Návrat na detail prednášky / Stiahnuť prednášku / Univerzita Pavla Jozefa Šafárika / Právnická Fakulta / Legal English

vypracovaná otázka (19kový) č. 19 (q_19.doc)

19)

1. EU law – institutions

The European Parliament

The European Parliament is the directly elected democratic expression of the political will of the peoples of the European Union, the largest multinational parliament in the world. Representing 370 million citizens of the Union, its primary objectives are like those of any parliament – to pass good laws and control the executive power. It consists of 626 members elected every 5 years meeting in Strasbourg form monthly plenary sessions, in Brussels for committee meetings and additional sessions. The General Secretariat is based in Luxembourg.

The most important powers of the European Parliament fall into three categories

1. legislative power
2. power over the budget
3. supervision of the executive

Legislative power: Originally, the Treaty of Rome gave the Parliament only an advisory role, allowing the Commission to propose and the Council of Ministers to decide legislation Subsequent Treaties have extended Parliament’s influence to amending and even adopting legislation so that the Parliament and Council now share the power of decision in a large number of areas.

The consultation procedure requires an opinion from the Parliament before a legislative proposal from the Commission can be adopted by the Council.

The co-operation procedure allows Parliament to improve proposed legislation by amendment. It involves two readings in Parliament, giving members ample opportunity to review and amend the Commission’s proposal and the Council’s preliminary position on it. This procedure applies to a large number of areas including the European Regional Development Fund, research, the environment and overseas co-operation and development.

The co-decision procedure shares decision-making power equally between the Parliament and the Council. A conciliation committee – made up of equal number of Members of Parliament and of the Council, with the Commission present – seeds a compromise on a text that the Council and Parliament can both subsequently endorse. If there is no agreement, Parliament can reject the proposal outright.

Parliament’s assent is required for important international agreements such as the accession of new Member States, association agreements with third countries, the organisation and objectives of the Structural and Cohesion Funds and the tasks and powers of the European Central Bank.

Budgetary powers: The European Parliament approves the Union’s budget each year. The budgetary procedure allows Parliament to propose modifications and amendments to the Commission’s initial proposals and to the position taken by the Member States in Council.

In exceptional circumstances, the European Parliament has even voted to reject the budget when its wishes have not been adequately respected. It is the President of the Parliament who signs the budget into law.

Monitoring of expenditure is the continuous work of the Parliament’s Committee on Budgetary control which seeks to make sure that money is spent for purposes agreed and to improve the prevention and detection of fraud. Parliament makes an annual assessment of the Commission’s management of the budget before approving the accounts and granting it a ’discharge’ on the basis of the Annual Report of the Court of Auditors.

Supervisory powers (over the executive): The Parliament exercises overall political supervision of the way the Union’s policies are conducted. Executive power in the Union is shared between the Commission and the Council of Ministers and their representatives appear regularly before Parliament.

Council of the European Union

The Council of the European Union, usually known as the Council of Ministers, is made up of a representative of each Member state at ministerial level who legislate for the Union, set its political objectives, co-ordinate their national policies and resolve differences between themselves and with other institutions.

It is a body with the characteristics of both a supranational and intergovernmental organisation. In its procedures, its customs and practices, and even in its disputes, the Council depends on a degree of solidarity and trust which is rare in relations between States.

Its members – ministers of the 15 Member States meet in Brussels except in April, June and October when all Council meetings take place in Luxembourg. Presidency rotates every six months from 1 July 1998 in the following sequence: Austria, Germany, Finland, Portugal, France, Sweden, Belgium, Spain, Denmark, and Greece.

The Presidency’s role has become increasingly important as the responsibilities of the Union have broadened and deepened. It must:

4. arrange and preside over all meetings
5. elaborate acceptable compromises and find pragmatic solutions to problems submitted to the Council
6. have power to take decisions

Decision-making: The Treaty on European Union based the Union’s activities on three pillars and established that most decisions should be taken by qualified majority voting or by unanimity.

Pillar one – covers a wide range of Community policies (such as agriculture, transport, environment, research and development) designed and implemented according to the decision-making process which begins with a Commission proposal. Following a detailed examination by experts and at the political level, the Council can either adopt the Commission proposal, amend it or ignore it.

Pillar two – common foreign and security policy where the objectives are to define and implement an external policy covering all foreign and security aspects

Pillar three – co-operation in justice and home affairs aims to achieve the free movement of persons inside the Union.

The European Council

The European Council is a body which is entirely distinct form the Council of Ministers. It has met regularly since the decision taken at the 1974 Summit that the Heads of State and Government, as well as the Commission President, should meet on a regular basis in order to discuss major Community issues in a less formal atmosphere than that which prevails at the meetings of the Council. The European Council meets at least twice a year, and is chaired by the Head of State or Government of the country holding the Council presidency. It does not take decisions in the formal sense of the term, but issues statements or declarations which are then normally translated into Community legislation in accordance with the relevant Treaty provisions.

