Unit 4

UNION LAW

Discussion

1. In your opinion, is European Union law part of international law?

2. What are the primary sources of Union law?

3. Does the legal order of the European Union resemble that of a federative state?

4. Is Union law a collection of national legislations?

5. Does Union law stem from national legislations?

Legal Terms

1	quasi governmental bodies	контролируемые государством, полугосударственные органы власти
2	primary Union law	первичное право Евросоюза
3	secondary/second Union law	вторичное, производное право Евросоюза
4	specific/separate legal order	особый, отличающийся правопорядок
5	municipal law	внутреннее право страны, внутригосударственное право, национальное право
6	cross-border situations	трансграничные ситуации
7	direct applicability	прямое применение
8	direct effect	прямое действие
9	primacy/precedence over national law have primacy (over)	примат, верховенство, главенствование (права ЕС) над национальным правом главенствовать (над)
10	binding effect	обязательный характер
11	raison d’être	фр. разумное основание, смысл (существования чего-либо), суть и смысл
12	invoke Union rules	применять, требовать применения, признания; ссылаться на нормы Евросоюза
13	be subject to Union law	регулироваться правом Евросоюза, подчиняться праву Евросоюза
14	uphold rights	признавать законность прав
15	corollary	итог, результат, последствие, следствие
16	compatibility of national law with Union rules	совместимость, сочетаемость национального права с нормами Евросоюза
17	discretionary latitude	свобода действий
18	uniform interpretation and application	единообразное, одинаковое толкование и применение
19	adhere to a Treaty	придерживаться договора, соблюдать договор
20	supplementary Protocols	дополнительные протоколы
21	the wording and the spirit of the Treaty	формулировка и дух договора
22	accord precedence	зд. отдавать предпочтение, воспользоваться
23	reciprocity	взаимность, принцип взаимности, талион
24	override	отвергать, отклонять, преодолевать
25	stem from the Treaty	возникать, проистекать, вытекать из договора

FUNDAMENTAL FEATURES OF UNION LAW

1. Introduction

As was pointed out in Unit 1, the treaties establishing the European Communities, and now the Union, are more than classical international agreements creating mutual obligations between the Contracting Parties. Indeed, by ratifying those Treaties, the Member States intended to do much more than that, though they did not foresee all the consequences which, for instance, the Court has, over the years, drawn from the specific nature of those Treaties. Hence the question: what is it that distinguishes these Treaties from other international agreements?

In the first place, they have created quasi governmental bodies (the institutions), independent from the national public authorities, and endowed with legislative, administrative and judicial sovereignty rights, which were transferred to them by the Member States. Furthermore, Treaties lay down basic principles that are either worked out in the Treaties themselves or defined and implemented by acts of the institutions. The Treaties and acts constitute a set of rules which directly, i.e. without interference of national authorities, impose obligations upon, and consequently create rights for, the Member States and the natural and legal persons within the Union. The Treaties therefore present many analogies with national constitutions. Although they started out as international treaties, they have become, in fact if not in law, the "Constitution" of the Union.

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The rules embodied in the Treaties (the latter being referred to as primary Union law) are constantly being expanded, implemented, interpreted and applied by the various acts and measures of the institutions, especially the courts (known as second Union law). The European Treaties have, therefore established a specific legal order.

It took years before all national courts and tribunals came to share the view that the European Treaties create a separate legal order but, at the time, several of them were quick to agree, as was the German Supreme Administrative Court. It stated that Union law constitutes, "a separate legal order, whose provisions belong neither to international law nor to the municipal law of the Member States".

It must be clearly understood that Union law only applies in cases involving cross-border situations; in other words, purely internal occurrences do not come within the ambit of Union Law.

Union law is, generally speaking, characterised by its direct applicability within the Member States, its direct effect and its primacy over national law. These concepts are briefly examined below.

2. Direct applicability

Union law, being distinct from national law, is also independent from it. This means that rights can be conferred and obligations imposed, both on the Member States and on natural and legal persons, directly by Union provisions, i.e. without interference from or intervention by national authorities. There is indeed no need for Member States to intervene in order to ensure that Union decisions, regulations and, in certain cases, directives have binding effect throughout the Union. Referring to regulations, the Treaty on the Functioning of the European Union uses the words, "shall be . . . directly applicable in all Member States". The latter should not be taken too literally. The territory of the Union is defined in the Treaty and thereby the geographical application of Union law. However, this does not preclude Union rules from applying outside the territory of the Union, when the activity in question retains sufficient links with the Union.

