abecedarul dreptului comunitar

7/31/2019 abecedarul dreptului comunitar

1/123

The ABC

of Community lawby Dr Klaus-Dieter Borchardt

European Documentation

Directorate-General for Education and Culture

European Commission


2/123

This publication in the European Documentation series is available in all official languages of the

European 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)

A great deal of additional information on the European Union is available on the Internet.It can be accessed through the Europa server (http://europa.eu.int).

European CommissionDirectorate-General for Education and CulturePublications Unit, rue de la Loi/Wetstraat 200, B-1049 Brussels

Cataloguing data can be found at the end of this publication.

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


3/123

The ABC

of Community law

by Dr Klaus-Dieter Borchardt

Manuscript completed in September 1999

Cover: Graphic design by Mario Ramos

Fifth edition


4/123

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 the

Member States

THE COMMUNITYS RANGE OF TOOLS

Regulations and ECSC general decisions Directives and ECSC recommenda-

tions Individual decisions Non-binding measures by Community institutions

Resolutions, declarations and action programmes

2

CONTENTS

5

11

11111212

121313

18

182226

2730

57

5758

63


5/123

THE LEGISLATIVE PROCESS

Consultation procedure Cooperation procedure Co-decision procedure Approval procedure Simplified procedure Procedure for implementing mea-

sures

THE SYSTEM OF LEGAL PROTECTION

Treaty infringement proceedings Actions for annulment Complaints for

failure to act Actions for damages Actions by Community staff Appeals

procedure Provisional legal protection Preliminary rulings

LIABILITY OF THE MEMBER STATES FOR INFRINGEMENTS OF COMMUNITY LAW

Member States liability for legal acts or failure to act Liability for infringement

of Community law by the courts

THE POSITION OF COMMUNITY LAW IN RELATIONTO 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 of

legal acts Fundamental rights General principles of law

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

3

72

84

91

94

949697

103

105

111


6/123


7/123

Until shortly after the end of theSecond World War our concept ofthe 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 (which

started 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 into

being 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 the

time, 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 strengthen

security cooperation between the coun-tries of Europe. It brought together the 5

INTRODUCTION: FROM PARIS VIA ROMETO MAASTRICHT AND AMSTERDAM


8/123

countries that had concluded the Brussels

Treaty (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 Europes political weight in the

Atlantic alliance and to establish a Euro-pean identity in security and defencepolicy.

. The Council of Europe and the

OSCE

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

6


9/123

a federation or union, nor does it provide

for 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 been

concluded 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 a

system 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 recent

past 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 the

EU 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 Europes 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 entry

into force on 23 July 1952. A furtherdevelopment came some years later with 7


10/123

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 the

political 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 Parliaments approval of the Treatydeclared unconstitutional) meant that itdid not enter into force until 1 November1993. The Treaty refers to itself as a new

stage 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 concerning

flexibility, whereby Member States whichintend to establish closer cooperation may

make use of the institutions, procedures

and 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 newpolicies and forms of cooperation (Article

47 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 the

EC, 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;Norways 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. The

next enlargement took place on 1 January1995 when Austria, Finland and Sweden8


11/123

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 also

been 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 July

1997 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 been

launched 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 specialpre-accession strategy is to be used toenable all applicants to bring themselves,as far as possible, into line with EU law

prior 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 withrecommendations 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 alone

it is of crucial importance that theCommunity citizen should be informed 9


12/123

about the legal order that affects his daily

life. 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 to

break 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).

10

(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 articles

which are now numbered differently.


13/123

The foundations of a united Europewere laid on fundamental ideas andvalues to which the Member States alsosubscribe and which are translated intopractical reality by the Communitys oper-ational institutions. These acknowledged

fundamental values include the securingof a lasting peace, unity, equality,freedom, security and solidarity. The EUsdeclared 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 theEUs 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 a

decision 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 GUARANTOROF 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 CommunitysMember 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-day

problems 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 VALUESOF THE EUROPEAN UNION


14/123

be merely national problems; nor can they

be 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 and

economic 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 on

the 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 be

addressed 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 national

frontiers. This means, in particular,freedom of movement for workers,

freedom of establishment, freedom to

provide 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 offer

their 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 OFSOLIDARITY

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 Member

States is respected (Article 6(3) EU). Theidea is not for the Member States to be12


