Legal Families Legal Families

Prof. dr. sc. Hana Horak

Introduction Introduction

Why 'Basic Law' course? Objectives of the course Topics to be covered Reading suggestions

Classifying legal systems of Classifying legal systems of the worldthe world No two national legal systems are the

same, but there are sufficient similarities between some of them to allow classification;

Different criteria have been used for the purposes of such classification, incl. historical background and development, ideology, sources of law, division of law in the legal system, etc.;

Most authors agree on existence of two major legal traditions: ◦ the Romano-Germanic civil law tradition;◦ the Anglo-American common law tradition.

Then, there are so-called 'religious legal traditions', such as:

-Muslim law, -Hindu law, -Jewish law, -canon law (the law of the church);

Some authors also distinguish African (indigenous) customary law.

However, many legal systems are mixed, they have elements of more than one legal tradition.

Civil law tradition -1 Civil law tradition -1

• The most widely distributed and arguably the oldest one;

• Dates back to 450 B.C., and Justinian compilation of Roman law -Corpus Juris Civilis;

•Corpus Juris Civilis is a collection of fundamental works in jurisprudence issued by order of Justinian I, Byzantine Emperor, approx. 529-534 A.D.

Civil law tradition – 2Civil law tradition – 2Rediscovery of Roman legal science

took place in XI century, with University of Bologna being the principal legal center;

Development of civil law tradition was guided and shaped not by law practitioners, but by legal scholars, professors who tried to reconstruct and explain the Roman law (Corpus Juris Civilis)

CodificationCodification17th-18th century -Scandinavian countries; Later on -codification in Bavaria, Saxony, Prussia

and Austria; 1804 -French civil code; 1896 -German civil code. The last two codes

served as the models for many other countries, i.e.:

French civil code was brought by Napoleon to Belgium, the Netherlands, parts of Poland, Italy, west regions of Germany; was followed in former French colonies;

German civil code influenced Austria, the Czech Republic, Slovakia, Greece, Hungary, Italy, Switzerland, former Yugoslavia, Brazil, Japan, Korea.

Common law tradltlon-1Common law tradltlon-1England never experienced a

reception of Roman law, or movement for codification;

» The origins of common law tradition can be traced back to 1066 - Conquest of England;

» Creation of highly centralized legal system, matters of royal concern were resolved by the king who exercised judicial, executive and legislative powers;

Common law tradition-2Common law tradition-2Local issues (except of an extraordinary

nature ) remained in the local courts (courts of the shires and hundreds);

... Later, judicial powers were assumed by three royal (unified, or 'common') courts: ◦ (i) tax disputes; ◦ (ii) disputes between subjects which did

not involve a direct interest of the king, such as title to land;

◦ (iii) disputes with a direct royal interest. Local courts started to lose their jurisdiction.

Writ systemWrit system» However, jurisdiction of the common

courts was limited by the writ system. » Writ (form of action) -'a command of

the King directed to the relevant person (official, judge), containing a brief indication of a matter under dispute and instructing the addressee to call the defendant into his court and to resolve the dispute in the presence of the parties' (Zweigert and Koelz, 1998, p.184);

» Writs were issued in the name of the King by the highest royal officials, later -by the Chancellor, on payment of a fee by the plaintiff, without hearing the defendant.

Further evolution -'equity'Further evolution -'equity'» A plaintiff unable to obtain a proper writ

was left with no remedy. To counter this problem and provide relief other than money damages, in 15th century a formal Court of Chancery was created with jurisdiction over pleas in equity;

» Law of equity introduced the rules of trust and provided for such remedies as injunctive relief and specific performance;

" Reforms throughout the centuries, such as solving issues of overlapping jurisdiction, structural changes, fusion of rules of law and equity, abolishing rigid forms of action, introduction of more uniform procedure, etc.