In addition, Member States are committed not to interfere with the application of Union law. This also follows from the Treaties, which provide that Member States, "shall refrain from any measure which could jeopardise the attainment of the Union's objectives".

More important than the acceptance of the legal autonomy of the Union legal order in regard to national law, is the understanding of its raison d'être. The European Treaties aim at establishing within the territories of the Member States a single market characterised by the basic freedoms (goods, persons, services, establishment, capital and payments) and constituting a geographical area wherein Union rules apply with the same force and with the same meaning and effect for all who operate therein. Therefore, the very nature of the law created by the European Treaties implies uniform interpretation and application. Without those characteristics there can be no Union. Union law is either uniform in all the Member States or it simply cannot exist.

3. Direct effect

If the consequence of direct applicability means non-interference with the implementation of Union law, for the citizens it means, in most cases, the possibility of invoking those Union rules in their national courts and tribunals to defend their rights; this is what is meant by direct effect. This allows all those who are subject to Union law to require the national judge to uphold the rights which those Union rules confer upon them. Applicability of Union law must indeed be understood in two ways: on the one hand, the obligations and prohibitions (i.e. obligations to abstain) imposed upon national authorities, institutions and persons, and, on the other hand, the rights granted to those in favour of whom those obligations were imposed. Obligations imposed upon Member States have, generally speaking, as their corollary corresponding rights for the citizens of the Union. For instance, by prohibiting the Member States from hindering the free movement of goods, the Treaty grants the persons within the Union the right to move goods unhindered from one Member State to another. The same applies to the other freedoms.

The question has been raised whether the national judge must, of his own "volition, apply Union rules that have direct effect. The Court accepted the domestic law principle of "judicial passivity" in civil cases and the concomitant rule that in civil suits it is for the parties to take the initiative. On the other hand, a Member State may not prevent a national judge from raising the question of the compatibility of national law with Union rules. It is thus not only the directly applicable regulations that are, as such, suited to, "grant to the citizens rights which the national tribunals are under obligation to protect", but all binding Union acts whatever their nature or form. Consequently, the question, "which provisions of Union law have direct effect"? should rather be put the other way: "which Union provisions that impose a clear and unconditional obligation upon a Member State, an institution or a person do not have direct effect?” The answer is: only those which leave to the addressee of the obligation a discretionary latitude.

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However, the Court made it clear that in cases where the latitude is limited in time, the expiration of the time limit suffices to give direct effect to Union rules.

4. Precedence or primacy of union law

In retrospect it might seem evident that the autonomy of the Union legal order and the necessity for its uniform interpretation and application in all the Member States, automatically imply that Union provisions have precedence over national legislation in case of conflict. Since national courts and tribunals are under obligation to apply Union rules alongside the provisions of national law, it is not unlikely that conflicts will result from this simultaneous application. The European Treaties contain no explicit provisions regarding the solution to be applied in such cases. Attempts were therefore made to solve such conflicts in accordance with provisions of national law. However, few national legal systems provide for conflict rules of this nature.

A ground had therefore to be found which would be accepted by all national jurisdictions without reference to their particular national legal orders. This ground was obviously in the Union legal order itself. It is indeed accepted by all the Member States which, "have adhered to the Treaty on the same conditions, definitively and without any reservations other than those set out in the supplementary protocols". The Court has always considered that the wording and the spirit of the Treaty make it impossible for Member States to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on the basis of reciprocity.

Therefore:

"[T]he law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as [Union] laws and without the legal basis of the [Union] itself being called into question".

To put it simply once more: either Union law stands by itself, is uniformly applied and has precedence over all domestic law, or it does not exist. This view is now generally accepted in all the Member States.''

Attached to the Treaty of Lisbon is a Declaration concerning primacy, which reads as follows:

"The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law."

Reading Comprehension and Vocabulary Work

Exercise 1. Look through the text and answer the following questions.

1. What distinguishes the EU Treaties from other international agreements?

2. Where do we find primary and secondary Union law?

3. What cases does Union law apply to?

4. What three principles is Union law generally characterized by?

Exercise 2. Suggest Russian equivalents of the following expressions. Use them in your own sentences.