The Court of Justice of the European Communities

The role of the Court is to provide the judicial safeguards necessary to ensure that the law is observed in the interpretation and application of the Treaties and, generally in all of the activities of the Community.

The success of Community law in embedding itself so thoroughly in the legal life of the Member States is due to its having been perceived, interpreted and applied by the citizens, the administrative authorities and the courts of all the Member States as a uniform body of rules upon which individuals may rely in their national courts. The decisions of the Court have made Community law a reality for the citizens of Europe and often have important constitutional and economic consequences. The Court may be called upon to decide cases brought by the Member States, by the Community institutions and by individuals and companies. It ensures uniform interpretation and application of Community law throughout the Community by close co-operation with national courts and tribunals through the preliminary ruling procedure.

The Court has two organs:  the Court (ECJ)

   the Court of First Instance (CFI)

The Court of Justice worked alone until 1 September 1989, when the Council attached to it a Court of First Instance in order to improve the judicial protection of individual interests and to enable the Court of Justice to concentrate its activities on its fundamental task of ensuring uniform interpretation of Community law.

The Court is composed of 15 judges who are appointed by common accord of the Member States for a renewable term of six years. They appoint their numbers to act as President for a term of three years who directs the work of the Court and presides at hearings and deliberations. Their independence must be beyond doubt and they must be qualified for the highest judicial offices in their respective countries or be jurists of recognised competence. They are assisted by 8 Advocate-General whose task is to deliver independent and impartial opinions on cases brought before it and by a registrar.

The Court of First Instance now has jurisdiction to deal with all actions brought by individuals and companies against decisions of the Community institutions and agencies. Its judgements may be subject to an appeal brought before the Court of Justice but only on a point of law. The Court of First instance has 15 judges appointed by the Member States for the same renewable term of office, i.e. six years. This Court also elects its President, however there are no Advocates-General. Essentially, it deals with disputes between the Community institutions and its staff, competition cases, ECSC disputes, actions brought by individuals. Its decisions are capable of appeal to the full Court, but only on points of law.

The Court of Justice may sit in plenary session or in chambers of three or five judges. It sits in plenary session when it so decides or if a Member State or an EU institution which is a party to the proceedings so requests. For its part the Court of First Instance sits in chambers of three or five judges. It may sit in plenary session for certain important cases.

Broadly speaking two types of cases may be brought before the Court of Justice:

7. Either direct actions may be brought directly before the Court by the Commission, by other Community institutions or a Member State. Cases brought directly before the Court of First Instance. If an appeal is lodged against a decision of the Court of First Instance it is dealt with by the Court of Justice according to a procedure similar to that of other direct actions;
8. Or preliminary rulings may be requested by courts or tribunals in the Member States when they need a decision on a question of Community law in order to be able to give a judgement. The Court of Justice is not a court of appeal from the decisions of national court is bound to apply the principles of Community law a laid down by the Court in deciding the case before it.

In a direct action the language of the case is chosen by applicant whereas in preliminary rulings the Court of Justice uses the same language as the national court which referred the case. Thus any of the Community’s languages may be used. Written exchanges are an important part of the Court’s procedures, both for pleadings and for the submission of observations. After the end of the written phase, cases are argued orally in open court.

Following the hearing, the advocate general delivers and impartial and independent decision in open court on the arguments submitted and on the interpretation of the relevant rules before recommending a decision for adoption by the Court. Although the advocate general’s opinion is not binding upon the Court, his or her advice is extremely persuasive and is most often followed by the Court.

The judges consider the case in closed deliberation and then deliver judgement in open court. The text of the judgement includes the reasoning upon which it is based and copies of the text are available in all 11 official languages. Since 1954 almost 10000 cases have been brought before the Court of Justice which has delivered some 4507 judgements.

European Commission

The role and responsibilities of the European Commission place it firmly at the centre of the European Union’s policy-making process. Other institutions derive much of their energy and purpose. The president is chosen by the Heads of State or Government meeting in the European Council after consulting the European Parliament. The other members of the Commission are nominated by the 15 member governments in consultation with the incoming President.

According to the Article 157 EC Treaty the European Commission consists of 20 members and the number per country is the following: France 2, Germany 2, Italy 2, Spain 2, UK 2, one from other Member States – Belgium, Portugal, Luxembourg, Ireland, Finland, Greece, Austria, Denmark and Sweden, elected for a term of 5 years.

The Council and the European Parliament need a proposal from the Commission before they can pass legislation and EU laws are usually upheld by Commission action.

Function and powers:

The Commission as the Community Executive proposes, implements and ensures the application of legislation but in addition it exercises a judicial function in competition matters, acts as the legal representative of the Community, prepares the Community budget, and has a host of administrative tasks. Its powers can be divided into five categories:

9. Guardian of the Treaty: The Commission must ensure that Union legislation is applied correctly and has the power to compel Member States who fail to meet their Treaty obligations to mend their ways, if necessary by taking them to the ECJ. In the vast majority of cases, this procedure is used to enforce compliance with Council or Commission directives.

