The ABC of European Union Law

7/29/2019 The ABC of European Union Law

1/140

The ABC of European Union lawby Professor Klaus-Dieter Borchardt

TheABCofEuropeanUnionlaw

Profess

orKlaus-DieterBorchardt

Klaus-Dieter Borchardt is a

European Union of cial since 1987.

He was Deputy Head o Cabinet

and then Head o Cabinet or the

Commissioner or Agriculture

rom 2004 to 2010. He is also anHonorary Proessor at the University

o Wrzburg, where he has taught

European law since 2001.


2/140


3/140

The ABCof European Union law

by Professor Klaus-Dieter Borchardt


4/140

The content of this publication does not necessarily reflect the official position of

the European Union. The information and opinions contained herein are the sole

responsibility of the author.

Photo credits

Listed below are the storage locations of the illustrations reproduced and/or the sourceused, together with the copyright holders.

Every effort has been made to locate the holders of the rights of the various illustrations

and photographs reproduced. If you have any questions, please contact the publisher:

Publications Office of the European Union

2, rue Mercier

2985 Luxembourg

LUXEMBOURG

Pages 8, 23, 35, 56, 67, 84, 94, 116 and 124: European Commission Media Library, Brussels

European Union, 2010

Europe Direct is a service to help you fnd answers to your questions about the

European Union.

Freephone number (*):

00 800 6 7 8 9 10 11(*) Certain mobile telephone operators do not allow access to 00 800 numbers, or these calls may be billed.


5/140

NOTETOTHEREADER

Te ABC o European Union lawtakes account o the modifcations made tothe European reaties by the reaty o Lisbon. Unless there is a direct citation,

or the historical context demands, the articles cited reer exclusively to theconsolidated versions o the European reaties (Ofcial Journal o the EuropeanUnion C 83 o 30 March 2010). Te inormation given in this edition is correctas at March 2010.


6/140

Contents

007 FOREWORD

009 FROM PARIS TO LISBON, VIA ROME, MAASTRICHT,

AMSTERDAM AND NICE

019 FUNDAMENTAL VALUES OF THE EUROPEAN UNION

021 The EU as guarantor of peace021 Unity and equality as the recurring theme

022 The fundamental freedoms

022 The principle of solidarity

024 Respect of national identity

024 The need for security

024 The fundamental rights

029 THE CONSTITUTION OF THE EUROPEAN UNION

029 The legal nature of the EU

033 The tasks of the EU

038 The powers of the EU

042 The institutions of the EU045 Institutions: European Parliament European Council Council

European Commission Court of Justice of the European Union

European Central Bank Court of Auditors

075 Advisory bodies: European Economic and Social Committee

Committee of the Regions


7/140

087 The EUs means of action

088 Regulations Directives Decisions Recommendations and

opinions Resolutions, declarations and action programmes

098 The legislative process in the EU

099 Ordinary legislative procedure Approval procedure Simplified

procedure

103 The EU system of legal protection

103 Treaty infringement proceedings Actions for annulment Complaints

for failure to act Actions for damages Actions by Community staff

Disputes over Union patents Appeals procedure Provisional legal

protection Preliminary rulings110 Liability of the Member States for infringements of Union law

111 Member States liability for legal acts or failure to act Liability for

infringement of Union law by the Courts

113 THE POSITION OF UNION LAW IN RELATION TO THE LEGAL

ORDER AS A WHOLE

113 Autonomy of the EU legal order

114 Interaction between Union law and national law

117 Conflict between Union law and national law

117 Direct applicability of Union law to national law Primacy of Union law

over national law Interpretation of national law in line with Union law

125 CONCLUSIONS

127 ANNEX


8/140


9/140

TH E AB C OF E UROPE AN UNION LAW

Foreword

Te legal order created by the European Union (EU) has already become

an established component o our political lie and society. Each year, on the

basis o the Union reaties, thousands o decisions are taken that crucially

aect the EU Member States and the lives o their citizens. Individuals have

long since ceased to be merely citizens o their country, town or district; they

are also Union citizens. For this reason alone, it is o crucial importance thatthey should be inormed about the legal order that aects their daily lives.