1. mutual obligations; national public authorities; rules embodied in the treaties; purely internal occurrences; concomitant rule; uniformly applied; well settled case law;

2. to foresee all the consequences; to be endowed with legislative, administrative and judicial sovereignty rights; to lay down basic principles; to be implemented by acts of the institutions; to impose obligations (upon); to come to share the view that…; to come within the ambit of Union Law; to confer rights (upon); to be committed not to interfere (with); to refrain from any measure; to jeopardize the attainment of the Union’s objectives; to retain sufficient links (with); to hinder the free movement of goods;

3. As was pointed out in …; Indeed, …; Hence the question: …; consequently; in fact if not in law; the latter being referred to as …; It must be clearly understood that…; in other words; generally speaking; In addition; in regard to; On the other hand; Smth reads as follows: …;

Exercise 3. Answer the questions on the text.

1. What is special about quasi governmental bodies (Union’s institutions)?

2. What is the nature of the rules constituted by the Treaties and the acts of the institutions?

3. What do the Treaties resemble in national legislations?

4. What are the Treaties compared to, in fact if not in law?

5. What constant processes do the rules embodied in the Treaties undergo?

6. What is the difference between primary and secondary Union law?

7. What makes the legal order of the EU special?

8. What is meant by the independence of Union law and its direct applicability?

9. What effect, according to the TFEU, do Union’s decisions, regulations and, to some extent, directives have?

10. How and where is the Member States’ non-interference with the application of Union law ensured?

11. What is the Union’s raison d'être?

12. What is meant by direct effect of Union law?

13. How does direct effect influence national authorities and national courts?

14. Which provisions of Union law do not have direct effect?

15. If Union provisions have precedence over national legislations, why do conflicts still arise between Union and national law?

16. What principle concerning primacy is clearly stated in the Declaration attached to the treaty of Lisbon?

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Exercise 4. Read the text and choose the best suitable word to fill in the gaps. Say what you have learned from the text.

Member states' liability for breach of union law

Failure of a Member State to properly 1 a directive (which constitutes an 2 of Union law) makes that State 3 for loss and damages caused to individuals by that breach, the so-called Francovich liability. More generally, Member States are not only 4 to the Union for their infringements of Union law, they are also liable for possible damage caused by their infringement to legal or natural persons. This 5 of a Member State applies for acts or failures to act not only of the executive, but also of the legislature and even, in certain circumstances, of the 6.

Vocabulary Note:

Francovich liability – ответственность государства Евросоюза (установленная в деле Франкович против Италии): См. Francovich v Italy (1990) C-6/90, a decision of the European Court of Justice which established that European Union member states could be liable to pay compensation to individuals who suffered a loss by reason of the member state's failure to transpose a EU directive into national law. It is sometimes known as the principle of state liability in European Union law.

1.	A	transfer	B	transpose	C	transmit	D	transit
2.	A	breach	B	violation	C	distortion	D	infringement
3.	A	liable	B	guilty	C	obliged	D	accountable
4.	A	bound	B	responsible	C	accountable	D	liable
5.	A	obligation	B	responsibility	C	liability	D	duty
6.	A	judicature	B	judges	C	justices	D	judiciary

Exercise 5. Read the text and fill in the gaps with the required prepositions and verbal particles provided below. Then say whether the statements below are true, false or incomplete. Finally, say what you have learned about the sources of Union law.

Sources of union law

The Union legal order has its own sources, which consist not only ____ the European Treaties and the acts of the institutions issued ____ pursuance of the powers conferred _____ them (regulations, directives, decisions, agreements, etc.), but also of the rules relating ____ the application of this primary and secondary Union law. These rules comprise international law, ____ so far as applicable and the general principles of law such as equal treatment (nondiscrimination), proportionality, legal certainty, etc. including the fundamental rights. The latter play an important role, as the Court pointed ____: "respect ____ fundamental rights forms an integral part of the general principles of law protected ____ the Court of Justice", and "the protection of such rights must be ensured _____ the framework . . . and objectives of the [Union]". A reference ____ those fundamental rights is to be found in the Treaty on the European Union, which provides _________ others, that the: "Union recognises the rights, freedoms and principles set ____ in the Charter of the fundamental Rights of the European Union of 7 December 2000, as adopted ____ Strasburg on 12 December 2007, which shall have the same legal value as the Treaties."

