(2) EC). If the instrument was adoptedby Parliament and the Council during theco-decision procedure, the Commissionmust also involve Parliament in the draftimplementing measure. Parliament exam-

ines whether the planned measure fallswithin the scope of the Commission’sdispositive powers. If this is not the case,Parliament must set out its position in areasoned resolution. The Commission maythen, while taking account of the pointsraised in the resolution, submit a new draftto the Committee, continue with theprocedure, or transfer to Parliament andthe Council the responsibility for passingthe measure by means of a proposal tothat effect. The Commission must notifyParliament and the Committee of themeasures it intends to take in the light ofParliament’s resolution. If it decides tocontinue with the procedure or if no reso-lution is passed by Parliament, it mayadopt its planned measures with imme-diate effect. If these measure are not inline with the Committee ’s position,however, the Commission must notify theCouncil without delay about the measurestaken and suspend their implementationfor a maximum of three months. TheCouncil has three months within which totake a different decision by a qualifiedmajority.

Legislation Committee procedure. Thisprocedure is used for measures of ageneral nature which are intended toimplement basic provisions of the legalinstrument concerned, e.g. measures toprotect the health and safety of humans,animals or plants.

The Legislation Committee, like theManagement Committee, consists ofrepresentatives of the Member States andgives its opinion on the Commission’s

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proposed implementing measures by qual-ified majority.

The difference between the LegislationCommittee procedure and the Manage-ment Committee procedure lies in theCommission’s much weaker positionwhere the Legislation Committee rejectsthe proposed measures or fails to give anopinion. The Commission cannot put itsmeasures immediately into effect but mustpropose them for a Council decision andnotify Parliament accordingly. Parliamentthen looks at whether the proposedmeasure is within the scope of the instru-ment to be implemented, and notifies theCouncil of its position. The Council mustdecide on the Commission’s proposal byqualified majority within three monthswhile taking account of Parliament’s posi-tion. If the Council rejects the proposal,the Commission must re-examine it,following which it may submit anamended proposal, resubmit the originalproposal or present a proposal transferringresponsibility for the measure to Parlia-ment and the Council. If, after threemonths, the Council has neither adoptedthe proposed implementing measure norrejected the proposal for it, the Commis-sion may put the proposed measure intoeffect.

• THE SYSTEM OF LEGALPROTECTION

At the heart of the system of legal protec-tion are the European Court of Justiceand the Court of First Instance attachedto it. The Court of Justice is the highestjudicial authority on all questions ofCommunity law and, together with theCourt of First Instance, the only suchauthority. The system of legal protection in the EC offers the following possibili-ties of recourse to the law.

Treaty infringement proceedings(Article 226 EC)

Treaty infringement proceedings areprocedures for establishing whether aMember State has failed to fulfil an oblig-ation imposed on it by Community law. Itis conducted exclusively before the Euro-pean Court of Justice. Given the serious-ness of the accusation, the referral of theCourt of Justice must be preceded by apreliminary procedure in which theMember State is given the opportunity tosubmit its observations. If the dispute isnot sett led at that stage, ei ther theCommission or another Member State(Article 227 EC) may institute an actionin the Court. In practice the initiative isusually taken by the Commission. TheCourt investigates the complaint anddecides whether the Treaty has beeninfringed. If so, the offending MemberState is then required to take themeasures needed to conform. I f aMember State fails to comply with ajudgment given against it, the Treaty on84

European Union offers the possibility of asecond court ruling ordering it to pay alump-sum fine or a penalty (Article 228EC).

Actions for annulment (Article 230 EC)

The purpose of actions for annulment is tohave binding legal instruments of theCouncil, Commission, Parliament or theEuropean Central Bank annulled. If EUcitizens or firms are involved in such anaction as plaintiff or defendant, the actionmust be brought before the Court of FirstInstance (CFI). Disputes between institu-tions, however, must be conducted beforethe European Court of Justice.

The actions may be based on allegationsof ultra vires, violation of essential proce-dural requirements, infringement of theTreaties or secondary legislation, or abuseof discretionary powers. They may bebrought by a Member State, the Councilor the Commission, but also by Parlia-ment, the Court of Auditors or the Euro-pean Central Bank in order to safeguardthe rights invested in them. However, citi-zens and firms can only proceed againstdecisions that are personally addressed tothem or, though addressed to others, havea direct individual effect on them. This isdeemed by the Court of Justice to be thecase if a person is affected in so specific away that a clear distinction existsbetween them and other individuals orfirms. This criterion of ‘immediacy’ isintended to ensure that a matter is onlyreferred to the Court of Justice or the CFI

if the fact of the plaintiff’s legal positionbeing adversely affected is clearly estab-lished along with the nature of thoseadverse effects; this may present problemsin cases where Community legal acts stillhave to be implemented by the MemberStates. The ‘immediacy’ requirement isalso intended to prevent ‘relator suits’from being filed.

If the action succeeds, the Court of Justiceor CFI may declare the instrument voidwith retroactive effect. In certain circum-stances, it may declare it void solely fromthe date of the judgment. However, inorder to safeguard the rights and interestsof those bringing legal actions, the decla-ration of nullity may be exempted fromany such restriction.

Complaints for failure to act (Article 232 EC)

Complaints for failure to act supplementthe legal protection available against theCouncil, Commission, Parliament andthe European Central Bank. There is apreliminary procedure whereby thecomplainant must first put the institutionon notice to perform its duty. The ordersought in an action by the institutions isa declaration that the body concernedhas infringed the Treaty by neglecting totake a decision required of it. Where theaction is brought by a citizen or a firm, itis for a declaration that the institutionhas infringed the Treaty by neglecting toaddress an individual decision to them.The judgment simply f inds that theneglect was unlawful. The Court of

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Justice/CFI has no jurisdiction to orderthat a decis ion be taken: the partyagainst whom judgment is given ismerely required in the usual way to takemeasures to comply with the judgment(Article 233 EC).

Actions for damages (Articles 235 and 288(2) EC)

Citizens and firms — and also MemberStates — that sustain damage by reason offault committed by EC staff can file actionsfor damages at the CFI (individuals andfirms) or the Court of Justice (MemberStates). The basis for Community liabilityis not fully set out by the Treaties and isgoverned by the general principlescommon to the laws of the Member States.The Court has fleshed this out, holdingthat the following conditions must besatisfied before an award of damages canbe made.

There must be an unlawful act by aCommunity institution or by a member ofits staff in the exercise of his functions.Where the case turns on liability for alegislative instrument (regulation or direc-tive) unlawfully made by the institution, itis not enough that the instrument beunlawful: it must be in substantial andmanifest conflict with a superior rule oflaw having the purpose of protecting indi-vidual rights. It is no easy matter to deter-mine when there is a serious enoughviolation of Community law. The Courttends to gear its findings to the narrownessof the category of persons affected by theoffending measure and the scale of the

damage sustained, which must be inexcess of the commercial risk that can bereasonably expected in the business sectorconcerned.

Actual harm must have been suffered.

There must be a causal link between theact of the Community institution and thedamage sustained.

Intent or negligence do not have to beproved.

Actions by Community staff (Article 236 EC)

The CFI has jurisdiction in disputesbetween staff members or their survivingfamily members and their employing insti-tution arising from the employment rela-tionship.

Appeals procedure (Article 225(1)EC, Art. 110 ff. of the rules of procedure of the Court of Justice)

The relationship between the Court ofJustice and the CFI is designed in such away that judgments of the CFI are subjectto a right of appeal to the Court of Justiceon points of law only. The appeal may beon the grounds of lack of competence ofthe CFI, a breach of procedure whichadversely affects the interests of theappellant or the infringement of Commu-nity law by the CFI. If the appeal is justi-fied and procedurally admissible, theCFI’s judgment is rescinded by the Court86

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of Justice. If the matter is ripe for a courtruling, the Court of Justice may issue itsown judgment; otherwise, it must referthe matter back to the CFI, which isbound by the Court of Justice’s legalassessment.

Provisional legal protection (Articles242 and 243 EC)

Actions filed with the Court of Justice orthe CFI, or appeals lodged against theirjudgments, do not have suspensive effect.It is, however, possible to apply to theCourt of Justice or the CFI for an order tosuspend the application of the contestedact (Article 242 EC) or for an interim courtorder (Article 243 EC).

