Introduction
and history of the European Union
History
The
European Union is set up with the aim of ending the frequent and
bloody wars
between neighbours, which culminated in the Second World
War. The idea is that countries who trade with one
another become
economically interdependent and so more likely
avoid conflict.The
ancestor of the European Union is the
European Coal and Steel
Community (ECSC) which was created with the
Treaty of
Paris (1951) and was signed by France, Italy, Belgium, Netherlands,
Luxembourg and
West Germany (total of
6 countries). European
Economic Community (EEC) was created with the Treaty of Rome (1958),
establishing a customs union
( tolliliit ). The European Union
(EU) was created by the
Maastricht Treaty which
came into
effect on November 1st 1993.
Introduction
The
European Union (EU) is an economic and
political union.EU policies
aim to ensure the free movement of people, goods,
services , and
capital, enact
legislation in justice and home affairs, and
maintain common policies on trade, agriculture, fisheries, and
regional
development .
Within the Schengen Area, passport controls
have been abolished.The monetary union was
established in 1999 and
came into full
force in 2002. It is currently composed of
18 member states that use the euro as their
legal tender.
At
the moment
there are
28 member states in the EU. To become a
member, a
country must meet the Copenhagen criteria.
These require a
stable democracy that respects human
rights and the
rule of
law; a
functioning marketeconomy; and the
acceptance of the
obligations of membership , including EU law. No member state has
ever left the Union. After 1952, there have been 7 enlargements:
1973, 1981, 1986, 1995, 2004 (including Estonia), 2007, 2013. Most
important
5 treaties
( lepingud ) till today are Paris,
Rome, Brussels, Maastrict and Lisbon. Leaders:
President of the
Commission
José Manuel Barroso and President of the European
Council Herman Van Rompuy.
EU
law
The
European Union is
based on the rule of law. This means that every
action taken by the EU is founded on treaties that have been approved
voluntarily and democratically by all EU member countries. A treaty
is a binding agreement between EU member countries. It sets out EU
objectives,
rules for EU
institutions , how decisions are made and the
relationship between the EU and its member countries. European Union
law is applied by the courts of member states and where the
laws of
member states
provide for lesser rights European Union law can be
enforced by the courts of member states.
European
Union institutionsThe
European Union is governed by
seven(7) institutions. Article
13 of the Treaty on European Union lists
them in the following
order :
the European Parliament
the European Council
the Council of the European Union (simply called "Council")
the European Commission
the Court of Justice of the European Union
the European Central Bank
the Court of Auditors
Most
EU institutions were created with the establishment of the European
Coal and Steel Community (ECSC) in the 1950s. Much change since then
has been in the context the shifting of the power balance away from
the Council and towards the Parliament.
The
European Parliament
The
European Parliament (EU Parliament or the EP) is the
directly elected parliamentary institution of the European Union.
Together with the Council of the European Union (the Council) and the
European Commission, it exercises the legislative function of
the EU and it has been describedas one of the most powerful
legislatures in the world. The Parliament is composed of 766 members , who represent the second largest democratic electorate in
the world (after the Parliament of India). It has been directly
elected every five years by universal suffrage since 1979.
Although
the European Parliament has legislative power that the Council and
Commission do not possess, it does not formally possess
legislative initiative, as most national parliaments of EU member
states do. The Parliament is the " first institution" of the
EU and shares equal legislative and budgetary powers with the
Council. It likewise has equal control over the EU budget . The
European Commission, the executive body of the EU, is
accountable to Parliament. In particular , Parliament elects
the President of the Commission, and approves (or rejects) the
appointment of the Commission as a whole .
The
President of the European Parliament (Parliament's speaker) is Martin
Schulz. The European Parliament has three places of work – Brussels
(Belgium), Luxembourg and Strasbourg (France).
The
European Council
The role of the European Council is to provide the European Union with
the necessary impetus for its development and to define the general
political guidelines. The European Council is the group of heads of
state or government of the EU member states, along with the council's
own President and the President of the European Commission. The
European Council was established as an informal body in 1975(1961);
it became an official EU institution in 2009 when the Treaty
of Lisbon entered into force.
The
European Council has no formal legislative power. It is charged under
the Treaty of Lisbon with defining "the general political
directions and priorities" of the Union. It is thus the Union's
strategic body, acting as the collective presidency of the EU.
The
meetings of the European Council, commonly referred to as EU summits,
are chaired by its president and take place at least twice every six
months. The headquarters of the Council of the European Union is in
Brussels.
The current president of the European Council is Herman Van Rompuy.