The EU Treaty also provides that the Union shall accede ____ this European Convention. A Charter of fundamental rights of the European Union was "solemnly proclaimed" (whatever legal meaning that has) ____ the Parliament, the Council and the Commission ____ the end of the year 2000. It refers ____ the above-mentioned source of Union law ____ addition to the Social Charters adopted by the Union and the Council of Europe and the case law of the Court of Justice and of the European Court of Human Rights. According to the EU Treaty this Charter now has, "the same legal value as the Treaties."

Vocabulary Note:

to accede – присоединяться (к конвенции, международному договору и т.п.)

within; for; in (3); amongst; to (4); by (2); at (2); out (2); of; upon

1. The sources of the Union legal order are rules relating to the application of primary and secondary Union law.

2. The rules relating to the application of primary and secondary Union law exclude international law.

3. The rules include the general principles of law, including the fundamental rights.

4. The protection of fundamental rights must be ensured within the framework and objectives of the Union.

5. The reference to the fundamental rights is to be found in the TFEU.

6. The rights, freedoms and principles set out in the Charter of the fundamental Rights of the EU have the same legal significance as the treaties.

7. The Charter of the fundamental Rights incorporates the case law of the Court of Justice of the European Union.

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Exercise 6. Read the text. Use the words in the box on the right to form one word that fits in the gap. Say what the text is about.

Application of National and International Law by the European Courts

The question of the ____________of the national law of the Member States by the Union institutions was raised on several occasions before the Court. The latter however, _________________that it lacked the __________ to apply the internal law of the Member States. ____________, the Court cannot accept a _______that by taking a decision an institution has ________national law. Neither can the Court decide on the interpretation of a national__________. However, application of __________law by the Court takes place where the Treaty _______ explicitly to national concepts. This is the case, for instance, where reference is made to companies and firms formed in accordance with the law of a Member State. Also when the Treaty provides that, in the case of non-contractual________, the Union shall make good any damage caused by its institutions or by its_______, " in accordance with the general principles common to the laws of the Member States" ._________, when the Court is called upon to ________ a question for which there are no Treaty provisions, it must solve the problem, "by reference to the rules acknowledged by the legislation, the ________writings and the case law of the member-countries”. In numerous cases the Court was called upon to interpret and________ international law. According to the General Court (GC), it is only in case the Union ___________to implement a specific obligation assumed in the framework of an international agreement, or when a Union act refers explicitly to a specific provision of an ___________ agreement, that the Union courts are called upon to control the __________ of the Union act in regard to that agreement. In a recent ____________, the Court held that the __________of the Directive on ship-source pollution could not be ________ either in the light of the International Convention for the prevention of pollution from ships, nor in the light of the _______ Nations Convention on the Law of the Sea (Montego Bay).

Apply Decisive Competent Consequence Claimant Violation Provide Nationalise Reference Liable Service Similarity Resolve Learner Application Intention Nation Legal Judge Valid Assessment Unity

Vocabulary Notes:

1. to make good a / some damage – устранить причиненный ущерб

2. ship-source pollution – загрязнение окружающей среды кораблями

Exercise 7. Read the text and fill in the gaps with the appropriate words from the box. Then answer the questions below the text.

protection; favourable; direct effect; ensuring; domestic; jurisdiction

Application of Union Law by the National Courts

As was seen, direct effect of Union rules means that: "[I]t is the national courts which are entrusted with __________ the legal protection which citizens derive from the _____________ of the provisions of [Union] law. Accordingly, in the absence of [Union] rules on the subject, it is for the ___________ legal system of each Member State to designate the courts having ______________ and to determine the procedural conditions governing actions at law intended to ensure the _____________ of the rights which the citizens have from the direct effect of [Union] law, it being understood that such conditions cannot be less _____________ than those relating to similar actions of a domestic nature”.

1. What courts must ensure the protection of citizens’ rights?

2. What do the EU citizens derive their right to legal protection from?

3. What legal system must confer jurisdiction upon courts?

4. What else must be determined domestically?

Exercise 8. In the text below certain parts have been taken out and reshuffled. Restore the text by filling in the gaps meaningfully. What information does the text contain?

DIRECT EFFECTS DOCTRINE

1. It can apply to treaties, directives, regulations, decisions and international agreements.

2. For example, although the general Agreement on Tariffs and Trade (GATT) and the WTO Agreements are binding upon the Union and its member states, they have been construed by the Court not to have direct legal effects.

3. When asserting rights against other private parties, the “horizontal direct effect” of EU law applies.

4. The Court of Justice has noted that the vigilance of private litigants enforcing their rights is an important element of the European legal system.

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