European Union law
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European Union law is the unique legal system which operates alongside the laws of Member States of the European Union (EU). EU law has direct effect within the legal systems of its Member States, and overrides national law in many areas, especially in terms of economic and social policy. The EU is not a federal government, nor is it an intergovernmental organisation. It constitutes a new legal order in international law[1] for the mutual social and economic benefit of the Member States. European Union law has become what it is today through gradual change over the past half century. When the Treaty of Paris was signed in 1952, there were just six Member States. As of 2007, there are around 500 million EU citizens in 27 Member States subject to EU law, making it one of the most encompassing, yet bureaucratic, modern legal systems in the world.
EU law has what is known as a three pillar structure. The first, oldest and most important 'pillar' deals with law concerning economic and social rights and how European institutions are set up. This is found in the Treaty of the European Communities, signed in Rome 1957 and subsequently amended by other Treaties concluded between the Member States. The second and third pillars were established under the Treaty of the European Union, signed in Maastricht 1992. The second pillar concerns the European Union Common Foreign and Security Policy (CFSP). The third pillar concerns justice and home affairs. Technically speaking, "EC law" denotes anything to do with the first pillar and "EU law" denotes the law regarding the second and third pillars. All however falls under the guise of the "European Union".
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[edit] History and development
Initially, the Consultation procedure was the primary interplay of the institutions. Under it, Council must wait (unless it initiates an emergency procedure) for the EP’s opinion before adopting the legislation. This possibility for delay was in the early days the EP’s only weapon.
The role of the European Parliament in this institutional triangle has been gradually strengthened. Major landmarks in this gradual strengthening process have been
- the transferral of budget responsibilities during the early 70s,
- the first direct elections in 1979,
- the introduction of the Cooperation procedure with the Single European Act (1986/87) and
- the codecision procedure with the Maastricht Treaty (1993/93), whose scope was expanded considerably by the Treaty of Amsterdam (1997/99) and the Treaty of Nice (2001).
The development of law of the European Community has been largely moulded by the European Court of Justice (ECJ). In the landmark case of Van Gend en Loos in 1963, the ECJ ruled that the European Community, through the will of Member States expressed in the Treaty of Rome, "constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights albeit within limited fields."
The distinction between European Community (EC) law and European Union law is that based on the Treaty structure of the European Union. The European Community constitutes one of the 'three pillars' of the European Union and concerns the social and economic foundations of the single market. The second and the third pillars were created by the Treaty of the European Union (the Maastricht Treaty) and involve Common Security and Defence Policy and Internal Security. Decision-making under the second and third pillars is not subject to majority voting at present. The Maastricht Treaty created the Justice and Home Affairs pillar as the third pillar. Subsequently, the Treaty of Amsterdam transferred the areas of illegal immigration, visas, asylum, and judicial co-operation to the European Community (the first pillar). Now Police and Judicial Co-operation in Criminal Matters is the third pillar. Justice and Home Affairs now refers both to the fields that have been transferred to the EC and the third pillar.
Several principles such as subsidiarity, proportionality, the principle of conferral, and the precautionary principle have become prominent in the development of European Union law. Scholars such as Catherine Barnard argue that the Four Freedoms form the substantive law of the EU: free movement of goods, services, capital, and labour within the internal market of the EU.
[edit] Sources of EU law
There are three types of Union law:
- treaties: the treaties made by the Member States are the primary source of law
- institutional acts: regulations, directives, decisions, recommendations and opinions made by EU institutions are secondary sources of law
- case law: interpretation of treaties and institutional acts carried out by by the European Court of Justice and the Court of First Instance
The whole body of EU law is together called the acquis communautaire, broken into 31 chapters for purposes of accession negotiations.
[edit] Treaties
The primary legislation, or treaties, are effectively the constitutional law of the European Union. They are created by governments from all EU Member States acting by consensus. They lay down the basic policies of the Union, establish its institutional structure, legislative procedures, and the powers of the Union. The Treaties that make up the primary legislation include:
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The various annexes and protocols attached to these Treaties are also considered a source of primary legislation. The heads of State and government of the member states of European Union signed a constitution in 2004, but it has not yet been ratified by the Member States and as of March 2007 it was unclear if it would be ratified.
[edit] Institutional acts
The European Parliament, the Commission and the Council of Ministers are empowered by the Treaties to legislate on all matters within the EU's competence[2]. Examples of this secondary legislation are regulations, directives, decisions, recommendations and opinions.
Secondary legislation also includes inter-institutional agreements, which are agreements made between European Union institutions clarifying their respective powers, especially in budgetary matters. The Parliament, Commission and Council are capable of entering into such agreements.
The classification of legislative acts varies among the First, Second and Third Pillars. In the case of the first pillar: Secondary legislation is classified based on to whom it is directed, and how it is to be implemented. Regulations and directives bind everyone, while decisions only affect the parties to whom they are addressed (which can be individuals, corporations, or member states). Regulations have direct effect, i.e. they are binding in and of themselves as part of national law, while directives require implementation by national legislation to be effective. However, states that fail or refuse to implement directives as part of national law can be fined by the European Court of Justice.
Directives and regulations can comprise of a mixture of maximum harmonisation and minimum harmonisation clauses, and can be enforced on either a home state or a host state basis. All EU legislation must be based on a specific Treaty article, which is referred to as the "legal basis" of the legislation.
The European Constitution would have codified EU law and reduced secondary legislation to six clear types: EU laws, EU framework laws, decisions, regulations, recommendations and opinions.