15/123

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 need

constancy, 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


16/123

constructed on the basis of the rule of law

and 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 the

Commission, 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 Communitys 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 Communitys 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 commitment

legally binding form by stipulating that theEU shall respect fundamental rights, as

guaranteed by the European Convention

for 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 relatively

late 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 it

was 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 theStauder 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 it

was not necessary for recipients to givetheir name so that, in fact, consideration14


17/123

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 12

EC), 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 EC

and 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 through

Community 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 rights

in 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 for

a Community legal act.15


18/123

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 of

Justice has held, contrary to internationalcustom, that this principle does notpreclude nationals and home-produced

goods from being subjected to stricterrequirements than citizens or productsfrom other Member States. This reversediscrimination is the inevitable result ofthe limited scope of the Communityspowers. Under the Courts judgmentsissued up to now, the Community rulesrequiring liberalisation, which flow fromthe fundamental freedoms, apply only tocross-border trade. Rules regulating the

production 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 principles

of administrative law and the concept of

due process: legitimate expectations must

be 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 of

Justice. Particular value is also attached to

greater 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 achievements

of 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.16


19/123

For a long time, EC accession to the ECHR

was 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 present

Community 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 the

EC 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 ParliamentsDeclaration of fundamental rights and

freedoms, 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 any

further than a general, but neverthelessbinding, commitment to respect and safe-guard fundamental freedoms in thecontext of the EU.

17


20/123

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

partly 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 on

which 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 its

institutions?

STRUCTURE OF THE EURO-PEAN UNION: THE THREEPILLARS

First pillar:the European Communities

The first pillar is made up of the three

European Communities (E(E)C, Euratom,ECSC), which have been deepened andenlarged by economic and monetaryunion. When the EU was established, theEuropean Economic Community wasrenamed the European Community. TheEEC Treaty became the EC Treaty. Thischange was intended to give expression tothe transition from a purely economic

community 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 European

Union. The Commission of the EuropeanCommunities has become the European18

THE CONSTITUTIONOF THE EUROPEAN UNION


21/123

The European Union

19

First pillar:the EuropeanCommunities

Second pillar:common foreign

and security policy

Third pillar:cooperation in justice

and home affairs

ECCustoms union and

single marketAgricultural policyStructural policyTrade policy

New or amendedprovisions on:EU citizenshipEducation and

cultureTrans-European

networksConsumer protectionHealthResearch and

environmentSocial policyAsylum policyExternal bordersImmigration policy

EuratomECSC

Foreign policyCooperation,

common positionsand measures

PeacekeepingHuman rights

DemocracyAid to non-member

countries

Security policyDrawing on the

WEU: questionsconcerning thesecurity of the EU

DisarmamentFinancial aspects of

defenceLong-term:Europes securityframework

Cooperation betweenjudicial authorities incivil and criminal law

Police cooperationCombating racism and

xenophobia

Fighting drugs and thearms trade

Fighting organisedcrime

Fighting terrorismCriminal acts against

children, trafficking inhuman beings


22/123

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, the

Community 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 the

basis of the European political coopera-tion (EPC) arrangements set up in 1970,

which were enhanced and expanded

upon 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, a

joint 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 the

largest 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 and

aims of the 1975 Helsinki Final Act andthe 1990 Charter of Paris, which in20


23/123

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 that

some Member States are not in NATO(Ireland, Austria, Finland, Sweden) or theWEU (Denmark, Greece, Ireland). Mostcommon foreign and security policydecisions 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 the

Member 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 since

1998, 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


24/123

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 in

two 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 nature

concerning the legal nature of the EC. Inits judgment, the Court stated that:

The objective of the EEC Treaty, which is

to 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 is

also 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 which

comprise 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, Italy

nationalised 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 forITL 1 926. In proceedings before the arbi-

tration court in Milan, one of the argu-ments put forward by Mr Costa to justify22


25/123

his conduct was that the nationalisationinfringed a number of provisions of the ECTreaty. In order to be able to assess MrCostas submissions in his defence, thecourt requested the European Court of

Justice 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


26/123

of its character as Community law and

without 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 the

Community 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 obligations

on both the Member States and theircitizens;

the primacy of Community law, which

ensures 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 and

their nationals are subject within the ECsareas 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 EUs 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 beyond

the preliminary stage of a subsequent,institutionalised Union. The fact that the24


27/123

EU uses the institutions of the EC when

carrying 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 EUsorganisational 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 EC

and 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 EUs institutions only

have 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


28/123

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 of

State 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 Project

1992 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 15

Member States (Denmark Sweden and theUnited Kingdom declined to participate,26


29/123

whilst Greece is still trying to meet the

criteria 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 (Article

20 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 125130) 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 markets

should 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


30/123

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 the

subsidiarity 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 Community

jurisdiction 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 implementation

of 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-nitys 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 being

embodied in the EC Treaty (Article 5).There are two facets to it: the affirmative28


31/123

statement that the EC must act where the

objectives 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 always

demonstrate 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 has

entered 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 was

further 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 Communitys legal acts. Very specificcriteria for the application of this principlenow exist, and at the same time theCommunity institutions task of monitoring

compliance 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 theCommunitys institutional framework.