Yet the complexities o the Unions structure and its legal order are not easy

to grasp. Tis is partly due to the wording o the reaties themselves, which

is oten somewhat obscure, with implications which are not easy to appreci-

ate. An additional actor is the unamiliarity o many concepts with which

the reaties seek to master the situation. Te ollowing pages are an attemptto clariy the structure o the Union and the supporting pillars o the Euro-

pean legal order, and thus help to lessen any lack o understanding among

the citizens o the EU.


10/140


11/140


From Paris to Lisbon, viaRome, Maastricht, Amsterdam

and Nice

Until shortly ater the end o the Second World War our concept o the state

and our political lie had developed almost entirely on the basis o nationalconstitutions and laws. It was on this basis that the rules o conduct binding

not only on citizens and parties in our democratic states but also on the state

and its organs were created. It took the complete collapse o Europe and its

political and economic decline to create the conditions or a new beginning

and give a resh impetus to the idea o a new European order.

In overall terms, moves towards unifcation in Europe since the Second

World War have created a conusing mixture o numerous and complex

organisations that are dicult to keep track o. For example, the OECD

(Organisation or Economic Cooperation and Development), WEU (West-

ern European Union), NAO (North Atlantic reaty Organisation), the

Council o Europe and the European Union coexist without any real linksbetween them. Te number o member countries in these various organisa-

tions ranges rom 10 (WEU) to 47 (Council o Europe).

Tis variety o organisations only acquires a logical structure i we look at

their specifc aims. Tey can be divided into three main groups.


12/140

T H E ABC OF E UROPE AN UNION LAW

American help. Tis came in the orm o the Marshall Plan, which provided

the oundation or the rapid reconstruction o western Europe. At frst, the

main aim o the OEEC was to liberalise trade between countries. In 1960,

when the USA and Canada became members, a urther objective was added,

namely to promote economic progress in the Tird World through develop-ment aid. Te OEEC then became the OECD.

In 1949, NAO was ounded as a military alliance with the United States

and Canada. In 1954, the Western European Union (WEU) was created to

strengthen security policy cooperation between the countries o Europe. It

brought together the countries that had concluded the Brussels reaty (Bel-

gium, France, Luxembourg, the Netherlands and the United Kingdom) with

the addition o the Federal Republic o Germany and Italy. Greece, Spain

and Portugal have also become members. Te WEU marked the beginnings

o a security and deence policy in Europe in 1954. However, its role has not

developed urther, since the majority o its powers have been transerred to

other international institutions, notably NAO, the Council o Europe andthe EU. Te WEU has retained the responsibility or collective deence, a

role which has yet to be transerred to the EU.

SECONDGROUP: COUNCILOF EUROPEAND OSCE

Te eature common to the second group o European organisations is that

they are structured to enable as many countries as possible to participate. At

the same time, there was an awareness that these organisations would not go

beyond customary international cooperation.

Tese organisations include the Council o Europe, which was ounded as a


13/140


on Human Rights or ECHR) o 4 November 1950. Te convention not only

enabled a minimum standard or the saeguarding o human rights to be laid

down or the member countries; it also established a system o legal protec-

tion which enables the bodies established in Strasbourg under it (the Euro-

pean Commission on Human Rights and the European Court o HumanRights) to condemn violations o human rights in the member countries.

Tis group o organisations also includes the Organisation or Security and

Cooperation in Europe (OSCE), ounded in 1994 as the successor to the

Conerence on Security and Cooperation in Europe. Te OSCE is bound by

the principles and aims set out in the 1975 Helsinki Final Act and the 1990

Charter o Paris. Alongside measures to build up trust between the countries

o Europe, these aims also include the creation o a saety net to enable

conicts to be settled by peaceul means. As events o the recent past have

shown, Europe still has a long way to go in this respect.

THIRDGROUP: EUROPEAN UNION

Te third group o European organisations comprises the European Union.

Te eature that is completely new in the EU and distinguishes it rom the

usual type o international association o states is that the Member States

have ceded some o their sovereign rights to the EU and have conerred on

the Union powers to act independently. In exercising these powers, the EU

is able to issue sovereign acts which have the same orce as laws in individual

states.

Te oundation stone o the European Union was laid by the then French

Foreign Minister Robert Schuman in his declaration o 9 May 1950, in


14/140


o 50 years, and was integrated into the European Community when its

ounding reaty expired on 23 July 2002. A urther development came some

years later with the reaties o Rome o 25 March 1957, which created the

European Economic Community (EEC) and the European Atomic Energy

Community (Euratom); these began their work when the reaties enteredinto orce on 1 January 1958.

