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European Union law is a body of treaties and legislation, such as Regulations and Directives, which have direct effect or indirect effect on the laws of European Union member states. The three sources of European Union law are primary law, secondary law and supplementary law. The main sources of primary law are the Treaties establishing the European Union. Secondary sources include regulations and directives which are based on the Treaties. The legislature of the European Union is principally composed of the European Parliament and the Council of the European Union, which under the Treaties may establish secondary law to pursue the objective set out in the Treaties.

European Union law is applied by the courts of member states and where the laws of member states provide for lesser rights European Union law can be enforced by the courts of member states. In case of European Union law which should have been transposed into the laws of member states, such as Directives, the European Commission can take proceedings against the member state under the EC Treaty. The Court of Justice of the European Union is the highest court able to interpret European Union law. Supplementary sources of European Union law including case law by the Court of Justice, international law and general principles of European Union law.

History

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History of the European Union
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While the idea of international, and European integration of national polities has been around since the ancient world, the European Union is the modern version of organisations established after the Second World War. Because of the total failure of the Treaty of Versailles' system of reparations and the collapse of the League of Nations after World War One, it was decided that integration of national economies and political institutions was necessary to ensure that war would become unthinkable. Along with the framework of the United Nations and the Bretton Woods agreements, the original European Coal and Steel Community was created in 1950 to unify mining and manufacturing industries among France and Germany particularly. The first move to comprehensive economic integration was made in the Treaty of Rome 1957.

Constitutional law

There are three sources of European Union law: primary law, secondary law and supplementary law. The main sources of primary law are the Treaties establishing the European Union (TEU). Secondary sources are legal instruments based on the Treaties as well as unilateral secondary law and conventions and agreements. Supplementary sources are laws which are not provided for by the TEU, including case law by the Court of Justice of the European Union, international law and general principles of European Union law.[2]

Treaties

Template:Clist eu treaties The primary law of the EU consists mainly of the founding treaties of the European Union, also known as the TEU and TFEU or Treaties of the European Union. The Treaties contain formal and substantive provisions, which frame policies of the European Union institutions and determine the division of competences between the European Union and the 27 member states. The TEU establish that European Union law applies to the metropolitan territories of the member states, as well as certain islands and overseas territories, including Madeira, the Canaries and the French overseas departments. European Union law also applies in territories where a member state is responsible for external relations, for example Gibraltar and the Åland islands. The TEU allows the European Council to make specific provisions for regions, as for example done for customs matters in Gibraltar and Saint-Pierre-et-Miquelon. The TEU specifically excludes certain regions, for example the Faroe Islands, from the jurisdiction of European Union law. Treaties apply as soon as they enter into force, unless stated otherwise, and are generally concluded for an unlimited period. The Treaty of Rome provides that commitments entered into by the member states between themselves before the treaty was signed no longer apply. Since the Treaty of Rome has been signed member states are regarded subject to the general obligation of the principle of cooperation, as stated in the TEU, whereby member states pledge to not take measure which could jeopardise the attainment of the TEU objectives. The Court of Justice of the European Union can interpret the Treaties, but it cannot rule on their validity which is subject to international law. Individuals may rely on primary law in the Court of Justice of the European Union if the Treaty provisions have a direct effect and they are sufficiently clear, precise and unconditional.[3]

The principal Treaties that form the European Union began with common rules for coal and steel, and then atomic energy, but more complete and formal institutions were established through the Treaties of Rome 1957 and the Maastricht Treaty 1992. Minor amendments were made during the 1960s and 1970s.[4] Major amending treaties were signed to complete the development of a single, internal market in the Single European Act 1986, to further the development of a more social Europe in the Treaty of Amsterdam 1997, and to make minor amendments to the relative power of member states in the EU institutions in the Treaty of Nice 2001 and the Treaty of Lisbon 2007. Since its establishment, more member states have joined through a series of accession treaties, from the UK, Ireland, Denmark and Norway in 1972 (though Norway did not end up joining), Greece in 1979, Spain and Portugal 1985, Austria, Finland, Norway and Sweden in 1994 (though again Norway failed to join, because of lack of support in the referendum), the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia in 2004, and Romania and Bulgaria in 2007. Greenland signed a Treaty in 1985 giving it a special status. Norway remains the only Scandinavian power not to have joined the European Union, having rejected membership in two referenda, in 1972 and 1994.