29


32/123

THE INSTITUTIONS OF THE EU

30

European Court of Justice15 Judges

European Council15 Heads of State orGovernment and the

President of theCommission

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 KingdomSpainBelgiumGreeceNetherlandsPortugalAustriaSwedenDenmarkIreland

FinlandLuxembourg

10101010

855554433

32

11.3611.3611.3611.369.095.685.685.685.684.544.543.413.41

3.412.27

21.9615.6315.3915.7510.532.722.814.162.662.162.371.410.97

1.370.11

2222211111111

11

Percentageof total votes

Votes inthe Council

ofMinisters

Percentageof total population

Members of theCommission

European Investment

Bank

European

Central Bank


33/123

The third question arising in connection

with 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 the

Community 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 of

Justice 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 in

July 1967 by the Treaty establ ishing asingle Council and a single Commission of

the European Communities (the Merger

Treaty). 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 Communitys 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 a

number of accession applications.31


34/123

European Parliament

(Articles 189201 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 theAssemblys own change of its name toEuropean 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, but

there is still no uniform electoral proce-dure as required by the Treaties. As in

1979, national systems continued to be

used in the most recent direct elections inJune 1999. The Unit ed Kingdom, forexample, retained its first-past-the-postsystem for European elections until 1994and only joined the other Member Statesin 1999 elections in using proportionalrepresentation.

The composition of Parliament is shown in

graphic 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 responsible

for the organisation of Parliaments 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 public

authority must emanate from the people.That does not only mean that the decision-32


35/123

33

making process must be transparent and

the 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 rightly

described 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 Council

and 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

Parliaments functions can be divided upinto three areas, as follows.

Decision-making functions. Parliamentsrole in the decision-making process was

considerably 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 Community

legislation 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-t ional 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


36/123

34

27

16

30

42

48

50

180

233

EUROPEAN PARLIAMENT

President14 Vice-Presidents and 5 Quaestors

Group of the European Peoples 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

D

99

F

87

I

87

UK

87

E

64

NL

31

B

25

EL

25

P

25

S

22

A

21

DK

16

FIN

16

IRL

15

L

6

626


37/123

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: Womens rights and equal opportunities

17. PETI: Petitions

17 committees carry out the preparatory work for the plenary sessions


38/123

that Parliament exerts a considerable

influence on how funds are earmarked forCommunity policies financed by means of

non-mandatory expenditure. The other

half of the EC budget consists ofcompul-sory expenditure, i.e. expenditure whichis mandatory under Community rules

(which basically means expenditure on

the common agricultural policy). Parlia-

ment may propose amendments relating

to this expenditure. Provided that theoverall ceiling is not exceeded, these

amendments are deemed accepted unless

the Council rejects them by a qualified

majority. Finally, Parliament is also enti-

tled to reject the entire budget, and is

responsible for granting formal discharge

for the Commissions budget managementfor the previous year.

Parliament has a right of assent to allmajor international Treaties (Article 300(3)

EC) and to the accession Treaties

concluded with new Member States laying

down the conditions of admission (Article

49 EU). Parliaments assent is alsorequired for the appointment of the Presi-

dent and members of the Commission,

any amendments to the Statute of the

European Central Bank, and also for the

decision on the standard procedure for

Parliamentary elections.

Advisory functions. Parliament exercises

advisory functions primarily through the

Treaty provisions requiring it to be

consulted by the Council and the

Commission (mandatory consultation) or

on the basis of optional consultation. Up

until the introduction of the cooperationand co-decision procedures, this consulta-

tion ensured that Parliament was involved

in the only Community legislative proce-dure existing at the time, namely the

proposal procedure. Before a decision was

passed by the Council, Parliament had to

or could give its views. Now that the

actual instances in which the proposal

procedure is used have, as we will see,

become less common, Parliaments advi-sory functions have tended to give way to

its decision-making functions, at least asfar as the formal legislative procedure is

concerned.