Te creation o the European Union by means o the reaty o Maastricht

marked a urther step along the path to the political unifcation o Europe.

Although the reaty was signed in Maastricht on 7 February 1992, a number

o obstacles in the ratifcation process (approval by the people o Denmarkonly ater a second reerendum; legal action in Germany to have Parliaments

approval o the reaty declared unconstitutional) meant that it did not enter

into orce until 1 November 1993. Te reaty reerred to itsel as a new stage

in the process o creating an ever closer union among the peoples o Europe.

It contained the instrument establishing the European Union, although it

did not bring this process to completion. It was a frst step on the path lead-ing ultimately to a European constitutional system.

Further development came in the orm o the reaties o Amsterdam and

Nice, which entered into orce on 1 May 1999 and 1 February 2003. Te

aim o these reorms was to preserve the EUs capacity or eective action in

a Union enlarged rom 15 to 27 or more members. Te two reaties thereoreocused on institutional reorms and, compared with previous reorms, the

political will to deepen European integration in Nice was relatively weak.

Te subsequent criticism rom several quarters resulted in the start o a de-

bate on the uture o the EU and its institutional set-up. As a result, on


15/140


Brussels ater the accession o the 10 new Member States on 1 May 2004 and

the European Parliament elections in mid-June 2004.

Te constitution was intended to turn the European Union and the Euro-

pean Community as we knew them into a new, single European Union

based on a single Constitutional reaty. Only the European Atomic Energy

Community would continue to exist as a separate Community although

it would continue to be closely associated with the European Union.

However, this attempt at a constitution ailed in the ratifcation process.

Ater the initial votes were positive in 13 o the 25 Member States, the reaty

was rejected in reerendums in France (54.68 % against, rom a turnout o69.34 %) and the Netherlands (61.7 % against, rom a turnout o 63 %).

Following a period o reection o almost two years, a new package o re-

orms was launched in the frst hal o 2007. Tis reorm package repre-

sented a move away rom the idea o a European constitution under which

all existing reaties would be revoked and replaced by a single text called thereaty establishing a Constitution or Europe. Instead, a Reorm reaty

was drawn up, which, like the reaties o Maastricht, Amsterdam and Nice

beore it, made undamental changes to the existing EU reaties in order to

strengthen the EUs capacity to act within and outside the Union, increase

its democratic legitimacy and enhance the eciency o EU action overall. In

line with tradition, this Reorm reaty was called the reaty o Lisbon.

Te reaty was drated unusually quickly, chiey due to the act that the

Heads o State or Government themselves set out in detail in the conclu-

sions o the meeting o the European Council o 21 and 22 June 2007 in

Brussels how and to what extent the changes negotiated at the Intergovern-


16/140


As a result, the Intergovernmental Conerence convened in 2007 had little

room or manoeuvre and was only empowered to implement the required

changes technically. Te work o the Intergovernmental Conerence was

completed by the 18 and 19 October 2007, and obtained the political ap-

proval o the European Council, which was meeting inormally in Lisbon atthe same time. Finally, the reaty was ormally signed by the Heads o State

or Government o the 27 Member States o the EU on 13 December 2007

in Lisbon.

However, the ratifcation process or this reaty proved extremely dicult.

Although the Lisbon reaty, unlike the reaty establishing a Constitution orEurope, was successully ratifed in France and the Netherlands, it initially

ell at the hurdle o a frst reerendum in Ireland on 12 June 2008 (53.4 %

against, in a turnout o 53.1 %). Only ater a number o legal assurances on

the (limited) scope o the new reaty were Irish citizens called to vote in a

second reerendum on the Lisbon reaty in October 2009. Tis time the

reaty received the broad support o the Irish population (67.1 % or, in a

turnout o 59 %). Te success o the reerendum in Ireland also opened the

way or ratifcation o the Lisbon reaty in Poland and the Czech Republic.

In Poland, President Kaczyski had made signature o the instrument o

ratifcation dependent on a avourable outcome in the Irish reerendum. Te

Czech President, Vclav Klaus, also initially wanted to wait or the Irishreerendum, but then made his signature o the instrument o ratifcation

dependent on a guarantee that the Bene decrees o 1945, which disallowed

claims to land in areas o the Czech Republic that were ormerly German,

would remain unaected by the Lisbon reaty, and in particular the Charter

o Fundamental Rights incorporated into the EU reaty. Once a solution


17/140


Treaty on European Union

Te reaty on European Union (EU reaty EU) has been

completely restructured into the ollowing six titles: Common

provisions (I), Provisions on democratic principles (II), Provisionson institutions (III), Provisions on enhanced cooperation (IV),

General provisions on the Unions external action and specifc

provisions on the common oreign and security policy (V) and

Final provisions (VI).

