European Community Law and The Institutions

[KALKI]

European Community Law and The Institutions

Introduction
European Community law refers to the body of laws made the by European Community (often referred to as the ‘EC’). A lot of these laws affect the lives of individuals in the various countries joining the EC, which means EC law must now be seen as an important influence on the way in which laws are made in the various countries. The ability of the EC to make laws which affect individuals in the United Kingdom (‘UK’) has been the subject vigorous debate by both the media and Members of Parliament, which makes the subject topical and interesting to most students.

Whenever the EC announces a new law or policy which alters the way in which a particular law operates in the UK, it is argued that the EC (or its bureaucrats in Brussels) are either ‘barking mad’ or imposing something on the UK which is unwanted and unnecessary. Examples of this can be seen in the current resistance put up by certain members of the Conservative Government (and the new referendum Party, heeded by Sir James Goldsmith) to the introduction of a ‘single monetary currency’ across Europe, and the defensive action taken over the beef crisis.
Below we shall consider the various laws of the EC and the institutions responsible for making these laws. Before that, we will briefly consider how the EC came into existence.

Origins of the EC
Following the Second World War and the devastation of many Western European countries, it was decided by these countries that Europe should become a ‘united front’. The aim was to prevent future wars by: firstly, removing hostility between countries by making them work together to rebuild their internal economies and industries, and secondly, securing collective economic and political union.

The first major steps towards a united Europe took place in 1951, when 6 countries (Belgium, France, Germany, Italy, Luxembourg and the Netherlands) signed the European Coal and Steel Community Treaty (‘ECSC’) to unite their coal and steel industries and produce a ‘common market’ in these products. The idea of a common market in which goods could be made, brought and sold by any other European country proved successful and encouraged a similar approach in other industries.

In 1957, the European Economic Community Treaty (‘EEC Treaty’)and the European Atomic Energy Treaty, created the European Economic Community (‘EEC’) and expanded the common market concept to all other forms of trade between European countries. The original 6 ECSC countries were subsequently joined by 9 more countries: the UK, Ireland and Denmark became members of the EEC in 1973, (the UK acknowledged its obligation to the Community by passing the European Communities Act, 1972); Greece joined in 1981, Spain and Portugal in 1986; and more recently on 1 January 1995, Sweden, Austria and Finland joined the European Community. These are collectively known as the Member States. The 3 treaties are often referred to as the ‘Community Treaties’.

The EEC Treaty set out the new objectives of the common market as consisting of some of the following: the harmonious development of economic activities; continuous and balanced expansion; accelerated raising of living standards; closer relationships between Member States. These objectives are to be achieved by 4 fundamental principles; the free movement of good, people; services and capital between Member States, Article 2 EEC Treaty. Free movement of these important elements of production was achieved in part by removing internal barriers between EC countries such as customs and excise tariffs.

The second step towards European union was the Single European Act (‘SEA’), 1986. This international agreement between the members of the EEC altered the above 3 original Treaties to (amongst other things) speed up the progress of economic and monetary European union and harmonisation of foreign policy. More recently, the third step was in the form of the Maastricht Treaty (or Treaty on European Union, ‘TEU’), 1992, which among other things: brought together various provisions of the 3 original treaties; changed the EEC into the European Community (‘EC’); and introduced a timetable for achieving economic and monetary union, and a single currency.

The Institutions
The institutions of the EC have been given the task of supervising European union under Article 4 of the EEC Treaty (amended by the TEU). The main institutions are the European Parliament, the Council of Ministers, the Commission and the Court of Justice.
The European Parliament (‘EP’). Functions. Article 137 to 144, EEC Treaty set out the powers and composition of the EP. The European Parliament acts as the community ‘watchdog’. It has 3 main functions: it assists (along with the Council) in the EC law-making process, mainly in a consultative role; it supervises the work of the Commission; and it approves the Community budget. Its powers were increased by the SEA, but it is still not in the same ‘supreme’ position as the English Parliament. Apart from these powers, it expresses opinions on political events occurring both in and outside of the Community and gives its consent when new countries want to join the EC.

Composition.
The EP’s located in Strasbourg and has offices in Brussels and Luxembourg. It is made up of representatives from each of Member States of the EC (see section 1.1 above). It has a total of 626 representatives or Members of the EP, (known as MEPs), who are allotted seats in the EP according to the size of their country’s population. MEPs are politicians in their respective countries and are grouped according to political views, not their nationality. For example, those who are political supporters of the Socialist Group (i.e., the Labour party) or fall under the broad head of ‘Christian Democrat’ (i.e., the Conservative party) in their respective country will be grouped together. They are appointed for a term of 5 years.

The Council of Ministers.
Functions. Article 145 to 154, EEC Treaty set out the powers and composition of the Council. It is mainly responsible for ‘making decisions’ within the EC, ranging from decisions ensuring the objectives of the EC (i.e., economic and monetary union) are achieved and those relating to the creation of new community laws and international obligations. It is also responsible for drafting the Community budget with the EP.