Council
of the European Union
It
is part of the essentially bicameral EU legislature, representing
the executives of EU member states, the other legislative body
being the European Parliament. The Council is composed of several
configurations of twenty -eight (28) ministers. The exact membership
of the configuration depends upon the topic; for example, when
discussing agricultural policy the Council is formed by the
twenty-eight national ministers whose portfolio include this policy
area.
The
Presidency of the Council rotates every six months among the
governments of EU member states, with the relevant ministers of the
respective country holding the Presidency at any given time ensuring
the smooth running of the meetings and setting the daily agenda. The
continuity between presidencies is provided by an arrangement under
which three successive presidencies, known as Presidency trios, share
common political programmes. Votes are taken either by majority or
unanimity with votes allocated according to population.
The
European Comission
The
European Commission (EC) is the executive body of the
European Union responsible for proposing legislation, implementing
decisions, upholding the Union's treaties and day-to-day running of
the EU.
The
Commission operates as a cabinet government, with 28 members of the
Commission (informally ’’commissioners’’). There is one
member per member state, though members are bound to represent the
interests of the EU as a whole rather than their home state. One of
the 28 is the Commission President (currently José Manuel Durão
Barroso) proposed by the European Council and elected by the European
Parliament. The Council then appoints the other 27 members of the
Commission in agreement with the nominated President, and then the 28
members as a single body are subject to a vote of approval by the
European Parliament. The first Barroso Commission took office in late 2004 and its successor, under the same President, took office in
2010. The usual procedural languages of the Commission are English ,
French and German .
The
Court of Justice of the European Union
The
Court of Justice of the European Union (CJEU) is the institution of
the European Union that encompasses the whole judiciary. Seated in
Luxembourg, it consists of two major courts and a number of
specialised courts.
The
institution was originally established in 1952 as the Court of
Justice of the European Coal and Steel Communities (as of 1958 the
Court of Justice of the European Communities (CJEC)). With the entry
into force of the Treaty of Lisbon in 2009, the court changed to its
current name.
Its mission is to ensure that "the law is observed" "in
the interpretation and application " of the Treaties. The
Court reviews the legality of the acts of the institutions of the EU;
ensures that the Member States comply with obligations under the
Treaties; and interpretates EU law at the request of the national
courts and tribunals.
The
Court constitutes the judicial authority of the European Union and,
in cooperation with the courts and tribunals of the Member States, it
ensures the uniform application and interpretation of European Union
law.
The
Court of Justice of the European Union consists of two major courts:
- The European Court of Justice (created in 1952), the highest court in the EU legal system;
- The General Court (created in 1988; formerly the Court of First Instance );
In addition to a number of specialized courts, such as the Civil Service Tribunal (created in 2004).
The
European Central Bank
The
European Central Bank (ECB) is the central bank for the euro and
administers the monetary policy of the Eurozone, which consists of 18
EU member states and is one of the largest currency areas in the
world. It is one of the world's most important central banks . The
bank was established by the Treaty of Amsterdam in 1998, and is
headquartered in Frankfurt, Germany. As of 2013 the President of the
ECB is Mario Draghi, former governor of the Bank of Italy. The owners
and shareholders of the European Central Bank are the central banks
of the 28 member states of the EU.
The
primary objective of the European Central Bank is to maintain price
stability within the Eurozone. The ECB is governed by European law
directly, but its set-up resembles that of a corporation in the sense that the ECB has shareholders and stock capital. Its capital is five
billion euro held by the national central banks of the member states
as shareholders.
The
Court of Auditors
The
European Court of Auditors, despite its name, has no judicial
powers. It ensures that taxpayer funds from the budget of the
European Union have been correctly spent. The court provides an audit report for each financial year to the Council and Parliament. The
Parliament uses this to decide whether to approve the Commission's
handling of the budget. The Court also gives opinions and proposals
on financial legislation and anti-fraud actions .
The
Court of Auditors was set up in 1975. It was created as an
independent institution due to the sensitivity of the issue of fraud
in the Union. It is composed of one member from each state appointed
by the Council every six years. Every three years one of them is
elected to be the president of the court, who is currently Vítor
Manuel da Silva Caldeira.
The
EU's standard decision-making procedure is known as 'codecision'.
This means the European Parliament has to approve EU legislation
together with the Council based on a proposal from the Commission.
EU
decision-making involves three main institutions:
- the European Commission which represents the interests of the EU as a whole,
- the Council of the European Union which represents the individual member countries,
- the European Parliament, which represents EU citizens and is directly elected by them.
