| |
European Union
Directives
The European Union (EU)
constitutes a new legal order of
international law for the benefit of which the EU member states
have limited their sovereign rights.
Independently of the legislation of member states, community law
not only imposes obligations on individuals but is also intended
to confer upon them rights which become part of their legal
heritage.
The decision-making
triangle
1. The Council
(representing national governments)
This is the
Council of Ministers from the national governments of all the EU
countries. The member states take in turns the Council
Presidency for a six-month period. Meetings are attended by
ministers responsible for the items to be discussed
2. The European Parliament (representing
the people)
It is elected every five years.
3. The European Commission
It
drafts proposals for new European laws, which it presents to the
European Parliament and the Council
The European Union
is based on the rule of law. The rules and procedures for EU
decision-making are laid down in the treaties. Every new
European law is based on a specific treaty article. This is the
‘legal basis’ of the proposed law.
The Co-decision procedure
This
is the main legislative procedure by which directives are
adopted.
Parliament shares legislative power equally with the
Council. Both the Parliament and the Council are required to
agree on an identical legal text, and only after that it becomes
law.
Directives
A
directive is a collective legislative act of the EU.
It
describes a result. Member states must develop their own
national legislation and do whatever is needed to achieve this
result.
Directives are binding on the member states to which
they are addressed.
The Court of
Justice
If a member state fails to pass the required
national legislation, or if the national legislation does not
comply with the directive, the Commission can initiate legal
action against the member state in the European Court of
Justice.
The Court of Justice is the judicial
institution of the Community: Examines the legality of Community
measures and ensures the uniform interpretation and application
of Community law.
The
European Union
On 9 May 1950, the Schuman
Declaration proposed the establishment of a European Coal and
Steel Community (ECSC), which became reality with the Treaty of
Paris of 18 April 1951.
This put in place a common
market in coal and steel between the six founding countries
(Belgium, the Federal Republic of Germany,
France, Italy, Luxembourg and the Netherlands).
The aim, in the aftermath of World War Two, was tosecure peace
between Europe’s victorious and vanquished nations and bring
them together as equals, cooperating within shared institutions.
The Six then decided, on 25 March 1957 with the
Treaty of Rome,
to build a European
Economic Community (EEC) based on a wider common market covering
a whole range of goods and services.
Customs duties
between the six countries were completely abolished on 1 July
1968 and common policies, notably on trade and agriculture, were
also put in place during the 1960s.
So successful was
this venture that Denmark, Ireland and the United Kingdom
decided to join the Community.
This first enlargement,
from six to nine members, took place in 1973. At the same time,
new social and environmental policies were implemented, and the
European Regional Development Fund (ERDF) was established in
1975.
June 1979 saw a decisive step forward for the
European Community, with the first elections to the European
Parliament by direct universal suffrage.
These
elections are held every five years.
In 1981, Greece
joined the Community, followed by Spain and Portugal in 1986.
This strengthened the Community’s presence in southern
Europe and made it all the more urgent to expand its regional
aid programmes.
The worldwide economic recession in the
early 1980s brought with it a wave of euro-pessimism’.
However, hope sprang anew in 1985 when the European Commission,
under its President Jacques Delors, published a White Paper
setting out a timetable for completing the European single
market by 1 January 1993.
This ambitious goal was
enshrined in the Single European Act, which was signed in
February 1986 and came into force on 1 July 1987.
The
political shape of Europe was dramatically changed when the
Berlin Wall fell in 1989.
This led to the unification
of Germany in October 1990 and the coming of democracy to the
countries of central and eastern Europe as they broke away
from Soviet control.
The Soviet Union itself ceased to
exist in December 1991.
At the same time, the member
states were negotiating the
new Treaty on
European Union, which was adopted by the European Council,
composed of presidents and/or prime ministers, at Maastricht in
December 1991.
The Treaty came into force on 1 November
1993.
By adding areas of intergovernmental
cooperation to existing integrated Community structures, the
Treaty created the European Union (EU).
This new
European dynamism and the continent’s changing geopolitical
situation led three more countries — Austria, Finland and Sweden
— to join the EU on 1 January 1995.
By then, the EU was
on course for its most spectacular achievement yet, creating a
single currency. The euro was introduced for financial
(non-cash) transactions in 1999, while notes and coins were
issued three years later in the 12 countries of the euro area
(also commonly referred to as the euro zone).
The euro
is now a major world currency for payments and reserves
alongside the US dollar.
Europeans are facing
globalisation. New technologies and ever increasing use of the
Internet transform the economies, but also bring social and
cultural challenges.
In
March 2000,
the EU adopted the ‘Lisbon strategy’ for modernising the
European economy and enabling it to compete on the world market
with other major players such as the United States and the newly
industrialised countries.
The Lisbon strategy
involves encouraging innovation and business investment and
adapting Europe’s education systems to meet the needs of the
information society.
At the same time, unemployment and
the rising cost of pensions are putting pressure on national
economies, making reform all the more necessary.
Voters
are increasingly calling on their governments to find practical
solutions to these problems.
