European Union Law vs. National Law

1. European Union Law vs. National Law Mr.ScDrino Galicic European Academy Bolzano (EURAC) Representing Office Sarajevo; drino.galicic@eurac.edu Centre André Malraux, Sarajevo, 29 October 2010

2. European Law; Community Law or EU Law ? • European Law – ECHR (CoE) • Community Law (Law of European Communities) – all legal norms stemming from fundamental Treaties, binding legal acts and co-operation procedures • Law of the EU, since the Lisbon Treaty (2009)

3. EU Law • Primary EU Law 1) Treaty on EU - TEU (Lisbon 2009) 2) Treaty on the functioning of the EU - TFEU (Rome Treaty 1957, modified) • Secondary or ‘community’ Law (Regulations, Directives etc.) • Case Law (CJEU) This all makes the EU a single legal order, having primacy over member states’ order, whenever it is based on the principle of subsidiarity

4. Fundamental Treaties The Lisbon Treaty, entered into force on 1.12.2009 • Enshrines 7 ‘european institutions’ (Parliament, European Commission, European Council, Council of the EU, European Central Bank, Court of Justice of the EU, Court of Auditors) • Other (advisory) bodies: European Ombudsman, Committee of Regions, European Investment Bank etc. • Provides EU with a LEGAL PERSONALITY

5. Fundamental Treaties • Abandoned or substituted terminology: 1) Community – Union 2) CJEC – CJEU (First instance tribunal – Tribunal) 3) Co-decision – ordinary legislative procedure but “community law” ou “Acquiscommunautaire” is still mentioned: a) CL – case law prior to entry into force of the Lisbon Treaty b) AC – in the context of enlargement

6. Most common confusions • European Council; Council of the EU (Council), Council of Europe • President of the European Council; EU Presidency (of the EU Council); EU Troika • EU High Representative (CFSP); High Representative and EU Special Representiative (EUSR) • EU Charter of Fundamental Rights; Convention for the Protection of Human Rights and Fundamental Freedoms • EU Court of Justice – Court of Justice

7. “Council” • Council of the EU (officially not “council of ministers) • Sitting in configurations (General Affairs, Foreign Affaires; ECOFIN, Agriculture and Fisheries etc) • GAERC; since 2009 GAC, FAC • Directive of the “Council” • But... European Council – Full time fixed president

8. Treaty on the funtioning of the EU • EX- Rome Treaty on “establishing the European Community” • Division of powers between Union and MS: exclusive, shared and supporting • Principle of subsidiarity: the Union does not take action (except in the areas which fall within its exclusive competence) unless it is more effective than action taken at national, regional or local level

9. Secondary Law • Regulations – directly applicable acts • Directives – acts to be “implemented” through national laws • Decisions – limited number of addressees • Recommendations and opinions – non binding legal acts, but may help at interpreting the community law or national laws

10. Direct effect • ‘direct effect’ – enables European citizens to rely directly on rules of European Union law before their national courts. • Vertical effect – against the member State (only accepted by CJEU rulings) • Horizontal effect – between individual persons • Automatic direct effect: regulations, decisions (individuals) international agreements signed by the EU

11. Direct effect of EU Directives • Transposition – deadline – reliance : only member states are bound, not the individual citizens • Position CJEU (CJEC) 1974: Directives can be directly relied upon by individuals if clear, precise and unconditional, even before the deadline for transposition, confer specifi rights • Position UK: yes, but it is up to national courts to determine whether a Directive can be relied upon

12. EU Directives: primacy over national law? • Set objectives to be reached – binding results!!! • Up to member states to choose the format and means of transposing into the national law – UK: Act of Parliament or Statutory Instrument • BUT, can be directly relied upon before domestic courts as EU law takes precedence over national law (CJUE, 1974) • UK, yes as long as it respects key principles of domestic law

13. Proceedings with CJEU CJEU controls enforcement of the EU Law through 5 types of proceedings: • References for preliminary rulings • Action for annulment • Action for failure to fulfill obligations • Action for failure to act • Action for liability