The merits of any application for interimmeasures are assessed by the courts on thebasis of the following three criteria.

Prospect of success on the main issue(fumus boni juris): this is assessed by thecourt in a preliminary summary exami-nation of the arguments submitted by theappellant.

Urgency of the order: this is assessed onthe basis of whether the order applied forby the appellant is necessary in order toward off serious and irreparable harm.The criteria used for making this assess-ment include the nature and seriousnessof the infringement, and its specific andirreversibly adverse effects on the appel-lant’s property and other objects of legalprotection. Financial loss is deemed tobe of a serious and irreparable nature

only if it cannot be made good even ifthe appellant is successful in the mainproceedings.

Weighing of interests: the adverse effectslikely to be suffered by the appellant ifthe application for an interim order isrefused are weighed against the EC’sinterest in immediate implementation ofthe measure, and against the detrimentaleffects on third parties if the interimorder were to be issued.

Preliminary rulings (Article 234 EC)

This is the procedure whereby the nationalcourts can seek guidance on Communitylaw from the European Court of Justice.Where a national court is required toapply provisions of Community law in acase before it, it may stay the proceedingsand ask the Court of Justice for clarifica-tion as to the validity of the Communityinstrument at issue and/or the interpreta-tion of the instrument and of the Treaties.The Court of Justice responds in the formof a judgment rather than an advisoryopinion; this highlights the mandatorynature of its ruling. The preliminary rulingprocedure, unlike the other proceduresunder consideration here, is not acontentious procedure but simple onestage in the proceedings that begin andend in the national courts.

The object of a preliminary ruling is tosecure a uniform interpretation ofCommunity law and, with it, the unity ofthe Community legal order. Alongside this

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latter function, the procedure is also ofimportance in protecting individual rights.The national courts can only assess thecompatibility of national and Communitylaw and, in the event of any incompati-bility, enforce Community law — whichtakes precedence and is directly applic-able — if the content and scope ofCommunity provisions are clearly set out.This clarity can normally only be broughtabout by a preliminary ruling from theCourt of Justice, which means thatproceedings for such a ruling offerCommunity citizens an opportunity tochallenge actions of their own MemberState which are in contravention ofCommunity law and ensure enforcementof Community law before the nationalcourts. This dual function of preliminaryruling proceedings compensates to acertain extent for the restrictions on indi-viduals directly filing actions before theCourt of Justice and is thus crucial for thelegal protection of the individual.However, success in these proceedingsdepends ultimately on how ‘keen’ nationalJudges and courts are on referring cases toa higher authority.

Subject-matter. The European Court ofJustice rules on the interpretation of instru-ments of Community law and examinesthe validity of the Community institutions’and the European Central Bank’s acts oflegal significance. Provisions of nationallaw may not be the subject of a prelimi-nary ruling. In proceedings for a prelimi-nary ruling, the Court of Justice is notempowered to interpret national law orassess its compatibility with Communitylaw. This fact is often overlooked in the

questions referred to the Court of Justice,which is called on to look at many ques-tions specifically concerned with thecompatibility of provisions of national andCommunity law, or to decide on theapplicability of a specific provision ofCommunity law in proceedings pendingbefore a national court. Although thesequestions are in fact procedurally inadmis-sible, the Court of Justice does not simplyrefer them back to the national court;instead, it reinterprets the questionreferred to it as a request by the referringcourt for basic or essential criteria forinterpreting the Community legal provi-sions concerned, thus enabling it to thengive its own assessment of compatibilitybetween national and Community law.The procedure adopted by the Court ofJustice is to extract from the documenta-tion submitted — particularly the groundsfor referral — those elements of Commu-nity law which need to be interpreted forthe purpose of the underlying legaldispute.

Capacity to proceed. The procedure isavailable to all ‘courts of the MemberStates’. This expression should be under-stood within the meaning of Communitylaw and focuses not on the name butrather on the function and position occu-pied by a judicial body within the systemsof legal protection in the Member States.On this basis, ‘courts’ are understood tomean all independent institutions (i.e. notsubject to instructions) empowered tosettle disputes in a constitutional Stateunder due process of law. According tothis definition, the constitutional courts inthe Member States and dispute-settling 89

authorities outside the State judicialsystem — but not private arbitrationtribunals — are also entitled to refer cases.The national court’s decision whether ornot to make a reference will depend onthe relevance of the point of Communitylaw at issue for the settlement of thedispute before it, which is a matter for thenational court to assess. The parties canonly request, not require, it to refer a case.The Court of Justice considers the rele-vance of the point solely in terms ofwhether the question concerned isamenable to referral (i.e. whether it actu-ally concerns the interpretation of the ECTreaty or the legal validity of an act by aCommunity institution) or whether agenuine legal dispute is involved (i.e.whether the questions on which the Courtof Justice is to give its legal opinion in apreliminary ruling are merely hypotheticalor relate to a point of law that has alreadybeen settled). It is exceptional for theCourt to decline to consider a matter forthese reasons because, given the specialimportance of cooperation between judi-cial authorities as provided for in the ECTreaty, the Court exercises restraint whenapplying these criteria. Nevertheless,recent judgments of the Court show that ithas become more stringent as regardseligibility for referral in that it is veryparticular about the already establishedrequirement that the order for referralcontain a sufficiently clear and detailedexplanation of the factual and legal back-ground to the original proceedings, andthat if this information is not provided itdeclares itself unable to give a properinterpretation of Community law and

rejects the application for a preliminaryruling as inadmissible.

Obligation to refer. A national court ortribunal against whose decision there is nojudicial remedy in national law is obligedto refer. The concept of right of appealencompasses all forms of legal redress bywhich a court ruling may be reviewed infact and in law (appeal) or only in law(appeal on points of law). The conceptdoes not, however, encompass ordinarylegal remedies with limited and specificeffects (e.g. new proceedings, constitu-tional complaint). A court obliged to refera case may only avoid such referral if thequestion is of no material importance forthe outcome of the case before it, or hasalready been answered by the EuropeanCourt of Justice, or the interpretation ofCommunity law is not open to reasonabledoubt. However, the obligation to refer isunconditional where the validity of aCommunity instrument is at issue. TheCourt of Justice made it quite clear in thisrespect that it alone has the power toreject illegal provisions of Communitylaw. The national courts must thereforeapply and comply with Community lawuntil it is declared invalid by the Court ofJustice. A special arrangement applies tocourts in proceedings for the granting ofprovisional legal protection. According torecent judgments of the Court of Justice,these courts are empowered, subject tocertain conditions, to suspend enforce-ment of a national administrative actderiving from a Community regulation, orto issue interim orders in order to provi-sionally determine the arrangements of

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legal relations while disregarding anexisting provision of Community law.

Failure to discharge the obligation to referconstitutes an infringement of the ECTreaty, possibly making the Member Stateconcerned liable to infringement proceed-ings. In practice, however, the effects ofsuch a course of action are very limitedgiven that the government of the MemberState concerned cannot comply with anyorder issued by the European Court ofJustice because the independence of itsjudiciary and the principle of separation ofpowers mean that it is unable to giveinstructions to national courts. Now thatthe principle of Member States’ liabilityunder Community law for failure tocomply with it has been recognised (seenext section), the possibility of individualsfiling for damages, which may have arisenfrom the Member State concerned failingto meet its obligation to refer, offers betterprospects of success.

Effect. The preliminary ruling, issued inthe form of a court order, is directlybinding on the referring court and all othercourts hearing the same case. In practice italso has a very high status as a precedentfor subsequent cases of like nature.

• LIABILITY OF THE MEMBERSTATES FOR INFRINGEMENTSOF COMMUNITY LAW

The liability of a Member State for harmsuffered by individuals as a result of aninfringement of Community law attribut-able to that State was established in prin-ciple by the Court of Justice in its judg-ment of 5 March 1996 in the joined casesC-46/93 ‘Brasserie du pêcheur’ and C-48/93 ‘Factortame’. This was a precedent-setting judgment on a par with earlierCourt judgments on the primacy ofCommunity law, the direct applicability ofprovisions of Community law and recog-nition of the Community’s own set offundamental rights. The judgment is evenreferred to by the Court itself as ‘thenecessary corollary of the direct effect ofthe Community provisions whose breachcaused the damage sustained’, andconsiderably enhances the possibilities foran individual to force State bodies of allthree centres of power (i.e. legislative,executive and judiciary) to comply withand implement Community law. The judg-ment is a further development of its rulingsin ‘Francovich’ and ‘Bonifaci’. Whilst theearlier judgments restricted the liability ofthe Member States to instances whereindividuals suffered harm as a result offailure to transpose in good time a direc-tive granting them personal rights but notdirectly addressed to them, the latest judg-ment established the principle of generalliability encompassing any infringement ofCommunity law attributable to a MemberState.

