The ABC of EU law - FULL BOOK SUMMARY, Sintesi del corso di Diritto

Scarica The ABC of EU law - FULL BOOK SUMMARY e più Sintesi del corso in PDF di Diritto solo su Docsity! From Paris to Lisbon via Rome, Maastricht, Amsterdam and Nice Until after the end of WW2, our concept of the state and our political life had developed almost entirely on the basis of national constitutions and laws. The rules of conduct binding on citizens and parties in our democratic states, and on the state and its organs, were created on this basis. It took the collapse of Europe and its political and economic decline to create the conditions for a new beginning and give a fresh impetus to the idea of a new European order. Moves towards unification in Europe since WW2 have created a confusing mixture of complex organizations that are difficult to keep track of. For example, the Organization for Economic Cooperation and Development (OECD), the North Atlantic Treaty Organization (NATO), the Council of Europe and the European Union coexist without any real links between them. These organizations can be divided into 3 main groups: - The Euro-Atlantic organizations - The Council of Europe and OSCE - The European Union 1. The Euro-Atlantic organizations came into being as a result of the alliance between USA and Europe after WW2. The first European organization of the post-war period, the Organization for European Economic Cooperation (OEEC), founded in 1948, was created at the initiative of the USA. The United States Secretary of State at the time, Marshall called on the countries of Europe in 1947 to join forces in rebuilding their economies and promised American help. The Marshall Plan provided the foundation for the rapid reconstruction of Western Europe. The main aim of the OEEC was to liberalize trade between countries. In 1960, the USA and Canada became members to promote economic progress in the “Third World” through development aid. The OEEC became the OECD, which now has 35 members. In 1949, NATO was founded as a military alliance with the USA and Canada. The aim was collective defense and support. It was part of a global security belt to stop Soviet influence. Following the dissolution of the Soviet Union, the organization has increasingly taken on the tasks of managing crisis and promoting stability. NATO has 28 member countries, 22 European plus USA, Canada, Turkey, Norway, Iceland and Albania. In 1954, the Western European Union (WEU) was created to strengthen security policy cooperation between the countries of Europe. The WEU marked the beginning of a security and defense policy in Europe, however its role has not developed further as other international institutions have received its powers (NATO, the Council of Europe and the EU). The WEU was dissolved in 2011. 2. The Council of Europe and OSCE are structured to enable as many countries as possible to participate, even though these organizations are designed only with international cooperation in mind. The Council of Europe was founded as a political institution in 1949 and has 47 members including all the EU members. Decisions within the Council require unanimity (every country has veto power). Numerous conventions have been concluded by the Council in the fields of economics, culture, social policy and law. The most important is the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of Nov. 4th 1950. All 47 members of the Council are now party to the convention. This convention enabled a minimum standard for the safeguarding of human rights to be laid down for the member countries and it established a system of legal protection which enables the bodies established in Strasbourg under the convention to condemn violations of human rights in the member countries. The Organization for Security and Cooperation in Europe (OSCE) was founded in 1994 as the successor to the Conference on Security and Cooperation in Europe. It has 57 participating states and is bound by the principles and aims set out in the 1975 Helsinki Final Act and the 1990 Charter of Paris. These aims include creation of a safety net to enable conflicts to be settled by peaceful means and measures to build up trust between the countries of Europe. 3. The European Union distinguished itself from the usual type of international association of states in the fact that the member states have ceded some of their sovereign rights to the EU and have conferred on it powers to act independently. Thus, the EU is able to adopt European legislation which has the same force as national laws in individual states. The foundation stone was laid by the French Foreign Minister Schuman in his declaration on May 9th 1950 in which he delivered the plan he had worked on with Jean Monnet to bring Europe’s coal and steel industries together to form a European Coal and Steel Community (ECSC). This would constitute a step forward towards an organized Europe indispensable for civilization and without which the peace of the world could not be maintained. The Schuman Plan became a reality with the treaty of the ECSC written by the six founding states (Belgium, Germany, France, Italy, Luxembourg and the Netherlands) in 1951 in Paris (Treaty of Paris) and its entry into force in 1952. This Community was established for 50 years and integrated into the European Community when its founding treaty expired in 2002. The Treaties of Rome of March 25th 1957 created the European Economic Community (EEC) and the European Atomic Energy Community (Euratom or EAEC), their treaties entered into force in 1958. The creation of the European Union by means of the Treaty of Maastricht market a further step towards political unification of Europe. The treaty was signed on Feb. 7th 1992 but there were obstacles in the ratification process (approval by the people of Denmark only after a second referendum; legal action in Germany to have parliament’s approval of the treaty declared unconstitutional) and therefore it didn’t enter into force until Nov 1993. The treaty was a new stage in the process of creating an even closer union among the peoples of Europe. It established the EU but didn’t bring the process to completion. The EU didn’t replace the European Communities, it placed under it as the new policies and forms of cooperation. The EU is built under three pillars: the European Communities (EEC – renamed EC; ECSC – til 2002; Euratom); cooperation between the member states under the common foreign and security policy; cooperation between member states in the fields of justice and home affairs. The Treaties of Amsterdam and Nice entered into force in May 1999 and Feb 2003. Their aim was to preserve the EU’s capacity for effective action even in an enlarged union. They focused on institutional reforms, but the political will to deepen European integration was weak. Criticism started a debate on the future of the EU and its institutional set-up. In Dec 2001 in Laeken (Belgium), the Heads of State or Government adopted a Declaration on the Future of the EU in which the EU undertook to become more democratic, transparent and effective, and to open the road to a constitution. The first step in achieving this goal was setting up a European convention chaired by the President of France d’Estaing competent of drafting a European constitution. The draft of the Treaty establishing a Constitution for Europe drawn up by the convention was officially submitted to the President of the European Council in 2003 and adopted with amendments by the Heads of State or Government in July 2004 in Brussel. The constitution was intended to unify the EU and the EC into a single EU based on one constitutional treaty. Only the Euratom would continue to exist as a separate Community. This constitution failed in the ratification process by the member states, the treaty was rejected in France and the Netherlands. A new package of reforms was launched in 2007 which represented a formal move away from the idea of the European constitution under which all treaties would be revoked and replaced by the Treaty establishing a Constitution for Europe. Thus, the Treaty of Lisbon was drawn up which made fundamental changes to the existing EU treaties in order to strengthen the EU’s capacity to act within and outside the Union, increase its democratic legitimacy and enhance the efficiency of the EU action. The main points of contention were: the delimitation of competences between the Union and the member states; the future of the common foreign and security policy; the new role (5) In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter. The foundations of a united Europe were laid on fundamental ideas and values to which the Member States have subscribed in Article 2 TEU and which are translated into practical reality by the EU’s operational institutions. These fundamental values include respect for human dignity, equality, freedom and solidarity. The EU’s avowed aims are to safeguard the principles of liberty, democracy and the rule of law which are shared by all the Member States, and to protect human rights. These values not only set the standard for countries wishing to join the EU in the future; serious and persistent breaches of these values and principles by a Member State can also be penalized pursuant to Article 7 TEU. First of all, the Heads of State or Government in the European Council must unanimously determine the existence of a serious and persistent breach of the values and principles of the Union. This determination is made by the Heads of State or Government on a proposal by one third of the Member States or by the European Commission, and after obtaining the assent of the European Parliament. The Council may then, acting by a qualified majority, suspend certain rights deriving from the application of the EU Treaty and the TFEU to the Member State in question, including voting rights in the Council. On the other hand, the obligations on the Member State in question under the treaties continue to be binding. Particular account is taken of the effects on the rights and obligations of citizens and enterprises. The EU as a guarantor of peace There is no greater motivation for European unification than the desire for peace (cf. Article 3 TEU). The establishment of the EU created the centerpiece of a framework for peace in Europe that renders a war between the Member States impossible. Seventy years of peace in Europe are proof of this. The more European states that join the EU, the stronger this framework of peace will become. In 2012, the EU received the Nobel Peace Prize for advancing the causes of peace, reconciliation, democracy and human rights in Europe. Unity and equality as the recurring theme Unity is the recurring theme. The major problems of the present can be mastered only if the European countries speak and act in unison, while preserving their diversity. Without European integration, it would not be possible to secure peace, democracy, law and justice, economic prosperity and social security, and to guarantee them for the future. Unemployment, inadequate growth, security of energy supply and environmental pollution have ceased to be national problems, and they cannot be solved at national level. In the context of the EU that a stable economic order can be established and only through joint European efforts that we can secure an international economic policy that improves the performance of the European economy and contributes to social justice. Without internal cohesion, Europe cannot assert its political and economic independence from the rest of the world, win back its influence on the international stage and regain its role in world politics. Unity can endure only where equality is the rule. No citizen of the Union may be placed at a disadvantage or discriminated against because of his or her nationality. Discriminatory treatment on the grounds of gender, race, ethnic origin, religion or beliefs, disability, age or sexual orientation must be combated. The Charter of Fundamental Rights of the European Union states that any discrimination based on any ground such as colour, genetic features, language, political or any other opinion, membership of a national minority, property or birth is prohibited. All Union citizens are equal before the law: no state has precedence over another, and natural differences such as size, population and differing structures must be considered only in accordance with the principle of equality. The fundamental freedoms Freedom results directly from peace, unity and equality. Freedom of movement beyond national frontiers: movement for workers, freedom of establishment, freedom to provide services, free movement of goods and free movement of capital. These freedoms guarantee business people freedom of decision-making, workers freedom to choose their place of work and consumers freedom of choice between the greatest possible variety of products. Freedom of competition permits businesses to offer their goods and services to an incomparably wider circle of potential customers. Workers can seek employment and change job according to their own wishes and interests throughout the entire territory of the EU. Consumers can select the cheapest and best products from the far greater range of goods on offer that results from increased competition. These rules allow the ‘old’ EU Member States to use national law or existing bilateral agreements to control the exercise of these fundamental freedoms for nationals of new Member States for up to 7 years. The principle of solidarity Solidarity is the necessary corrective to freedom, for inconsiderate exercise of freedom is always at the expense of others. If a Community framework is to endure, it must recognize the solidarity of its members as a fundamental principle, and share both the advantages and the burdens equally and fairly. Respect for national identity The national identities of the Member States are respected. The idea is not for the Member States to be ‘dissolved’ into the EU, but rather for them to contribute their own particular qualities. The need for security All of these fundamental values are dependent on security. Since the attack on the United States of 11 September 2001 and the growing number of terrorist attacks in Europe, the fight against terrorism and organized crime in Europe has also been in the spotlight again. Police and judicial cooperation continues to be consolidated, and protection of the EU’s external borders intensified. However, security also means the social security of citizens, job security, secure economic and business conditions. The fundamental rights The history of Europe has been characterized by continuing efforts to enhance the protection of fundamental