Treaty on the Functioning of the European Union

Te reaty on the Functioning o the European Union (FEU)

has been developed rom the reaty establishing the European

Community. It has more or less the same structure as the EC

reaty. Te main changes concern the external action o the EU

and the introduction o new chapters, in particular on energypolicy, police and judicial cooperation in criminal matters, space,

sport and tourism.

Treaty establishing the European Atomic Energy Community

Te reaty establishing the European Atomic Energy Community

(EAEC reaty Euratom reaty) has been amended at dierent

stages. In each case, the specifc amendments have been made in

protocols annexed to the reaty o Lisbon.

Te EU and the FEU have the same legal standing. Tis explicit legal


18/140


the symbols o the EU, such as the ag, anthem or motto. Te primacy o

EU law is not explicitly laid down in a treaty, but is derived, as beore, rom

the case-law o the Court o Justice o the European Union, and this case-law

is reerred to in an explanatory declaration.

Te reaty o Lisbon also abandons the EUs three pillars. Te frst pillar,consisting essentially o the single market and the EC policies, is merged

with the second pillar, consisting o the common oreign and security policy,

and the third pillar, covering police and judicial cooperation in criminal

matters. However, the special procedures relating to the common oreign

and security policy, including European deence, remain in orce; the Inter-

governmental Conerence declarations attached to the reaty underline the

special nature o this policy area and the particular responsibilities o the

Member States in this respect.

Te EU currently has 27 Member States. Tese comprise frst o all the six

ounder members o the EEC, namely Belgium, Germany (including the

territory o the ormer GDR ollowing the unifcation o the two Germa-nies on 3 October 1990), France, Italy, Luxembourg and the Netherlands.

On 1 January 1973, Denmark (now excluding Greenland, which in a

reerendum in February 1982 voted by a narrow majority not to remain

in the EC), Ireland and the United Kingdom joined the Community; Nor-

ways planned accession was rejected in a reerendum in October 1972 (with

53.5 % against EC membership). Te enlargement to the south was begunwith the accession o Greece on 1 January 1981 and completed on 1 January

1986 with the accession o Spain and Portugal. Te next enlargement took

place on 1 January 1995 when Austria, Finland and Sweden joined the EU.

In Norway, a reerendum led to a repeat o the outcome 22 years beore, with

a small majority (52.4 %) against Norwegian membership o the EU. On


19/140


reects the desire to bring peace, stability and economic prosperity to a uni-

fed European continent.

Further accession negotiations are under way, notably with urkey, which

submitted its application or membership on 14 April 1987. However, rela-

tions between the EU and urkey go back urther than this. As long ago as1963, urkey and the EEC entered into an association agreement which re-

erred to the prospect o membership. In 1995, a customs union was ormed

and, in Helsinki in December 1999, the European Council decided to grant

urkey ocially the status o an accession candidate. Tis was a reection

o the belie that the country had the basic eatures o a democratic system,

although it still displayed serious shortcomings in terms o human rights and

the protection o minorities. In December 2004, on the basis o the Com-

missions recommendation, the European Council fnally gave the go-ahead

or the opening o accession negotiations with urkey; these negotiations

have been ongoing since October 2005. Te ultimate aim o these negotia-

tions is accession, but there is no guarantee that this aim will be achieved.Tere is also agreement within the EU that accession is not possible beore

2014. Any such accession must be thoroughly prepared to allow or smooth

integration and to avoid endangering the achievements o over 50 years o

European integration. Other candidates or accession are Croatia, where the

path to the start o accession negotiations was cleared in October 2005, and

the ormer Yugoslav Republic o Macedonia, which was given ocial candi-date country status in December 2005 without an actual date or the start

o negotiations being set. Iceland submitted an application or membership

on 17 July 2009. On 24 February 2010 the European Commission recom-

mended that the Council open accession negotiations with Iceland.