VocabularyVocabularyTrust-property, either real or personal, that is

held by one party for the benefit of another party. Property held in trust comprises two interests: a legal interest and an equity interest. The legal interest is held by the trustee (person who holds the legal title to property which is administered for the benefit of someone else) and the equitable interest is held by the beneficiary (the one who is intended to benefit from the property, even though she is not the legal owner);

Injunction - an order of the court prohibiting a person from doing something or requiring to do something;

Specific performance - a court order to make a party perform her obligations under the contract .

Distribution of the Distribution of the common lawcommon lawMost of the Commonwealth countries

belong to the common law family: Australia, Canada(Quebec has civil law system), India, New Zealand , South Africa (later partially accepted civil law tradition (Roman – Dutch later), therefore, now mixed system);

The United States (Louisiana rests on civil later)

Pay attention: Great Britain (England, Wales and Scotland) has no common legal system. While many English statutes are applicable in Scotland, the Scotish private law is based primarily on Roman law and tehrefore represents a mix of common and civil law.

Sources of law in civil law Sources of law in civil law countriescountriesWhere one has to look to determine what legal

rules are applicable to govern the relationship; (i)primary sources (binding), such as enacted

law and custom for a number of countries, sometimes, also general principles of law and

(ii)secondary sources (not binding, may have weight when primary sources areabsent, unclear or incomplete), such as case law and the writings of the legal scholars;

Enacted law is the main source of law , includes legal rules adopted by the parliament, as well as issued by executive and administrative agencies;

Court decisions are not binding in a subsequent cases.

Sources of law have different legal force, they form so-called 'hierarchy' of legal acts:◦constitution has greater legal force,◦ it is followed by legislation (laws produced by

the parliament )◦executive decrees (acts of the government ),

administrative regulations, etc.

In federal states – special rules concerning correlation between federal and state law;

Besides, international law rules have special effect on national law of the country.

Sources of law in common law Sources of law in common law countriescountries

◦ Case law (as a primary source of law); ◦ legislation;◦ Customs, conventions, royal prerogative, etc.

In common law countries precedents exist separately as law to be followed;

In general, the decisions of a higher court are binding (i.e. must be followed) upon all rower courts ('doctrine of binding precedent');

Decision which interpret legislation become a source of law (as much as the law they interpret), thus, judges create new law; the statute alone may be viewed as incomplete until it has been interpreted.

Precedents have been characterized as being precise and flexible;

Decision based on particular facts gives some assurance that in subsequent indentical fact situation a similar conclusion will be reached;

Common law lawyers have become ecceptionally skillful at distinguishing fact situations (in order to acquire different decision);

The statute World not be able to include all these factual varioations and possible solutions to them;

In civil law countries precedents also have value since they may provide assistance in determining how statutory laww is interpreted (teaching function), but the courts do not need to follow earlier decisions.

Legislation – acts of principal legislative body, judicial interpretation will follow;

Custom plays important role in many legal system (e.g. in England): initial establishment of custom requires proof that it existed uninterrupted for a long period of time and that it existed by common consent (not by the use of force)

Conventions (influential source of English law) – unwritten source of law (together with custom) .

Civil law vs. Common law: Civil law vs. Common law: two major differencestwo major differences

1. The civil law emerged from Roman law

a. The coomon law was created by English courts

2. Civil law has been codified in most

continental countries

b. The common law is still largely case law

National law, International National law, International law and European lawlaw and European lawNational law - the law of certain country (law

of the Netherlands, Belgium, Sweden, etc.); International law - usually we mean 'Public

International law‘ ,i.e. that law that regulates the relationship between the states, and international organizations. As opposed to Public Intemational Law, 'Private International law (or 'Conflict of Laws') rules allow to determine which national law has to be applied to situations crossing over the borders of one particular state and involving so called 'reign element';

European law – most of the time we mean 'law of the European Union' (to be discussed further in the course).