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Member States’ liability for legal acts or failure to act

This form of liability is defined by threecriteria which are largely the same asthose applying to the Community in asimilar situation.

1. The aim of the Community provisionwhich has been infringed must be to grantrights to the individual.

2. The infringement must be sufficientlyserious, i.e. a Member State mustclearly have exceeded the limits of itsdiscretionary powers to a considerabledegree. This must be decided by thenational courts, which have soleresponsibility for ascertaining the factsand assessing the seriousness of theinfringements of Community law. TheCourt of Justice’s judgment neverthe-less offers the national courts a numberof basic guidelines.

2. ‘The factors which the competentcourt may take into considerationinclude the clarity and precision of therule breached, the measure of discre-tion left by that rule to the national orCommunity authorities, whether theinfringement and the damage causedwas intentional or involuntary,whether any error of law was excus-able or inexcusable, the fact that theposition taken by a Community institu-tion may have contributed towards theomission, and the adoption or reten-tion of national measures or practicescontrary to Community law. On anyview, a breach of Community law will

clearly be sufficiently serious if it haspersisted despite a judgment findingthe infringement in question to beestablished, or a preliminary ruling orsettled case-law of the Court on thematter from which it is clear that theconduct in question constituted aninfringement.’

3. A direct causal link must exist betweenthe infringement of the obligation of theMember State and the harm suffered bythe injured party. It is not necessary todemonstrate fault (intent or negligence)in addition to establishing that a suffi-ciently serious infringement of Commu-nity law has occurred.

Liability for infringement of Community law by the courts

The European Court of Justice makes itquite clear that the principles establishedby it for determining liability also apply tothe last of the three central powers,namely the judiciary. Its judgments arenow not only subject to review at succes-sive stages of appeal; if they were deliv-ered in disregard or infringement ofCommunity law, they may also be thesubject of an action for damages beforethe competent courts in the MemberStates. When ascertaining the factssurrounding a judgment’s infringement ofCommunity law, proceedings of this kindmust also reconsider the questions relatingto the substance of Community law, in theprocess of which the court concerned maynot merely invoke the binding effects of92

the judgment of the specialised courtdealing with the case. The court to whichthe competent national courts have torefer questions of interpretation and/or thevalidity of Community provisions, and

also the compatibility of national liabilityregimes with Community law, is the Courtof Justice, to which questions may bereferred under the preliminary rulingprocedure (Article 234 EC).

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After all that we have learnt about thestructure of the Community and its

legal set-up, it is not easy to assignCommunity law its rightful place in thelegal order as a whole and define theboundaries between it and other legalorders. Two possible approaches to classi-fying it must be rejected from the outset.Community law must not be conceived ofas a mere collection of internationalagreements, nor can it be viewed as a partof, or an appendage to, national legalsystems.

• AUTONOMY OF THECOMMUNITY LEGAL ORDER

By establishing the Community, theMember States have limited their legisla-tive sovereignty and in so doing havecreated a self-sufficient body of law that isbinding on them, their citizens and theircourts.

One of the best-known cases heard in theCourt of Justice was ‘Costa v ENEL’ in1964, in which Mr Costa filed an actionagainst the nationalisation of electricitygeneration and distribution in Italy, andthe consequent vesting of the business ofthe former electricity companies in ENEL,the new public corporation. The implica-tions of this case are discussed below.

The autonomy of the Community legalorder is of fundamental significance forthe nature of the EC, for it is the only guar-antee that Community law will not bewatered down by interaction with nationallaw, and that it will apply uniformlythroughout the Community. This is whythe concepts of Community law are inter-preted in the light of the aims of theCommunity legal order and of theCommunity in general. This Community-specific interpretation is indispensablesince particular rights are secured byCommunity law and without it they wouldbe endangered. Each Member State couldthen, by interpreting provisions in differentways, decide individually on thesubstance of the freedoms that Commu-nity law is supposed to generate. As anexample, consider the concept of theworker, on which the scope of the conceptof freedom of movement is based. Thespecific Community concept of the workeris quite capable of deviating from theconcepts that are known and applied inthe legal orders of the Member States.Furthermore, the only standard by whichCommunity legal instruments aremeasured is Community law itself, and notnational legislation or constitutional law.

Against the backdrop of this concept ofthe autonomy of the Community legalorder, what is the relationship betweenCommunity law and national law?

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THE POSITION OF COMMUNITY LAW IN RELATION TO THE LEGAL ORDER

AS A WHOLE

Even if Community law constitutes a legalorder that is self-sufficient in relation tothe legal orders of the Member States, thissituation must not be regarded as one inwhich the Community legal order and thelegal systems of the Member States aresuperimposed on one another like layersof bedrock. The fact that they are applic-able to the same people, who thus simul-taneously become citizens of a nationalState and of the EU, negates such a rigiddemarcation of these legal orders.

Secondly, such an approach disregards thefact that Community law can becomeoperational only if it forms part of the legalorders of the Member States. The truth isthat the Community legal order and thenational legal orders are interlocked andinterdependent.

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• INTERACTION BETWEENCOMMUNITY LAW ANDNATIONAL LAW

The interaction between Community lawand national law covers those areas wherethe two systems complement each other.Article 10 of the EC Treaty is clear enough.

‘Member States shall take all appropriatemeasures, whether general or particular, toensure fulfilment of the obligations arisingout of this Treaty or resulting from actiontaken by the institutions of the Commu-nity. They shall facilitate the achievementof the Community’s tasks. They shallabstain from any measure which couldjeopardise the attainment of the objectivesof this Treaty’.

This general principle was inspired by anawareness that the Community legal orderon its own is not able to fully achieve theobjectives pursued by the establishment ofthe EC. Unlike a national legal order, theCommunity legal order is not a self-contained system but relies on the supportof the national systems for its operation.All three branches of government — legis-lature, executive and judiciary — there-fore need to acknowledge that theCommunity legal order is not a ‘foreign’system and that the Member States and theCommunity institutions have establishedindissoluble links between themselves soas to achieve their common objectives.The EC is not just a community of inter-ests; it is a community based on solidarity.It follows that national authorities arerequired not only to observe the Commu-

nity treaties and secondary legislation;they must also implement them and bringthem to life. The interaction between thetwo systems is so thoroughly multi-facetedthat a few examples are called for.

The first illustration of how the Commu-nity and national legal orders mesh withand complement each other is the direc-tive, already considered in the chapter onlegislation. All the directive itself fixes inbinding terms is the result to be achievedby the Member State; it is for nationalauthorities, via domestic law, to decidehow and by what means the result is actu-ally brought about. In the judicial field,the two systems mesh through the prelimi-nary ruling procedure of Article 234 of theEC Treaty, whereby national courts may, orsometimes must, refer questions on theinterpretation and validity of Communitylaw to the European Court of Justice,whose ruling may well be decisive insettling the dispute before them. Twothings are clear: firstly, the courts in theMember States are required to observeand apply Community law; and secondly,the interpretation of Community law anddeclarations as to its validity are the solepreserve of the Court of Justice. The inter-dependence of Community and nationallaw is further illustrated by what happenswhen gaps in Community law need to befilled: Community law refers back toexisting rules of national law to completethe rules it itself determines. This principleapplies to the full range of obligationsunder Community law unless the latter haslaid down rules for its own enforcement.In any such case, national authorities

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enforce Community law by the provisionsof their own legal systems. But the prin-ciple is subject to one proviso: the uniformapplication of Community law must bepreserved, for it would be wholly unac-ceptable for citizens and firms to beJudged by different criteria — and there-fore be treated unjustly.