Supervisory functions. Parliament has

supervisory powers only over the

Commission. These are exercised mainly

through the fact that the Commission

must answer parliamentary questions,

defend its proposals before Parliament

and present it with an annual report onthe activities of the Communities for

debate. Parliament can, by a two-thirds

majority of its members, pass a motion of

censure and thereby compel the

Commission to resign as a body (Article

201 EC). Five motions of censure have so

far been tabled (most recently in January

1999), three of which were put to the

vote and rejected. Since the Treaty on

European Union came into being, this

motion of censure has increased in

importance in that, by virtue of the right

of investiture granted by the EU Treaty,

Parliament is involved in the appoint-

ment of the Commission which has been

the 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


39/123

on European Union substantially boosted

Parliaments supervisory powers. It isnow also empowered to set up special

committees of inquiry to look specifi-

cally at alleged cases of infringement of

Community law or maladministration. A

committee of this kind was used, for

example, to look into the Commissionsresponsibility for the delay in responding

to mad cow disease in the United

Kingdom, which represented a threat tohuman life and health. Also written into

the Treaties is the right of any natural or

legal person to address petitions to

Parliament, which are then dealt with by

a standing committee on peti t ions.

Finally, Parliament has also made use of

its power to appoint an Ombudsman to

whom complaints about maladministra-

tion in the activities of Community insti-tutions or bodies, with the exception of

the Court of Justice, can be referred. The

Ombudsman may conduct enquiries and

must inform the insti tution or body

concerned of such action, and must

submit to Parliament a report on the

outcome of the inquiries.

Working procedures

The basic rules governing the workings of

Parliament are set out in its Rules of

Procedure.

The MEPs form political groups. Given

Parliaments status as a Community insti-tution, these are Community-wide party-

political groupings that cut across national

lines.

Parliament also has 17 standing commit-

tees. The members of the Commission ortheir representatives must appear before

the relevant committee for their area of

responsibility in order to provide clarifica-

tion about Commission decisions, docu-

ments for the Council and the position

adopted by the Commission in the

Council. This gives the committees a

wide-ranging insight into the activities of

the Commission and, given that the detailsof Commission meetings are not usually

made public, Parliament thus acquires full

access even to what is sometimes confi-

dential information. The committees are

thus able to monitor the Commission

effectively. They are also responsible for

preparing Parliaments opinions onproposals from the Commission, Parlia-

ments proposed amendments to any

common position drawn up by theCouncil, and Parliaments resolutionsdrawn up on its own initiative. With this in

mind, the Committees regularly consult

independent experts or representatives of

the organisations or economic sectors

concerned.

Parliament holds its week-long plenary

sessions in Strasbourg once every month,except in August. Additional sessions may

also be held, particularly in connection

with the budget. Shorter emergency

sessions (lasting one or two days) may be

held in Brussels to deal with current major

issues, enabling Parliament to set out its

position on matters of importance (such as

Community affairs, international affairs,

violations of human rights, etc.). All

plenary sessions are open to the public.37


40/123

Decision-making

An absolute majority of the votes cast is

usually sufficient for a decision to be taken.

As Parliament increases in importance,

however, the Treaty imposes ever stricter

requirements as regards MEPs attendance.The Treaty now provides for a whole range

of decisions which may only be adopted if

supported by an absolute majority of all

Members of Parliament. Following theincrease in the number of MEPs to 626, this

majority will in future be 314 votes. Finally,

any motion of censure against the Commis-

sion must not only be backed by a majority

of MEPs but also requires two-thirds of the

votes cast to be in favour.

Seat

The Edinburgh European Council agreedthat Parliaments seat was to be in Stras-bourg and thus ended the provisional

status of an arrangement that had been in

place for 30 years. It had become estab-

lished practice for plenary sessions to be

held in Strasbourg and Brussels, meetings

of the political groups and committees to

be held in Brussels during weeks when

Parliament was not sitting, and for Parlia-

ments Secretariat-General to be based inLuxembourg. The decision on the location

of the seats of the institutions taken at the

Edinburgh European Council confirmed

the validity of these arrangements subject

to the proviso that the 12 periods of

monthly plenary sessions should be held

in Strasbourg. However, there is still a

tendency within Parliament for an

increasing numbe

abecedarul dreptului comunitar

Documents

Transcript of abecedarul dreptului comunitar