Scarcely had the European
Union grown to 15 members when preparations began for a new
enlargement on an unprecedented scale.
In the
mid-1990s, the former Soviet-bloc countries (Bulgaria, the Czech
Republic, Hungary, Poland, Romania and Slovakia), the three
Baltic states that had been part of the Soviet Union (Estonia,
Latvia and Lithuania), one of the republics of former Yugoslavia
(Slovenia) and two Mediterranean countries (Cyprus and Malta)
began knocking at the EU’s door.
The EU welcomed this
chance to help stabilise the European continent and to extend
the benefits of European integration to these young democracies.
Negotiations on future membership opened in December
1997. The EU enlargement to 25 countries took place on 1 May
2004 when 10 of the 12 candidates joined.
Bulgaria and
Romania followed on 1 January 2007.
The legal
nature of the EU
The EU is no longer merely a
planned objective of the integration process, but rather an
international organisation in its own right established by the
Treaty of Maastricht.
What is unusual about this
organisation is its function as an ‘umbrella’ for the three
European Communities, its complementary policies and the forms
of cooperation between the Member States.
The EU’s legal
order nevertheless falls a long way short of that of the EC. For
example, the principles of autonomy, direct applicability and
primacy of Community law, which are so essential to the legal
order of the EC, do not apply to the other two pillars of the
EU.
Instead, these pillars basically consist of
programmes and declarations of intent which are translated into
practice through cooperation between governments and are
deliberately not allowed to go beyond the preliminary stage of a
subsequent, 24 ‘institutionalised’ Union.
The fact that
the EU uses the institutions of the EC when carrying out its
tasks does not alter this situation because, as ‘institutions of
the Union’, these may only act in accordance with the Treaty on
European Union, i.e. only in the context of cooperation between
the Member States in the second and third pillars.
The
Treaty on European Union does not constitute an ‘EU
constitution’ regulating all aspects of that Union.
Distinctness from other types of political
organisation
The EC and the EU have, by their very
nature, certain features in common with the usual kind of
international organisation or federal-type structure, and a
number of differences.
The EU is itself not yet a
‘finished product’; it is in the process of evolving and the
form it finally takes still cannot be predicted.
The only
feature that the EU has in common with other international
organisations is that it, too, came into being as a result of an
international treaty.
However, the anchoring of the EC
within the EU’s organisational structure has in itself made the
EU a considerable departure from the traditional kind of
international ties.
This is because, although the
Treaties establishing the EC were based on international
treaties, they led to the creation of independent Communities
with their own sovereign rights and responsibilities. The Member
States have ceded some of their sovereign powers to these
Communities.
In addition, the tasks which have been
allotted to the EC are very different from those of other
international organisations.
While the latter mainly have
clearly defined tasks of a technical nature, the EC has areas of
responsibility which together constitute essential attributes of
statehood.
Through these differences between the EC and
the normal type of international organisation, the EC and thus
also the EU, is in the process of acquiring a status similar to
that of an individual State.
In particular,
the Member States’ partial surrender of
sovereign rights was taken as a sign that the EU was already
structured along the lines of a federal State.
However, this view fails to take into account that the EU’s
institutions only have powers in certain areas to pursue the
objectives specified in the Treaties.
This means that
they are not free to choose their objectives in the same way as
a sovereign State; nor are they in a position to meet the
challenges facing modern States today.
The EU has
neither the comprehensive jurisdiction enjoyed by sovereign
States nor the powers to establish new areas of responsibility
(‘jurisdiction over jurisdiction’).
The EU is therefore
neither an international organisation in the usual sense nor an
association of States, but rather an autonomous entity somewhere
in between the two. In legal circles, the term ‘supranational
organisation’ is now used.
Sources
of Community law
1. Primary legislation:
–
Treaties establishing the Communities
– General principles of
law
2. The EC’s international agreements
3.
Secondary legislation:
– (Implementing) regulations
–
Directives/ECSC recommendations
– General and individual
decisions
4. General principles of administrative law
5. Conventions between the Member States
Directives
The EC/Euratom
directive, which has the ECSC recommendation as its equivalent,
is the most important legislative instrument alongside the
regulation. Its purpose is to reconcile the dual objectives of
both securing the necessary uniformity of Community law and
respecting the diversity of national traditions and structures.
What the directive aims for, then, is not the unification of
the law, which is the regulation’s purpose, but its
harmonisation.
The idea is
to
remove contradictions and conflicts between national laws and
regulations or gradually iron out inconsistencies so that, as
far as possible, the same material conditions obtain 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 as regards the objective to be achieved but leaves it to
the national authorities to decide on how the agreed
Community objective is to be incorporated into their domestic
legal systems.
The reasoning behind this form of
legislation is that it allows intervention in domestic economic
and legal structures to take a milder form. In particular,
Member States can take account of special domestic circumstances
when implementing Community rules.
What happens is that
the directive does not supersede the laws of the Member States
but places the Member States under an obligation to adapt their
national law in line with Community rules.
The result
is a two-stage law-making process.