Sources used: Sources used: M.A. Glendon, MW. Gordon, C. Osakwe,

Comparative Legal Traditions: Text,Materials and Cases on the Civil and Common Law Traditions, with Special Reference to French, German, English and European Law(2nd ed., St. Paul, Minn.: West Pub. Co., 1994)

Glendon, MW. Gordon, C. Osakwe, Compatative Legal Traditions in a Nutshell/(Sp. Paul, Minn.: West Pub. Co., 1982)

Zweigerl and H. Koetz, Introduction to Comparative Law (3rd ed .. Oxford [etc.]: Clarendon Press, 1998)

Gubby, English Legal Terminology: Legal Concepts in Language (Den Haag: Boom Juridische uitgevers. 2004)

Divisions of LawDivisions of Law

Prof.dr.sc. Hana HorakSiječanj, 2010.

Public law and Private law Public law and Private law Distinction is very important for civil lawc ountries, and much

less important in common law countries;

However, no unifomity exists among civil law countries in distinguishing public and private law;

Generally speaking , public law is the law that governs the relationship between the individuals (physical or legal persons) and the state . Thus, in public law state is directly involved as a legal actor;

Public law includes at least :◦ constitutional law◦ administrative law, and◦ criminal law.

Public law and Private law Public law and Private law – 2:– 2:By contrast, private law governs the

relationship between private individuals without intervention of a state or government. In this areas of law state is not directly or primarily a party;

Private law includes at least:◦ civil law, and cemmercial law.

Or, depending upon legal system and accepted classification of branches of law, one can say that private law includes the following branches: contract law, tort law, family law, property law, etc. (see next slides).

Distinction is ambiguous, besides, even such 'traditional' private areas as family law are increasingly regulated by the state;

Classification of some areas is disputable: e.g. civil procedure-included either in private,

or in public law, depending upon legal system;

labor law, agricultural law, social security law -sometimes referred as 'mixed' public and private, sometimes described as sui generis (Glendon, Gordon, and Osakwe, p.266).

Occasionally, public law would mean the law of general application, as opposed to private law, which concerns only a small class, or group, or even a single individual.

Public law vs. Private Public law vs. Private lawlaw

Public law Private law

defines the state or governs the relationship between the state and its citizens,

tends to be more general, may involve multiple parties or interests,

more likely to be prospective (forward looking),

in some cases goes beyond awards of monetary damages (e.g. imprisonment)

governs relationship between citizens,

often retrospective, concerns with resolving secific disputes about past conduct between identified parties,

rarely has public policy implications.

Administrative law Administrative law When one speaks about public law

often what is meant is administrative law;

Consists of norms that regulate the organization, functions, interrelation of public authorities (other than political and judicial), and the norms governing the relationship between the administrative authorities and the citizens (Glendon, Gordon, and Osakwe, p.267);

E.g. -Tax law.

Civil lawCivil lawIn civil law countries the norms of private

law are divided into two groups – civil law and commercial law;

Civil law - applies to everyone, basic provisions can be found in civil codes;

Commeroal law- concerns specific groups of persons and/or specific typesor activities , in most civil law countries the norms of commercial law have been codified in separate ccmmercial codes;

The term 'private law' is often used to designate civil law(in fact, the terms 'private law‘ and ‘civil law‘ are often used interchangeably).

Civil law includes:Civil law includes: The law of persons (governs the status of

individuals and legal entities, includes legal rules relating to names, domicile, civil status, capacity and protection of persons under legal incapacities of various sorts);

Family law (regulates formation of marriages, legal effects of marriage, termination of marriage by divorce, separation, and annulment; family support obligations);

Marital property law (norms establishing and regulating so-called ‘legal regime‘ i.e. the system that governs the property relations of all spouses who do not choose an alternative regime by way of entering marriage contract: also, norms that concern procedure for entering and altering marriage contracts);

It also includes:It also includes:Property law (distinction between

movable and immovable property (in common law:

personal and real property), protection of the right of the ownership, etc.);

Succession law (rules of disposition of property upon death by will or by intestate inheritance);

The law of obligations (covers all acts or situations which can give rise to rights or claims, divided into three parts: the law of contracts, the law of tort (delict) and the law of unjust enrichment).