rights. Starting with the declarations of human and civil rights in the 18th century, fundamental rights and civil liberties have now become firmly anchored in the constitutions of most civilized states. This is especially true of the EU Member States, whose legal systems are constructed on the basis of the rule of law and respect for the dignity, freedom and the right to self-development of the individual. There are also numerous international conventions on the protection of human rights, among which the ECHR. It was not until 1969 that the CJEU established a body of case-law to serve as a framework of fundamental rights. Prior to that, the Court had rejected all actions relating to basic rights on the grounds that it need not concern itself with matters falling within the scope of national constitutional law. The Court had to alter its position not least because it was itself the embodiment of the primacy of Union law and its precedence over national law; this primacy can only be firmly established if Union law is sufficient in itself to guarantee the protection of basic rights with the same legal force as under the national constitutions. The starting point in this case-law was the Stauder judgment: a recipient of welfare benefits for war victims regarded the requirement that they give their name when registering for the purchase of butter at reduced prices at Christmas as a violation of their human dignity and the principle of equality. The Court of Justice came to the conclusion, in interpreting the Union provision, that it was not necessary for recipients to give their name. This was the first time that the Court of Justice recognized the existence of an EU framework of fundamental rights of its own. Prohibition of any discrimination on grounds of nationality (Article 18 TFEU), preventing people being treated differently on the grounds of gender, race, ethnic origin, religion or beliefs, disability, age or sexual orientation (Article 10 TFEU), the equal treatment of goods or persons in relation to the four basic freedoms (freedom of movement of goods — Article 34 TFEU; freedom of movement of persons — Article 45 TFEU; the right of establishment — Article 49 TFEU; and freedom to provide services — Article 57 TFEU), freedom of competition (Article 101 et seq. TFEU) and equal pay for men and women(Article 157 TFEU). The Court of Justice has developed and added to these initial attempts at protecting fundamental rights through Union law by recognizing and applying general legal principles, drawing on the concepts that are common to the constitutions of the Member States and on the international conventions on the protection of human rights. Prominent among the latter is the ECHR, which helped to shape the substance of fundamental rights in the Union and the mechanisms for their protection. On this basis, the Court has recognized a number of freedoms as basic rights secured by Union law: right of ownership, freedom to engage in an occupation, the inviolability of the home, freedom of opinion, general rights of personality, the protection of the family (e.g. family members’ rights to join a migrant worker), economic freedom and freedom of religion or faith, along with a number of fundamental procedural rights such as the right to due legal process, the principle of confidentiality of correspondence between lawyer and client (known as ‘privileged communications’ in the common law countries), the ban on being punished twice for the same offence or the requirement to provide justification for an EU legal act. Equal treatment: cases must be treated alike, unless there is some objectively justifiable ground for distinguishing them. According to the case-law of the CJEU, however, this principle does not preclude nationals and home-produced goods from being subjected to stricter requirements than citizens or products from other Member States (reverse discrimination). This outcome applies only to cross-border trade. Rules regulating the production and marketing of home-produced goods or the legal status of nationals in their own Member State are affected by Union law only if the Union has introduced harmonization measures. The jurisprudence of the CJEU has also given the Union an extensive body of quasi-constitutional law. In practical terms, the principle of proportionality is foremost among these. What this means is that the objectives pursued and the means deployed must be weighed up and an attempt made to keep them in proper balance so that the citizen is not subjected to excessive burdens. Among the other fundamental principles underlying Union law are the general principles of administrative law and the concept of due process: legitimate expectations must be protected, retroactive provisions imposing burdens or withdrawing legitimately acquired advantages are precluded and the right to due legal process — natural justice is the traditional term for this — must be secured in the administrative procedures of the Commission and the judicial procedures of the Court of Justice. Particular value is also attached to greater transparency, which means that decisions should be taken as openly as possible, and as closely as possible to the citizen. An important aspect of this transparency is that any EU citizen or legal person registered in a Member State may have access to Council or Commission documents. All grants and subsidies from the EU budget must also be disclosed to natural or legal persons by means of databases accessible to every Union citizen. This process of deriving ‘European fundamental rights’ had a serious disadvantage: the Court of Justice was confined to the particular case in point. It was therefore unable to develop fundamental rights from the general legal principles for all areas in which this appeared necessary or desirable. Nor was it able to elaborate the scope of and the limits to the protection of fundamental rights as generally and distinctively as was necessary. As a result, the EU institutions could not assess with enough precision whether they were in danger of violating a fundamental right or not. Nor could any Union citizen who was affected judge without further effort in every case whether one of his or her fundamental rights had been infringed. In its Opinion 2/94, however, the Court had held This instrument has only been used in two cases up to now. To create a regulation that allows spouses of different nationalities to choose the applicable law for a divorce. A Commission proposal granted authorization to proceed with enhanced cooperation. 14 Member States agreed on such provisions for the divorce or separation of spouses of different nationalities. Council Regulation (EU) No 1259/2010 of 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. A second case in which enhanced cooperation was implemented relates to patent protection in Europe. Without Croatia and Spain, and with the subsequent participation of Italy, a total of 26 EU Member States agreed on enhanced cooperation to create unitary patent protection. The regulation implementing enhanced cooperation regarding unitary patent protection and the regulation regarding the applicable translation arrangements entered into force in 2013. The regulations will only apply once the Agreement on a Unified Patent Court has entered into force. The agreement must be ratified by at least 13 Member States; 11 have ratified it so far. The constitution of the European Union Every social organization has a constitution. A constitution is the means by which the structure of a political system is defined, i.e. the relationship of the various parts to each other and to the whole is specified, the common objectives are defined and the rules for making binding decisions are laid down. In the Member States the body politic is shaped by: the rule of law and democracy. All the activities have both legal and democratic legitimacy. The EU ‘constitution’ is still not laid down in a comprehensive constitutional document, as it is in most of the constitutions of its Member States, but arises from the totality of rules and fundamental values by which those in authority perceive themselves to be bound. These rules are to be found in the EU treaties or in the legal instruments produced by the Union institutions, also partly on custom. The legal nature of the EU Van Gend & Loos The Dutch transport company Van Gend & Loos filed an action against the Netherlands customs authorities for imposing an import duty on a chemical product from Germany higher than duties on earlier imports. The company considered this an infringement of Article 12 of the EEC Treaty. The court in the Netherlands then suspended the proceedings and referred the matter to the CJEU for clarification as regards the scope and legal implications of the abovementioned article of the Treaty establishing the EC. The Court stated that: ‘The objective of the EEC Treaty, which is to establish a Common Market, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting States. The preamble to the Treaty which refers not only to governments but to peoples. The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.’ Costa v ENEL In 1962, Italy nationalized the production and distribution of electricity and transferred the assets of the electricity undertakings to the national electricity board, ENEL. As a shareholder of Edison Volta, Mr Costa considered that he had been deprived of his dividend and consequently refused to pay an electricity bill for the amount of ITL 1926. One of the arguments put forward by Mr Costa was that the nationalizing act infringed a number of provisions of the EEC Treaty. The court requested that the CJEU interpret various aspects of the EEC Treaty. The CJEU stated: ‘By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which became an integral part of the legal systems of the Member States and which their courts are bound to apply. The Member States have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves’. On the basis of its detailed observations, the Court reached the following conclusion: ‘The law stemming from the Treaty could not be overridden by domestic legal provisions, however without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail’. The elements which typically characterize the special legal nature of the EU are: - the institutional set-up, which ensures that action is influenced by the Union interest as laid down in the objectives; - the transfer of powers to the Union institutions, extending to areas in which states normally retain their sovereign rights; - the establishment of its own legal order, independent of the Member States’ legal orders; - the direct applicability of Union law bestows rights and imposes obligations on both the Member States and their citizens; - the primacy of Union law, which ensures that Union law may not be revoked or amended by national law and that it takes precedence over national law if the two conflict. The EU is an autonomous entity with its own sovereign rights and a legal order independent of the Member States, to which both the Member States and their nationals are subject within the EU’s areas of competence. The EU has certain features in common with the usual kind of international organization or federal-type structure, along with a number of differences. The EU is itself not yet a ‘finished product’; the form it will take still cannot be predicted. The only feature that the EU has in common with the traditional international organizations is that it too came into being as a result of international treaties. The Member States have ceded some of their sovereign powers to this Union and transferred them to the EU so that they can be exercised jointly. The EU is in the process of acquiring a status similar to that of an individual state. However, the EU institutions only have powers in certain areas to pursue the objectives specified in the treaties. They are not free to choose their objectives in the same way as a sovereign state. The EU has neither the comprehensive jurisdiction enjoyed by sovereign states nor the powers to establish new areas of responsibility. The EU is therefore neither an international organization in the usual sense nor an association of states, but rather an autonomous entity somewhere in between the two. The term ‘supranational organization’ is now used. The tasks of the EU The tasks entrusted to the EU strongly resembles the constitutional order of a state. The list of tasks entrusted to the EU is very wide-ranging, covering economic, social and political action. Economic tasks The economic tasks are centered around establishing a common market that unites the national markets of the Member States and on which all goods and services can be offered and sold on the same conditions as on an internal market which was initiated by the President of the Commission, Jacques Delors, and approved by the Heads of State or Government, laying down a legal framework for a properly functioning single market. The single market is felt in everyday life, especially when travelling within the EU, where checks on persons and goods at national borders have long since been discontinued. The internal market is backed up by economic and monetary union. The EU’s task in economic policy is to coordinate the national economic policies so that the policy decisions of one or more Member States do not have negative repercussions for the operation of the single market. A stability and growth pact was adopted to give Member States the detailed criteria which their decisions on budgetary policy have to meet. If they fail to do this, the European Commission can issue warnings and, in cases of continuing excessive budgetary deficit, the Council of the European Union can also impose penalties. Economic policy coordination at EU level was supplemented by a permanent crisis mechanism, which consists primarily of: strengthening the role of the Commission; introduction of new automatic correction mechanisms; establishing economic policy coordination at the highest political level; concerted coordination in the European semester with stricter reporting obligations for the Member States; strengthening the role of the national parliaments and the European Parliament; and voluntary commitments to be laid down in national law. At the heart of this new crisis mechanism is the European semester. The European semester is a cycle during which the EU Member States coordinate their economic and fiscal policy. Its focus is on the first 6 months of a year, the Member States align their budgetary and economic policies with the objectives and rules agreed at the EU level. To contribute to ensuring sound public finances, fostering economic