• CONFLICT BETWEENCOMMUNITY LAW ANDNATIONAL LAW

However, the relationship betweenCommunity law and national law is alsocharacterised by an occasional ‘clash’ orconflict between the Community legalorder and the national legal orders. Such asituation always arises when a provision ofCommunity law confers rights andimposes obligations directly uponCommunity citizens while its contentconflicts with a rule of national law.Concealed behind this apparently simpleproblem area are two fundamental ques-tions underlying the construction of theCommunity, the answers to which weredestined to become the acid test for theexistence of the Community legal order,namely: (i) the direct applicability ofCommunity law and (ii) the primacy ofCommunity law over conflicting nationallaw.

Direct applicability of Community law

Firstly, the direct applicability principlesimply means that Community law confersrights and imposes obligations directly notonly on the Community institutions andthe Member States but also on theCommunity’s citizens.

One of the outstanding achievements ofthe Court of Justice of the EuropeanCommunities is that is has enforced thedirect applicability of Community lawdespite the initial resistance of certainMember States, and has thus guaranteedthe existence of the Community legalorder. Its case-law on this point startedwith a case already mentioned, that of theDutch transport firm Van Gend & Loos,which brought an action in a Dutch courtagainst the Dutch customs authorities,who had charged increased customsduties on a chemical product importedfrom the Federal Republic of Germany. Inthe final analysis, the outcome of theseproceedings depended on the question ofwhether individuals too may rely onArticle 12 of the EEC Treaty (now Article25 EC), which specifically prohibits theintroduction of new customs duties andthe increase of existing duties in thecommon market. Despite the advice ofnumerous governments and its AdvocateGeneral, the Court ruled that, in view ofthe nature and objective of the Commu-nity, provisions of Community law were inall cases directly applicable. In thegrounds for its judgment, the Court statedthat ‘the Community constitutes a newlegal order ... the subjects of which 97

comprise not only the Member States butalso their nationals. Independently of thelegislation of Member States, Communitylaw not only imposes obligations on indi-viduals but is also intended to confer uponthem rights. These rights arise not onlywhere they are expressly granted by theTreaty, but also by reason of obligationswhich the Treaty imposes in a clearlydefined way upon individuals as well asupon the Member States and upon theinstitutions of the Community’.

That bald statement does not, however,get us very far, since the question remainsas to which provisions of Community laware directly applicable. The Court first ofall looked at this question in relation toprimary Community legislation anddeclared that individuals may be directlysubject to all the provisions of thefounding Treaties which (i) set out absoluteconditions, (ii) are complete in themselvesand self-contained in legal terms andtherefore (iii) do not require any furtheraction on the part of the Member States orthe Community institutions in order to becomplied with or acquire legal effect.

The Court ruled that the former Article 12EEC met these criteria, and that the firm VanGend & Loos could therefore also deriverights from it which the court in the Nether-lands was obliged to safeguard. As a conse-quence of this the Dutch court invalidatedthe customs duties levied in contravention ofthe Treaty. Subsequently, the European Courtof Justice continued to apply this reasoning inregard to other provisions of the EEC Treatythat are of far greater importance to citizensof the Community than Article 12. The judg-

ments that are especially noteworthy hereconcern the direct applicability of provisionson freedom of movement (Article 39 EC),freedom of establishment (Article 43 EC) andfreedom to provide services (Article 49 EC).

With regard to the guarantees concerningfreedom of movement, the Court of Justicedelivered a judgment declaring them directlyapplicable in the ‘Van Duyn’ case. The factsof this case were as follows: Miss van Duyn,a Dutch national, was in May 1973 refusedpermission to enter the United Kingdom inorder to take up employment as a secretarywith the Church of Scientology, an organisa-tion considered by the Home Office to be‘socially harmful’. Relying on the Communityrules on freedom of movement for workers,Miss van Duyn brought an action before theHigh Court, seeking a ruling that she wasentitled to stay in the United Kingdom for thepurpose of employment and be given leaveto enter the United Kingdom. In answer to aquestion referred by the High Court, theCourt of Justice held that Article 39 wasdirectly applicable and hence conferred onindividuals rights that are enforceable beforethe courts of a Member State.

The Court of Justice was asked by the BelgianConseil d’État to give a ruling on the directapplicability of provisions guaranteeingfreedom of establishment. The Conseil d’Étathad to decide on an action brought by aDutch lawyer, J. Reyners, who wished toassert his rights arising out of Article 43. MrReyners felt obliged to bring the action afterhe had been denied admission to the legalprofession in Belgium because of his foreignnationality, despite the fact that he hadpassed the necessary Belgian examinations.98

In its judgment of 21 July 1974, the Courtheld that unequal treatment of nationals andforeigners as regards establishment could nolonger be maintained, as Article 43 had beendirectly applicable since the end of the transi-tional period and hence entitled Communitycitizens to take up and pursue gainfulemployment in another Member State in thesame way as a national of that State. As aresult of this judgment Mr Reyners had to beadmitted to the legal profession in Belgium.

The Court of Justice was given an opportunityin the ‘Van Binsbergen’ case to specificallyestablish the direct applicability of provisionsrelating to the freedom to provide services.These proceedings involved, among otherthings, the question of whether a Dutch legalprovision to the effect that only personshabitually resident in the Netherlands couldact as legal representatives before an appealcourt was compatible with the Communityrules on freedom to provide services. TheCourt ruled that it was not compatible, on thegrounds that all restrictions to whichCommunity citizens might be subject byreason of their nationality or place of resi-dence infringe Article 49 of the EC Treaty andare therefore void.

Also of considerable importance in practicalterms is the recognition of the direct applica-bility of provisions on the free movement ofgoods (Article 28 EC), the principle of equalpay for men and women (Article 141 EC), thegeneral prohibition of discrimination (Article12 EC) and freedom of competition (Article81 EC). As regards secondary legislation, thequestion of direct applicability only arises inrelation to directives (ECSC recommenda-tions) and decisions addressed to the

Member States given that regulations (ECSCgeneral decisions) and decisions addressed toindividuals (ECSC individual decisions)already derive their direct applicability fromthe Treaties (Article 249(2) and (4) EC), Article14 ECSC). Since 1970 the Court hasextended its principles concerning directapplicability to provisions in directives and indecisions addressed to the Member States.

The practical importance of the direct effectof Community law in the form in which it hasbeen developed and brought to fruition bythe Court of Justice can scarcely be over-emphasised. It improves the position of theindividual by turning the freedoms of thecommon market into rights that may beenforced in a national court of law. The directeffect of Community law is therefore one ofthe pillars, as it were, of the Community legalorder.

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Primacy of Community law

The direct applicability of a provision ofCommunity law leads to a second, equallyfundamental question: what happens if aprovision of Community law gives rise todirect rights and obligations for theCommunity citizen and thereby conflictswith a rule of national law?

Such a conflict between Community lawand national law can be settled only if onegives way to the other. Community legisla-tion contains no express provision on thequestion. None of the Community treatiescontains a provision stating, for example,that Community law overrides, or is subor-dinate to, national law. Nevertheless, the

only way of settling conflicts betweenCommunity law and national law is togrant Community law primacy and allowit to supersede all national provisions thatdiverge from a Community rule and taketheir place in the national legal orders.After all, precious little would remain ofthe Community legal order if it were to besubordinated to national law. Communityrules could be set aside by any nationallaw. There would no longer be any ques-tion of the uniform and equal applicationof Community law in all Member States.Nor would the Community be able toperform the tasks entrusted to it by theMember States. The Community’s abilityto function would be jeopardised, and theconstruction of a united Europe on which100

so many hopes rest would never beachieved.

No such problem exists as regards therelationship between international lawand national law. Given that internationallaw does not become part of a country’sown legal order until it is absorbed bymeans of an act of incorporation or trans-position, the issue of primacy is decidedon the basis of national law alone.Depending on the order of precedenceascribed to international law by a nationallegal system, it may take precedence overconstitutional law, be ranked betweenconstitutional law and ordinary statutorylaw, or merely have the same status asstatutory law. The relationship betweenincorporated or transposed internationallaw and national law is determined byapplying the rule under which the mostrecently enacted legal provisions prevailagainst those previously in place (lexposterior derogat legi priori). Thesenational rules on conflict of laws do not,however, apply to the relationshipbetween Community law and national lawbecause Community law does not formpart of any national legal order. Anyconflict between Community law andnational law may only be settled on thebasis of the Community legal order.