The Commission also exercises its judicial junctions – it is required to investigate and take decisions on, suspected infringements of Articles 85 and 86 of the Treaty.

10. Participation in legislative process: The Commission can initiate and assist with the formulation of legislation, as well as issuing legislation in its own right which are conferred on it by specific Treaty provisions.
11. Advisory capacity: The Commission may issue recommendations or opinions on policy areas laid down in the Treaty, either where the latter specifically so provides, or on its own initiative. One of the main areas in which it has used these powers is the free movement of goods.
12. Representative capacity: The European Union has the capacity to engage in legally binding relations and the Commission represents the Community for this purpose. The Commission also represents the Community in its relations with non-Member States and international organisations.
13. Financial management: The Commission plays a major role in the elaboration of the Community budget, it is responsible for drawing up the preliminary draft budget which it submits to the Council. After the budget has been approved, the Commission must implement it. On an annual basis it must submit to the European Parliament and the Council the accounts relating to the budget as implemented for the preceding financial year. The Commission also administers the structural funds of the Community.

European Court of Auditors

The European Court of Auditors is the taxpayer’s representative, responsible for checking that the European Union spends its money according t its budgetary rules and regulations and for the purposes for which it is intended.

It is a guarantor that certain moral, administrative and accounting principles will be respected. The Court’s reports are a rich source of information on the management of the Union’s finances, and a source of pressure on the institutions and others with administrative responsibility to manage them soundly.

The Court’s function, performed with complete independence, is a vital contribution to transparency in the Union.

The Court of Auditors was established in 1975 and was fully operational in 1977 because the finances of the Community needed to be monitored and supervised by a special court. According to the Article 188 EC Treaty it consists of 15 members, one per Member State. They must have belonged to external audit bodies at the national level, or must have other qualifications which make them suitable for such office. They are appointed for a period of six years by the Council after having consulted the European Parliament. There members of the Court are subject to a number of restrictions aimed at guaranteeing their independence. Thus they are prohibited from taking any instructions form any government or other body, and must refrain from any action which may be inconsistent with the performance of their tasks, nor they can be engaged in any other occupation, whether paid or unpaid.

The Court examines all revenue and expenditure accounts of the Community and of all bodies set up by the Community. The Court is obliged to protect the Community’s financial tasks, and is now required to provide the Council of the European Union and the European Parliament with a statement of assurance as to the reliability of the accounts and the legality of the underlying transactions. Further the Court must verify whether all revenue and expenditure have been received in a lawful and regular manner. Finally, the Court after the close of the financial year must draw up annual report which is sent to other Community institutions and published in the Official Journal together with the comments of these institutions.

b) Torts – definition, distinguishing from other civil wrongs

Tort law covers a wide variety of factual situations. The victim of the road accident or the factory accident, the owner of land invaded by trespassers, the citizen who is unlawfully arrested, the person whose character is attacked by an inaccurate newspaper article, the resident whose quality of life is spoilt by excessive noise from a neighbouring property, and the business man whose products are imitated by a rival for the purpose of confusing the public may all be able to sue in tort.

The English law of tort was created entirely by case law (the common law) although there are now some areas which are covered by statute, e.g. the Occupiers Liability Acts 1957 and 1984, the Defective Premises Act 1987 and the Consumer Protection Act 1987. It can hardly be asserted that there is a general principle of tortious liability in England; it is rather suggested that it developed in a piecemeal fashion. The reason for an absence of such unifying principle in England is historical. A person starting a court action in the Middle Ages used a special kind of document which had to follow one of a number of set forms of wording. These forms of wording were known as the forms of action. They were abolished in the middle of the last century, but they left their imprint on the English law of tort. They ensured that English tortious liability existed only in a number of separate categories: “The forms of actions we have buried, but they still rules us from their graves”. (Maitland, The Forms of Action at Common Law, p. 2)

An entry in the ODL defines tort as a wrongful act or omission for which damages can be obtained in a civil court by the person wronged. It must be distinguished from:

1. a breach of contract, where the obligation of which a breach is alleged arose from the agreement of the parties.
2. a breach of trust, where the duty broken is known only to equity and not to common law and where the remedy is equitable or discretionary and not the common law right to damages.
3. a crime, where the object of proceedings is to punish the offender rather than compensate his victim.

The function of the law of torts is essentially to compensate a plaintiff for the civil wrong committed against him by the defendant. As a general rule its purpose is to compensate the plaintiff rather than to punish the defendant, though in exceptional circumstances punitive damages may be awarded. Subject to this latter qualification, if the defendant is found liable, usually his duty will be to restore the plaintiff (as far as money can achieve this) to the position ho would have been in had the wrong not been committed.

There are seven different kinds of tort: the three different types of trespass, negligence, conversion and public and private nuisance. Each individual tort has its own particular rules governing liability.