14. Composition of the CJEU • The General Court (ex First Instance Court) • Civil Service Tribunal • Court of Justice (ex CJCE) • 27 Judges, 8 General Advocates • Registrar ALLTOGETHER MAKE THE CJEU

15. The General Court • Direct actions filed by natural and legal persons against acts of institutions or bodies of the EU. • Persons acting must be addressees of the contested acts, which must directly and personally infringe their rights: ex- a company filing action against a decision adjudicating fines to it) • Actions filed by the member States against the European Commission;

16. Civil Service Tribunal • Specialised court in the field of EU civil service disputes • New court, actions previously managed by the CJEU and since 1989 by the First Instance Court • Administrative dispute between civil servants and bodies of the EU

17. Court of Justice • First instance court for certain type of proceedings • Appeal jurisdiction (on points of law only) against decisions of the General Court

18. References for preliminary rulings • Domestic courts can file a reference on interpretation of treaties (primary law) and of the secondary law • Compulsory for courts of appelate jurisdiction (Appeal Courts and House of Lords – see case study) • Exception: if EU legal act is precise “beyond reasonable doubt”

19. Actions for annulment • Member states, Council and Commission may seek annulment of the EU acts by the Court of Justice • Natural and legal persons may file action with General Court for annulment of the legal acts of EU institutions affecting them personally and directly (ex. Companies having been notified for infringment of EU competition rules)

20. Actions for failure to act • Member states and other EU institutions may request the Court to fine the EU institution which was in obligation to take appropriate measures, but failed to do so • Natural and legal persons must prove both the legal interest to act and the fact that failure in question has affected them directly and personally • Powers of the Court of Justice and General Court to open proceedings are devided according to the same principle as for action for annulment

21. Action for failure to fulfill obligations • Commision against member states • Inteded to enforce obligations of the member states • Consequence: either legislative, following multiple condamnations of members states (Directive Bolkenstein), or financial (fixed or periodic pecuniary penalty – fine)

22. Action for liability • Available to any natural and legal person affected by acts of EU institutions or civil servants • Contractual liability – under jurisdiction of national courts • Torts – under jurisdiction of EU courts • Intended to seek reparation for damages and pay compensation

23. Liability of Member states towards individual citizens • New concept developed by the CJEC in 1991, Francovich and others vs. Italy • European citizens can bring an action for damages against a State which infringes a Community rule • Two Italian citizens who were owed pay by their insolvent employers had brought actions against Italian State for failure to transpose Community provisions protecting employees in the event of their employers' insolvency. • On a reference from an Italian court, the Court stated that the directive in question was designed to confer on individuals rights which they had been denied as a result of the failure to act of the State which had not implemented the directive.

24. Where we are (in BiH)? • Legal (contractual) relationship: SAA – Stabilistation and Association Agreement (2008) • Between whom? • Between ‘european communities and their member states’ and BiH • If signed in 2010, between the “EU and its member states”

25. Copenhagen Criteria • Taken over in the Lisbon Treaty (art.49) • stability of institutions guaranteeing democracy, the rule of law, human rights, respect for and protection of minorities (political criteria) 2) existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union (economic criteria) 3) ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union + capacity to absorb “acquis communautaire”.

26. Acquis Communautaire • Left in original French, not translated • Common body of all rights and obligations binding all member states by virtue of their belonging to the EU • Consists of binding acts within “community law” as well as acts stemming from other “pillars” (until 2009) • Divided into 35 Chapters

27. ‘Screening’ • Is not translated either • Analytical examination of the Acquis, by the Commission and Candidate State, which constitutespreparatory phase of the accession negotiations • Candidate states get familiar with the Acquis, and demonstrate implementation capacities • Identify areas of the Acquis in which progress still has to be made before member state’s legislation becomes compatible with “community” rules

28. The end Thank you for your attention