Once again it fell to the Court of Justice, inview of these implications, to establish —despite opposition from several MemberStates — the principle of the primacy ofCommunity law that is essential to theexistence of the Community legal order. Inso doing, it erected the second pillar of theCommunity legal order alongside direct

applicability, which was to turn that legalorder at last into a solid edifice.

In ‘Costa v ENEL’, the Court made twoimportant observations regarding the rela-tionship between Community law andnational law:

1. The Member States have definitivelytransferred sovereign rights to aCommunity created by them. Theycannot reverse this process by meansof subsequent unilateral measureswhich are inconsistent with theCommunity concept.

2. It is a principle of the Treaty that noMember State may call into questionthe status of Community law as asystem uniformly and generally applic-able throughout the Community.

It follows from this that Community law,which was enacted in accordance withthe powers laid down in the Treaties, haspriority over any conflicting law of theMember States. Not only is it strongerthan earlier national law, but it also has alimiting effect on laws adopted subse-quently.

Ultimately, the Court did not in its judg-ment in ‘Costa v ENEL’ call into questionthe nationalisation of the Italian elec-tricity industry, but it quite emphaticallyestablished the primacy of Communitylaw over national law.

The legal consequence of this rule ofprecedence is that, in the event of aconflict of laws, national law which is in 101

contravention of Community law ceasesto apply and no new national legislationmay be introduced unless it is compatiblewith Community law.

The Court has since consistently upheldthis finding and has, in fact, developed itfurther in one respect. Whereas the‘Costa’ judgment was concerned onlywith the question of the primacy ofCommunity law over ordinary nationallaws, the Court confirmed the principleof primacy also with regard to the rela-tionship between Community law andnational constitutional law. After initialhesitation, national courts in principleaccepted the interpretation of the Courtof Justice. In the Netherlands, no difficul-ties could arise anyway because theprimacy of Treaty law over nationalstatute law is expressly laid down in theconstitution (Articles 65 to 67). In theother Member States, the principle of theprimacy of Community law over nationallaw has likewise been recognised bynational courts. However, the constitu-t ional courts of Germany and I talyinitially refused to accept the primacy ofCommunity law over national constitu-tional law, in particular regarding theguaranteed protection of fundamentalrights. They withdrew their objectionsonly after the protection of fundamentalrights in the Community legal order hadreached a standard that corresponded inessence to that of their national constitu-tions. In its judgment of 12 October 1993concerning the Treaty on European

Union (Treaty of Maastricht), however,the German constitutional court made itquite clear that it had not in any way‘surrendered’ its jurisdiction in deter-mining the applicability of secondaryCommunity legislation in Germany;however, it would only exercise this judi-cial authority ‘in collaboration’ with theEuropean Court of Justice, whereby theEuropean Court would guarantee theprotection of the basic rights of all indi-viduals throughout the Community whilstthe constitutional court in Germanywould restrict itself to generally ensuringcompliance with mandatory require-ments regarding fundamental rights. Theconstitutional court also made it clearthat it did not accept as valid withinGermany any Community legal actwhich had been adopted merely becauseof the ‘useful ef fect ’ of Communitypowers and on the basis of a broad inter-pretation of this concept, and also statedthat government institutions in Germanywere prevented from applying these legalacts for constitutional reasons. It wastherefore the task of the constitutionalcourt to examine whether legal acts ofCommunity bodies and inst i tutionsremained within or exceeded the limits oftheir sovereign rights. Only when thisthinking is put into practice will i tbecome clear whether and to what extentthe German constitutional court is actu-ally undermining the primacy of Commu-nity law and the Court of Justice’s exclu-sive power to reject illegal Communityprovisions.

102

What overall picture emerges of theEuropean Community’s legal order?

The legal order is the true foundation ofthe Community, giving it a commonsystem of law under which to operate.Only by creating new law and upholdingit can the Community’s underlying objec-tives be achieved. The Community legalorder has already accomplished a greatdeal in this respect. It is thanks not least tothis new legal order that the largely openfrontiers, the substantial trade in goodsand services, the migration of workersand the large number of transnationallinks between companies have alreadymade the common market part ofeveryday li fe for some 380 million

people. Another, historically important,feature of the Community legal order is itspeacemaking role. With its objective ofmaintaining peace and liberty, it replacesforce as a means of settling conflicts byrules of law that bind both individualsand the Member States into a singlecommunity. As a result the Communitylegal order is an important instrument forthe preservation and creation of peace.

The Community and its underlying legalorder can survive only if compliance withand safeguarding of that legal order isguaranteed by the two cornerstones: thedirect applicability of Community lawand the primacy of Community law overnational law. These two principles, the

103

CONCLUSIONS

existence and maintenance of which areresolutely defended by the Court ofJustice, guarantee the uniform and priorityapplication of Community law in allMember States.

For all its imperfections, the Communitylegal order makes an invaluable contribu-tion towards solving the polit ical,economic and social problems of theMember States of the Community.

104

105

Nature and primacy of Communitylaw

Case 26/62 Van Gend & Loos (1963) ECR1 (nature of Community law; rights andobligations of individuals).

Case 6/64 Costa/ENEL (1964) ECR 1251(nature of Community law; direct applica-bility; primacy of Community law).

Case 14/68 Walt Wilhelm and others(1969) ECR 1 (nature of Community law;primacy of Community law).

Case 106/77 Simmenthal (1978) ECR 629(Community law; direct applicability,primacy).

Case 826/79 Mireco (1980) ECR 2559(primacy of Community law).

Case C-213/89 Factortame (1990) ECR I-2466 (direct applicability; primacy ofCommunity law).

Joined Cases C-6 Francovich and 9/90Bonifaci (1991) ECR I-5403 (effect ofCommunity law; liability of MemberStates for failure to discharge Communityobligations; non-transposal of directives).

Case C-13 and 113/91 Debus (1992) ECRI-3636 (conflict between Community andnational law; direct applicability andprimacy of Community law).

Case C-393/92 Gemeente Almelo (1994)ECR I-1477 (primacy and uniform applica-tion of Community law).

Joined Cases C-46/93 Brasserie dupêcheur and C-48/93 Factortame (1996)ECR I-1029 (effect of Community law;general liability of Member States forfailure to discharge Community obliga-tions).

Joined Cases C-10 and 22/97 IN.CO.GE‘90 Srl. (1998) ECR I-6307 (primacy ofCommunity law).

Case C-212/97 Centros Ltd. (1999) ECR I-1459 (national measures for preventingabuse of Community law).

Powers of the Community

Case 8/55 Fédéchar (1955-56) ECR 291(implied powers; official fixing of prices).

Case 22/70 AETR (1971) ECR 263 (legalpersonality and treaty-making powers ofthe Community).

Case 6/76 Kramer (1976) ECR 1279(external relations; international commit-ments; authority of the Community).

Opinion 1/76 (1977) ECR 759 ff. (externalrelations; international commitments;authority of the Community).

TABLE OF CASES

Opinion 1/78 (1979) ECR 2871 (divisionof powers between the Community andthe Member States).

Cases 51, 90 and 94/89 United Kingdomand others v Council (1991) ECR I-2786(subsidiarity; scope of principle).

Opinion 2/91 (1993) ECR I-1061 (distribu-tion of powers between the Communityand the Member States).

Opinion 1/91 (1993) ECR I-6079 (EEAAgreement I; distribution of powers).

Opinion 1/94 (1994) ECR I-5267 (WTOAgreement; distribution of powers).

Opinion 2/94 (1996) ECR I-1759 (acces-sion by the EC to the ECHR; absence ofpowers).

Case 22/96 — Parliament v Council(1998) ECR I-3231

Effects of legal acts

Case 43/71 Politi (1971) ECR 1039 (regu-lations; direct effects).

Case 65/75 Tasca (1976) ECR 291 (regula-tions; direct effects).

Case 31/78 Bussone (1978) ECR 2429(regulations; direct effects).

Case 2/74 Reyners (1974) ECR 631 (directapplicability; freedom of establishment).

Case 11/77 Hugh Patrick (1977) ECR 1199(direct applicability; right of establish-ment).

Case 33/74 van Binsbergen (1974) ECR1299 (direct applicability; freedom toprovide services).

Case 41/74 van Duyn (1974) ECR 1337(direct applicability; freedom of move-ment).

Case 9/70 Grad (1970) ECR 825 (deci-sions; direct applicability).