Legislatures

The legislature of the European Union is principally composed of the European Parliament and the Council of the European Union. European Union treaties allow for the adoption of legislation and other legal acts so as to allow the EU to pursue the objective set out in the treaties. These are secondary European Union law. The treaties have not established any single body as a legislature. Instead legislative power is spread out among the Institutions of the European Union, although the principal actors are the Council of the European Union (or Council of Ministers), the European Parliament and the European Commission. The relative power of a particular institution in the legislative process depends on the legislative procedure used, which in turn depends on the policy area to which the proposed legislation is concerned. In some areas, they participate equally in the making of EU law, in others the system is dominated by the Council. Which areas are subject to which procedure is laid down in the treaties of the European Union.


The Commission, Council and Parliament can all create secondary law, which includes unilateral acts and agreements by the Legislature of the European Union. Unilateral acts can be done under Article 288 of the TFEU, including regulations, directives, decisions, opinions and recommendations. Unilateral acts not falling under Article 288 TFEU are atypical acts such as communications and recommendations, and white and green papers. Agreements can include international agreements, signed by the European Union, agreements between Member States; and inter-institutional agreements, for example between European Union institutions.[3]

Directives, regulations, decisions, recommendations and opinions constitute European Union legislation, which must have a legal basis in specific Treaty articles, or primary European law. Directives set (sometimes quite specific) objectives but leave the implementation to the EU's member states. Regulations are directly applicable to member states and take effect without the need for implementing measures.

European Court of Justice

The Court of Justice of the European Union is established through article 19 of the Maastricht Treaty and includes the Court of Justice, the General Court and specialised courts. Its duty is to "ensure that in the interpretation and application of the Treaties the law is observed". The Court of Justice consists of one judge from each European Union member state, and the General Court includes at least one judge from each member state. Judges are appointed for a renewable six-year term. It is the role of the Court of Justice to rule, in accordance with the Treaties, on cases brought by a member state, a European Union institution or a legal person. The Court of Justice can also issue preliminary rulings, at the request of a member state's courts or tribunals, on the interpretation of European Union law or the validity of acts by European Union institutions. The Court of Justice can rule in other cases if they are provided for in the Treaties.[5]

Supplementary sources of EU law are uncodified sources, including Court of Justice of the European Union case law, international law and the general principles of law. Supplementary sources are generally of judicial origin and are used by the Court of Justice of the European Union in cases where the primary and/or secondary legislation leave gaps or do not settle the issue. Since the 1970s fundamental rights, recognised as general principles of European Union law, have become part of primary legislation in European Union law. The European Union and its member states must abide by international law, including its treaties and customary law, and has particularly influenced the development of general principles of European Union law. However, the Court of Justice of the European Union can excluded certain principles of international law that it considers incompatible with the structure of the European Union, such as the principle of reciprocity in the fulfilment of state obligations.[6]

Conflict of laws

European Union law is applied by the courts of member states and where the laws of member states provide for lesser rights than European Union law, European Union law can be enforced by the courts of member states. In case of European Union law which should have been transposed into the laws of member states, such as Directives, the European Commission can take proceedings against the member state under the EC Treaty. The Court of Justice of the European Union is the highest court able to interpret European Union law.[7] European Union law which can be directly enforced by courts in member states is said to have direct effect.[8]

Simon Hix argues that direct effect and the supremacy doctrine has transformed the EU from an international organisation to a "quasifederal polity".[9] According to J.H.H. Weiler, parallels to the architecture of the European Union can be found only in the internal constitutional order of federal states.[10] Sergio Fabbrini argues that the European Union developed after the two world wars as Europe moved towards supernationalism with a multi-level system of governance. Vertical federalisation is mixed with horizontal separation of powers between the European Community institutions and therefore the EU does not conform to the structures of a conventional federal system.[11]

Effect of EU law

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Main articles: Direct effect and Indirect effect

