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European Law

European Law. Fundamental Issues of European Integration. Peter Reich/Cornelius Peetz. Fundamental Issues of European Integration. History; Institutions; Legal Sources of Community Law and the Relationship to National Law; Significance of Community Law for Administrative Authorities.

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European Law

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  1. European Law Fundamental Issues of European Integration Peter Reich/Cornelius Peetz

  2. Fundamental Issues of European Integration History; Institutions; Legal Sources of Community Law and the Relationship to National Law; Significance of Community Law for Administrative Authorities I) Membership II) Legal Character of the EU / Historical Key Dates III) The Institutions of the EU • Tasks and Competences IV) The Legal Sources of Community Law and Relationship to National Law (Overview) V) Impacts of Community Law on National Law • Effects of Secondary Law on National Law • In particular: Directives • - possible direct effect • - Member State liability for damages in case of • late or non-implementation • Effects of Primary Law on National Law • -Fundamental Freedoms VI) Significance of the Community Law for the Administration • Execution of the Community Law by Administrative Authorities (Overview) - “European Duties” of Civil Servant

  3. A Conditions of Membership Respect of Human and Fundamental Rights, Art.6 (2) EU European State, Art.49 (1) 1 EU Democracy, Art.6 (1) EU Market Economy, Art.4 (1) EC Ability to assume the acquis communautaire The Membership in the European Union

  4. B Procedure for Becoming Member • Relating to Community Law, Art.49 (1) 2 EU: • Consulting the Commission • Assent of European Parliament • Unanimous decision of the Council • Relating to International Law, Art.49 (2) EU: • Treaty between Member States and the applicant State (adjustment of the Union Law) • Ratification by all Contracting States C Leaving or Exclusion (of) EU are not regulated in the Community or in the Union Law, respectively

  5. The Population of the EU Until 1 of May 2004: 15 Member States with a total population of circa 380 million

  6. EC-members EC-members from 01.05.2004 (except Bulgaria and Romania) EU-candidates still not in entry negotiations The EU after 1. of May 2004

  7. Key Dates in History of European Integration

  8. Development of EuropeanIntegration Treaty of Amsterdam1997/1999 3. Enlargement1995:A/FIN/S 1952:Europ. Coal and Steel Comm. Monetary Union1999/2002 Internal Market1993 1957:EEC/Euratom Treaty of Nice 2001/ 2003 Treaty of Maastricht1992: EU Customs Union1968 4. Enlargement2004 Single Act1986: EEA 1. Enlargement 1973DK/IRL/UK Treatyestablishinga Constitution ? 2. Enlargement1981/86: GR/E/P European MonetarySystem 1979

  9. European Internal Market Free Movement of Goods Free Movement of Persons Free Movement of Services Free Movement of Capital Art. 28 Art. 39, 43 Art. 49 Art. 56 Objectives of the four Freedoms: Liberality and Harmony throughout (Single Market)

  10. “Common Market” (in particular Art. 2 EC) Uniformity outwards (Common Customs Tariff, common com-mercial policy ...) Freedom inwards free market free competition Approximation of laws (Art.94, Art.95 EC) The fundamental freedoms (Art.28, Art.39, Art.43, Art.49, Art.56 EC) “Internal Market” (in particular Art.14 EC)

  11. Treaty on European Union (Maastricht) - EU - main contents - 3 Pillars (see Art.1 (3)) Economic and Monetary Union Art.4, Art.8 and Art.98 f. EC Citizenship of the Union Art.17 f. EC ( Right to vote; free movement and residence) EC Art.11-28 Art.29-42 juridical compe-tences “political” (not integrated) Strengthening of European Parliament ( for first time participation in decicion-making power, Art.251 EC) New Competences (related primarily to culture and social policy, and also environment, research, health ...)