In
principle, the European Commission proposes new laws, but it is the
Council together with the Parliament that adopts them. This is
the EU's standard
decision-making procedure (known
as the
"ordinary legislative procedure" or "codecision").
Special legislative procedures also
exist where in certain cases legal acts may be adopted by the Council
alone (after consulting the Parliament) or, more rarely, by the
European Parliament alone (after consulting the Council).
The
Council and the Parliament can give the Commission the power to adopt
non-legislative acts.
- For instance, the Commission may need to bring non- essential elements of a law up to date with scientific progress or market developments. These 'delegated acts' are scrutinised by the European Parliament and the Council.
- When the Commission adopts measures to ensure EU acts are implemented in a uniform way throughout the EU, these are implementing acts. Implementing acts are scrutinised by EU governments through the system known as comitology.
How
it is born:
The
Commission submits a legislative proposal to the Parliament and
Council. At the first reading Parliament adopts its position . If the
Council approves the Parliament's wording then the act is adopted. If
not, it shall adopt its own position and pass it back to Parliament
with explanations. The Commission also informs Parliament of its
position on the matter . At the second reading, the act is adopted if
Parliament approves the Council's text or fails to take a decision.
The Parliament may reject the Council's text, leading to a failure of
the law, or modify it and pass it back to the Council. The Commission
gives its opinion once more. Where the Commission has rejected
amendments in its opinion, the Council must act unanimously rather
than by majority.
If,
within three months of receiving Parliament's new text the Council
approves it, then it is adopted. If it does not then the Council
President, with the agreement of the Parliament President, convenes
the Conciliation Committee composed
of the Council and an equal number of MEPs (with the attendance as
moderator of the Commission). The committee draws up a joint text on
the basis of the two positions. If within six weeks it fails to agree a common text, then the act has failed. If it succeeds and the
committee approves the text, then the Council and Parliament (acting
by majority) must then approve said text (third reading). If either
fails to do so, the act is not adopted.
The
Treaty of Lisbon
clarifies the division of competences between the European Union (EU)
and Member States. It introduces a precise classification for the
first time in the founding Treaties, distinguishing between three
main types of competence: exclusive competences, shared competences
and supporting competences.
THE
THREE MAIN TYPES OF COMPETENCE
The
Treaty on the Functioning of the EU (TFEU) distinguishes between
three types of competence and draws up a non-exhaustive list of the
fields concerned in each case :
- exclusive competences (Article 3 of the TFEU): the EU alone is able to legislate and adopt binding acts in these fields. The Member States’ role is therefore limited to applying these acts, unless the Union authorises them to adopt certain acts themselves;
- shared competences (Article 4 of the TFEU): the EU and Member States are authorised to adopt binding acts in these fields. However , Member States may exercise their competence only in so far as the EU has not exercised, or has decided not to exercise, its own competence;
- supporting competences (Article 6 of the TFEU): the EU can only intervene to support , coordinate or complement the action of Member States. Consequently, it has no legislative power in these fields and may not interfere in the exercise of these competences reserved for Member States.
SPECIAL
COMPETENCES
The
EU has special competences in certain fields:
- the coordination of economic and employment policies (Article 5 of the TFEU): the EU is responsible for ensuring the coordination of these policies. It is required to define the broad direction and guidelines to be followed by Member States;
- the CFSP (Article 24 of the Treaty on EU): the EU has competence in all fields connected with the CFSP. It defines and implements this policy via, among others , the President of the European Council and the High Representative of the Union for Foreign Affairs and Security Policy, whose roles and status have been recognised by the Treaty of Lisbon. However, the EU may not adopt legislative acts in this field . In addition, the Court of Justice of the EU does not have competence to give judgment in this area;
- the “flexibility clause” (Article 352 of the TFEU): this clause enables the EU to act beyond the power of action conferred upon it by the Treaties if the objective pursued so requires. However, this clause is framed by a strict procedure and by certain restrictions in terms of its application.
THE
EXERCISE OF COMPETENCES
The
exercise of Union competences is subject to three fundamental principles which appear in Article 5 of
the Treaty on EU. The definition of EU competences greatly
facilitates the proper application of these principles:
- the principle of conferral: the Union has only the competences conferred upon it by the Treaties;
- the principle of proportionality: the exercise of EU competences may not exceed what is necessary to achieve the objectives of the Treaties;
- the principle of subsidiarity: for shared competences, the EU may intervene only if it is capable of acting more effectively than the Member States;
TRANSFER
OF COMPETENCES
The
current division of competences between the EU and Member States is
not set in stone. However, the reduction or extension of EU
competences is a delicate matter which requires the consent of all
Member States and necessitates a revision
of the Treaties.