In Van Gend en Loos v Nederlandse Administratie der Belastingen (1963),[12] the European Court of Justice (ECJ) ruled that the provisions of the then EEC treaty were capable of having direct effect before the national courts of EEC member states. The result was to create an alternative manner of enforcing the obligations undertook by member states in the treaties, to the more traditional method of state enforcement in the form of enforcement actions taken by the European Commission at a supranational level. Individuals could now use national courts to invoke EU treaty provisions against member state governments. The pre-conditions for direct effect are that the provisions on which an individual wishes to rely are sufficiently clear and unconditional, and that there is no scope for member states to exercise discretion in implementation. Thus, a regulation that allows member states to privatise roads would not have direct effect and could not be enforced in the courts, because it provides that states may privatise roads, not must privatise roads. While direct effect was first developed in relation to treaty articles, the ECJ subsequently ruled that regulations and decisions could also have direct effect as well.[13] In Marshall v Southampton and South West Area Health Authority (Teaching) (No 1),[14] the ECJ ruled that while directives could also have direct effect, they could only do so in respect of public bodies. However, the ECJ has taken a broad view of what constitutes a public body and has found that a state-owned gas company was a public body subject to direct effect.[15] In contrast treaty articles, regulations and decisions can have direct effect against private entities.[16] Recommendations and opinions were held to not have direct effect, as they were not intended to be binding, though they should be taken into consideration when interpreting the European Union law they supplement or the national law they implement.[17]

Indirect effect describes a situation where the courts in member states use European Union law to interpret national laws, as oppose to direct effect where European Union law is applied directly. Treaty articles, Regulations and Decisions can all have direct effect except where they are unclear or conditional. In such cases they may have indirect effect, but are unlikely to be of much use for interpreting national laws. Recommendations and Opinions cannot have direct effect, but may have indirect effect, when interpreting the European Union law they supplement or national laws, as established in Grimaldi v Fonds des Maladies Professionnelles [1989] ECR 4407 Case C-322/88. Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 Case 14/83 established that Directives can have indirect effect in where an individual takes action in a national court against another individual, where a Directive can never have direct effect, or where the provision of the directive is not sufficiently clear and unconditional to have direct effect.[18]

Francovich v Italy (1990)[19] requires that the state pays compensation to individuals if it fails to properly implement a Directive.

Supremacy

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In Costa v ENEL [1964] ECR 585 the European Court of Justice held that in situations where there is a conflict between the laws of member states and European Union law, European Union law prevails, because "a subsequent unilateral act incompatible with the concept of the Community cannot prevail". However, according to the 1993 Maastricht Accord the European Union does not prevent member states from maintaining or introducing more stringent laws on working conditions, social policy, consumer protection and the environment, so long as these laws are compliant with the Treaty of Rome, which has relevant provisions in these areas. Some courts in member states have resented the supremacy doctrine though it is not commonly challenged and the European Court of Justice has encouraged legal interpretation in light of European Union law by courts in member states as alternative to repealing or amending laws of member states which conflict with European Union law. A source of tension has historically been the relationship between the constitutions of member states and European Union law. Unlike the UK, most continental European member states have written constitutions and some have constitutional courts with the exclusive power to interpret the national constitution. The European Court of Justice has rules that such courts must apply European Union law in its entirety, to avoid any conflicting provisions of national law. Until recently the French constitutional court has regarded itself not empowered to review administrative measures, as it did not recognise the review power and duty provided to it by European Union law. The German and Italian constitutional courts initially refused to strike down national laws which conflicted with European Union law. The legal system of the European Union depends heavily on the courts in member states to acknowledge and uphold European Union law, and to follow the interpretation of the European Court of Justice if there is one. The supremacy doctrine has found widespread acceptance, though the direct and indirect application of European Union law still needs to fully establish itself.[20]

General principles

Main article: General principles of European Union law

The principles of European Union law are rules of law which have been developed by the European Court of Justice that constitute unwritten rules which are not expressly provided for in the treaties but which affect how European Union law is interpreted and applies. In formulating these principles, the courts have drawn on a variety of sources, including: public international law and legal doctrines and principles present in the legal systems of European Union member states and in the jurisprudence of the European Court of Human Rights. Accepted general principles of European Union Law include fundamental rights (see human rights), proportionality, legal certainty,[21] equality before the law and subsidiarity.[22]

Proportionality is recognised one of the general principles of European Union law by the European Court of Justice since the 1950s.[23] According to the general principle of proportionality the lawfulness of an action depends on whether it was appropriate and necessary to achieve the objectives legitimately pursued. When there is a choice between several appropriate measures the least onerous must be adopted, and any disadvantage caused must not be disproportionate to the aims pursued.[23] The principle of proportionality is also recognised in Article 5 of the EC Treaty, stating that "any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty".[24]