growth and preventing excessive macroeconomic imbalances in the EU. This is a last resort. The basic policy orientation remains the same: national responsibility in economic and financial policy. The EU’s task in monetary policy was and is to introduce a single currency in the EU and to control monetary issues centrally. In 1999, the euro was introduced as the single European currency in the Member States which had already met the convergence criteria established for that purpose (inflation rate of 1.5%, government deficit = annual new debt: 3%, government debt: 60%, long-term interest rate: 2%). These were Belgium, Germany, Spain, France, Ireland, Italy, Luxembourg, the Netherlands, Austria, Portugal and Finland. In 2002, the national currencies of these states were replaced with euro bank notes and coins. In the following years, an ever-increasing number of Member States met the criteria for adopting the euro: Greece (1 January 2001), Slovenia (1 January 2007), Cyprus (1 January 2008), Malta (1 January 2008), Slovakia (1 January 2009), Estonia (1 January 2011), Latvia (1 January 2014) and finally Lithuania (1 January 2015). The ‘euro area’ now covers 19 Member States. In principle, the remaining Member States are also obliged to adopt the euro as their national currency as soon as they meet the convergence criteria. The only exceptions to this are Denmark and the United Kingdom. These Member States secured an opt-out, which allows them to decide if and when the procedure for verifying compliance with the criteria for joining the single currency is initiated. Sweden, which does not have an opt-out clause, represents a special case. Its adoption of the euro instead depends on whether the Commission and the European Central Bank (ECB) recommend Sweden’s participation to the Council. If such a recommendation is made and approved by the Council, Sweden will not be able to refuse to participate. However, there is currently little support amongst the Swedish population for joining the euro area. The euro has developed into a strong and internationally recognized currency that also forms a solid link between the Member States of the euro area. The European Stability Mechanism (ESM) in 2013. As a permanent crisis resolution framework, the ESM provides the Member States of the euro area with external financial assistance, with an effective lending capacity of EUR 500 billion. They receive this assistance under strict conditions, rigorous fiscal consolidation and are reflected in an economic adjustment program to be negotiated by the Commission and the International Monetary Fund (IMF), in close cooperation with the ECB. The EU has responsibilities: agricultural and fisheries policy, transport policy, consumer policy, structural and cohesion policy, research and development policy, space policy, environment policy, health policy, trade policy and energy policy. Social tasks Introduction of a social security system for migrant workers. Workers who have worked in more than one Member State, and therefore fallen under different social insurance schemes, will not suffer a disadvantage with regard to their social security (old-age pension, invalidity pension, healthcare, family benefits and unemployment benefits). Devise a European employment strategy to develop an employment strategy, to promote a skilled, trained and adaptable workforce, labour markets should also be made adaptable to economic change. A matter of common concern and requires Member States to coordinate their national measures within the Council. The EU will and common action. To paraphrase Montesquieu, when it is not necessary for the EU to take action, it is necessary that it should take none. If the need for Union rules is demonstrated, the next question that arises concerns the intensity and the form that they should take. The answer flows from the principle of proportionality, which is established in the EU Treaty in conjunction with the competence provisions (Article 5(4)). It means that the need for the specific legal instrument must be thoroughly assessed to see whether there is a less constraining means of achieving the same result. The main conclusion to be reached in general terms is that framework regulations, minimum standards and mutual recognition of the Member States’ existing standards should be preferred to excessively detailed legal provisions, and harmonizing provisions should be avoided wherever possible. National parliaments can also now check compliance with the principles of subsidiarity and proportionality. For this purpose, an early warning system has been introduced, allowing national parliaments to issue a reasoned position within 8 weeks following transmission of an EU legislative proposal, setting out why the legislative proposal in question does not meet the subsidiarity and proportionality requirements. If this reasoned position is supported by at least a third of the votes allocated to the national parliaments (where each national parliament has two votes or, in the case of chamber systems, one vote per chamber), the legislative proposal must be reviewed again by the institution that issued it (usually the Commission). Following this review, the proposal can be retained, amended or withdrawn. If the European Commission decides to retain the draft, it must issue a reasoned opinion, stating why it considers the draft to follow the subsidiarity principle. This reasoned opinion is sent to the EU legislator together with the reasoned opinions of the national parliaments so that they can be taken into account in the legislative procedure. If, by a 55 % majority of the members of the Council of the European Union or by a majority of the votes cast in the European Parliament, the EU legislator is of the opinion that the proposal does not comply with the subsidiarity principle, the legislative proposal is not examined any further. The institutions of the EU Article 13 TEU (institutional framework) (1) The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. The Union’s institutions shall be: — the European Parliament, — the European Council, — the Council, — the European Commission (hereinafter referred to as the ‘Commission’), — the Court of Justice of the European Union, — the European Central Bank, — the Court of Auditors. (2) Each institution shall act within the limits of the powers conferred on it in the treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practise mutual sincere cooperation. (3) The provisions relating to the European Central Bank and the Court of Auditors and detailed provisions on the other institutions are set out in the Treaty on the Functioning of the European Union. (4) The European Parliament, the Council and the Commission shall be assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory capacity. The EU has an institutional system that equips it to give new objectives to the unification of Europe and to create a body of law that is uniformly devised and binding in all the Member States in the matters falling within its responsibility. Institutions The European Parliament (Article 14 TEU) The European Parliament represents the peoples of the EU Member States. The ECSC Joint Assembly, the EEC Assembly and the Euratom Assembly form an ‘assembly’ under the 1957 Convention on Certain Institutions Common to the European Communities. The name was not officially changed to ‘European Parliament’ until the EC Treaty was amended by the TEU (Maastricht Treaty). The composition of the European Parliament is shown in graphic form below; this is the situation in the current 2014-2019 legislative period. Up to 1979, representatives in the European Parliament were selected from the membership of national parliaments and delegated by them to the European Parliament. Elections are now held every 5 years, which corresponds to the length of a ‘legislative period’. A uniform electoral procedure was finally introduced by the act concerning the election of representatives of the European Parliament by direct universal suffrage in 1976 and then reformed by the direct elections act in 2002. Each Member State lays down its own election procedure, but must apply the same basic democratic rules: - direct general election; - proportional representation; - free and secret ballots; - minimum age (18 in all Member States except Austria where the voting age is 16); - renewable 5-year term of office; - incompatibilities - election date; - equality between men and women. In some countries (Belgium, Luxembourg and Greece), voting is compulsory. A uniform statute for MEPs came into force in 2009, which makes the terms and conditions of MEPs’ work more transparent and contains clear rules. It also introduces a uniform salary for all MEPs, which is paid from the EU budget. The Parliament enjoys democratic legitimacy and can truly claim to represent the citizens of the EU. Parliamentary control is required, and the Parliament must lend legitimacy to the Union institutions involved in the decision-making process. The rights of the Parliament been continually extended, but the Treaty of Lisbon has explicitly established the obligation for action by the EU to adhere to the principle of representative democracy. As a result, all citizens of the Union are directly represented in the and entitled to participate actively in the EU’s democratic life. The underlying objective of this is that decisions at EU level are taken as openly as possible and as closely as possible to the citizen. The political parties at EU level are to contribute to the shaping of a European identity and to articulate the will of the Union’s citizens. If there is any deficit to the current democratic model of the EU, it is that the European Parliament does not elect a government that answers to it. Article 10 TEU (representative democracy) (1) The functioning of the Union shall be founded on representative democracy. (2) Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, accountable either to their national parliaments, or to their citizens. (3) Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen. (4) Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union. The functions analogous to government provided for in the Union treaties are performed by the Council and the European Commission according to a form of division of labour. Nevertheless, the Treaty of Lisbon gave the Parliament extensive powers in respect of appointments to the Commission, ranging from election by the Parliament of the President of the Commission on the recommendation of the European Council, to the Parliament’s vote of approval of the full College of Commissioners (‘right of investiture’). However, the Parliament has no such influence over the membership of the Council, which is subject to parliamentary control only insofar as each of its members, as a national minister, is answerable to the national parliament. The role of the European Parliament in the EU’s legislative process has increased. The Parliament has also played a major role in the budgetary procedure. The Treaty of Lisbon extended the budgetary powers of the European Parliament, stipulating that the Parliament must approve the multiannual financial plan and giving it co-decision powers on all expenditure. Parliament has a right of assent to all major international agreements concerning an area covered by co-decision, and to the accession treaties concluded with new Member States laying down the conditions of admission. The supervisory powers of the European Parliament. They are exercised mainly through the fact that the Commission must answer to the Parliament, defend its proposals before it and present it with an annual report on the activities of the EU for debate. These supervisory powers of the Parliament have since been boosted. It is now also empowered to set up special committees of inquiry to look specifically at alleged cases of infringement of Union law or maladministration. One such committee was set up in June 2016 in light of the ‘Panama Papers’ revelations about offshore companies and their secret owners. Its task is to investigate possible breaches of Union law in relation to money laundering, tax avoidance and tax evasion. Also written into the treaties is the right of any natural or legal person to address petitions to the Parliament, which are then dealt with by a standing Committee on Petitions. Finally, the Parliament has also made use of its power to appoint an Ombudsman to whom complaints about maladministration in the activities of Union institutions or bodies, with the exception of the CJEU, can be referred. The Ombudsman may conduct enquiries and must inform the institution or body concerned of such action, and must submit to the Parliament a report on the outcome of his or her inquiries. principles for common foreign and security policy and implementing it, or certain decisions in the area of police and judicial cooperation in criminal matters. The High Representative of the Union for Foreign Affairs and Security Policy’s position within the institutional set-up has been strengthened and expanded. The High Representative has a base in both the Council, where they hold the presidency of the Foreign Affairs Council, and the Commission, where they are Vice-President in charge of foreign affairs. The High Representative is appointed by the European Council, acting by a qualified majority, with the agreement of the President of the Commission. He or she is assisted by a European External Action Service (EEAS), which was created in 2011 and formed by a merger of the foreign policy departments of the Commission and the Council and the integration of diplomats from the national diplomatic services. The European Commission (Article 17 TEU) Composition: 28 members including President, first Vice-President, High Representative of the Union for Foreign Affairs and Security Policy, 5 additional Vice-Presidents, 20 Commissioners. Tasks: initiating Union legislation; monitoring observance and proper application of Union law; administering and implementing Union legislation; representing the EU in international organizations. The European Commission consists of 28 Members, one for each Member State. The provision in Article 17(5) TEU to reduce the size of the Commission to two thirds of the number of Member States as from 1 November 2011 was not activated. The Commission is led by a President, who has a strong position within the Commission. The President enjoys a prominent position in that he or she lays down guidelines within which the Commission is to work and also decides on the internal organization of the Commission (Article 17(6)(a) and (b) TEU). The President thus has both the authority to issue guidelines