Vocabulary:Vocabulary:

An 'obligation'-in civil law countries is the duty of one person (the ‘debtor') to transfer the ownership of property or create a right over it/ to do or not to do something to the benefit of another person (the 'creditor;).

May arise:◦ from the law alone(e.g. 'alimentary obligation'). ◦ by contractor by reason of unilateral undertaking of one

person; because of a delict (e.g. a person has committed a fault,or must compensate for a damage caused by a thing under his care,or by a person for whom he must answer);

◦ from the fact that a person is, by reason of various circumstances, unjustly enriched at the expense of another person who has suffered an impoverishment;

The concept of 'obligatlon‘ is unknown is common law tradition (David, Brierley, p.B7).

Contract law:Contract law: In civil law countries the code will first include the

rules which are applicable to all contracts, and then – the rules which are special for particular types(sorts)of contracts, such as sales, leases, agency, loans;

Contract is an agreement between two or more parties that is binding in law, i.e., contract is a legally enforceable agreement (Gubby, p.166);

Contract creates rights and obligations that maybe enforced in the courts;

In general, no special requirements as to the form in

which a contract has to be concluded (can be concluded orally, in writing, can be inferred from the conduct of the parties);

Contract law - 2:Contract law - 2:However, some contracts require special

form and will be invalid if the form was not observed;

Formation of contracts: ◦ offer and acceptance;◦ intention to create legally binding relationship; ◦ for common law, the presence of consideration.

An 'offer' shows a willingness to enter into agreement without further negotiations (parties involved –offeror and offeree);

Acceptance -unconditional assent, communicated to the offeror by the offeree, to all the terms of the offer;

Notions of 'counter-offer', 'battle of the forms';

Contract law -3:Contract law -3:'Postal rule'- in English law: acceptance

is complete when the letter is posted, even if such a letter never reaches offeror;

Consideration (common law requirement!): in a contract each party has to give value to the other either by exchanging promises or by a promise given in exchange for an act;

Therefore, as opposed to civil law, in the common law one-sided promises, such as gift, do not contribute binding contract (they are unenforceable);

Contract law – 4:Contract law – 4: Excuse for non--performance:

◦ Frustration (impossibility) and force majeure clause,

Frustrating event - an event beyond the control of the parties, that has made it impossible to carry out the contract or commercially pointless to do so;

Force majeure clause – a provision of the contract that lists events considered to be outside the control of the parties and for which the parties cannot be considered to be in breach (Gubby, p.154). Ex. war, fire, flood, acts of God, labor disputes, compliance with the law or governmental order, accident, etc.

Remedies for breach of contract: ◦ -damages, specific performance, injunctions .

Tort lawTort law'In modern civil codes much of tort law depends on short, general provisions that say that a person is liable for harm (or certain harms) that have been causes through his fault'

J. Gordley and A.T. von Mehren, An Introduction to the Comparative Study of Private Law: Readings, Cases; Materials (Cambridge [etc.]: Cambridge University Press, 2006), p.234

To give an example:To give an example:

Art. 1382 of the French Civil Code states: "Any act of a person which causes harm to another obligates the person through whose the harm occurred to make compensation for it". Art. 1383: "A person is liable for the harm that he causes not only by his acts but by his negligence or imprudence:'

§ 823(1) of the German Civil Code: "A person who intentionally or negligently unlawfully injures the life, body, health, freedom, property or similar right of an other is bound to compensate him for any damages that thereby occurs"

Torts in common law:Torts in common law:Common lawyer will ask whether

the defendant committed a particular tort for which common law courts give relief, such as:◦tort of negligence (the defendant is

liable if he negligently harmed the person or property of the plaintiff),

◦ tort of battery (the defendant must make contact with the body of the plaintiff, something that is not acceptable, e.g. bashing the defendant on the head),

Torts in common law – 2:Torts in common law – 2:

tort of assault (the defendant must have done something that makes the plaintiff to believe he may imminently be the victim of a battery, such as pointing the gun),

tort of false imprisonment (the defendant is liable if he confined the plaintiff, it may be in any space, large or small, no matter how confinement is affected, by force or threats, or fraud; there will be liability of the defendant even if he mistakenly but reasonably thought he had the right to confine the plaintiff), etc.