First, at the Community stage, the
directive lays down the objective that is to be achieved by any
or all Member State(s) — or even by an individual Member State
in the case of ECSC recommendations — to which it is addressed
within a specified time-frame.
The Community
institutions can actually spell out the objective in such
detailed terms as to leave the Member States with scant room for
manoeuvre, and this has in fact been done in directives on
technical standards and environmental protection.
Second,
at the national stage, the objective set at Community level is
translated into actual legal or administrative provisions in the
Member States.
Even if the Member States are in
principle free to determine the form and methods used to
transpose their Community obligations into domestic law,
Community criteria are used to assess whether they have done so
in accordance with Community law.
The general
principle is that a legal situation must be generated in which
the rights and obligations arising from the directive can be
recognised with sufficient clarity and certainty to enable the
Community citizen to rely on or, if appropriate, challenge them
in the national courts.
This normally involves enacting
mandatory provisions of national law or repealing or amending
existing rules. Administrative custom on its own is not enough
since it can, by its very nature, be changed at will by the
authorities concerned; nor does it have a sufficiently high
profile.
Rights and obligations for the citizen flow only
from the measures enacted by the authorities of the Member
States to implement the directive or recommendation.
This
point is of no importance to the citizen as long as the Member
States actually comply with their Community obligations.
But there are disadvantages for the Community citizen where a
Member State does not take the requisite implementing measures
to achieve an objective set in a directive or recommendation
that would benefit him, or where the measures taken are
inadequate.
The Court of Justice has refused to
tolerate such disadvantages, and a long line of cases has
determined that in such circumstances the Community citizen can
plead that the directive or recommendation has direct effect in
actions in the national courts to secure the rights conferred by
it.
Direct effect is defined by the Court as follows:
• The provisions of the directive or ECSC recommendation
must lay down the rights of the EU citizen/firm with sufficient
clarity and precision;
• The alleged rights are not
conditional;
• The national 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/ECSC recommendation has expired.
The decisions
of the Court of Justice concerning direct effect are based on
the general view that the Member State is acting equivocally and
unlawfully if it applies its old law without adapting it to the
requirements of the directive or recommendation.
This
is an abuse of rights by the State and the recognition of direct
effect of the directive seeks to combat it by ensuring that the
State derives no benefit from its violation of Community law.
Direct effect thus has the effect of penalising the offending
Member State.
In that context it is significant that
the Court of Justice has applied the principle solely in cases
between a citizen and a Member State, and then only when the
directive was for the citizen’s benefit and not to his detriment
— in other words when the citizen’s position under the law as
amended under the directive was more favourable than under the
old law (known as ‘vertical direct effect’).
The direct
effect of directives/ECSC recommendations in relations between
citizens themselves (‘horizontal direct effect’) has not been
accepted by the Court of Justice.
The Court concludes
from the punitive nature of the principle that it is not
applicable to relations between private individuals since they
cannot be held liable for the consequences of the State’s
failure to act.
What the citizen needs to rely on is
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 implementation
measures.
Nevertheless, once the period allowed for
transposition has expired, the directives acquire full legal
force and effect in that all State bodies are obliged to
interpret and apply national law in accordance with the
directives (‘interpretation in line with Community law’).
In its judgments in Francovich and Bonifaci in 1991, the
European Court of Justice went further, holding 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 Directive 80/987/EEC 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.
To
that end, guarantee funds were to be established with protection
from creditors; they were to be funded by employers, the
public authorities, or both.
Join the Sarbanes Oxley
Compliance Professionals Association (SOXCPA). Membership is
Free:
www.sarbanes-oxley-association.com/How_to_become_member.htm
Member Benefits:
www.sarbanes-oxley-association.com/Member_Benefits.htm
Reading Room
www.sarbanes-oxley-association.com/Reading_Room.htm
Certified Sarbanes Oxley
Expert - Distance Learning and Online Certification Program
www.sarbanes-oxley-association.com/Distance_Learning_and_Certification.htm
Certified EU Sarbanes Oxley
Expert - Distance Learning and Online Certification Program
www.sarbanes-oxley-association.com/CEUSOE_Distance_Learning_and_Certification.htm
Privacy and Compliance with the
Federal Trade Commission Fair, the California Online Privacy
Protection Act, the Children Online Privacy Protection Act, the
Privacy Alliance, the Controlling the Assault of Non-Solicited
Pornography and Marketing Act
www.sarbanes-oxley-association.com/Privacy.htm
|
|
|
Sarbanes
Oxley Distance Learning and Online Certification
Become a
Certified Sarbanes Oxley Expert (CSOE)
Become a
Certified EU Sarbanes Oxley Expert (CEUSOE)
The
Cost: US$ 147
What is included in this
price:
A. The official presentations we use in our instructor-led classes
B. Up to 3 Online Exams
C. Personalized
Membership Certificate printed in full colour.
Processing, printing, packing and posting to your office or home.
To
learn more:
www.sarbanes-oxley-association.com/Distance_Learning_and_Certification.htm
| |