20/140


partnerships, updated as necessary, is to assist the western Balkan countries

in preparing or membership within a coherent ramework and in develop-

ing action plans with timetables o reorms and details in terms o the means

by which they intend to address the requirements or urther integration into

the EU.

Provision has also been made or withdrawal rom the EU. A withdrawal

clause has been incorporated into the EU reaty, allowing a Member State

to leave. Tere are no conditions or such a withdrawal rom the Union;

all that is required is an agreement between the EU and the Member State

concerned on the arrangements or its withdrawal. I such agreement cannot

be reached, the withdrawal becomes eective without any agreement twoyears ater the notifcation o the intention to withdraw. However, there is

no provision or expulsion o a Member State rom the EU or serious and

persistent breaches o the reaties.


21/140


Fundamental values ofthe European Union

Article 2 of the TEU (values of the Union)

The Union is founded on the values of respect for human dignity,

freedom, democracy, equality, the rule of law and respect for humanrights, including the rights of persons belonging to minorities. These

values are common to the Member States in a society in which pluralism,

non-discrimination, tolerance, justice, solidarity and equality between

women and men prevail.

Article 3 of the TEU (aims of the Union)

1. The Unions aim is to promote peace, its values and the well-being of

its peoples.

2. The Union shall offer its citizens an area of freedom, security and

justice without internal frontiers, in which the free movement of persons

is ensured in conjunction with appropriate measures with respect to

external border controls, asylum, immigration and the prevention and

combating of crime.

3. The Union shall establish an internal market. It shall work for the

sustainable development of Europe based on balanced economic


22/140


It shall respect its rich cultural and linguistic diversity, and shall ensure

that Europes cultural heritage is safeguarded and enhanced.

4. The Union shall establish an economic and monetary union whose

currency is the euro.

5. In its relations with the wider world, the Union shall uphold and

promote its values and interests and contribute to the protection

of its citizens. It shall contribute to peace, security, the sustainable

development of the Earth, solidarity and mutual respect among

peoples, free and fair trade, eradication of poverty and the protection of

human rights, in particular the rights of the child, as well as to the strict

observance and the development of international law, including respect

for the principles of the United Nations Charter.

[]

Te oundations o a united Europe were laid on undamental ideas and

values to which the Member States also subscribe and which are translated

into practical reality by the Communitys operational institutions. Tese

are lasting peace, unity, equality, reedom, solidarity and security. Te EUs

avowed aims are to saeguard the principles o liberty, democracy and the

rule o law which are shared by all the Member States, and to protect un-damental and human rights. Tese values are also those to be aimed or

by states wishing to join the EU in the uture. In addition, penalties can

be applied to any Member State which seriously and persistently breaches

these values and principles. I the Heads o State or Government, acting on


23/140


THE EU AS GUARANTOROF PEACE

Tere is no greater motivation or European unifcation than the desire or

peace. In the last century, two world wars were waged in Europe between

countries that are now Member States o the European Union. Tus, a policy

or Europe means at the same time a policy or peace, and the establishment

o the EU simultaneously created the centrepiece o a ramework or peace

in Europe that renders a war between the Member States impossible. Fity

years o peace in Europe are proo o this. Te more European States that

join the EU, the stronger this ramework o peace will become. Te last two

enlargements o the EU, including 12 predominantly east and central Euro-

pean States, have made a major contribution in this respect.

UNITYANDEQUALITYAS THERECURRINGTHEME

Unity is the recurring theme. Te present-day problems can be mastered only

i European countries move orward along the path that leads them to unity.Many people take the view that without European integration, without the

European Union, it would not be possible to secure peace (both in Europe

and worldwide), democracy, law and justice, economic prosperity and so-

cial security, and guarantee them or the uture. Unemployment, inadequate

growth and environmental pollution have long ceased to be merely national

problems, and they cannot be solved at national level. It is only in the context

o the EU that a stable economic order can be established and only through

joint European eorts that we can secure an international economic policy

that improves the perormance o the European economy and contributes to

social justice. Without internal cohesion, Europe cannot assert its political


24/140


are equal beore the law. As ar as the Member States are concerned, the

principle o equality means that no State has precedence over another, and

natural dierences such as size, population and diering structures must be

addressed only in accordance with the principle o equality.