Commercial law:Commercial law:Developed from mercantile customs

into well- established separate branch of private law;

Generally speaking, includes corporations and other business legal entities, securities, banking, and negotiable instruments;

Civil codes are frequently brought into fill the gaps in the commercial codes and their supplementary laws since commercial codes lack the general principles and internal coherence of the civil codes (Glendon, Gordon, and Osakwe, p.273)

Commercial law – 2:Commercial law – 2:Commercial law has increasingly

been affected by a body of legislation regulating commercial and corporate activity(requirements of special permits, licenses, etc.);

Sometimes it is hard to distinguish commercial law from administrative law;

'Commercial law' => 'commercial and economic law'(economic law-'regulatory law of the administrative state').

Other branches:Other branches:Corporate law; Competition law (or Antitrust

law);

◦Distinction between substantive and procedural law.

Sources used:Sources used:

M.A. Glendon, M.W.Gordon, C.Osakwe, Comparative Legal Traditions: Text, Materials and Cases on the Civil and Common Law Traditions-with Special Reference to French, German, English and European Law (2nd ed., St Paul, Minn.: WestPub.co., 1994);

R.David and J.E.C. Brierley, Major Legal Systems in the World Today: Introduction to the Comparative Study of Law(3rd ed., London: Steven & Sons, 1985);

H. Gubby, English Legal Terminology: Legal Concepts in Language (Den Haag: Boom Juridische uitgevers, 2004).

Basic EU LawBasic EU Law

Prof.dr.sc. Hana HorakSiječanj, 2010.

Structure of the lectureStructure of the lecture

Why EU law? Summary of the European

Integration The European Communities and

the European Union The Institutions The Doctrines, Principles and

Sources of the Community Law Conclusion

The birth of the European The birth of the European Communities Communities 1951 -the Treaty of Paris establishing the

European Coal and Steel Community (ESCS) was signed by six countries Germany, France, Italy, the Netherlands, Belgium and Luxembourg

The ECSC received international legal status and separate and autonomous institutions, control over production and distribution of coal and steel, legislative and administrative powers in the area concerned

1957 -the same six countries signed two Treaties of Rome establishing the European Atomic Energy Community (Euratom) and the European Economic Community (EEC, now -EC), the latter one with a view of creating a "common marker'

The three Communities:The three Communities: Remain legally distinct (the ECSC was created for

50 years, it therefore expired in 2002); Originally each of three Communities had a set of

autonomous institutions, but in 1967 institutions were merged (a single Council, a single Assembly, and a single Commission were created);

The powers and functions of the institutions depend upon provisions of the Treaty under which they act.

Further we will mainly discuss the European Economic Community (now the 'European Community'). Most of the times we will refer to it as the 'Community'. The Treaty establishing this community will be referred to as the 'EC Treaty'.

Further growth:Further growth:1986 - signing of the Single

European Act (with objective of completion of 'internal market', i.e. 'an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured', Art. 14(2) of the EC Treaty)

The birth of European The birth of European Union:Union:1992 - signing of the Treaty of Maastricht

(the 'European Union Treaty', or the 'EU Treaty'), entered into force on November 1, 1993;

Provided for a European Union with main objectives being the establishment of an economic and monetary union ultimately including a single currency, a common foreign and security policy, the introduction of the citizenship of the European Union, co-operation in justice and home affairs, the maintenance of the acquis communautaire, etc.

