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vypracovaná otázka (19kový) č. 18 (q_18.doc)

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1. EU law – treaties, sources

The precursor of today’s EU was effectively the European Coal and Steel Community (ECSC), which came into force in 1952. Unlike other organisations, its six founder members – Belgium, the Federal republic of Germany, France, Italy, Luxembourg and the Netherlands – quite consciously sought to sow the seeds of greater European integration and lasting peace by pooling all their coal and steel production under this single organisation. The adherence to the goal of European unity through economic integration was further enhanced by the Six agreeing the terms of the European Atomic Energy Community (Euratom) and, in March 1957, the European Economic Community (EEC).

Rome Treaty

The 1957 Rome Treaty, establishing the European Community, defined its arms and the harmonious development of economic activities, a continuous and balanced economic expansion and an accelerated rise in the standard of living. These objectives were to be achieved by the creation of a common internal market, including the elimination of customs duties between member states, free movement of goods, people, services and capital, and the elimination of distortions in competition within this market. These aims were reaffirmed by the 1986 Single European Act, which agreed measures to complete the single market. The UK joined the European Community in 1973. Under the Rome Treaty, the E Commission speaks on behalf of the UK and the other member states in international trade negotiations. The Commission negotiates on a mandate agreed by the European Council.

Maastricht Treaty

The 1992 Maastricht Treaty amended the Rome Treaty and made other new commitments, including moves towards economic and monetary union. It established the EU, which comprises the European Community and intergovernmental arrangements for a Common Foreign and Security Policy and for increased co-operation on interior/justice policy issues. The Maastricht Treaty also codified the principle of subsidiary under which, in areas where the Community and member states share competence, action should be taken at European level only if its objectives cannot be achieved by member states acting alone and can be better achieved by the Community. In addiction, the Treaty introduced the concept of EU citizenship as a supplement to national citizenship.

Amsterdam Treaty

Following the Maastricht Treaty, an intergovernmental conference was convened in 1996 to consider further amendments. This resulted in an Amsterdam Treaty, which was signed by member states in 1997 and entered into force in May 1999. Among the main points are

1. provisions for the Council to take action to combat discrimination on the basis of gender, race, religion, sexual orientation, disability or age
2. more co-ordination by member states of measures designed to cut unemployment
3. integration of the social chapter into the Treaty, following its adoption by the UK

Any amendments to the Treaties must be agreed unanimously and must then be ratified by each member state according to its own constitutional procedures. In the UK, Treaty ratifications must be approved by Parliament before they can come into force.

The Sources of Community Law

Legal sources i.e. the rule-making apparatus which enables to solve legal issues as they arise in everyday practice constitute the decisions of the courts – both national and European, Community legislation (primary and derived), international law and general principles of law. There is no hierarchy between all these sources although legislation takes precedence over all the others. All Community legislation is equally authentic in the eleven languages of the Community, which are Danish, Dutch, English, Finnish, French, German, Irish, Italian, Portuguese, Spanish and Swedish.

Primary legislation

The primary legislation of the EU are all the instruments governing the Community which have been adopted as a result of intergovernmental action, and which have been ratified the national legislatures in accordance with their constitutional procedures. It covers the following instruments:

4. the founding Treaties, which are the EC, ECSE and Euratom Treaties
5. important instruments such as the Single European Act, the Maastricht Treaty on EU, the Budget Treaty, the Merger Treaty, the Statute of the European Investment Bank, and the various Acts and Treaties of Accession
6. the various protocols and similar attachments to the Treaties (e.g. the social Protocol and the Protocol on Economic and Social Cohesion attached to the EU)
7. the conventions and other instruments concluded between the Member States (e.g. the Brussels Convention on the mutual recognition of judgements)

Derived legislation

Derived legislation is the body of Community rules adopted in accordance with the founding treaties. There are two types of derived legislation – standard acts that for which provision is made in the Treaties and non-standard acts (innominate acts) that which fall outside this category.

Standard Acts as laid down in the art. 189 EC Treaty, consist of

8. Regulations: these are directly applicable to all those people and entities which have legal personality under Community law, i.e. the Member States, natural persons and legal persons, without the need for national measures to implement them, they have general application
9. Directives: bind Member States as to the objectives (result) to be achieved while leaving the national authorities the power to choose the form and the means to be used
10. Decisions: these are binding in all their aspects upon those to whom they are addressed, a decision may be addressed to any or all Member States to private individual; in view of their general scope, they are generally administrative, rather than rule-making instruments. They can either impose obligations or confer rights on those to whom they are addressed
11. Recommendations and opinions: these are not binding

Non-standard acts sometimes called ’atypical acts’ are generally described as instruments which have no legal effect in principle, although in exceptional circumstances they could be regarded as such. They include the following:

12. acts which regulate the internal workings of the institutions
13. general harmonisation programmes, such as that which provided for the removal of barriers to trade in industrial products, or that which sought to abolish restrictions on the freedom of establishment and the freedom to provide services
14. general declarations or inter-institutional agreements made by the Parliament, the Council and the Commission, these have also been found to have legal effects

Court decisions

The official bodies which are required to apply legislation to individual cases are normally referred to in general terms as ’the judiciary’. The Community’s judiciary is a very wide one consisting of the European Court of Justice and the Court of First Instance on one hand, and from the national courts before whom ER law is relied upon on the other. Many Continental works will not feature the decisions of the judiciary among the sources of Community law: in countries which apply the codified law system, the courts’ role is restricted to applying legislation, and the only binding effect of their decisions is produced upon the parties involved in the disputes brought before the courts. Unlike the Common law system, the codified law does not admit ’rule by precedents’.

International law

The long-term objective of the Community treaties is to achieve some kind of European federation. Community law constitutes a sui generis legal system. Nevertheless, EU law remains to a certain extent inter-state law, which is why some rules of international law have been accepted by the ECJ as a valid source of Community law. There are four types of international law:

15. treaties and conventions
16. customary law
17. general principles of international law
18. court decisions and the writings of the leading authors

2. Parties to a legal action