The concept of legal certainty is recognised one of the general principles of European Union law by the European Court of Justice since the 1960s.[25] It is an important general principle of international law and public law, which predates European Union law. As a general principle in European Union law it means that the law must be certain, in that it is clear and precise, and its legal implications foreseeable, specially when applied to financial obligations. The adoption of laws which will have legal effect in the European Union must have a proper legal basis. Legislation in member states which implements European Union law must be worded so that it is clearly understandable by those who are subject to the law.[26] In European Union law the general principle of legal certainty prohibits Ex post facto laws, i.e. laws should not take effect before they are published.[25] The doctrine of legitimate expectation, which has its roots in the principles of legal certainty and good faith, is also a central element of the general principle of legal certainty in European Union law.[27] The legitimate expectation doctrine holds that and that "those who act in good faith on the basis of law as it is or seems to be should not be frustrated in their expectations".[26]

Fundamental rights

Fundamental rights, as in human rights, were first recognised by the European Court of Justice in the late 60s and fundamental rights are now regarded as integral part of the general principles of European Union law. As such the European Court of Justice is bound to draw inspiration from the constitutional traditions common to the member states. Therefore the European Court of Justice cannot uphold measures which are incompatible with fundamental rights recognised and protected in the constitutions of member states. The European Court of Justice also found that "international treaties for the protection of human rights on which the member states have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law."[28]

Charter of Fundamental Rights

None of the original treaties establishing the European Union mention protection for fundamental rights. It was not envisaged for European Union measures, that is legislative and administrative actions by European Union institutions, to be subject to human rights. At the time the only concern was that member states should be prevented from violating human rights, hence the establishment of the European Convention on Human Rights in 1950 and the establishment of the European Court of Human Rights. The European Court of Justice recognised fundamental rights as general principle of European Union law as the need to ensure that European Union measures are compatible with the human rights enshrined in member states' constitution became ever more apparent.[29] In 1999 the European Council set up a body tasked with drafting a European Charter of Human Rights, which could form the constitutional basis for the European Union and as such tailored specifically to apply to the European Union and its institutions. The Charter of Fundamental Rights of the European Union draws a list of fundamental rights from the European Convention on Human Rights and Fundamental Freedoms, the Declaration on Fundamental Rights produced by the European Parliament in 1989 and European Union Treaties.[30]

The 2007 Lisbon Treaty explicitly recognised fundamental rights by providing in Article 6(1) that "The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg on 12 December 2007, which shall have the same legal value as the Treaties." Therefore the Charter of Fundamental Rights of the European Union has become an integral part of European Union law, codifying the fundamental rights which were previously considered general principles of European Union law.[31] In effect, after the Lisbon Treaty, the Charter and the Convention now co-exist under European Union law, though the former is enforced by the European Court of Justice in relation to European Union measures, and the latter by the European Court of Human Rights in relation to measures by member states.[32]

Social chapter

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Main article: European labour law


The Social Chapter is a chapter of the 1997 Treaty of Amsterdam covering social policy issues in European Union law.[33] The basis for the Social Chapter was developed in 1989 by the "social partners" representatives, namely UNICE, the employers' confederation, the European Trade Union Confederation (ETUC) and CEEP, the European Centre of Public Enterprises. A toned down version was adopted as the Social Charter at the 1989 Strasbourg European Council. The Social Charter declares 30 general principles, including on fair remuneration of employment, health and safety at work, rights of disabled and elderly, the rights of workers, on vocational training and improvements of living conditions. The Social Charter became the basis for European Community legislation on these issues in 40 pieces of legislation.[33]

The Social Charter was subsequently adopted in 1989 by 11 of the then 12 member states. The UK refused to sign the Social Charter and was exempt from the legislation covering Social Charter issues unless it agreed to be bound by the legislation. The UK subsequently was the only member state to veto the Social Charter being included as the "Social Chapter" of the 1992 Maastricht Treaty - instead, an Agreement on Social Policy was added as a protocol. Again, the UK was exempt from legislation arising from the protocol, unless it agreed to be bound by it. The protocol was to become known as "Social Chapter", despite not actually being a chapter of the Maastricht Treaty. To achieve aims of the Agreement on Social Policy the European Union was to "support and complement" the policies of member states. The aims of the Agreement on Social Policy are:[33]

"promotion of employment, improving living and working conditions, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion"[33]

Following the election of Tony Blair as UK Prime Minister in 1997 the UK formally subscribed to the Agreement on Social Policy, which allowed it to be included with minor amendments as the Social Chapter of the 1997 Treaty of Amsterdam. The UK subsequently adopted the main legislation previously agreed under the Agreement on Social Policy, the 1994 Works Council Directive, which required workforce consultation in businesses, and the 1996 Parental Leave Directive.[33] In the 10 years following the 1997 Treaty of Amsterdam and adoption of the Social Chapter the European Union has undertaken policy initiatives in various social policy areas, including labour and industry relations, equal opportunity, health and safety, public health, protection of children, the disabled and elderly, poverty, migrant workers, education, training and youth.[34]

Internal market and free movement

Main article: Internal Market (European Union)

The core of European Union economic and social policy is summed up under the idea of the four freedoms - free movement of goods, capital, services and persons. Sometimes, they are also counted up as five freedoms, namely the free movement of goods, capital, services, workers and the freedom of establishment, but the difference is merely in denomination, they both refer to the same areas of substantive law.