  12. European Union The EC: Customs Union Internal Market Agricultural Policy Trade Policy Consumer Protection Health Environmental Policy Monetary Union ... Foreign and security policy Co-operation in justice and home affairs The Three Pillars of the European Union supranational (integrated) intergovernmental (not integrated) intergovernmental (not integrated, but now: new Art.61 f. EC)

  13. The Treaty of Amsterdam - main contents - Fundamental Principles and Rights Foreign and Security Policy Institutional Reforms Policy “for the Citizens” Justice and Home Affairs Closer Co-operation

  14. Commission From 2005 the “large” Member States renounce second Member of Commission in favour of candidates  Number of Members of Commission may increase up to 27  After that a rotation system will be installed (with a number of members below 27 - adapted by the Council) Council Conditions of acting by a qualified majority: 1. About 71% of the - new - weighted (s. extra-transparency) votes 2. Representation of at least 62% of the total population 3. The majority of Member States (changes might come trough the Treaty establishing a constitution) Parliament The number of Members must not exceed 732 (see extra-transparency concerning the (new) distribution of seats) Committee of Regions / Economic and Social Committee Number of Members of each Accession State: (Member States unchanged) PL 21 RO (15) CR 12 H 12 BG (12) SK 9 LT 9 LV 7 SLO 7 EST 7 CY 6 M 5 Treaty of Nice - some institutional amendments referring to the enlargement -

  15. Treaty of Nice (as amended by the act concerning the accession) Council / Rat Weighting of votes(before/after enlargement) Parliament / Parlament Before /after Election 13.06.2004 Member States

  16. The Institutions of the Community (See Art. 7 EC) European Council 15 Heads of State + President of Commission General politicalguidelines Main tasks of integra-tion COMMISSION 25 (30) members: 1 of each MS (until 10/2004: 2 from D, E, F, GB, I and 1 from the other MS) Council 25 Minister (1 of each MS) European PARLIAMENT 732 representatives proposals consulting decisions Co-decision Motion of censure COURT of AUDITORS COURT of JUSTICE Control… Economic and Social Committee303 members Committee of Regions303 members Consulting ( other institutions)

  17. The European Parliament President General Secretary(Seat: Luxembourg) Permanent Committees(Consulting place: Brussels) Political Groups(Members of all States) Elected for 2 1/2 years Estonia 6 6 Luxembourg Plenum 732 Representatives (Plenum: Strasbourg, Brussels) Cyprus 6 27 Netherlands Belgium 24 19 Sweden Denmark 14 24 Portugal Germany 99 21 Austria Finland 14 54 Spain France 87 5 Malta 14 Slowakia Poland 54 Greece24 78 Italy 13 Lithuania Czech Rep. 24 Ireland 15 9 Latvia United Kingdom 78 Hungary 24 7 Slowenia Elected for a term of 5 years by the citizens of the Union

  18. The European Commission President 1 Member by each Member State(until 10/2004:2 Members by D, F, UK, I, E). Commission 25 (30) Members (including President) Nominated by the governments of the Member States and after approval at the European Parliamentappointed by common accord for 5 years DG Controlling Whether Community Law is appliedcorrectly and obligations arefulfilled by Member States GUARDIAN Initiatives(Proposals for legislation) for the further develop-ment of Community Policy DRIVING FORCE Administering and implementing Communitylegislation especially in fieldof competition law EXECUTIVE BODY

  19. Council of the European Union Main tasks: Issuing legislation Coordination of policies ... is made up of representatives of each Member State at ministerial level with composition varying according to the subject discussed Committee of the Permanent Representatives of the Member States Presidency of Council Art.203 (2) EC is held in turn by each Member State for six months General Secretariat (Brussels) • From 01.11.2004: • Weighting of Votes where the Council is required to act by a qualified majority (Art.205 (2) EC): 232/321 • Majority of Member States • Representation of at least 62% of the total population, if requested by 1 Member (Act of Accession)

  20. The European Court of Justice Seat: Luxembourg Court of Justice (tasks see later) President (Art.221 EC) Governments of the Member States appoint 15 (25) Judges and 8 (9) Advocates-General by common accord for the term of six years (Art.223 EC) Advocates-General (Art.222 EC) Assis- tance 6 Chambers of 3 - 7 Judges Court of First Instance (Art.225 EC) All actions for annulment, complaints for failure to act, and actions for damages brought by natural and legal persons; competition proceedings; actions by Community staff