Composition.
The Council meets at different locations around Europe. It is made up of representatives from each Member State. Representatives must hold a political office in their own respective country (i.e., a government minister). The Council has a President, who changes every 6 months as the presidency passes from one Member State to the next. As representatives cannot be permanently present in Brussels, the Council is assisted by a body of staff known as the Committee of Permanent Representatives (or commonly, COREPER), situated in Brussels. COREPER has 2 main functions: it exchanges information between Community institutions and governments of Member States; it prepares draft EC laws with the Commission, which are then submitted to the Council. COREPER is made up of ambassadors (and their civil servants) from Member States.

The Commission.
Functions. Its powers and composition are contained in Article 155-163 of the EEC Treaty. The Commission is sometimes referred to as the ‘Guardian of the Treaties’. It is responsible for the following: ensuring the institutions apply the provisions of the EC Treaty; make recommendations or opinions on issues arising under the EC Treaty; make decisions and assist in the law-making process; exercise powers given to it by the Council for implementing rules made by the Council; protect the interests of the EC by bringing Member States violating EC obligations or EC institution acting outside its powers before the European Court of Justice.

Composition.
The Commission is based in Brussels. It is made up of 20 members (or Commissioners), 2 from each of the largest Member States and 1 from the smaller ones. Commissioners are appointed following agreement between governments of Member States for a renewable term of 4 years and are politicians in the respective Member States. The Commission also has a President, who is appointed for a renewable term of 2 years. The Commission is also assisted by a number of Community civil servants.

The European Court of Justice. Functions.
Its powers are found in Article 169-181, EEC Treaty. The European Court of Justice (‘ECJ’) has several functions: (a) it hears cases involving a Member State and an EC institution, where the former fails to comply with a Community obligation, Article 169, 171; it deals with actions between 2 Member States, Article 170; it can bring an institution in breach of Community principles before it under Article 173; it can review the legality of acts of the Commission and Council, Article 173; hear cases involving individuals and a Member State or institution where there has been a violation of a right of EC law by the latter. The ECJ may award compensation for unlawful acts committed by the institutions. It also has power to hear cases referred to it by the courts of Member States (under the ‘preliminary ruling’ procedure contained in Article 177 ) involving the interpretation and application of EC law.

Composition.
The ECJ is made up of 16 judges (one from each Member State and the other from any of the larger Member States), and is assisted by 6 Advocate Generals (appointed by the 5 largest Member States and 1 from the smaller ones). Judges must have the qualifications required in their own Member State. The Advocate General is not a judge, but responsible for giving an impartial explanation (or opinion) of the facts and law after each side has concluded their argument, but before the judges make their ruling. This opinion is not binding on judges, but can be very persuasive in shaping their final rulings. The ECJ also has a President, who holds office for a renewable term of 3 years. The court is also assisted by a Registrar, and a body of administrative staff.

Within the ECJ is the Court of First Instance, created by the SEA (1986) to deal with the growing number of cases referred to the ECJ. It is made up of 15 judges, appointed for a period of 6 years. The Court of First Instance has similar powers to the ECJ. However, it cannot hear cases brought by Member States or EC institutions, nor can it deal with cases requiring a preliminary ruling (see above).

EC Law
The supremacy of EC law. EC law is said to be ‘supreme’. It overrides any law made by a Member State which is inconsistent with one of its legislative provisions. This means that rights created by the Community for the benefit of individuals and legal persons in Member States, or obligations placed on Member States by the Community, must be complied with. Cases which illustrate this point include among others, Costa v Enel [1964] ECR 585 which held that in the event of any conflict between the laws of Member States (known as national or domestic laws) and laws of the EC, EC law should prevail or override national law. In Simmenthal [1978] ECR 629 it was stated that: “...every national court must...apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it” ([1978] ECR 629, at 643/4).
In the UK, the Factortame cases ([1990] 2 AC 85 and (No.2) [1991] 1 AC 603) also made it clear that laws passed after the enactment of the European Communities Act 1972 (see Section 1 above) must be consistent with EC laws. The ECJ ruled (in Factortame No.2,) that European law takes precedence over domestic law.

Sources of EC law. EC law originates from a number of sources. The main primary sources include:

the 3 Community Treaties, (see Section 1.1 above) which states what EC law is and the rules within which the institutions and Member States must operate;
Treaties made between individual Member States; and
Treaties or international agreements made between the EC and countries outside the EC (known as ‘third countries’).
The main secondary sources include:
laws made by the Council and Commission; and
decisions of the ECJ.
Regulations, Directives and Decisions
We will look at the various secondary laws made by the Council and Commission by the authority conferred on them under the Community Treaties and who they apply to. These laws may be found in Article 189 of the EEC Treaty and are regulations, directives and decisions. Others include recommendations and opinion which will not be covered.