May 1, 1999 the Treaty of Amsterdam entered into force (in particular, changed the numeration of the Articles);

2001 -the Treaty of Nice (amended the EU Treaty, and the Treaties establishing the European Communities);

July 18, 2003 -draft Constitution was presented to the European Council of Rome (later ratified by the Parliament and by ten Member States, but rejected at referenda in France and the Netherlands. In July 2005 the ratification process was temporary suspended as the Member States decided that they needed a 'period of reflections' to unable a broad debate in each country).

The enlargement process:The enlargement process:

As from January 1, 1973 the United Kingdom, Ireland, and Denmark are members of the Community;

January 1, 1981 -Greece is a Community member; January 1, 1986 -Spain and Portugal are full

members; January 1, 1995 -Austria, Sweden and Finland joined

the European Union; May 1,2004 - the biggest enlargement ever, bringing

10 new Member States (Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovenia, Slovakia);

January 1, 2007 -the EU is joined by Bulgaria and Romania.

Three pillars under One Three pillars under One Roof:Roof: The EU is said to be based on three 'pillars':

(i) The Communities constitute the first pillar of the European Union,(ii) The Common Foreign and Security Policy (CFSP) forms the second pillar, (iii) Police and Judicial Cooperation in Criminal Matters (PJCC) constitutes the third pillar of the EU.

However, only the first pillar is governed by the Community law (Community is supranational in nature),the rest -fly intergovernmental cooperation, and, therefore, these areas are outside of the jurisdiction of the Community institutions;

The European Union is wider than the European Community.

The EU Treaty – contents:The EU Treaty – contents: Preamble TITLE I Common provisions TITLE /I -Provisions amending the Treaty establishing

the European Economic Community with a view to establishing the European Community

TITLE III Provisions amending the Treaty establishing the European Coal and Steel Community

TITLE IV Provisions amending the Treaty establishing the European Atomic Energy Community

TITLE V Provisions on a common foreign and security policy

TITLE VI Provisions on police and judicial cooperation in criminal matters

TITLE VII Provisions on enhanced cooperation TITLE VIII Final provisions

The InstitutionsThe InstitutionsFive principal institutions (Art.7 of

the EC Treaty);◦ the European Parliament; ◦the Council; ◦the Commission; ◦the Court of Auditors; ◦the Court of Justice. Other. the European Council , the

Economic and Social Committee, the Committee of the Regions, the EC‘s monetary institutions (Ch. 20), and agencies.

The European ParliamentThe European ParliamentConsists of representatives of the peoples of

the Member States, since 1979 elected by direct universal suffrage for a term of 5 years;

There are 785 MEPs (until the end of the 2004-2009 session, after that there will be 736 seats);

Generally speaking, the seats are allocated depending upon the population of the State (today Germany has 99 seats, France, Italy and the United Kingdom -78, Poland and Spain -54, etc.);

MEPs are grouped by political affinity and not by nationality.

The European Parliament - The European Parliament - 22 Holds annual sessions (i.e. lasting 12 months),

meets on the second Tuesday in March; May also meet in extraordinary session and so-

called 'additional‘ sessions; Has its seat in Strasbourg, however, the periods

of additional plenary sessions shall be held in Brussels, the Committees of the Parliament meet in Brussels, and the Secretariat of the Parliament and its departments remain in Luxembourg;

President of the European Parliament (now-Hans-Gert Pottering) is elected for a renewable term of two and a half years, represents the Parliament to outside world and in its relations with other Community institutions.

The task and powers of the The task and powers of the European Parliament:European Parliament:

Previously, advisory and supervisory powers, however, the role increased by the Single European Act (introduced the co-operation procedure), and by the Treaty of Amsterdam ('co-decision' power);

Yet, does not fully exercise the attributes of an elected representative body (legislating and raising of taxes);

Main taska and powers: ◦ to participate in the legislative process, ◦ to approve the nomination of the President and the

members of the Commission, ◦ to participate in budgetary procedure, ◦ to initiate procedures in the Court of Justice against the

Council or the Commission, in case the latter fail to act, ◦ to put questions to the Council, to the Commission and

to the Presidency of the Common Foreign and Security policy.