THE FUNDAMENTALFREEDOMS

Freedom results directly rom peace, unity and equality. Creating a larger

entity by linking 27 States aords at the same time reedom o movement

beyond national rontiers. Tis means, in particular, reedom o move-

ment or workers, reedom o establishment, reedom to provide services,

ree movement o goods and ree movement o capital. Tese undamental

reedoms guarantee business people reedom o decision-making, workers

reedom to choose their place o work and consumers reedom o choice

between the greatest possible variety o products. Freedom o competition

permits businesses to oer their goods and services to an incomparably wider

circle o potential customers. Workers can seek employment and change job

according to their own wishes and interests throughout the entire territory

o the EU. Consumers can select the cheapest and best products rom the ar

greater range o goods on oer that results rom increased competition.

However, transitional rules still apply in some cases to citizens o the Mem-

ber States which joined the EU on 1 May 2004 and 1 January 2007. Te

Accession reaty contained exceptions in particular with regard to the ree

movement o workers, the reedom to provide services and the reedom o

establishment. As a result, the old EU Member States can restrict the ree

movement o workers who are nationals o the new Member States or a


25/140


26/140


RESPECTOF NATIONALIDENTITY

Te national identities o the Member States are respected. Te idea is not or

the Member States to be dissolved into the EU, but rather or them to con-

tribute their own particular qualities. It is precisely this variety o national

characteristics and identities that lends the EU its moral authority, which in

turn is used or the beneft o the EU as a whole.

THE NEEDFORSECURITY

All o these undamental values are ultimately dependent on security. Par-

ticularly since the attack on the USA o 11 September 2001, the fght against

terrorism and organised crime in Europe has also been in the spotlight again.

Police and judicial cooperation continues to be consolidated, and protection

o the EUs external borders intensifed.

However, security in the European context also means the social security o

all citizens living in the EU, job security and secure general economic and

business conditions. In this respect, the EU institutions are called upon to

make it possible or citizens and businesses to work out their uture by creat-

ing the conditions on which they depend.

THE FUNDAMENTALRIGHTS

Te undamental values and concepts at the heart o the EU also include

the undamental rights o individual citizens o the Union. Te history o


27/140


It was not until 1969 that the Court o Justice established a body o case-

law to serve as a ramework o undamental rights. Tis was because in the

early years the Court had rejected all actions relating to basic rights on the

grounds that it need not concern itsel with matters alling within the scope

o national constitutional law. Te Court had to alter its position not least

because it was itsel the embodiment o the primacy o Union law and its

precedence over national law; this primacy can only be frmly established

i Union law is sucient in itsel to guarantee the protection o basic rights

with the same legal orce as under the national constitutions.

Te starting point in this case-law was the Stauderjudgment, in which the

point at issue was the act that a recipient o welare benefts or war victimsregarded the requirement that he give his name when registering or the

purchase o butter at reduced prices at Christmas time as a violation o his

human dignity and the principle o equality. Although the Court o Justice

came to the conclusion, in interpreting the Community provision, that it

was not necessary or recipients to give their name so that, in act, considera-

tion o the question o a violation o a undamental right was superuous, it

declared fnally that the general undamental principles o the Community

legal order, which the Court o Justice had to saeguard, included respect or

undamental rights. Tis was the frst time that the Court o Justice recog-

nised the existence o an EU ramework o undamental rights o its own.

Initially, the Court developed its saeguards or undamental rights roma number o provisions in the reaties. Tis is especially the case or the

numerous bans on discrimination which, in specifc circumstances, address

particular aspects o the general principle o equality. Examples are the pro-

hibition o any discrimination on grounds o nationality (Article 18 FEU),

preventing people being treated dierently on the grounds o gender, race,


28/140


guarantees are also provided or the right o association (Article 153 FEU),

the right to petition (Article 24 FEU) and the protection o business and

proessional secrecy (Article 339 FEU).

Te Court o Justice has steadily developed and added to these initial at-

tempts at protecting undamental rights through Community law. It hasdone this by recognising and applying general legal principles, drawing on

the concepts that are common to the constitutions o the Member States and

on the international conventions on the protection o human rights to whose

conclusion the Member States have been party. Prominent among the latter

is the European Convention on Human Rights, which helped to shape the

substance o undamental rights in the Union and the mechanisms or their

protection. On this basis, the Court has recognised a number o reedoms

as basic rights secured by Community law: right o ownership, reedom to

engage in an occupation, the inviolability o the home, reedom o opinion,

general rights o personality, the protection o the amily (e.g. amily mem-

bers rights to join a migrant worker), economic reedom, reedom o religion

or aith, as well as a number o undamental procedural rights such as the

right to due legal process, the principle o confdentiality o correspondence

between lawyer and client (known as privileged communications in the

common-law countries), the ban on being punished twice or the same o-

ence, or the requirement to provide justifcation or an EU legal act.