Case 33/70 SACE (1970) ECR 1213 (direc-tives; direct applicability).

Case 148/78 Ratti (1979) ECR 1629 (direc-tives; direct applicability).

Case 70/83 Kloppenburg (1984) ECR 1075(directives; direct applicability).

Case 152/84 Marshall (1986) ECR 723(directives; direct applicability).

Case 103/88 Costanzo (1989) ECR 1861(directives; direct applicability; conditions;consequences).

Case 322/88 Grimaldi (1989) ECR 4416(recommendations; direct effect or itsabsence; observance by national courts).

Case 188/89 Forster (1990) ECR I-3343(directives; horizontal direct effect).

Case 221/88 Busseni (1990) ECR I-519(ECSC recommendations/directives;vertical direct effect).106

Case 292/89 Antonissen (1991) ECR I-773(statements in Council minutes; status forinterpretation purposes).

Case 156/91 Hansa Fleisch (1992) ECR I-5567 (decisions; direct applicability;conditions).

Case 91/92 Faccini Dori (1994) ECR I-3325 (directives; horizontal direct effect).

Case 465/93 Atlanta Fruchthandelsge-sellschaft (1995) ECR I-3761 (validity of aregulation; preliminary ruling; ordering ofinterim measures; conditions).

Case 469/93 Chiquita Italia (1995) ECR I-4533 (direct effect of provisions of theGATT and the Lomé Convention).

Case 368/96 Generics Ltd. (1998) ECR I-7967 (statements in minutes; status forinterpretation purposes).

Fundamental rights

Case 29/69 Stauder (1969) ECR 419(fundamental rights; general principles oflaw).

Case 11/70 Internationale Handelsge-sellschaft (1970) ECR 1125 (fundamentalrights; general principles of law).

Cases 166/73, 146/73 Rheinmühlen I, II(1974) ECR 33 and 139 (extent to whichnational courts are bound by rulings ofsuperior courts).

Case 4/73 Nold (1974) ECR 491 (funda-mental rights; general principles of law;common constitutional traditions).

Case 36/75 Rutili (1975) ECR 1219 (equaltreatment; reference to the ECHR).

Case 175/73 Amalgamated EuropeanPublic Service Union (1974) ECR 917(freedom to form associations).

Case 130/75 Prais (1976) ECR 1589(freedom of religion).

Case 117/76 Quellmehl (1977) ECR 1753(principle of equality).

Case 149/77 Defrenne (1978) ECR 1381(fundamental rights; general principles oflaw).

Case 44/79 Hauer (1979) ECR 3727(fundamental rights; right to property).

Case 85/79 Hoffmann-La Roche (1979)ECR 461 (fundamental rights; principle ofthe right to be heard).

Joined Cases 154, 205, 206, 227-228, 263and 264/78 Valsabbia (1980) ECR 1010(fundamental rights; right of property).

Case 293/83 Gravier (1985) ECR 593(equal treatment; students’ registrationfee).

Case 234/85 Keller (1986) ECR 2897(freedom to pursue a trade or profession). 107

Case 12/86 Demirel (1987) ECR 3719(fundamental rights; Convention onHuman Rights).

Joined Cases 46/87 and 227/88 Hoechst(1989) ECR 2919 (fundamental rights;principle of the right to be heard; adminis-trative procedure; inviolability of thehome; reference to the ECHR).

Case 374/87 Orkem (1989) ECR 3343(fundamental rights; principle of the rightto be heard; investigation procedure).

Case 265/87 Schräder (1989) ECR 2263(rights of ownership; freedom to pursue atrade or profession; restrictions).

Case 100/88 Oyowe and Traore (1989)ECR 4304 (fundamental rights; freedom ofexpression).

Case 5/88 Wachauf (1989) ECR 2633(restrictions on fundamental rights).

Case 62/90 Commission v Germany(1992) ECR I-2575 (fundamental rights;observance by Member States; restrictionsin the public interest).

Case 219/91 Ter voort (1992) ECR I-5485(freedom of expression).

Case 97/91 Borelli (1992) ECR I-6313(fundamental rights; right to take action inthe courts).

Case 357/89 Raulin (1992) ECR I-1027(equal treatment; prohibition of discrimi-nation on grounds of nationality).

Case 132/91 Katsikas (1992) ECR I-6577(fundamental rights; freedom to pursue atrade or profession).

Case 2/92 Bostock (1994) ECR I-955(fundamental freedoms; right of owner-ship; freedom to pursue a trade or profes-sion; observance when implementingCommunity rules).

Case 280/93 Germany v Council (1994)ECR I-5065 (rights of ownership; freedomto pursue a trade or profession; restrictionsin the public interest).

Case 415/93 Bosman (1995) ECR I-4921(fundamental rights; freedom to pursue atrade or profession).

Case 55/94 Gebhard (1995) ECR I-4165(fundamental rights; right of establishment;freedom to pursue a trade or profession).

Opinion 2/94 (1996) ECR I-1759 (funda-mental rights; accession by the EC to theECHR).

Case T-105/95 WWF (World Wide Fundfor Nature) v Commission (1997) ECR II-313 (basic procedural rights; public accessto Council and Commission documents).

Cases 248 and 249/95 SAM Schiffahrt undStapf (1997) ECR I-4475 (protection ofproperty rights and their substance).

Case T-42/96 Eyckeler & Malt AG vCommission (‘Hilton Beef’) (1998) ECR II-401 (basic procedural rights; right to beheard).108

General principles of law (selection)

Legal certainty

Cases 18 and 35/65 Gutmann (1966) ECR103, 149 ff.

Case 78/74 Deuka (1975) ECR 421.

Case 98/78 Racke (1979) ECR 69.

Case 96/78 Decker (1979) ECR 101.

Case 265/78 Ferwerda (1980) ECR 617.

Case 61/79 Denkavit (1980) ECR 1205.

Cases 66, 127 and 128/79 Salumi (1980)ECR 1237.

Case 826/79 Mireco (1980) ECR 2559.

Case 70/83 Kloppenburg (1984) ECR1075.

Case 322/93 P Peugeot (1994) ECR I-2727.

Case 137/95 Richardson (1995) ECR I-3407.

Cases T-551/93, T-231–234/94 IndustriasPesqueras Campos and others (1996) ECRII-247.

Proportionality

Case 116/76 Granaria (1977) ECR 1247.

Case 8/77 Sagulo (1977) ECR 1495.

Case 122/78 Buitoni (1979) ECR 677.

Case 154/78 Valsabbia (1980) ECR 907.

Case 808/79 Pardini (1980) ECR 2103.

Case 125/83 Corman (1985) ECR 3039.

Case 265/87 Schräder (1989) ECR 2263.

Case 331/88 Fedesa (1990) ECR I-4057.

Case 87/92 Hoche (1993) ECR I-4623.

Case T-480/93 Antillean Rice Mills (1995)ECR II-2305.

Case T-162/94 NMB and others (1996)ECR II-427.

Case 233/94 Germany v Council andParliament (1997) ECR I-2405.

Case 161/96 Südzucker (1998) ECR I-281.

Protection of legitimate expectations

Case 74/74 CNTA (1975) ECR 533.

Cases 205–215/82 Deutsche Milchkontor(1983) ECR 2633.

Case 120/86 Mulder (1988) ECR 2344.

Case 170/86 von Deetzen (1988) ECR2368.

Case 350/88 Delacre (1990) ECR I-418.

Case 152/88 Sofrimport (1990) ECR I-2477.

Case 368/89 Crispoltoni I (1991) ECR I-3715. 109

Cases 31–44/91 Lageder (1993) ECR I-1761.

Case T-82/91 Latham (1994) ECR II-61.

Case T-472/93 Campo Ebro (1995) ECR II-421.

Case 22/94 Irish Farmer Association(1997) ECR I-1808.

Case T-119/95 Hauer (1998) ECR II-2713.

Subsidiarity principle

Case T-29/92 SPO (1995) ECR II-289.

Case 84/94 United Kingdom v Council(1996) ECR I-5755.

Cases 36 and 37/97 Kellinhusen andKetelsen (1998) ECR I-6337.