Current legisltaive Current legisltaive procedures:procedures:Consultation (the European Parliament is

merely consulted on the issue, instances are few nowadays),

Co-operation (in fact, more elaborate consultation procedure under Art. 252 of the EC Treaty),

Co-decision (due to this procedure the Parliament now shares with the Council real legislative power, see Art.251 of the EC Treaty),

Assent (in a way, a veto right, when assent is required the Council can only act after obtaining the agreement of the Parliament).

The CouncilThe Council consists of a representative of each MS at

ministerial level who is authorized to commit the government of that State (art. 203 of the EC Treaty),

meets when convened by the President of the Council, or at the request of one of its members, or at the request of the Commission,

approx. 80 Council meetings per year (most of the times in Brussels),

meetings arranged by subject-matter with different ministers attending (the General Affairs and External Relations Council (GAERC) as a rule attended by foreign ministers, the Economics and Finance Council (Ecolin) -finance ministers, etc.),

Currently 9 Council configurations (Employment, Social Policy, Health and Consumer Affairs; Environment, Education, Youth and Cultures, etc.).

Presidency of the Council is held in turn by each MS for a six months period (Art. 203 of the EC Treaty), currently -by Portugal;

Since the Council meets no more than a few days a month, a more 'permanent' national presence in Brussels was required. Therefore, on a day-to-day basis the various Community activities are followed by Permanent Representatives who are high level civil servants with the rank of Ambassador. Together they form the Committee of Permanent Representatives, or so-called 'Coreper' (Comite des Representants Permanants) . They prepare the work of the Council and carry out the tasks that have been assigned to them by the Council.

Secretary – general of the Secretary – general of the Council of the European Council of the European UnionUnionthe head of General Secretariat of the

Council (direct administrative support to the Council);

also acts as High Representative for the EU's foreign and security policy;

assists the Council in Foreign Policy matters, through contributing to the formulation, preparation and implementation of the European policy decisions;

acts on behalf of the Council in conducting political dialogue with third parties;

currently -Mr. Javier Solana.

The European CouncilThe European Council Composed of the Heads of State or of Government

of the Member States and the President of the Commission, assisted by the Ministers of Foreign Affairs and a Member of the Commission;

According to Art. 4 of the EU treaty, it provides the Union with the necessary impetus for s development, defines the general political guidelines thereof;

In particular, defines the principles and general guidelines for the Common Foreign and Security Policy, and decides on common strategies to be implemented by the Union in areas where Member States have important interests in common;

issues general guidelines (but not binding decisions as the 'normal' Council does);

meets four times per year.

Tasks and powers of the Tasks and powers of the Council:Council: Decision-making powers (in the whole spectrum

of the Community's activities, in accordance with the provisions of the EC Treaty),

has to ensure coordination of the general economic policies of the Member States,

Co-ordinated strategy for employment (promotion of economic and social progress and a high level of employment were set as one of the objectives of the EU, therefore, the Member States and the Community work together towards 'developing a co-ordinated strategy for employment and promoting a skilled, trained and adaptable workforce and labour markets responsive to economic changes'. Yearly discussions at the EU level, and guide lines to the Member States.)

The CommissionThe CommissionAs from January 1, 2005 one

Commissioner from each Member State, further on (on reaching 27 Members) the number of Commissioners will be changed (will be less than a number of Member States, exact number to be set by the Council acting unanimously, rotation system will be in place);

Headed by the President (Mr. Jose Manuel Barroso) who is a 'first among equals'.

The President of the The President of the CommissionCommissionappointed by the govemments of the

MSs, must then be approved by the European Parliament;

Art. 217 of the Treaty of Nice: 'the Commission shall work under the political guidance of its President;

decides internal organisation of the Commission, allocates responsibilities to the Commissioners (portfolios can be reshuffled);

plays important role in shaping overall policy of the Commission, negotiating with the Council and the Parliament;

represents the Commission.

