Legal Order


The European Union (and the European Communities)

The European Union (EU) is not an independent federal State, like the United States of America, nor an international organisation for mutual cooperation, like for instance the United Nations or WIPO. It’s a unique association of several European States which have agreed under Treaties to cooperate with each other on different levels, meanwhile nevertheless remaining independent sovereign nations. The objective of the European Union is to stimulate and ensure the free movement of goods, capital, services and persons between the different Member States. For this purpose the Member States have delegated parts of their sovereignty to the institutions of the European Union.

The European Union now has 27 members:

 Austria
 Belgium
 Bulgaria
 Cyprus
 Czech Republic
 Denmark
 Estonia
 Finland
 France
 Germany
 Greece
 Hungary
 Ireland
 Italy
 Latvia
 Lithuania
 Luxembourg
 Malta
 Netherlands
 Poland
 Portugal
 Romania
 Slovakia
 Slovenia
 Spain
 Sweden
 United Kingdom

To achieve its objectives, the European Union is founded on three different pillars. This new European structure was acknowledged for the first time by the Treaty signed on 7 February 1992 in Maastricht. The three pillars form the basic structure of the European Union, namely:

  1. the Community pillar, corresponding to the three Communities: the European Economic Community, the European Atomic Energy Community (Euratom) and the former European Coal and Steel Community (ECSC) (first pillar);
  2. the pillar devoted to the common foreign and security policy, which comes under Title V of the EU Treaty (second pillar);
  3. the pillar devoted to police and judicial cooperation in criminal matters, which comes under Title VI of the EU Treaty (third pillar).

The aim of establishing three European Communities, therefore, has been extended to political cooperation between Member States. This also means that the words 'European Communities' have not the same meaning as the words 'European Union'. The three European Communities, sometimes also referred to as the European Community, only represent one part of the European Union, namely the one that is covered by the so called first pillar. The European Union is more widely. It encloses not only the European Communities (supranational character), but also the political cooporation between the Member States under the second and third pillar (intergovernmental character).


EU institutions and other bodies

The most important institution of the European Union are the 'European Parliament' (EP), which represents the EU’s citizens and is directly elected by them, the 'Council of the European Union', which represents the individual Member States, and the 'European Commission', which seeks to uphold the interests of the European Union as a whole.

This ‘institutional triangle’ produces the policies and laws that apply throughout the EU. In principle, it is the European Commission that proposes new laws, but it is the European Parliament and the European Council that adopt them. The European Commission and the Member States then implement them, and the European Commission ensures that the laws are properly taken on board.

Two other institutions have a vital part to play: the 'Court of Justice' upholds the rule of European law, and the 'Court of Auditors' checks the financing of the Union’s activities.

The powers and responsibilities of these institutions are laid down in the Treaties, which are the foundation of everything the EU does. They also lay down the rules and procedures that the EU institutions must follow. The Treaties are agreed by the presidents and/or prime ministers of all the EU countries, and ratified by their parliaments (source: ‘www.europe.eu’).


Legislation

The treaties acknowledge the power of the European Union to adopt legislation in order to be able to set rules in pursuance of the common goals: free movement of goods, capital, services and persons. There are several institutions with legislative power. In general, it is the European Commission that proposes new legislation, but it is the European Council and European Parliament that pass the laws. In some cases, the European Council can act alone. Other institutions also have roles to play.

The three pillars function on the basis of different decision-making procedures: the Community procedure for the first pillar, and the intergovernmental procedure for the other two. In the case of the first pillar, only the European Commission can submit proposals to the European Council and European Parliament, and a qualified majority is sufficient for a Council act to be adopted. In the case of the second and third pillars, this right of initiative is shared between the European Commission and the Member States, and unanimity in the European Council is generally necessary.

The rules and procedures for EU decision-making are laid down in the treaties. Every proposal for a new European law is based on a specific treaty article, referred to as the ‘legal basis’ of the proposal The main forms of EU law are Directives and Regulations (source: ‘www.europe.eu’).

'Directives' are adopted by the European Council in conjunction with the European Parliament or by the European Commission alone. A Directive is addressed to the Member States. Its main purpose is to align national legislation. A Directive is binding on the Member States as to the result to be achieved but leaves them the choice of the form and method they adopt to realise the Community objectives within the framework of their internal legal order. If a Directive has not been transposed into national legislation in a Member State, if it has been transposed incompletely or if there is a delay in transposing it, citizens may directly invoke the Directive in question before the national courts.

As there are variations in the political, administrative, and social arrangements within the Member States, directives were considered a particularly useful framework device, setting out the ends which Member States are to meet in considerable detail. Due to the lack of direct applicability, Member States frequently interpret a directive's provisions according to their convenience and needs. This often results in a distinct lack of harmonisation EU-wide, the very thing that directives are adopted to avoid. The European Court of Justice has held that even if Directives are not implemented, individuals may nonetheless rely on them, at least in actions against the State. The Court has also held that a Member State can be liable in damages for non-implementation of a Directive.