  21. Commission Council Parliament Tasks of the Three European Institutions: (“Legislator”) (“Consultant, controller, co-decider ...”) (“Government”) • Right of Initiative • (Art.250 - Art.252 EC) • Controlling whether Com-munity Law is applied correctly ... • (Art.226 EC) • Own right of legislation • (if empowered by the • Council, Art.211 EC) • Representing the Community (international relationships) • Consulting • (e.g. Art.37 (2) EC) • Controlling • (e.g. Art.201 EC: Vote of no confidence against the Commission) • Legislation, •  Power over the budget, Art.272 EC •  in the “co-decision” procedure (Art.251 EC) • Right of action to ECJ (Art.230 (3) EC) • Issuing legislation • Responsibility for amendments of the Treaties, decisions of accession ... • (Art.48 and Art.49 EU) • Coordination • Art.202 EC • Controlling and supervising the Commission • e.g. Art.216 EC

  22. The Legislative Process - Forms of participation of the European Parliament and domains of application - 4 different procedures Consultation (“conventional”, Art.250 EC)  Art.94 EC (Harmonizing the Common Market); Art.37 (2) EC (Agricultural Policy); Art.157 (3) EC (Industrial Policy) Cooperation (Art.252 EC)  after coming into force of the Treaty of Amsterdam little relevance: e.g. Art.103 (2), Art.106 (2) EC • Co-Decision • (Art.251 EC) •  • = most frequent procedure • e.g.: • Art.40 EC (Free movement of workers) • Art.44 EC (Freedom of establishment) • Art.153 EC (Consumer Protection) • Art.95 EC (Approximation of laws to realise the internal market) • Art.175 EC (Protection of environment) • Approval • (not explicitly mentioned) •  • e.g.: • Art.18 (2) EC (Free movement of persons) • Art.190 (4) EC (Election procedure) • Art.214 (2) EC (Appointment of the members of the Commission)  growing involvement of the Parliament

  23. but: except “exclusive competences” • these are (pursuant to the jurisdiction of the ECJ): • the common commercial policy • the policy in the sphere of fisheries • the fixing of the Common Custums Tariff • the subsidies-control • and domains in which the Community has already made use of its powers completely, e.g. in the policy of agriculture (vague distinction) (Legislative) Competences of Community A No (clear) distinction of policies between Member States and EC B But: Limitson the powers of the EC Art.5 Abs.1 EC (principle of specific conferment of powers)  i.e. competent only within the conferred powers of the Treaty Art.5 Abs.2 EC (principle of subsidiarity)  i.e. competent only if the purposes of the intended measures can not be achieved by the Member States (in a comparable way) • e.g. Art.47 (1), Art.175 EC: activity in a special field; • but on the other hand e.g. Art.95 (1) EC: “open, dynamic” competence; • moreover: • the doctrine of the “implied powers” • and • Art.308 EC

  24. Purposes and Activities of EC Purposes(Art.2 EC) Harmonious development of economic activities Sustainable and non-inflationary growth Convergence of economic performance High level of protection of the environment High level of employment Raising the quality of life Economic and social solidarity Social protection

  25. Purposes and Activities of EC Means(to achieve the purposes) Establishing a common market Establishing an economic and monetary union Policy and measures pursuant to Art.3, 4 EC (= activities of the EC)

  26. The Legal Sources of Community Law - Overview - Secondary Law Primary Law (see Art.249 EC) Foundation Treaties (ECSC, EEC(EC), Euratom, EU)  binding on the Community institutions and the Member States (MS); some provisions with direct effect for individuals (e.g. Art.28, Art.39 EC) General Principles (developed by the ECJ): especially fundamental rights (derived from the ECHR)  bind above all the Community institutions Regulation  binding anddirectly applicable in all MS and for the citizens Directive  binding on the MS as regards the objective to be achieved (leaving to the MS the choice of form and method); however: by the way of exception direct effect in the MS without implementing measures Decision  directly applicable and binding on those (MS or person) to whom it is addressed (individual measure) Recommen-dation / Opinion  no binding force

  27. The fundamental freedoms Free Movement of Goods No custom duties on imports andExports; no charges having equivalenteffects (Art. 25 EC)  Any charge imposed on goods whilst crossing the boarder • No quantitative restrictions on importsand exports; no measures havingequivalent effects (Art. 28, 29 EC) • All measures which restrict the import or export of goods by number, weight or value  All measures which are capable to impede the free circulation of goods directly or indirectly, possibly or effectively (“Dassonville”) Derogations: Art. 30 EC Mandatoryrequirements(“Cassis de Dijon”) No derogations possible!