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TITLE I TITLE IArticle A Article 1Article B Article 2Article C Article 3Article D Article 4Article E Article 5Article F Article 6Article F.1 (*) Article 7

TITLE II TITLE IIArticle G Article 8

TITLE III TITLE IIIArticle H Article 9

TITLE IV TITLE IVArticle I Article 10

TITLE V (***) TITLE VArticle J.1 Article 11Article J.2 Article 12Article J.3 Article 13Article J.4 Article 14Article J.5 Article 15Article J.6 Article 16Article J.7 Article 17Article J.8 Article 18Article J.9 Article 19Article J.10 Article 20Article J.11 Article 21Article J.12 Article 22Article J.13 Article 23Article J.14 Article 24Article J.15 Article 25Article J.16 Article 26Article J.17 Article 27Article J.18 Article 28

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TITLE VI (***) TITLE VIArticle K.1 Article 29Article K.2 Article 30Article K.3 Article 31Article K.4 Article 32Article K.5 Article 33Article K.6 Article 34Article K.7 Article 35Article K.8 Article 36Article K.9 Article 37Article K.10 Article 38Article K.11 Article 39Article K.12 Article 40Article K.13 Article 41Article K.14 Article 42

TITLE VI a (**) TITLE VIIArticle K.15 (*) Article 43Article K.16 (*) Article 44Article K.17 (*) Article 45

TITLE VII TITLE VIIIArticle L Article 46Article M Article 47Article N Article 48Article O Article 49Article P Article 50Article Q Article 51Article R Article 52Article S Article 53

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PART ONE PART ONEArticle 1 Article 1Article 2 Article 2Article 3 Article 3Article 3 a Article 4Article 3 b Article 5Article 3 c (*) Article 6Article 4 Article 7Article 4 a Article 8Article 4 b Article 9Article 5 Article 10Article 5 a (*) Article 11Article 6 Article 12Article 6 a (*) Article 13Article 7 (repealed) –Article 7 a Article 14Article 7 b (repealed) –Article 7 c Article 15Article 7 d (*) Article 16

PART TWO PART TWOArticle 8 Article 17Article 8 a Article 18Article 8 b Article 19Article 8 c Article 20Article 8 d Article 21Article 8 e Article 22

PART THREE PART THREETITLE I TITLE IArticle 9 Article 23Article 10 Article 24Article 11 (repealed) –

CHAPTER 1 CHAPTER 1Section 1 (deleted)–Article 12 Article 25Article 13 (repealed) –Article 14 (repealed) –Article 15 (repealed) –Article 16 (repealed) –Article 17 (repealed) –

AppendixTABLE OF EQUIVALENCES REFERRED TO IN ARTICLE 12

OF THE TREATY OF AMSTERDAM

A. Treaty on European Union

B. Treaty establishing the EuropeanCommunity

(*) New Article introduced by theTreaty of Amsterdam.

(**) New Title introduced by theTreaty of Amsterdam.

(***) Title restructured by the Treaty ofAmsterdam.

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Section 2 (deleted) –Article 18 (repealed) –Article 19 (repealed) –Article 20 (repealed) –Article 21 (repealed) –Article 22 (repealed) –Article 23 (repealed) –Article 24 (repealed) –Article 25 (repealed) –Article 26 (repealed) –Article 27 (repealed) –Article 28 Article 26Article 29 Article 27

CHAPTER 2 CHAPTER 2Article 30 Article 28Article 31 (repealed) –Article 32 (repealed) –Article 33 (repealed) –Article 34 Article 29Article 35 (repealed) –Article 36 Article 30Article 37 Article 31

TITLE II TITLE II1Article 38 Article 32Article 39 Article 33Article 40 Article 34Article 41 Article 35Article 42 Article 36Article 43 Article 37Article 44 (repealed) –Article 45 (repealed) –Article 46 Article 38Article 47 (repealed) –

TITLE III TITLE III

CHAPTER 1 CHAPTER 1Article 48 Article 39Article 49 Article 40Article 50 Article 41Article 51 Article 42

CHAPTER 2 CHAPTER 2Article 52 Article 43Article 53 (repealed) –Article 54 Article 44Article 55 Article 45Article 56 Article 46Article 57 Article 47Article 58 Article 48

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CHAPTER 3 CHAPTER 3Article 59 Article 49Article 60 Article 50Article 61 Article 51Article 62 (repealed) –Article 63 Article 52Article 64 Article 53Article 65 Article 54Article 66 Article 55

CHAPTER 4 CHAPTER 4Article 67 (repealed) –Article 68 (repealed) –Article 69 (repealed) –Article 70 (repealed) –Article 71 (repealed) –Article 72 (repealed) –Article 73 (repealed) –Article 73 a (repealed) –Article 73 b Article 56Article 73 c Article 57Article 73 d Article 58Article 73 e (repealed) –Article 73 f Article 59Article 73 g Article 60Article 73 h (repealed) –

TITLE III a (**) TITLE IVArticle 73 i (*) Article 61Article 73 j (*) Article 62Article 73 k (*) Article 63Article 73 l (*) Article 64Article 73 m (*) Article 65Article 73 n (*) Article 66Article 73 o (*) Article 67Article 73 p (*) Article 68Article 73 q (*) Article 69

TITLE IV TITLE VArticle 74 Article 70Article 75 Article 71Article 76 Article 72Article 77 Article 73Article 78 Article 74Article 79 Article 75Article 80 Article 76Article 81 Article 77Article 82 Article 78Article 83 Article 79Article 84 Article 80

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TITLE V TITLE VI

CHAPTER 1 CHAPTER 1SECTION 1 SECTION 1Article 85 Article 81Article 86 Article 82Article 87 Article 83Article 88 Article 84Article 89 Article 85Article 90 Article 86Section 2 (deleted) –Article 91 (repealed) –

SECTION 3 SECTION 2Article 92 Article 87Article 93 Article 88Article 94 Article 89

CHAPTER 2 CHAPTER 2Article 95 Article 90Article 96 Article 91Article 97 (repealed) –Article 98 Article 92Article 99 Article 93

CHAPTER 3 CHAPTER 3Article 100 Article 94Article 100 a Article 95Article 100 b (repealed) –Article 100 c (repealed) –Article 100 d (repealed) –Article 101 Article 96Article 102 Article 97

TITLE VI TITLE VII

CHAPTER 1 CHAPTER 1Article 102 a Article 98Article 103 Article 99Article 103 a Article 100Article 104 Article 101Article 104 a Article 102Article 104 b Article 103Article 104 c Article 104

CHAPTER 2 CHAPTER 2Article 105 Article 105Article 105 a Article 106Article 106 Article 107Article 107 Article 108Article 108 Article 109Article 108 a Article 110Article 109 Article 111

112

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CHAPTER 3 CHAPTER 3Article 109 a Article 112Article 109 b Article 113Article 109 c Article 114Article 109 d Article 115

CHAPTER 4 CHAPTER 4Article 109 e Article 116Article 109 f Article 117Article 109 g Article 118Article 109 h Article 119Article 109 i Article 120Article 109 j Article 121Article 109 k Article 122Article 109 l Article 123Article 109 m Article 124

TITLE VI a (**) TITLE VIIIArticle 109 n (*) Article 125Article 109 o (*) Article 126Article 109 p (*) Article 127Article 109 q (*) Article 128Article 109 r (*) Article 129Article 109 s (*) Article 130

TITLE VII TITLE IXArticle 110 Article 131Article 111 (repealed) –Article 112 Article 132Article 113 Article 133Article 114 (repealed) –Article 115 Article 134

TITLE VIIa (**) TITLE XArticle 116 (*) Article 135

TITLE VIII TITLE XI

CHAPTER 1 (***) CHAPTER 1Article 117 Article 136Article 118 Article 137Article 118 a Article 138Article 118 b Article 139Article 118 c Article 140Article 119 Article 141Article 119 a Article 142Article 120 Article 143Article 121 Article 144Article 122 Article 145

CHAPTER 2 CHAPTER 2Article 123 Article 146Article 124 Article 147Article 125 Article 148

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CHAPTER 3 CHAPTER 3Article 126 Article 149Article 127 Article 150

TITLE IX TITLE XIIArticle 128 Article 151

TITLE X TITLE XIIIArticle 129 Article 152

TITLE XI TITLE XIVArticle 129 a Article 153

TITLE XII TITLE XVArticle 129 b Article 154Article 129 c Article 155Article 129 d Article 156