'Regulations' are adopted by the European Council in conjunction with the European Parliament or by the European Commission alone. A Regulation is a general measure that is binding in all its parts. Unlike Directives, which are addressed to the Member States, Regulations are addressed to everyone. A Regulation is directly applicable, which means that it creates law which takes immediate effect in all Member States in the same way as a national instrument, without any further action on the part of the national authorities (source: ‘www.europe.eu’). Therefore, European Regulations have to be regarded as rules immediately in force in all Member States. They are a part of the Member States' national legal systems automatically without the need for separate national legal measures. Where necessary, the European Court of Justice defines how a Regulation must be applied and how particular provisions from such Regulations have to be interpreted in a specific case. All Member States are bound by that interpretation, so that uniformity in application is assured throughout the entire European Union. Where the national courts of a Member State are in doubt with regard to the interpretation of a specific provision of a Regulation, they may ask the European Court upfront, before rendering a judgement themselves, how that provision is to be applied ('preliminary ruling').


The European Court of Justice (ECJ)

The Court of Justice of the European Communities (often referred to simply as 'the Court') was set up under the ECSC Treaty in 1952. It is based in Luxembourg. Its job is to make sure that EU legislation is interpreted and applied in the same way in all EU countries, so that the law is equal for everyone. It ensures, for example, that national courts do not give different rulings on the same issue. The European Court of Justice also makes sure that EU Member States and institutions do what the law requires. The Court has the power to settle legal disputes between EU member states, EU institutions, businesses and individuals.

The European Court of Justice in Luxembourg should not be confused with the European Court of Human Rights in Strasbourg. The latter is a supra-national court, established by the European Convention on Human Rights, which provides legal recourse of last resort for individuals who feel that their human rights have been violated by a contracting party to the Convention.

The European Court of Justice is composed of one judge per Member State, so that all 27 of the EU’s national legal systems are represented. For the sake of efficiency, however, the Court rarely sits as the full court. It usually sits as a 'Grand Chamber' of just 13 judges or in chambers of five or three judges. The Court is assisted by eight 'Advocates-General'. Their role is to present reasoned opinions on the cases brought before the Court. They must do so publicly and impartially.

To help the Court of Justice cope with the large number of cases brought before it, and to offer citizens better legal protection, a 'Court of First Instance' was created in 1988. This Court (which is attached to the Court of Justice) is responsible for giving rulings on certain kinds of case, particularly actions brought by private individuals, companies and some organisations, and cases relating to competition law. This court also has one judge from each EU country.

The five most common types of court case are:

  1. references for a preliminary ruling;

    The national courts in each EU Member State are responsible for ensuring that EU law is properly applied in that Member State. But there is a risk that courts in different countries might interpret EU law in different ways. To prevent this happening, there is a 'preliminary ruling procedure'. This means that if a national court is in any doubt about the interpretation or validity of an EU law it may, and sometimes must, ask the Court of Justice for advice. This advice is given in the form of a 'preliminary ruling'.

  2. actions for failure to fulfil an obligation;

    The Commission can start these proceedings if it has reason to believe that a Member State is failing to fulfil its obligations under EU law. These proceedings may also be started by another EU country. In either case, the Court investigates the allegations and gives its judgment. The accused Member State, if it is indeed found to be at fault, must set things right at once. If the Court finds that the Member State has not complied with its judgment, it may impose a fine on that country.

  3. actions for annulment;

    If any of the Member States, the Council, the Commission or (under certain conditions) Parliament believes that a particular EU law is illegal, they may ask the Court to annul it. These 'actions for annulment' can also be used by private individuals who want the Court to cancel a particular law because it directly and adversely affects them as individuals. If the Court finds that the law in question was not correctly adopted or is not correctly based on the Treaties, it may declare the law null and void.

  4. actions for failure to act;

    The Treaty requires the European Parliament, the Council and the Commission to make certain decisions under certain circumstances. If they fail to do so, the Member States, the other Community institutions and (under certain conditions) individuals or companies can lodge a complaint with the Court so as to have this failure to act officially recorded.

  5. actions for damages.

    Any person or company who has suffered damage as a result of the action or inaction of the Community or its staff may bring an action seeking compensation before the Court of First Instance.

The proceedings before the Luxembourg Court of Justice start by submitting a case to the Regitry of the Court. Then a specific judge and Advocate-General are to be assigned for the case. The procedure that follows is in two stages: first a written and then an oral phase.

At the first stage, all the parties involved submit written statements and the judge assigned to the case draws up a report summarising these statements and the legal background to the case.

Then comes the second stage – the public hearing. Depending on the importance and complexity of the case, this hearing can take place before a chamber of three, five or 13 judges, or before the full Court. At the hearing, the parties’ lawyers put their case before the judges and the advocate-general, who can question them. The advocate-general then gives his or her opinion, after which the judges deliberate and deliver their judgment.

Since 2003, Advocates-General are required to give an opinion on a case only if the Court considers that this particular case raises a new point of law. Nor does the Court necessarily follow the advocate-general’s opinion.

Judgments of the Court are decided by a majority and pronounced at a public hearing. Dissenting opinions are not expressed. Decisions are published on the day of delivery.

The procedure in the Court of First Instance is similar, except that there is no opinion from an advocate-general (source: ‘www.europe.eu’).