[edit] Case law
The European Court of Justice (ECJ or Court) and the Court of First Instance (CFI) are empowered to define and interpret primary and secondary legislation, and to "ensure that in the interpretation and application of this Treaty the law is observed"[3]. The Court's jurisprudence forms a substantive body of law, which binds EU institutions and member states. Since the Maastricht Treaty, the Court has been empowered to impose pecuniary penalties on Member States who disobey[4]. The Court has been instrumental in shaping law in the EU, and its approach is generally described as purposive or teleological[5]
[edit] Legislative procedures
There are three main legislative procedures[2] in the European Union, with the main difference between them being how the European Parliament interacts with the Council of the European Union.
[edit] Precedence
It has been ruled several times by the European Court of Justice that EU law is superior to national laws, and even Member States' constitutions. Where a conflict arises between EU law and the law of a Member State, EU law takes precedence, so that the law of a Member State must be disapplied. This doctrine, known as the supremacy of EU law, emerged from the European Court of Justice in Costa v. ENEL.[6] Mr Costa was an Italian citizen opposed to nationalising the Italian energy company ENEL, because he had shares in it. He refused to pay his electricity bill in protest, and argued that nationalisation infringed EC law on the State distorting the market.[7] The Italian government believed that this was not even an issue that could be complained about by a private individual, since it was a national law decision to make. The Court ruled in favour of the government, because the relevant Treaty rule on an undistorted market was one on which the Commission alone could challenge the Italian government. As an individual, Mr Costa had no standing to challenge the decision, because that Treaty provision had no direct effect.[8] But on the logically prior issue of Mr Costa's ability to raise a point of EC law against a national government in legal proceeding before the courts in that Member State the ECJ disagreed with the Italian government. It ruled that EC law would not be effective if Mr Costa could not challenge national law on the basis of its alleged incompatability with EC law.
It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overriden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.[9]
However, while Community law is accepted as taking precedence to the law of Member States, not all Member States share the analysis used by the European institutions about why EU law overrides national law, when a conflict appears.[10]
Many countries' highest courts have stated that Community law takes precedence provided that it continues to respect fundamental constitutional principles of the Member State, the ultimate judge of which will be the Member State (more exactly, the court of that Member State), rather than the European Union institutions themselves[11] This reflects the idea that Member States remain the "Master of the Treaties", and the basis for EU law's effect. In other cases, countries write the precedence of Community law into their constitutions. For example, the Constitution of Ireland contains a clause that, '"No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities..."
[edit] Direct effect
EU law covers a broad range which is comparable to that of the legal systems of the Member States themselves[12]. Both the provisions of the Treaties, and EU regulations are said to have "direct effect" horizontally. This means private citizens can rely on the rights granted to them (and the duties created for them) against one another. For instance, an air hostess could sue her airline employer for sexual discrimination.[13] The other main legal instrument of the EU, "directives", have direct effect, but only "vertically". Private citizens may not sue one another on the basis of an EU directive, since these are addressed to the Member States. Directives allow some choice for Member States in the way they translate (or 'transpose') a directive into national law - usually this is done by passing one or more legislative acts, such as an Act of Parliament or statutory instrument in the UK. Once this has happened citizens may rely on the law that has been implemented. They may only sue the government "vertically" for failing to implement a directive correctly. An example of a directive is the Product liability Directive,[14] which makes companies liable for dangerous and defective products that harm consumers.
[edit] References
- ^ Case 26/62 Van Gend en Loos v. Nederlanse Administratie der Belastingen
- ^ see Art.2 TEC; "The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities..."[1]
- ^ Art. 220 TEC
- ^ see Art. 228 TEC
- ^ Craig and de Burca (2003) p.98
- ^ Case 6/64, Falminio Costa v. ENEL [1964] ECR 585, 593
- ^ now found in Art. 86 and Art. 87
- ^ "But this obligation does not give individuals the right to allege, within the framework of community law... either failure by the state concerned to fulfil any of its obligations or breach of duty on the part of the commission."
- ^ Case 6/64, Falminio Costa v. ENEL [1964] ECR 585, 593
- ^ in the U.K. see, Factortame Ltd. v Secretary of State for Transport (No. 2) [1991] 1 AC 603; in Germany see Solange II (Re Wuensche Handelsgesellschaft, BVerfG decision of 22 Oct. 1986 [1987] 3 CMLR 225,265); in Italy see Frontini v. Ministero delle Finanze [1974] 2 CMLR 372; in France see, Raoul George Nicolo [1990] 1 CMLR 173
- ^ see especially, Solange II (Re Wuensche Handelsgesellschaft, BVerfG decision of 22 Oct. 1986 [1987] 3 CMLR 225,265)
- ^ see Article 3 TEU for a list
- ^ under Art. 141 TEC, C-43/75 Defrenne v. Sabena [1976] ECR 455
- ^ 85/374/EEC
[edit] Further reading
- Paul Craig and Grainne De Burca, EU Law, Text, Cases and Materials, 3rd ed., (Oxford University Press 2003) ISBN 0198765096
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[edit] See also
[edit] External links
- Research and Education in European Law
- Education in European Law
- EUR-Lex - online access to existing and proposed European Union legislation
- EUR-Lex: Treaties
- EU Law Blog
- ECJBlog.com, weblog with daily news about the European Court of Justice
- EU Law and Russia: analysis
- DirittoUE.info - EU Law Blog in italian
- History and institutions of the united Europe since 1945 — European Navigator