Two different types of cases can be brought before the Court of Justice:
references for preliminary rulings and direct actions.
Preliminary
ruling procedure
Requests
for a preliminary ruling – when national courts ask the Court of
Justice to interpret a point of EU law.
The
national courts in each EU country are responsible for ensuring that
EU law is properly applied in that country. But there is a risk that
courts in different countries might interpret EU law in different
ways.
To
prevent this happening, there is a ‘preliminary ruling procedure’.
If a national court is in doubt about the interpretation or validity
of an EU law, it may – and sometimes must – ask the Court of
Justice for advice. This advice is called a ‘preliminary ruling’.
References
for preliminary rulings are requests made to the Court of Justice by
national courts seeking clarification on the interpretation of
Community law in order to ensure that national legislation complies
with Community law, as well as to question the validity of a
particular aspect of Community law. References for preliminary
rulings are initiated when national courts submit a question to the
Court of Justice. The Registry then notifies all Member States and
institutions in question, which then have two months to submit
comments and observations. Following this two- month period, the
parties to the case are given one month to request an oral hearing.
After the case is argued at a public hearing, the Advocate General
who has been assigned to that particular case delivers his or her
opinion regarding the case to the Court. A judgment on the case is
given following deliberation by the judges. The decision is made
according to the opinion of the majority of the Court; there are no
official dissenting opinions. If the case does not seem to raise a
new question of law, the Court can decide to render a judgment
without an opinion.
Direct
actions
Any
person or company who has suffered damage as a result of the action
or inaction of the Community or its staff can bring an action seeking
compensation before the General Court.
Direct
action is the second type of case referred to the Court of Justice.
Direct actions include “actions for failure to fulfill
obligations” (inquiries presented to the Court by either the
Commission or Member States questioning a particular State’s
fulfillment of Community law); “actions for annulment”
(requests from either the European Parliament or a Community
institution to annul a measure adopted by an institution); “actions
for failure to act” (inquiries presented by either the European
Parliament or a Community institution questioning a particular
institution’s failure to act according to Community law); “appeals”
(questions on judgments issued by the Court of First Instance); and
“reviews” (questions on judgments issued by the Court of
First Instance pertaining to the European Union Civil Service
Tribunal). The procedure for bringing direct action cases before the
Court of Justice is much the same as that for references for
preliminary rulings, except that, in addition notifying Member States
of the case, the Registry also serves the application to the party sued, who can then submit a defense to the Court within one month.
The applicant then has one month to submit a reply, and the defendant
has an additional month to lodge a rejoinder.
The
court's procedures are extremely slow and laborious, with preliminary
rulings typically taking 18 months, and direct actions two years. In
urgent cases, the court is able to issue interim rulings through
accelerated procedures.
Direct
effect and Supremacy
Direct
effect is a principle of EU law. It applies to those aspects of EU
law that are enforceable directly by Union citizens in their own
Member State, regardless of whether the Member State has introduced
specific national laws to implement the provisions. It can apply in
relation to regulations, directives, Treaty provisions and decisions.
ECJ
identified three situations necessary to establish direct effect of
primary EU law. These are:
- the provision must be sufficiently clear and precisely stated;
- it must be unconditional and not dependent on any other legal provision;
- it must confer a specific right upon which a citizen can base a claim.
If
these conditions are met, provisions of the Treaties can be given the
same legal effect as Regulations under Article
288 TFEU.
However, there is little legislation on employment and industrial relations to be found other than in the primary law and in the
Regulations concerning the free movement of workers.
By
virtue of the doctrine of supremacy
of EU law,
provisions of Community law with ‘direct effect’ take precedence
over domestic laws. EU labour law rules take precedence over national
labour law rules.
Direct
effect can apply both horizontally and vertically, with the
distinction based on who the right is being enforced against and the nature of the right itself. Where rights conferred by a Directive are
being violated by the state or emanations
of the state,
a citizen can exercise ‘ vertical direct effect’.
Vertical direct effect concerns the relationship between EU law and
national law and the state’s obligation to ensure its legislation
is compatible with EU law. If a provision of EU law has ‘horizontal
direct effect’
citizens are able to rely on it in actions against each other.
However, horizontal direct
effect does not apply to EU directives, as these are generally only
enforceable against the state and the Court has refused to extend the
direct effect of Directives to allow for claims by individuals
against other private individuals, including private employers.
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