and organisational control. The President is responsible for ensuring that the action taken by the Commission is consistent and efficient, and complies with the principle of collegiality: decisions are taken as a collegiate body (Article 250(1) TFEU). He or she structures and allocates the responsibilities incumbent upon the Commission among its Members, and may reshuffle the allocation of those responsibilities during the Commission’s term of office (Article 248 TFEU). The President appoints the First Vice-President and the other Vice-Presidents, with the exception of the High Representative of the Union for Foreign Affairs and Security Policy, who is an ex officio Vice-President of the Commission. A Member of the Commission must resign if the President so requests (second subparagraph of Article 17(6) TEU). Finally, the President’s prominent position is also reflected by his or her right to be heard regarding the selection of other Members of the Commission and by his or her membership of the European Council. The Commissioners form project teams under the leadership of a Vice-President, which each deal with one of the following policy areas: 1. Resilient energy union with a forward-looking climate change policy; 2. Jobs, growth, investment and competitiveness; 3. Digital single market; 4. Euro and social dialogue; 5. Budget and human resources. The Vice-Presidents act in the name of the President as his or her representatives. They steer and coordinate the work of several Commissioners in their area of responsibility. The First Vice-President assumes a special role, acting as the President’s ‘right-hand man’ and entrusted with horizontal tasks such as the ‘Better regulation’ agenda, inter- institutional relations, the rule of law and the Charter of Fundamental Rights. A Commission proposal will not even reach Commission discussions without having been recognized as a necessary measure by the First Vice-President. The President and Members of the Commission are appointed for a term of 5 years using the investiture procedure by the Treaty of Lisbon in Article 17(6) TEU. The procedure consists of several stages. Firstly, the President is nominated, and then the persons to be appointed as Members of the Commission are selected. In a third step, the President of the Commission, the High Representative of the Union for Foreign Affairs and Security Policy and the other Members of the Commission are officially appointed. The European Council, acting by a qualified majority, proposes to the European Parliament a candidate for President of the Commission. The results of the European Parliament elections must be taken into account when selecting the candidate for the office of President. This new requirement aims to increase the level of politicization of the Commission. This ultimately means that the political groups that control a majority in Parliament carry significant weight when nominating the President. For the nomination of Jean-Claude Juncker, the Parliament even forced the Council to propose to it the candidate put forward by the majority political group in the Parliament (EPP). The Parliament made use of the rule that, if the candidate for the office of President is refused by the Parliament, the Council, acting by a qualified majority, must propose a new candidate within 1 month of the Parliament’s decision, who is nominated in accordance with the same procedure. This makes the importance of participation more visible to citizens, as their vote also gives them an indirect say in the election of the President of the Commission. The Parliament elects the proposed candidate by a majority of its Members. After the President has been elected, the Council adopts ‘by consensus’ (Article 15(4) TEU) the list of the other persons whom it intends to appoint as Members of the Commission, which is drawn up according to the proposals of the Member States. A qualified majority in the Council is sufficient for the appointment of the High Representative of the Union for Foreign Affairs and Security Policy (Article 18(1) TEU). The Council and the President-elect of the Commission must reach agreement on the candidates. The appointment of the High Representative even requires the express agreement of the President-designate of the Commission. The other Members of the Commission cannot be appointed if the President-elect issues a veto against it. Once the President has been elected, and the High Representative of the Union for Foreign Affairs and Security Policy and the other Members of the Commission have been nominated, the College is subject to a vote of approval by the Parliament. However, the Commissioners-designate must firstly respond to questions from the parliamentarians in a hearing. The questions generally relate to topics falling within the envisaged scope of responsibilities and personal attitudes on the future of the EU. After the Parliament has given its assent, for which a simple majority is sufficient, the President and the other Members of the Commission are appointed by the Council, acting by a qualified majority. The Commission takes up its duties as soon as its Members have been appointed. The seat of the European Commission is in Brussels. The Commission is the starting point for every Union action, as it has to present proposals and drafts for Union legislation to the Council (Commission’s right of initiative). The Commission is not free to choose its own activities. It is obliged to act if the Union interest so requires. The Council (Article 241 TFEU), the European Parliament (Article 225 TFEU) and a group of EU citizens acting on behalf of a citizens’ initiative (Article 11(4) TEU) may also ask the Commission to draw up a proposal. The Commission has primary powers to initiate legislation in certain areas (such as the EU budget, the Structural Funds, measures to tackle tax discrimination, the provision of funding and safeguard clauses). Much more extensive, however, are the powers for the implementation of Union rules conferred on the Commission by the Parliament and the Council (Article 290 TFEU). The Commission is also the ‘guardian of Union law’. It monitors the Member States’ application and implementation of primary and secondary Union legislation, institutes infringement proceedings in the event of any violation of Union law (Article 258 TFEU) and, if necessary, refers the matter to the Court of Justice. The Commission also intervenes if Union law, particularly competition law, is infringed by any natural or legal person, and imposes heavy penalties. They represent the Union’s interests, the Commission may serve no interests other than those of the Union. It must constantly endeavour, in difficult negotiations within the Council, to make the Union interest prevail and seek compromise solutions that take account of that interest. It also plays the role of mediator between the Member States, a role for which it is particularly suited and qualified. Lastly, the Commission is an executive body, especially in the field of competition law, where the Commission acts as a normal administrative authority, checking facts, granting approval or issuing bans and, if necessary, imposing penalties. The Commission’s powers in relation to the Structural Funds and the EU budget are similarly wide ranging. The Member States have to ensure that Union rules are applied in individual cases. This solution has the advantage that citizens are brought closer to what is still to them the ‘foreign’ reality of the EU system through the workings and in the familiar form of their own national system. The Court of Justice of the European Union (Article 19 TEU) Any system will endure only if its rules are supervised by an independent authority. In a union of states the common rules are interpreted and applied differently from one state to another. The uniform application of Union law in all Member States would thus be jeopardized. These considerations led to the establishment of a Community Court of Justice in 1952. In 1957 it also became the judicial body for the other two Communities (E(E)C and Euratom). Today it is the judicial body of the EU. The judicial work is now carried out on two levels by: - the CJEU, as the highest instance in the legal order of the Union (Article 253 TFEU); and - the General Court (Article 254 TFEU). In 2004, to relieve the burden on the CJEU and improve legal protection in the EU, the Council of the European Union attached a specialized court for civil service cases to the General Court (see Article 257 TFEU). In 2015, however, the Union legislature decided to gradually increase the number of judges at the General Court to 56 and to transfer to it the jurisdiction of the Civil Service Tribunal. The Tribunal was thus dissolved in 2016. Composition: 28 judges and 11 advocates general appointed by the governments of the member states by common accord for a term of 6 years. Types of proceeding: Actions for failure to fulfil obligations under the treaties: Commission v Member State (Article 258 TFEU); Member State v Member State (Article 259 TFEU) Actions for annulment and actions on grounds of failure to act brought by a Union institution or a Member State (against the Parliament and/or Council) in connection with an illegal act or failure to act (Articles 263 and 265 TFEU) Cases referred from national courts for preliminary rulings to clarify the interpretation and validity of Union law (Article 267 TFEU) Appeals against decisions of the General Court (Article 256 TFEU). The CJEU is the highest judicial authority in matters of Union law. Its task is to ‘ensure that in the interpretation and application of the Treaties the law is observed’. This general description of responsibilities encompasses three main areas: - monitoring the application of Union law, both with regard to the conduct of the EU institutions when implementing treaty provisions and with regard to the fulfilment of obligations under Union law by the Member States and individuals; - interpretation of Union law; - further shaping of Union law. In carrying out these tasks, the Court’s work involves both legal advice and adjudication. Legal advice is provided in the form of binding opinions on agreements which the EU wishes to conclude with non-member states or international organizations. Its function as a body for the administration of justice is much more important, however. In exercising that function, it operates in matters that in the Member States would be assigned to different types of court, depending on their national systems. It acts as a constitutional court when disputes between Union institutions are before it or legislative instruments are up for review for legality; as an administrative court The legal order of the European Union The EU as a creation of law and a Union based on law What is entirely new about the EU and distinguishes it from earlier attempts to unite Europe is the fact that it works not by means of force or subjugation but simply by means of law. For only unity based on a freely made decision can be expected to last: unity founded on the fundamental values such as freedom and equality, and protected and translated into reality by law. However, the EU is not merely a creation of law but also pursues its objectives by means of law. It is a Union based on law. This is the basis of the institutional system. It lays down the procedure for decision-making by the Union institutions and regulates their relationship to each other. It provides the institutions with the means — regulations, directives and decisions — of enacting legal instruments binding on the Member States and their citizens. It accords them rights and imposes obligations on them, so that as citizens both of their state and of the Union they are governed by a hierarchy of legal orders — a phenomenon familiar from federal constitutions. Like any legal order, a self-contained system of legal protection for the purpose of recourse to and the enforcement of Union law. Union law also defines the relationship between the EU and the Member States. The Member States must take all appropriate measures to ensure fulfilment of the obligations arising from the treaties or resulting from action taken by the institutions of the Union. They must facilitate the achievement of the EU’s tasks and abstain from any measure that could jeopardize the attainment of the objectives of the treaties. The legal sources of Union law The term ‘legal source’ has two meanings: it refers to the reason for the emergence of a legal provision, i.e. the motivation behind the creation of a legal construct. The ‘legal source’ of Union law is the will to preserve peace and create a better Europe through closer economic ties — two cornerstones of the EU. In legal parlance, however, ‘legal source’ refers to the origin and embodiment of the law. The EU founding treaties as the primary source of Union law The first source of Union law in this sense is the EU founding treaties. These founding treaties and the instruments amending and supplementing them (chiefly the Treaties of Maastricht, Amsterdam, Nice and Lisbon) and the various accession treaties contain the basic provisions on the EU’s objectives, organization and modus operandi, and parts of its economic law. The same is true of the Charter of Fundamental Rights of the European Union, which has had the same legal value as the treaties since the Treaty of Lisbon entered into force (Article 6(1) TEU). They thus set the constitutional framework for the life of the EU. The treaties, being legal instruments created directly by the Member States, are known as primary Union law. The EU legal instruments as the secondary source of Union law Law made by the Union institutions through exercising the powers conferred on them is referred to as secondary legislation. It consists of legislative acts, non-legislative acts (simple legal instruments, delegated acts, implementing acts), non-binding instruments (opinions, recommendations) and other acts that are not legal acts (e.g. inter-institutional agreements, resolutions, declarations, action programs). ‘Legislative acts’ are legal acts adopted by ordinary or special legislative procedure (Article 289 TFEU). ‘Delegated acts’ (Article 290 TFEU) are non- legislative acts of general and binding application to supplement or amend certain non-essential elements of a legislative act. They are adopted by the Commission; a legislative act must be drawn up explicitly delegating power to the Commission. Where uniform conditions are needed for implementing legally binding EU acts, this is done by means of appropriate implementing acts, which are generally adopted by the Commission and, in certain