Goods

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Main article: Internal Market (European Union)

Workers and citizens

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Free movement of economically active workers is guaranteed under TFEU article 45.

Services and establishment

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Main article: Internal Market (European Union)

Capital

Main article: EU company law

Competition law

Main article: EU competition law

EU Competition law has its origins in the European Coal and Steel Community (ECSC) agreement between France, Italy, Belgium, the Netherlands, Luxembourg and Germany in 1951 following the second World War. The agreement aimed to prevent Germany from re-establishing dominance in the production of coal and steel as it was felt that this dominance had contributed to the outbreak of the war. Article 65 of the agreement banned cartels and article 66 made provisions for concentrations, or mergers, and the abuse of a dominant position by companies.[35] This was the first time that competition law principles were included in a plurilateral regional agreement and established the trans-European model of competition law. In 1957 competition rules were included in the Treaty of Rome, also known as the EC Treaty, which established the European Economic Community (EEC). The Treaty of Rome established the enactment of competition law as one of the main aims of the EEC through the "institution of a system ensuring that competition in the common market is not distorted". The two central provisions on EU competition law on companies were established in article 85, which prohibited anti-competitive agreements, subject to some exemptions, and article 86 prohibiting the abuse of dominant position. The treaty also established principles on competition law for member states, with article 90 covering public undertakings, and article 92 making provisions on state aid. Regulations on mergers were not included as member states could not establish consensus on the issue at the time.[36]

Today, the Treaty of Lisbon prohibits anti-competitive agreements in Article 101(1), including price fixing. According to Article 101(2) any such agreements are automatically void. Article 101(3) establishes exemptions, if the collusion is for distributional or technological innovation, gives consumers a "fair share" of the benefit and does not include unreasonable restraints that risk eliminating competition anywhere (or compliant with the general principle of European Union law of proportionality). Article 102 prohibits the abuse of dominant position, such as price discrimination and exclusive dealing. Article 102 allows the European Council to regulations to govern mergers between firms (the current regulation is the Regulation 139/2004/EC).[37] The general test is whether a concentration (i.e. merger or acquisition) with a community dimension (i.e. affects a number of EU member states) might significantly impede effective competition. Articles 106 and 107 provide that member state's right to deliver public services may not be obstructed, but that otherwise public enterprises must adhere to the same competition principles as companies. Article 107 lays down a general rule that the state may not aid or subsidise private parties in distortion of free competition and provides exemptions for charities, regional development objectives and in the event of a natural disaster.

Criminal law

In 2006, a toxic waste spill off the coast of Côte d'Ivoire, from a European ship, prompted the Commission to look into legislation against toxic waste. Environment Commissioner Stavros Dimas stated that "Such highly toxic waste should never have left the European Union". With countries such as Spain not even having a crime against shipping toxic waste, Franco Frattini, the Justice, Freedom and Security Commissioner, proposed with Dimas to create criminal sentences for “ecological crimes”. The competence for the Union to do this was contested in 2005 at the Court of Justice resulting in a victory for the Commission.[38] That ruling set a precedent that the Commission, on a supranational basis, may legislate in criminal law – something never done before. So far, the only other proposal has been the draft intellectual property rights directive.[39] Motions were tabled in the European Parliament against that legislation on the basis that criminal law should not be an EU competence, but was rejected at vote.[40] However, in October 2007, the Court of Justice ruled that the Commission could not propose what the criminal sanctions could be, only that there must be some.[41]

See also

European Union portal

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Notes

References

  • Eur-charts.eu Visualisation/graphic representations of EC law in the form of charts/diagrams.

External links

  • EUR-Lex - online access to existing and proposed European Union legislation
  • eur-lex.europa.eu, Treaties
  • Summaries of EU legislation
  • Evolution of European Union legislation
  • von Bogdandy, Armin Smrkolj, Maja. European Community and Union Law and International Law, Max Planck Encyclopedia of Public International Law

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