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The ABC

of Community lawby Dr Klaus-Dieter Borchardt

European Documentation

Directorate-General for Education and Culture

European Commission

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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

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The ABC

of Community law

by Dr Klaus-Dieter Borchardt

Manuscript completed in September 1999

Cover: Graphic design by Mario Ramos

Fifth edition

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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

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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

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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

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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

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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 thi