exceptional cases, by the Council (Article 291 TFEU). The Union institutions can issue recommendations and opinions in the form of non-binding instruments. Finally, there is a whole set of ‘acts that are not legal acts’ which the Union institutions can use to issue non-binding measures and statements or which regulate the internal workings of the EU or its institutions, such as agreements or arrangements between the institutions, or internal rules of procedure. These legislative and non-legislative acts can take very different forms. The most important of these are listed and defined in Article 288 TFEU. In the way of binding legal acts, it includes regulations, guidelines and decisions. In the way of non-binding legal acts, the list includes recommendations and opinions. This list of acts is not exhaustive, however. Many other legal acts do not fit into specific categories, such as resolutions, declarations, action programs and White and Green Papers. There are considerable differences between the various acts in terms of the procedure involved, their legal effect and those to whom they are addressed. The creation of secondary Union legislation is a gradual process. Its emergence lends vitality to the primary legislation deriving from the Union treaties, and progressively generates and enhances the European legal order. International agreements of the EU A third source of Union law is connected with the EU’s role at the international level. The Union cannot confine itself to managing its own internal affairs; it has to concern itself with economic, social and political relations with the world outside. The EU therefore concludes agreements in international law with non-member states (‘third countries’) and with other international organizations. Association agreements involve close economic cooperation and wide-ranging financial assistance from the EU for the country concerned (Article 217 TFEU). Three different types of association agreement: - Agreements that maintain special links between certain Member States and non-member states. The reason for the creation of the association agreement was the existence of countries and territories outside Europe with which some members maintained close economic ties as a legacy of their colonial past. The introduction of a common external tariff in the EU would have seriously disrupted trade with these territories, which meant that special arrangements were needed. The purpose of association is therefore to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Union (Article 198 TFEU). There are a whole range of preferential agreements enabling goods to be imported from these countries and territories at reduced or zero customs rates. Financial and technical assistance from the EU was channeled through the European Development Fund. The most important agreement in practice is the EU-ACP Partnership Agreement between the EU and 70 states in Africa, the Caribbean and the Pacific (the ACP). This agreement is currently being converted into regional economic partnership agreements, gradually giving the ACP countries free access to the European internal market. - Agreements as preparation for possible accession to the Union or for the establishment of a customs union. Association arrangements are also used in the preparation of countries for possible membership of the Union, as a preliminary stage towards accession during which the applicant country can work on converging its economy with that of the EU. This strategy is currently being implemented for the countries of the western Balkans (Albania, Bosnia and Herzegovina, Kosovo, Montenegro, Serbia). The accession process is being backed up by the extended stabilization and association process (SAP), which constitutes the overall framework for the progression of the countries of the western Balkans, all the way to their accession. The SAP pursues three objectives: 1. stabilization and a swift transition to a functioning market economy; 2. the promotion of regional cooperation; 3. the prospect of EU membership. The SAP is based on a partnership in which the EU offers trade concessions, economic and financial support and a contractual relationship in the form of stabilization and association agreements. Each country must make specific progress within the framework of the SAP in order to meet the requirements of potential membership, evaluated in annual reports. - Agreement on the European Economic Area. The EEA Agreement brings the (remaining) countries in the European Free Trade Association (Iceland, Liechtenstein and Norway) into the internal market and, by requiring them to incorporate nearly two thirds of the EU’s legislation, lays a firm basis for subsequent accession. In the EEA, on the basis of the acquis communautaire (the body of primary and secondary Union legislation), there is to be free movement of goods, persons, services and capital, uniform rules on competition and state aid, and closer cooperation on horizontal and flanking policies (environment, research and development, education). Cooperation agreements are not as far reaching as association agreements, being aimed solely at intensive economic cooperation. The EU has such agreements with the Maghreb states (Algeria, Morocco and Tunisia), the Mashreq States (Egypt, Jordan, Lebanon and Syria) and Israel, for instance. Trade agreements. The Union also has a considerable number of trade agreements with individual non-member states, with groupings of such countries or within international trade organizations relating to tariffs and trade policy. The most important international trade agreements are: the Agreement establishing the World Trade Organization (WTO Agreement) and the multilateral trade agreements deriving from it, including in particular the General Agreement on Tariffs and Trade (1994); the Anti-dumping and Subsidies Code; the General Agreement on Trade in Services; the Agreement on Trade-Related Aspects of Intellectual Property Rights; and the Understanding on Rules and Procedures Governing the Settlement of Disputes. However, bilateral free trade agreements have increasingly been gaining ground over multilateral agreements. Owing to the difficulties inherent in concluding multilateral liberalisation agreements within the framework of ‘ordinary legislative procedure’), they are described as ‘legislative acts’. The Parliament has no responsibility for regulations, which are only enacted by the Council or the European Commission and thus lack the essential characteristics of legislation of this kind. Directives A directive is the most important legislative instrument alongside a regulation. Its purpose is to reconcile the dual objectives of both securing the necessary uniformity of Union law and respecting the diversity of national traditions and structures. What the directive primarily aims for is not the unification of the law, which is the regulation’s purpose, but its harmonization. The idea is to remove contradictions and conflicts between national laws and regulations or gradually eliminate inconsistencies so that the same material conditions exist in all the Member States. The directive is one of the primary means deployed in building the single market. A directive is binding on the Member States but leaves it to the national authorities to decide on how the agreed Union objective is to be incorporated into their domestic legal systems, which allows intervention in domestic, economic and legal structures to take a milder form. Member States can take account of special domestic circumstances when implementing Union rules. The directive places the Member States under an obligation to adapt their national law in line with Union provisions. The result is generally a two-stage lawmaking process. First, the directive lays down the objective that is to be achieved at EU level by any or all Member State(s). The Union institutions can spell out the objective in such detailed terms as to leave the Member States with no room for manoeuvre, and this has been done in directives on technical standards and environmental protection. Second, the objective set at EU level is translated into actual legal or administrative provisions in the Member States. EU criteria are used to assess whether they have adapted their law in accordance with EU law. The rights and obligations arising from the directive have to be recognized with sufficient clarity and certainty to enable the Union citizen to invoke or challenge them in the national courts. This normally involves enacting mandatory provisions of national law or repealing or amending existing rules. Administrative custom is not enough since it can be changed at will by the authorities concerned; nor does it have a sufficiently high profile. Directives do not confer rights or impose obligations on the Union citizen. They are addressed to the Member States alone. Rights and obligations for the citizen flow only from the measures enacted by the authorities of the Member States to implement the directive. There are disadvantages for Union citizens where a Member State does not take the requisite implementing measures to achieve an objective set in a directive that would benefit them, or where the measures taken are inadequate. The Court of Justice has refused to tolerate such disadvantages and in such circumstances Union citizens can plead that the directive or recommendation has direct effect in actions in the national courts to secure the rights conferred on them by it. Direct effect is defined by the Court as follows: - The provisions of the directive must lay down the rights of the EU citizen/undertaking with sufficient clarity and precision - The exercise of the rights is not conditional - The national legislative authorities may not be given any room for manoeuvre regarding the content of the rules to be enacted - The time allowed for implementation of the directive has expired. The decisions of the Court of Justice concerning direct effect are based on the fact that the Member State is acting equivocally and unlawfully if it applies its old law without adapting it to the requirements of the directive. This is an abuse of rights by the Member State and the recognition of direct effect of the directive seeks to combat it by ensuring that the Member State derives no benefit from its violation of Union law. Direct effect thus has the effect of penalizing the offending Member State. The CJEU has applied the principle in cases between citizen and Member State, and only when the directive was for the citizen’s benefit and not to their detriment (when the citizen’s position under the law as amended under the directive was more favorable than under the old law – ‘vertical direct effect’). The direct effect of directives in relations between citizens (‘horizontal direct effect’) has not been accepted by the CJEU. The Court concludes that it is not applicable to relations between private individuals, since they cannot be held liable for the consequences of the Member State’s failure to act. Rather, individuals can rely on certainty in the law and the protection of legitimate expectations. The citizen must be able to count on the effect of a directive being achieved by national implementing measures. However, the Court of Justice has developed a primary-law principle according to which the content of a guideline is also applicable to private-law issues, provided that it gives expression to the general prohibition of discrimination. The CJEU’s construct goes beyond the prohibition of discrimination, which obliges national authorities and particularly national courts to provide, within the limits of their jurisdiction, the legal protection which individuals derive from EU law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle. Owing to the primacy of EU law, the prohibition of discrimination takes precedence over conflicting national law. Thus, although the Court has not cast doubt on its case-law on the lack of horizontal effect of directives, it has effectively reached that conclusion with regard to the prohibition on discrimination in all cases in which the latter is given expression in a directive. The Court has found this to be the case for guidelines related to traditional discrimination based on nationality, sex or age. This should apply to all guidelines adopted to combat the grounds for discrimination listed in Article 19 TFEU. The direct effect of a directive does not necessarily imply that a provision of the directive confers rights on the individual. In fact, the provisions of a directive have a direct effect insofar as they have the effect of objective law. The same conditions apply to the recognition of this effect as for the recognition of a direct effect, the only exception being that, instead of clear and precise law being set out for the Union citizen or enterprise, a clear and precise obligation is established for the Member States. Where this is the case, all institutions (the legislator, administration and courts) of the Member States, are bound by the directive and must automatically comply with it and apply it as Union law with primacy. Thus, they also have an obligation to interpret national law in accordance with the directives or give the provision of the directive in question priority of application over conflicting national law. In addition, the directives have certain limiting effects on the Member States, even before the end of the transposition period. Therefore, Member States must abstain, before the end of the transposition period, from any measure which could jeopardize the attainment of the objective of the directive. In its judgments in Francovich and Bonifaci in 1991, the CJEU held that Member States are liable to pay damages where loss is sustained by reason of failure to transpose a directive in whole or in part. Both cases were brought against Italy for failure to transpose on time Council Directive 80/987/EEC of 1980 on the protection of employees in the event of the employer’s insolvency, which sought to protect the employee’s rights to remuneration in the period preceding insolvency and dismissal on grounds of insolvency. Guarantee funds were to be established with protection from creditors; they were to be funded by employers, the public authorities, or both. The problem facing the Court was that, although the aim of the directive was to confer on employed workers a personal right to continued payment of remuneration from the guarantee funds, this right could not be given direct effect by the national courts, they could not enforce it against the national authorities, since in the absence of measures transposing the directive the guarantee fund had not been established and it was