  28. The fundamental freedoms Free Movement of WorkersArt. 39 EC • Conditions for being a “worker”: • performing services of economic value for a certain period of time • under the direction of the employer • receiving a measure of remuneration in return Limitations Art. 39 (3) EC:grounds of public policy, public security, public health Derogation: Art. 39 (4) EC “public policy very strict conditions!

  29. The fundamental freedoms Free EstablishmentArt. 43 EC • Conditions for having an “establishment”: • performing services of economic value for a unlimited period of time • under own direction against remuneration • from a place situated in the Member State • Limitations: • activities connected with the exercise of public authority (Art. 45 (1) EC) • grounds of public policy, public security, public health (Art. 46 (1) EC)

  30. The fundamental freedoms Free Movement of ServicesArt. 49 EC • Conditions: • offering services of economic value for a limited period of time • under own direction against remuneration • with the service somehow crossing the boarder: • Service is requested from outside the Member State • Service is offered from outside the Member State • Service itself crosses the boarder Limitations: Art. 55  45, 46 EC

  31. Directly applicable Community provisions (especially the non-discrimination principle, the four freedoms and Art.141 EC) commit the domestic administration and courts as if it were national law The national legislator is obliged to observe the exclusive areas of competence of the Community (see Art.5 (2) EC in this context) Impacts of Community Law on National Legal System A Primary Law B Secondary Law I) Regulations are directly applicable within the Member States without any national implementing measure (Art.249 (2) EC) and can be compared with national laws II) Decisions which are addressed to a Member State can have direct effect for other organisations or individuals (with a resulting right of legal grievance by individual citizen)

  32. after expiry of the implementation period Impacts of Community Law on National Legal System III) Directives before expiry of the implementa-tion period  no direct applicability; the MS remains free as to achieve the aim of the directive (Art.249 (3) EC) not implemented implemented incorrectly implemented if possible: national law must be interpreted in the light of wording and purpose of the (misimple-mented provision of the) directive = interpretation in conformity with the directive if the interpretation is not possible: same consequences as if not implemented interpretation in conformity with the directive eventually: liability for damages of the MS as to its citizens • direct applicable (provision), • if • sufficiently clear and precise (aim) • obligation in favour of individuals (and no obligation on an individual) • - • attention: no “horizontal” application (= individual against individual or a non-State entity)

  33. Court of Justice - Types of proceedings - Actions for failure to fulfil Treaty obligations Actions for annulment (review of the legality of Community acts) Actions for failure to act (against Parliament, Council or Commission) Actions for damages (against Community institutions or servants) Preliminary rulings to clarify the meaning, the scope and the validity of Community law (cases referred from national courts)  Commission v. Member State (Art.226 EC) Member State v. Member State (Art.227 EC)  Art.230, 231 EC (s. especially Art.230 (4) EC)  Art.232 EC  Art.235, Art.288 (2) EC  Art.234 EC

  34. “European Obligations” of the Civil Servant The Civil Servant is obliged to: 1) know all relevant Primary and Secondary Community Law concerning his/her tasks 2) observe the primacy of the directly applicable provisions of the Primary Law and of regulations (i.e. ignore national law in case of conflict) 3) determine and apply primarily the eventual directly applicable provisions of a directive after the expiry of its implementation period in case of failure to act on the part of national legislator 4) interpret national law that implements a directive in conformity with the directive 5) apply national law concerning administration procedure in cases related to Community Law so that an effective execution of the Community Law is guaranteed

  35. Execution of Community Law by Administrative Authorities (Starting-point is the principle of Art.10 EC: Obligation to fulfill Community Law and the primacy of directly applicable Community Law) A Primary Law • The main directlyapplicable provisions are: • Art.12 EC (principle of non-discrimination) • Art.28 EC (prohibition of quantitative restrictions and measures of equivalent effect) • Art.39 EC (free movement of workers) • Art.141 EC (equal pay for man and woman) • Moreover, the general principles of Community Law (especially fundamental rights) must be observed - in order to interpret the Secondary Law

  36. Execution of Community Law by Administrative Authorities B Secondary Law 1) Direct execution • Regulations • Directives • if directly applicable • to be determined observing the criteria developed by ECJ • Implementation of directives by administration acts (as exception) 2) Indirect execution • National law implemented a directive must be interpreted in the light of wording and purpose of the directive (derived from Art.10 EC) • National law concerning the administration procedure in cases related to Community Law must be applied so that an effective execution of Community Law is ensured

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