TITLE XIII TITLE XVIArticle 130 Article 157

TITLE XIV TITLE XVIIArticle 130 a Article 158Article 130 b Article 159Article 130 c Article 160Article 130 d Article 161Article 130 e Article 162

TITLE XV TITLE XVIIIArticle 130 f Article 163Article 130 g Article 164Article 130 h Article 165Article 130 i Article 166Article 130 j Article 167Article 130 k Article 168Article 130 l Article 169Article 130 m Article 170Article 130 n Article 171Article 130 o Article 172Article 130 p Article 173Article 130 q (repealed) –

TITLE XVI TITLE XIXArticle 130 r Article 174Article 130 s Article 175Article 130 t Article 176

TITLE XVII TITLE XXArticle 130 u Article 177Article 130 v Article 178Article 130 w Article 179Article 130 x Article 180Article 130 y Article 181

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PART FOUR PART FOURArticle 131 Article 182Article 132 Article 183Article 133 Article 184Article 134 Article 185Article 135 Article 186Article 136 Article 187Article 136 a Article 188

PART FIVE PART FIVE

TITLE I TITLE I

CHAPTER 1 CHAPTER 1

SECTION 1 SECTION 1Article 137 Article 189Article 138 Article 190Article 138 a Article 191Article 138 b Article 192Article 138 c Article 193Article 138 d Article 194Article 138 e Article 195Article 139 Article 196Article 140 Article 197Article 141 Article 198Article 142 Article 199Article 143 Article 200Article 144 Article 201

SECTION 2 SECTION 2Article 145 Article 202Article 146 Article 203Article 147 Article 204Article 148 Article 205Article 149 (repealed) –Article 150 Article 206Article 151 Article 207Article 152 Article 208Article 153 Article 209Article 154 Article 210

SECTION 3 SECTION 3Article 155 Article 211Article 156 Article 212Article 157 Article 213Article 158 Article 214Article 159 Article 215Article 160 Article 216Article 161 Article 217Article 162 Article 218Article 163 Article 219

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SECTION 4 SECTION 4Article 164 Article 220Article 165 Article 221Article 166 Article 222Article 167 Article 223Article 168 Article 224Article 168 a Article 225Article 169 Article 226Article 170 Article 227Article 171 Article 228Article 172 Article 229Article 173 Article 230Article 174 Article 231Article 175 Article 232Article 176 Article 233Article 177 Article 234Article 178 Article 235Article 179 Article 236Article 180 Article 237Article 181 Article 238Article 182 Article 239Article 183 Article 240Article 184 Article 241Article 185 Article 242Article 186 Article 243Article 187 Article 244Article 188 Article 245

SECTION 5 SECTION 5Article 188 a Article 246Article 188 b Article 247Article 188 c Article 248

CHAPTER 2 CHAPTER 2Article 189 Article 249Article 189 a Article 250Article 189 b Article 251Article 189 c Article 252Article 190 Article 253Article 191 Article 254Article 191 a (*) Article 255Article 192 Article 256

CHAPTER 3 CHAPTER 3Article 193 Article 257Article 194 Article 258Article 195 Article 259Article 196 Article 260Article 197 Article 261Article 198 Article 262

CHAPTER 4 CHAPTER 4Article 198 a Article 263Article 198 b Article 264Article 198 c Article 265

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CHAPTER 5 CHAPTER 5Article 198 d Article 266Article 198 e Article 267

TITLE II TITLE IIArticle 199 Article 268Article 200 (repealed) –Article 201 Article 269Article 201 a Article 270Article 202 Article 271Article 203 Article 272Article 204 Article 273Article 205 Article 274Article 205a Article 275Article 206 Article 276Article 206 a (repealed) –Article 207 Article 277Article 208 Article 278Article 209 Article 279Article 209 a Article 280

PART SIX PART SIXArticle 210 Article 281Article 211 Article 282Article 212 (*) Article 283Article 213 Article 284Article 213 a (*) Article 285Article 213 b (*) Article 286Article 214 Article 287Article 215 Article 288Article 216 Article 289Article 217 Article 290Article 218 (*) Article 291Article 219 Article 292Article 220 Article 293Article 221 Article 294Article 222 Article 295Article 223 Article 296Article 224 Article 297Article 225 Article 298Article 226 (repealed) –Article 227 Article 299Article 228 Article 300Article 228 a Article 301Article 229 Article 302Article 230 Article 303Article 231 Article 304Article 232 Article 305Article 233 Article 306Article 234 Article 307Article 235 Article 308Article 236 (*) Article 309Article 237 (repealed) –Article 238 Article 310Article 239 Article 311

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Article 240 Article 312Article 241 (repealed) –Article 242 (repealed) –Article 243 (repealed) –Article 244 (repealed) –Article 245 (repealed) –Article 246 (repealed) –

FINAL PROVISIONS

Article 247 Article 313Article 248 Article 314

114

(*) New Article introduced by theTreaty of Amsterdam.

(**) New Title introduced by theTreaty of Amsterdam.

(***) Chapter 1, restructured by theTreaty of Amsterdam.

For more information

The ‘Europa’ server on the Internet provides access to Community legislation:

http://europa.eu.int/eur-lex

http://europa.eu.int/celex

There is also the site of the Court of Justice of the European Communities:

http://curia.eu.int

Furthermore, the catalogue of the European Commission’s central library can be consulted for details of the legal

holdings in particular at:

http://europa.eu.int/eclas

115

European Commission

THE ABC OF COMMUNITY LAW(Fifth edition)

European Documentation series

Luxembourg: Office for Official Publications of the European Communities

2000 — 115 pp. — 16.2 x 22.9 cm

ISBN 92-828-7803-1

Booklet intended mainly for non-lawyers. Tries to explain the European legal order in laymen’s language.

Other information on the European Union

Information in all the official languages of the European Union is available on the Internet. It can be accessed

through the Europa server (http://europa.eu.int).

Information and publications in English on the European Union can be obtained from the following addresses.

EUROPEAN COMMISSION REPRESENTATIONS

Representation in Ireland

18 Dawson Street, Dublin 2 —

Tel. (353-1) 662 51 13

Representation in the United Kingdom

Jean Monnet House, 8 Storey’s Gate,

London SW1P 3AT —

Tel. (44-20) 79 73 19 92

www.cec.org.uk

Representation in Wales

4 Cathedral Road, Cardiff CF1 9SG —

Tel. (44-29) 20 37 16 31

Representation in Scotland

9 Alva Street, Edinburgh EH2 4PH —

Tel. (44-131) 225 20 58

Representation in Northern Ireland

Windsor House, 9/15 Bedford Street,

Belfast BT2 7EG —

Tel. (44-28) 90 24 07 08

Information services in the USA

2300 M Street, NW, Suite 707,

Washington DC 20037 —

Tel. (1-202) 862 95 00

305 East 47th Street, 3 Dag Hammarskjöld Plaza,

New York, NY 10017 —

Tel. (1-212) 371 38 04

EUROPEAN PARLIAMENT OFFICES

Office in Ireland

European Union House, 43 Molesworth Street,

Dublin 2 —

Tel. (353-1) 605 79 00

Fax (353-1) 605 79 99

e-mail: EPDublin@europarl.eu.int

United Kingdom Office

2, Queen Anne’s Gate, London SW1H 9AA —

Tel. (44-20) 72 27 43 00

Fax (44-20) 72 27 43 02

e-mail: EPLondon@europarl.eu.int

Office in Scotland

9 Alva Street, Edinburgh EH2 4PH —

Tel. (44-131) 225 20 58

Fax (44-131) 226 41 05

European Commission and Parliament representations and offices exist in all the countries of the European Union.

The European Commission also has delegations in other parts of the world.

EN

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On the basis of the EuropeanTreaties, thousands of decisionsare taken each year which have amajor impact on the running of

the Member States and on the lives of European citizens. Theindividual ceased long ago to be a citizen merely of a town, locality orState: he is now a Community citizen too.

The purpose of this publication is to explain the European legal orderto these citizens. It is addressed primarily to non-lawyers and tries todescribe the Treaties in terms intelligible to the layman.

1 6 PD-25-99-221-EN

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OFFICE FOR OFFICIAL PUBLICATIONSOF THE EUROPEAN COMMUNITIESL-2985 Luxembourg

ISBN 92-828-7803-1

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