Regulations. Article 189 provides that “a regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States”. Regulations are legislative instruments containing a law or measure which, once passed by the Council and Commission, must be applied automatically (or they are ‘directly applicable’, as explained below) by the courts and must be adhered to by the Governments of all Member States. Additionally, once passed, they are directly effective (see below) and individuals or legal persons (i.e., companies) may rely on the rights and duties created by the regulation.
Directives. Article 189 provides that “a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”. These are legislative instruments containing a law or measure which, are applicable only in the Member State to whom it has been addressed. Additionally, unlike regulations, directives are not directly applicable because the Member State to whom it is addressed as a discretion to choose the way the directive becomes incorporated into its particular laws. They do not automatically become part of the law of the Member State. Therefore, rights and duties created by the directive cannot be relied on by individuals until the Member State has incorporated the directive into its laws, but see below.
Decisions. Article 189 provides that “a decision shall be binding in its entirety upon those to whom it is addressed”. Unlike directives and regulations, decisions can be addressed (or impose Community obligations) to either a Member State or individual or legal person (such as a company) within that state. Decisions are not directly applicable.
Difference between ‘direct applicability and’ and ‘direct effect’

Direct applicability.
As the above illustrates, this only applies to regulations. Direct applicability means that EC regulations are incorporated automatically into the laws of Member States, Van Duyn v Home Office [1974] ECR 1337. Member States need not do anything to incorporate the regulation into their laws.
Direct effect. This means that the Community measure becomes effective in the laws of a Member State, allowing rights contained in the measure to be claimed by individuals. We have seen that regulations are directly effective. Once passed, they automatically give rise to a particular right, Van Duyn. The 3 Community Treaties are also directly effective, provided, they are

worded clearly and precisely;
unconditional and does not require legislative intervention; and
does not confer a discretion on either a Member State or Community institution to act, Van Gend en Loos [1963] ECR 1.
Directives present a different problem. If the words of Article 189 are followed strictly, these measures will not give rise to rights until they have been incorporated into the law of Member States. The ECJ in cases like Franz Grad v Finanzamt Trunstein [1970] ECR 825, stated that as Article 189 gives directives ‘binding effect’ they should be treated as directly effective, because it would be unfair to individuals if they could not claim rights arising from these provisions, especially where the directive or decision requires the State to carry out some specific action and the State has failed to incorporate the measure into its laws within the time stated. The ECJ subsequently reiterated this case in Van Duyn v Home Office [1974] ECR 1337 and Marshall v Southhampton and South West Hampshire Area Health Authority [1984] 2 All ER 584.

Accordingly, today, direct effect only applies to directives which the Member State has failed to incorporate (or implement) into its laws before the end of the specified period. Unimplemented directives must also be: a) must be written in clear and precise terms; b) must impose a unconditional obligation; c) must not require intervention on the part of a Community institution or Member State, Marshall [1984].

Directives and vertical and horizontal direct effects. We have seen that directives are addressed to Member States, not individuals or legal persons. This means that only Member States can be brought before the ECJ for failure to incorporate a directive in the time specified. The Member State can be brought before the ECJ by the Commission for breach of a Community obligation, (under Article 169 of the EEC Treaty) or by individuals and legal persons. Where an individual or legal person brings a Member State to the ECJ for failure to implement a directive, this is known as vertical direct effect. Following the case of Marshall, it is clear that one individual cannot bring another individual before the ECJ for failure to implement a directive (because as we have seen, individuals are not responsible for implementing directives). This is known as horizontal direct effect.

However, in Marshall, the ECJ also stated that where the State gives special powers to a body and supervises these powers, the body will be seen as part of the State and can be brought before the ECJ. This is allowed because it would be unfair to the individual to allow the State (through one of its authorised agencies) to avoid its Community responsibilities. The latter point was dealt with in Foster v British Gas Plc [1990] ECR I-3313. It was held that a body made responsible for providing a public service under the control of the Member State and given special powers beyond those of ordinary individuals, can be brought before the ECJ by an individual where a directive has not been implemented by the state.

It should be noted that ‘decisions’ have vertical and horizontal direct effect. Regulations can also be applied vertically and horizontally. It should also be noted here that ‘decisions’ have vertical and horizontal direct effect.

Compensation for failure to implement a directive. Following the landmark case of Francovitch v Italian Republic, Case C6/90 [1992] IRLR and Bonifaci v Italian Republic, Case C-9/90 [1992] IRLR, a Member State can now be made to pay compensation to an individual where it fails to implement a directive, depriving the individual of a right contained in the directive. The State will be liable to pay compensation provided:

the directive conferred a right for the benefit of individuals;
the rights contained in the directive are clear;
there is a causal link between the breach of the obligation of the State and the damage suffered by the individual.