not possible to ascertain who was the debtor in connection with the insolvency. The Court ruled that, by failing to implement the directive, Italy had deprived the employed workers in question of their rights and was accordingly liable to damages. Even if the duty to compensate is not written into Union law, the CJEU sees it as an integral part of the EU legal order, since its full effect would not be secured and the rights conferred by it would not be protected if Union citizens did not have the possibility of seeking and obtaining compensation for infringement of their rights by Member States acting in contravention of EU law (4). Decisions With decisions, the Treaty of Lisbon made an addition to the range of legal instruments. There are two categories of decision: decisions which specify those to whom they are addressed, and general decisions with no specific addressees (cf. Article 288(4) TFEU). While the former replace the previous decisions for regulating individual cases, the latter encompass a variety of instruments that do not regulate individual cases. The EU bodies (particularly the Council and the Commission) typically use decisions which specify to whom they are addressed to carry out their executive function. Such decisions can require a Member State, company or Union citizen to perform or refrain from an action, or can confer rights or impose obligations on them. The situation in the Member States’ own systems is exactly the same; legislation will be applied by the authorities in an individual case by means of an administrative decision. The basic characteristics of this type of decision can be summed up as follows: - It is distinguished from the regulation by being of individual applicability: the persons to whom it is addressed must be named in it and are the only ones bound by it. This requirement is met if the category of addressees can be identified and can thereafter not be extended. Reference is made to the actual content of the decision, which must be such as to have a direct, individual impact on the citizen’s situation. Even a third party may fall within the definition if they are individually affected and are identifiable as such in the same way as the addressee - It is distinguished from the directive in that it is binding in its entirety (whereas the directive simply sets out the objective to be attained) - It is directly binding on those to whom it is addressed. A decision addressed to a Member State may in fact have the same direct effect in relation to the citizen as a directive. General decisions which do not specify to whom they are addressed are binding in their entirety, although it is not clear whom they are binding upon. This can ultimately only be established from the content of each decision. For general decisions, distinction can be made between the following types of instrument: - Decisions for amending treaty provisions. These decisions are applicable in a general and abstract manner. They are binding on all EU institutions, bodies, offices or agencies as well as the Member States. Mention can be made of decisions for simplifying adoption procedures (Article 81(3) and Article 192(2)(c) TFEU) or for relaxing majority requirements (Articles 312(2) and 333(1) TFEU) - Decisions for adding substance to treaty law. These decisions have binding effect on the whole of the EU, or on the relevant EU institutions, bodies, offices or agencies in the case of a decision regarding their composition; they do not have any external effect on the individual - Decisions for adopting intra-institutional and inter-institutional law. These decisions are binding on the EU institutions, bodies, offices or agencies that are affected and involved. Examples include the internal rules of procedure of the institutions and inter-institutional agreements entered into between the EU bodies - Decisions in the context of organisational control. These decisions (e.g. appointments, remuneration) bind the relevant office holder or members of bodies - Decisions for making policy. These decisions compete with regulations and directives but are not intended to have an external, legally binding effect on the individual. In principle, their binding effect is confined to the institutions involved in issuing them, particularly 4. Special procedures are in place for the adoption of delegated acts and implementing acts. Order of procedure Formulation stage. The machinery is set in motion by the Commission, which draws up a proposal for the Union measure to be taken (‘right of initiative’). The proposal is prepared by the Commission department dealing with the particular field; frequently the department will also consult national experts at this stage. This sometimes takes the form of deliberations in specially convened committees; alternatively, experts may have questions put to them by the relevant departments of the Commission. However, the Commission is not obliged to accept the advice of the national experts when drawing up its proposals. The draft drawn up by the Commission, setting out the content and form of the measure in details, goes before the Commission, when a simple majority is sufficient to have it adopted. It is now a ‘Commission proposal’ and is sent to the Council and the European Parliament and, where consultation is required, to the Economic and Social Committee and the Committee of the Regions, with detailed explanatory remarks. First reading in the Parliament and in the Council. The President of the European Parliament passes the proposal on to a parliamentary coordination committee for further consideration. The outcome of the committee’s deliberations is discussed at a plenary session of the Parliament, and is set out in an opinion which may accept or reject the proposal or propose amendments. The Parliament then sends its position to the Council. The Council can now act as follows: - if it approves the Parliament’s position, the act is adopted; this marks the end of the legislative process. It has become the rule for the legislative process to be completed at first reading. The ‘informal trilogue’ has been used, in which representatives of the Parliament, the Council and the Commission sit at a table to seek a mutually acceptable compromise at this stage of the legislative process - if the Council does not approve the Parliament’s position, it adopts its position at first reading and communicates it to the Parliament. The Council informs the European Parliament fully of the reasons which led it to adopt its position. The Commission informs the Parliament fully of its position. Second reading in the Parliament and in the Council. The European Parliament has 3 months starting from the communication of the Council’s position to do one of the following: - approve the Council’s position or not take a decision; the act concerned is then deemed to have been adopted in the wording which corresponds to the position of the Council - reject, by a majority of its component Members, the Council’s position; the proposed act is then deemed not to have been adopted and the legislative process ends - make, by a majority of its Members, amendments to the Council’s position; the amended text is then forwarded to the Council and to the Commission, which delivers an opinion on those amendments. The Council discusses the amended position and has 3 months from the date of receiving the Parliament’s amendments to do one of the following: - it can approve all of the Parliament’s amendments; the act in question is then deemed to have been adopted. A qualified majority is sufficient if the Commission is also in agreement with the amendments; if not, the Council can approve the Parliament’s amendments only by unanimity - it can choose not to approve all the Parliament’s amendments or it does not attain the required majority; this results in a conciliation procedure. Conciliation procedure. The conciliation procedure is initiated by the President of the Council in agreement with the President of the European Parliament. At its heart is the Conciliation Committee, composed of 28 representatives each from the Council and the European Parliament. The Conciliation Committee has the task of reaching agreement on a joint text by a qualified majority within 6 weeks of its being convened, on the basis of the positions of the European Parliament and the Council at second reading. This involves a compromise solution that is to be found on the basis of ‘examination of all the aspects of the disagreement’. However, it is always a case of reaching a compromise between the two diverging positions of the Parliament and the Council. To this end, use may be made of new items that facilitate the compromise process. However, it is not possible to make use of amendments that failed to achieve the required majorities at second reading. The Commission takes part in the Conciliation Committee’s proceedings and takes all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council. If, within 6 weeks of its being convened, the Conciliation Committee does not approve the joint text, the proposed act is deemed not to have been adopted. Third reading in the Parliament and in the Council. If, within the 6-week period, the Conciliation Committee approves a joint text, the European Parliament, acting by a majority of the votes cast, and the Council, acting by a qualified majority, each have a period of 6 weeks from that approval in which to adopt the act in question in accordance with the joint text. If they fail to do so, the proposed act is deemed not to have been adopted and the legislative process is ended. Publication. The final text (in the 24 official languages of the Union) is signed by the Presidents of the European Parliament and the Council and then published in the Official Journal of the European Union or notified to those to whom it is addressed. The co-decision procedure represents both a challenge and an opportunity for the Parliament. If the procedure is to operate successfully, there must be an agreement in the Conciliation Committee. However, the procedure also radically changes the relationship between the Parliament and the Council. The two institutions are now placed on an equal footing in the legislative process, and it is up to the Parliament and the Council to demonstrate their capacity for compromise and to direct their energies in the Conciliation Committee towards coming to an agreement. The special legislative procedure is usually characterized by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, taking a decision or by the European Parliament adopting a legal act after obtaining the approval of the Council. There are further forms of lawmaking that differ from these regular cases but are nonetheless attributable to special legislative procedure: - taking a decision on the budget (Article 314 TFEU): the procedure has detailed rules and largely corresponds to the ordinary legislative procedure - the Council takes a decision by majority on a proposal of the Commission and after consulting the European Parliament; this was originally the consultation procedure that was initially the standard legislative procedure at EU level but is now used only in isolated cases as a special legislative procedure - the Council takes a decision without the participation of the European Parliament. This constitutes a rare exception and — other than in the area of the common foreign and security policy, where the Parliament is informed by Council decisions (Article 36 TEU) — only takes place in very isolated cases. Policy areas for which there is provision for a special legislative procedure can be switched to the ordinary legislative procedure by means of bridging clauses, or unanimity in the Council can be replaced by a qualified majority. A distinction is to be made between two types of bridging clauses. Firstly, there is the general bridging clause that applies to all policy areas; the use of this clause must take place via a unanimous decision from the European Council. Secondly, there are specific bridging clauses that apply to certain policy areas. These clauses differ from general bridging clauses in that, as a general rule, the national parliaments do not have a right of veto and the decision can also be made by the Council and not necessarily the European Council. Approval procedure Another principal form of parliamentary involvement in the EU legislative process is the approval procedure, where a legal instrument can only be adopted with the prior approval of the Parliament. This procedure does not, however, give the Parliament any scope for directly influencing the nature of the legal provisions. For example, it cannot propose any amendments or secure their acceptance during the approval procedure; its role is restricted to accepting or rejecting the legal instrument submitted to it. Provision is made for this procedure in connection with the conclusion of international agreements (Article 218(6)(a) TFEU), enhanced cooperation (Article 329(1) TFEU) or for the exercise of dispositive powers (Article 352(1) TFEU). The approval procedure can form part of both a special legislative procedure for adopting legislative acts and the simplified legislative procedure for adopting binding, non-legislative acts. Procedure for adopting non-legislative acts Non-legislative acts are adopted in a simplified procedure in which an EU institution or other body adopts a legal act within its own powers. The authority to do so arises from the relevant basis of competence in the EU treaties. This procedure initially applies to (simple) binding legislative acts that are adopted by an EU institution within its own powers (e.g. Commission regarding state aid — Article 108(2) TFEU). The simplified procedure is also used for the adoption of non-binding instruments, especially recommendations and opinions issued by the EU institutions and the consultative bodies. Procedure for adopting delegated acts and implementing acts It has long been common practice for the Parliament and the Council to confer legislative and implementing powers on the Commission. The powers conferred have been exercised by setting up comitology committees, in which the influence of the Parliament, the Council, the Commission and Member States varied. However, there was no clear separation between the delegation of lawmaking powers (legislative power) and the conferment of implementing powers (executive power). The Treaty of Lisbon made a long overdue distinction in primary law in relation to the performance of legislative tasks and executive tasks (Articles 290 and 291 TFEU). legislative act, it was not possible to review the legality of that act using the remedies available