The commissionersThe commissionerschosen on grounds of their general

competence, independent from respective national governments (do not represent their own MSs),

serve for 5 years, the term can be renewed,

each is in charge of particular policy area (consumer protection, competition, trade, taxation and customs union, fisheries and maritime affairs, research, science and enlargement, etc.).

Main task and powers of the Main task and powers of the CommissionCommissionenforcement of the Community law, formulating recommendations and

delivering opinions, exercising its own power of

decision,participation in the legislative

process, negotiation of international

agreements and representation of the Community.

The European Court of Justice The European Court of Justice ( the ECJ )( the ECJ )

Presently consists of 27 judges (one from each MS) assisted by eight Advocates General chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries... , appointed by common accord of the governments of the MSs for a term of six years (Art. 223 01the EC Treaty);

Judges and Advocates General are partiality replaces every three years;

The President of the Court (currently Judge Vassilios Skouris) is elected by Judges themselves for a renewable term of three years;

The ECJ meets as plenary body, or as a grand chamber of 13 judges, or in chamber of three of five judges;

Located in Luxembourg (together with the Court of First Instance).

The function and jurisdiction The function and jurisdiction of the Courtof the Court

The ECJ and the CFI shall ensure that in the interpretation and application of the EC Treaty the law is observed (Art. 220 of the EC Treaty),

It arbitrates conflicts between the institutions of the Community, between the Community and the Member States, reviews the validity of legislative and administrative acts;

May be called upon by the courts of the Member States to decide on the interpretation of Community laws, or on validity of Community legislation when those courts need to resolve a dispute pending before them in which a question of Community law arises ('preliminary rulings' procedure).

The Court of First Instance The Court of First Instance (the CFI)(the CFI) Established in October 1988 to assist the ECJ with

ever increasing load of cases; Comprises of at least one judge from each Member

State (currently 27), but has no own Advocates General;

Jurisdiction:◦ actions brought by any natural or legal persons against

acts of the Community instituitons;◦ actions brought by the MSs against the Commission;◦ actions seeking compensation for damage caused by

the Community institutions or their staff;◦ some other cases

The rulings of the CFI may be subject to appeal to the ECJ;

For your information: The prefic C indicates a case before the ECJ, and the prefix T – a case before the CFI

Doctrines and principles of Doctrines and principles of Community law:Community law:

The supremacy of Community law (the Community law prevails over national law, the national court must set aside any provisions of the national law which may conflict with the law of the Community);

Principle of proportionality (any action of the Community shall not go beyond what is necessary to achieve the objectives of the Treaty, Art. 5 of the EC Treaty).

Principle of subsidiarity (in areas outside its exclusive competence, the Community shall take action only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore... be better achieved by the Community, Art. 5);

The doctrine of direct effect (developed by' the ECJ; generally speaking, the Community law confers the rights on individuals and can be invoked by them in national courts).

Sources of Community Sources of Community law:law:Treaties; Regulation -has general application,

binding in its entirety, and directly applicable in all Member States (Art. 249 of the EC Treaty);

Directive -binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods (Art. 249);

Decision -binding in its entirety upon those to whom it is addressed (Art. 249);

Recommendation and opinions have no binding force.

Useful linksUseful links

The European Union online: http://europa.eu

The EU at glance: http://europa.eulabclindex_en.htm

Homepage of the European Parliament: http://wwW.europarl.europa.eu

Homepage of the Council of the European Union: htlp://www.consilium.europa.eu

Homepage of the European Commission: htlp://ec.europa.eu

Homepage of the European Court of Justice: http://curia.europa.eu

Sources that have been Sources that have been used:used:

P.S.R.F. Mathijsen, A guide to European Union Law (9th ed., London: Sweet & Maxwell, 2007), pp. 1-155.

P. Craig and G. de Burca, EU Law: Text, Cases, and Materials (4th ed., Oxford [etc.]: Oxford University Press, 2008 [Le. 2007])

http://europa.eul