for that purpose: challenges via an action for annulment (Article 263 TFEU) had been unsuccessful owing to a lack of individual concern; the preliminary ruling procedure (Article 267 TFEU) could not be used due to the absence of national implementing measures (except in certain criminal proceedings regarding the failure to discharge obligations under Union law by the economic operator, which must be disregarded, however, because the economic operator cannot be expected to bring about a review of legality via unlawful conduct); finally, actions for damages could not in any event result in a solution that is in the interests of the Union citizen, as they cannot be used to remove an unlawful legislative act from the EU legal order either. Due to the fact that Article 263(4) TFEU dispensed with the need for ‘individual concern’ when challenging regulatory acts and instead only requires direct concern and the absence of national implementing measures, part of this gap was closed. The meaning of ‘regulatory acts’ is problematic, however. When interpreted restrictively, the term is understood to refer only to acts of general application that are not legislative acts, whereas when interpreted broadly, it is understood to encompass all acts of general application, including legislative acts. In its judgment in the Inuit Tapiriit Kanatami case, the General Court dealt with both these approaches in detail and, based on a grammatical, historical and teleological interpretation, concluded that ‘regulatory acts’ can be regarded only as acts of general application that are not legislative acts. In addition to delegated acts (cf. Article 290 TFEU) and implementing acts (cf. Article 291 TFEU), these also encompass directives, provided that they are directly applicable according to the case-law, and decisions of an abstract and general nature, provided that they were not adopted in the legislative procedure. Therefore, the General Court has clearly adopted a narrow interpretation of the concept of ‘regulatory’. The CJEU confirmed this finding in its judgment on appeal in 2013. This is regrettable from the perspective of guaranteeing effective legal protection, as the established gap in the legal protection can only be partly closed using the restrictive approach. Acts of EU bodies and other offices, particularly those of the numerous agencies, can now also be reviewed for lawfulness (Article 263(5) TFEU). Thus, a gap in legal protection that was previously only patched up by the case-law has been remedied, and primary law also takes account of the fact that some of those bodies have been endowed with powers that enable them to perform acts that produce legal effects in relation to third parties so, in the interests of having a system of legal protection that is free of gaps, recourse to legal action must be available in relation to those acts also. If the action succeeds, the Court of Justice or General Court may declare the instrument void with retroactive effect. In certain circumstances, it may declare it void solely from the date of the judgment. However, in order to safeguard the rights and interests of those bringing legal actions, the declaration of nullity may be exempted from any such restriction. Complaints for failure to act (Article 265 TFEU) This form of action supplements the legal protection available against the European Parliament, the European Council, the Council, the Commission and the ECB. There is a preliminary procedure whereby the complainant puts the institution on notice to fulfil its duty. The order sought in an action by the institutions is a declaration that the body concerned has infringed the treaty by neglecting to take a decision required of it. Where the action is brought by a Union citizen or an undertaking, it is for a declaration that the Union institution has infringed the treaty by neglecting to address an individual decision to them. The judgment simply finds that the neglect was unlawful. The Court of Justice/General Court has no jurisdiction to order that a decision be taken: the party against whom judgment is given is merely required to take measures to comply with the judgment (Article 266 TFEU). Actions for damages (Article 268 and Article 340, second paragraph, TFEU) Citizens and undertakings — and also Member States — that sustain damage by reason of a fault committed by EU staff have the possibility to file actions for damages with the CJEU. The basis for EU liability is not fully set out by the treaties and is otherwise governed by the general principles common to the laws of the Member States. The Court has fleshed this out, holding that the following conditions must be satisfied before an award of damages can be made. 1. There must be an unlawful act by a Union institution or by a member of its staff in the exercise of his or her functions. An unlawful act takes place when there is a serious infringement of a rule of Union law which confers rights on an individual, undertaking or Member State or has been passed to protect them. Laws recognised to have a protective nature are in particular the fundamental rights and freedoms of the internal market or the fundamental principles of the protection of legitimate expectations and proportionality, but also any other directly applicable rule of law that confers personal rights on the Union citizen. The infringement is sufficiently serious if the institution concerned has exceeded the limits of its discretionary power to a considerable degree. The Court tends to gear its findings to the narrowness of the category of persons affected by the offending measure and the scale of the damage sustained, which must be in excess of the commercial risk that can be reasonably expected in the business sector concerned. 2. Actual harm must have been suffered. 3. There must be a causal link between the act of the Union institution and the damage sustained. 4. Intent or negligence do not have to be proved. Actions by Union staff (Article 270 TFEU) Disputes between the EU and its staff members or their surviving family members arising from the employment relationship can also be brought before the CJEU. Jurisdiction for these actions lies with the General Court. Preliminary rulings (Article 256 TFEU) The relationship between the Court of Justice and the General Court is designed in such a way that judgments of the General Court are subject to a right of appeal to the CJEU on points of law only. The appeal may lie on the grounds of lack of competence of the General Court, a breach of procedure which adversely affects the interests of the appellant or the infringement of Union law by the General Court. If the appeal is justified and procedurally admissible, the judgment of the General Court is rescinded by the CJEU. If the matter is ripe for a court ruling, the CJEU may issue its own judgment; otherwise, it must refer the matter back to the General Court, which is bound by the CJEU’s legal assessment. Provisional legal protection (Articles 278 and 279 TFEU) Actions filed with the Court of Justice or the General Court, or appeals lodged against their judgments, do not have suspensive effect. It is, however, possible to apply to the CJEU or the General Court for an order to suspend the application of the contested act (Article 278 TFEU) or for an interim court order (Article 279 TFEU). The merits of any application for interim measures are assessed by the courts on the basis of the following three criteria: 1. Prospect of success on the main issue (fumus boni juris): this is assessed by the court in a preliminary summary examination of the arguments submitted by the appellant. 2. Urgency of the order: this is assessed on the basis of whether the order applied for by the appellant is necessary in order to ward off serious and irreparable harm. The criteria used for making this assessment include the nature and seriousness of the infringement, and its specific and irreversibly adverse effects on the appellant’s property and other objects of legal protection. Financial loss is deemed to be of a serious and irreparable nature only if it cannot be made good even if the appellant is successful in the main proceedings. 3. Weighing of interests: the adverse effects likely to be suffered by the appellant if the application for an interim order is refused are weighed against the EU’s interest in immediate implementation of the measure, and against the detrimental effects on third parties if the interim order were to be issued. Preliminary rulings (Article 267 TFEU) This is the procedure whereby the national courts can seek guidance on Union law from the Court of Justice. Where a national court is required to apply provisions of Union law in a case before it, it may stay the proceedings and ask the Court of Justice for clarification as to the validity of the Union instrument at issue and/or the interpretation of the instrument and of the treaties. The CJEU responds in the form of a judgment rather than an advisory opinion; this emphasises the binding nature of its ruling. The preliminary ruling procedure, unlike the other procedures under consideration here, is not a contentious procedure but simply one stage in the proceedings that begin and end in the national courts. The object of this procedure is first of all to secure a uniform interpretation of Union law and hence the unity of the EU legal order. Alongside the latter function, the procedure is also of importance in protecting individual rights. The national courts can only assess the compatibility of national and Union law and, in the event of any incompatibility, enforce Union law — which takes precedence and is directly applicable — if the content and scope of Union provisions are clearly set out. This clarity can normally only be brought about by a preliminary ruling from the Court of Justice, which means that proceedings for such a ruling offer Union citizens an opportunity to challenge actions of their own Member State which are in contravention of EU law and ensure enforcement of Union law before the national courts. This dual function of preliminary ruling proceedings compensates to a certain extent for the restrictions on individuals directly filing actions before the CJEU and is thus crucial for the legal protection of the individual. However, success in these proceedings depends ultimately on how ‘keen’ national judges and courts are to refer cases to a higher authority. Subject matter. The Court of Justice rules on the interpretation of instruments of Union law and examines the validity of the Union institutions’ acts of legal significance. Provisions of national law may not be the subject of a preliminary ruling. In proceedings for a preliminary ruling, the CJEU is not empowered to interpret national law or assess its compatibility with Union law. This fact is often overlooked in the questions referred to the CJEU, which is called on to look at many questions specifically concerned with the compatibility of provisions of national and Union law, or to decide on the applicability of a specific provision of Union law in proceedings pending before a national court. Although these questions are in fact procedurally inadmissible, the CJEU does not simply refer them back to the national court; instead, it reinterprets the question referred to it as a request by the referring court for basic or essential criteria for interpreting the Union legal provisions concerned, thus enabling the national court to then give its own assessment of compatibility between national and Union law. The procedure adopted by the CJEU is to extract from the documentation submitted — particularly the grounds for referral — those elements of Union law which need to be interpreted for the purpose of the underlying legal dispute. Capacity to proceed. The procedure is available to all ‘courts of the Member States’. This expression should be understood within the meaning of Union law and focuses not on the name but rather on the function and position occupied by a judicial body within the systems of legal protection in the Member States. On this basis, ‘courts’ is understood to mean all independent institutions (i.e. not subject to instructions) empowered to settle disputes in a constitutional state under due process of law. According to this definition, the constitutional courts in the Member States and dispute-settling authorities outside the state judicial system — but not private arbitration tribunals — are also entitled to refer cases. The national court’s decision whether or not to make a referral will depend on the relevance of the point of Union law in issue for the settlement of the dispute before it, which is a matter for the national court to assess. The parties can only request, not require it to refer a case. The Court of Justice considers the relevance of the After all that we have learnt about the structure of the EU and its legal set-up, it is not easy to assign Union law its rightful place in the legal order as a whole and define the boundaries between it and other legal orders. Two possible approaches to classifying it must be rejected from the outset. Union law must not be conceived as a mere collection of international agreements, nor can it be viewed as a part of, or an appendage to, national legal systems. Autonomy of the EU legal order By establishing the Union, the Member States have limited their legislative sovereignty and, in so doing, have created a self-sufficient body of law that is binding on them, their citizens and their courts. One of the best-known cases heard in the Court of Justice was Costa v ENEL in 1964, in which Mr Costa filed an action against the nationalization of electricity generation and distribution, and the consequent vesting of the business of the former electricity companies in ENEL, the new public corporation. The autonomy of the EU legal order is of fundamental significance for the nature of the EU, for it is the only guarantee that Union law will not be watered down by interaction with national law and that it will apply uniformly throughout the Union. This is why the concepts of Union law are interpreted in the light of the aims of the EU legal order and of the Union in general. This Union-specific interpretation is indispensable, since particular rights are secured by Union law and without it they would be endangered, for each Member State could then, by interpreting provisions in different ways, decide individually on the substance of the freedoms that Union law is supposed to guarantee. An example is the concept of a ‘worker’, on which the scope of the concept of freedom of movement is based. The specific Union concept of the worker is quite capable of deviating from the concepts that are known and applied in the legal orders of the Member States. Furthermore, the only standard by which Union legal instruments are measured is Union law itself, and not national legislation or constitutional law. Against the backdrop of this concept of the autonomy of the EU legal order, what is the relationship between Union law and national law? Even if Union law constitutes a legal order that is self-sufficient in relation to the legal orders of the Member States, this situation must not be regarded as one in which the EU legal order and the legal systems of the Member States are superimposed on one another like layers of bedrock. The fact that they are applicable to the same people, who thus simultaneously become citizens of a national state and of the EU, negates such a rigid demarcation of these legal orders. Secondly, such an approach disregards the fact that Union law can become operational only if it forms part of the legal orders of the Member States. The truth is that the EU legal order and the national legal orders are interlocked and interdependent. Interaction between Union law and national law This aspect of the relationship between Union law and national law covers those areas where the two systems complement each other. Article 4(3) TEU is clear enough. ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardize the attainment of the Union’s objectives’. This general principle of sincere cooperation was inspired by an awareness that the EU legal order on its own is not able to fully achieve the objectives pursued by the establishment of the EU. Unlike a national legal order, the EU legal order is not a self-contained system but relies on the support of the national systems for its operation. All three branches of government — legislature, executive and judiciary — therefore need to acknowledge that the EU legal order is not a ‘foreign’ system and that the Member States and the Union institutions have established indissoluble links between themselves so as to achieve their common objectives. The EU is not just a community of interests; it is a community based on solidarity. It follows that national authorities are required not only to observe the Union treaties and secondary legislation; they must also implement them and bring them to life. The interaction between the two systems is so multifaceted that a few examples are called for. The first illustration of how the EU and national legal orders mesh with and complement each other is the directive, already considered in the chapter on legislation. All the directive itself fixes in binding terms is the result to be achieved by the Member State; it is for national authorities, via domestic law, to decide how and by what means the result is actually brought about. In the judicial field, the two systems mesh through the preliminary ruling procedure referred to in Article 267 TFEU, whereby national courts may, or sometimes must, refer questions on the interpretation and validity of Union law to the CJEU, whose ruling may well be decisive in settling the dispute before them. Two things are clear: firstly, the courts in the Member States are required to observe and apply Union law; and secondly, the interpretation of Union law and declarations as to its validity are the sole preserve of the CJEU. The interdependence of EU and national law is further illustrated by what happens when gaps in EU law need to be filled: Union law refers back to existing rules of national law to complete the rules it itself determines. From a certain point onwards, the fate of a provision of Union law is therefore determined by the respective provisions of national law. This principle applies to the full range of obligations under Union law unless the latter has laid down rules for its own enforcement. In any such case, national authorities enforce Union law by the provisions of their own legal systems. But the principle is subject to one proviso: the uniform application of Union law must be preserved, for it would be wholly unacceptable for citizens and undertakings to be judged by different criteria — and therefore be treated unjustly. Conflict between Union law and national law However, the relationship between Union law and national law is also characterised by an occasional ‘clash’ or conflict between the Union legal order and the national legal orders. Such a situation always arises when a provision of Union law confers rights and imposes obligations directly upon Union citizens while its content conflicts with a rule of national law. Concealed behind this apparently simple problem area are two fundamental questions underlying the construction of the EU, the answers to which were destined to become the acid test for the existence of the EU legal order, namely the direct applicability of Union law and the primacy of Union law over conflicting national law. Direct applicability of Union law to national law Firstly, the direct applicability principle simply means that Union law confers rights and imposes obligations directly not only on the Union institutions and the Member States but also on the Union’s citizens. One of the outstanding achievements of the Court of Justice is that it has enforced the direct applicability of Union law despite the initial resistance of certain Member States, and has thus guaranteed the existence of the EU legal order. Its case-law on this point started with a case already mentioned, namely that of the Dutch transport firm Van Gend & Loos. The firm brought an action in a Dutch court against the Dutch customs authorities, which had charged increased customs duties on a chemical product imported from the Federal Republic of Germany. In the final analysis, the outcome of these proceedings depended on the question of whether individuals too may invoke Article 12 of the EEC Treaty, which specifically prohibits the introduction by the Member States of new customs duties and the increase of existing duties in the common market. Despite the advice of numerous governments and its advocate general, the Court ruled that, in view of the nature and objective of the Union, the provisions of Union law were in all cases directly applicable. In the grounds for its judgment, the Court stated that: ‘the Community constitutes a new legal order … the subjects of which comprise not only the Member States but also their nationals. Independently of the legislation of Member States, Community law not only imposes obligations on individuals but is also intended to confer upon them rights. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community’. That bald statement does not, however, get us very far, since the question remains as to which provisions of Union law are directly applicable. The Court first of all looked at this question in relation to primary Union legislation and declared that individuals may be directly subject to all the provisions of the Union treaties which (i) set out absolute conditions, (ii) are complete in themselves and self-contained in legal terms and therefore (iii) do not require any further action on the part of the Member States or the Union institutions in order to be complied with or acquire legal effect. The Court ruled that the former Article 12 EEC met these criteria, and that the firm Van Gend & Loos could therefore also derive rights from it which the court in the Netherlands was obliged to safeguard, as a consequence of which the Dutch court invalidated the customs duties levied in contravention of the treaty. Subsequently, the Court continued to apply this reasoning in regard to other provisions of the EEC Treaty that are of far greater importance to citizens of the Union than Article 12. The judgments that are especially noteworthy here concern the direct applicability of provisions on freedom of movement (Article 45 TFEU), freedom of establishment (Article 49 TFEU) and freedom to provide services (Article 56 TFEU). With regard to the guarantees concerning freedom of movement, the CJEU delivered a judgment declaring them directly applicable in the Van Duyn case. The facts of this case were as follows. Mrs van Duyn, a Dutch national, was in May 1973 refused permission to enter the United Kingdom in order to take up employment as a secretary with the Church of Scientology, an organisation considered by the Home Office to be ‘socially harmful’. Invoking the Union rules on freedom of movement for workers, Mrs van Duyn brought an action before the High Court, seeking a ruling that she was entitled to stay in the United Kingdom for the purpose of employment and be given leave to enter the United Kingdom. In answer to a question referred by the High Court, the CJEU held that Article 48 of the EEC Treaty (now Article 45 TFEU) was directly applicable and hence conferred on individuals rights that are enforceable before the courts of a Member State. The Court of Justice was asked by the Belgian Conseil d’État to give a ruling on the direct applicability of provisions guaranteeing freedom of establishment. The Conseil d’État had to decide on an action brought by a Dutch lawyer, J. Reyners, who wished to assert his rights arising out of Article 52 of the EEC Treaty (Article 49 TFEU). Mr Reyners felt obliged to bring the action after he had been denied admission to the legal profession in Belgium because of his foreign nationality, despite the fact that he had passed the necessary Belgian examinations. In its judgment of 21 July 1974, the Court held that unequal treatment of nationals and foreigners as regards establishment could no longer be maintained, as Article 52 of the EEC Treaty had been directly applicable since the end of the transitional period and hence entitled Union citizens to take up and pursue gainful employment in another Member State in the same way as a national of that state. As a result of this judgment Mr Reyners had to be admitted to the legal profession in Belgium. The Court of Justice was given an opportunity in the Van Binsbergen case to specifically establish the direct applicability of provisions relating to the freedom to provide services. These proceedings involved, among other things, the question of whether a Dutch legal provision to the effect that only persons habitually resident in the Netherlands could act as legal representatives before an appeal court was compatible with the Union rules on freedom to provide services. The Court ruled that it was not compatible on the grounds that all restrictions to which Union citizens might be subject by reason of their nationality or place of residence infringe Article 59 of the EEC Treaty (Article 56 TFEU) and are therefore void. Also of considerable importance in practical terms is the recognition of the direct applicability of provisions on the free movement of goods (Article 41 TFEU), the principle of equal pay for men and women (Article 157 TFEU), the general prohibition of discrimination (Article 25 TFEU) and freedom of competition (Article 101 TFEU). As regards secondary legislation, the and application of national law, which is secondary to Union law, into line with the wording and purpose of Union law (duty of cooperation — Pfeiffer case). For the national courts, this is reflected in their role as European courts in the sense that they ensure the correct application and observance of Union law. One particular form of interpretation of national law in accordance with Union law is that of interpretation in accordance with the directives, under which Member States are obliged to implement directives. Legal practitioners and courts must help their Member States to meet this obligation in full by applying the principle of interpretation in accordance with the directives. Interpretation of national law in accordance with the directives ensures that there is conformity with the directives at the level at which law is applied, and thus ensures that national implementing law is interpreted and applied uniformly in all Member States. This prevents matters from being differentiated at national level which have just been harmonized at Union level by means of the directive. The limits of interpretation of national law in line with Union law are in the unambiguous wording of a national law which is not open to interpretation; even though there is an obligation under Union law to interpret national law in line with Union law, national law may not be interpreted contra legem. This also applies in cases where the national legislator explicitly refuses to transpose a directive into national law. A resulting conflict between Union law and national law can be resolved only by means of proceedings against the Member State concerned for failure to fulfil obligations under the treaty (Articles 258 and 259 TFEU). The EU’s legal order is the true foundation of the Union, giving it a common system of law under which to operate. Only by creating new law and upholding it can the Union’s underlying objectives be achieved. The EU legal order has already accomplished a great deal in this respect. It is thanks to this new legal order that the largely open borders, the substantial trade in goods and services, the migration of workers and the large number of transnational links between companies have already made the EU’s internal market part of everyday life for 510 million people. Another feature of the Union legal order is its peacemaking role. With its objective of maintaining peace and liberty, it replaces force as a means of settling conflicts by rules of law that bind both individuals and the Member States into a single community. As a result the Union legal order is an important instrument for the preservation and creation of peace. The community of law of the EU and its underlying legal order can survive only if compliance with and safeguarding of that legal order are guaranteed by the two cornerstones: the direct applicability of Union law and the primacy of Union law over national law. These two principles, the existence and maintenance of which are resolutely upheld by the Court of Justice, guarantee the uniform and priority application of Union law in all Member States. For all its imperfections, the EU legal order makes an invaluable contribution towards solving the political, economic and social problems of the Member States of the Union. 1951-1952 – Treaty of Paris (ECSC) 1957-1958 – Treaties of Rome (EEC and Euratom) 1992-1993 – Treaty of Maastricht 1994 – OSCE 1999 – Treaty of Amsterdam 2001 – Declaration on the future of the EU 2003 – Treaty of Nice 2003-2004 – Constitution of the EU 2007-2009 – Treaty of Lisbon (EU and EEC merges into a single EU) entered into force in 2009 2007 – European Union’s Charter of Fundamental Rights legally binding