One particularly important principle regularly invoked in legal disputes is the

principle o equal treatment. Put simply, this means that like cases must be

treated alike, unless there is some objectively justifable ground or distinguish-

ing them. But the Court o Justice has held, contrary to international custom,

that this principle does not preclude nationals and home-produced goods rom

being subjected to stricter requirements than citizens or products rom other


29/140


tionality is oremost among these. What it means is that the objectives pur-

sued and the means deployed must be weighed up and an attempt made to

keep them in proper balance so that the citizen is not subjected to excessive

burdens. Among the other undamental principles underlying Union law are

the general principles o administrative law and the concept o due process:

legitimate expectations must be protected, retroactive provisions imposing

burdens or withdrawing legitimately acquired advantages are precluded and

the right to due legal process natural justice is the traditional term or

this must be secured in the administrative procedures o the Commission

and the judicial procedures o the Court o Justice. Particular value is also at-

tached to greater transparency, which means that decisions should be taken

as openly as possible, and as closely as possible to the citizen. An important

aspect o this transparency is that any EU citizen or legal person registered in

a Member State may have access to Council or Commission documents. All

grants and subsidies rom the EU budget must also be disclosed to natural or

legal persons by means o databases accessible to every Union citizen.

With all due respect or the achievements o the Court o Justice in the devel-

opment o unwritten undamental rights, this process o deriving European

undamental rights had a serious disadvantage: the Court o Justice was con-

fned to the particular case in point. It was thereore unable to develop unda-

mental rights rom the general legal principles or all areas in which this ap-

peared necessary or desirable. Nor was it able to elaborate the scope o and the

limits to the protection o undamental rights as generally and distinctively as

was necessary. As a result, the EU institutions could not assess with enough

precision whether they were in danger o violating a undamental right or not.

Nor could any Union citizen who was aected judge without urther eort in

every case whether one o his or her undamental rights had been inringed.


30/140


rights in the EU, with equally undamental institutional implications or the

Union and or the Member States, would be o constitutional signifcance

and would thereore go beyond the scope o the dispositive powers provided

or in Article 352 FEU. Te EUs accession to the convention was there-

ore specifcally provided or in Article 6(2) o the EU reaty. However, the

reaty o Lisbon made a urther, decisive step towards the creation o a com-

mon constitutional law or the EU and put the protection o undamental

rights in the EU on a new ooting. Te new article on undamental rights

in the EU reaty (Article 6 EU) reers to the European Unions Charter

o Fundamental Rights, declaring it to be binding or the actions o the EU

institutions and the Member States, insoar as they apply and implementUnion law.

Tis Charter o Fundamental Rights is based on a drat previously drawn up

by a convention o 16 representatives o the Heads o State or Government

o the Member States and o the President o the European Commission, 16

Members o the European Parliament, and 30 members o national parlia-

ments (two rom each o the then Member States) under the chairmanship o

Proessor Roman Herzog, and was solemnly proclaimed to be the European

Unions Charter o Fundamental Rights by the Presidents o the European

Parliament, the Council and the European Commission on 7 December

2000. During the negotiations on a European constitution, this Charter o

Fundamental Rights was revised and made an integral part o the reatyestablishing a Constitution or Europe o 29 October 2004. Following the

ailure o the reaty, the Charter o Fundamental Rights was again solemnly

proclaimed as the European Unions Charter o Fundamental Rights, this

time as a separate instrument, by the Presidents o the European Parliament,

the Council and the European Commission on 12 December 2007 in Stras-


31/140


The constitution ofthe European Union

Every social organisation has a constitution. A constitution is the means by

which the structure o a political system is defned, i.e. the relationship o the

various parts to each other and to the whole is specifed, the common objec-

tives are defned and the rules or making binding decisions are laid down.Te constitution o the EU, as an association o states to which quite specifc

tasks and unctions have been allotted, must thus be able to answer the same

questions as the constitution o a state.

In the Member States the body politic is shaped by two overriding prin-

ciples: the rule o law and democracy. All the activities o the Union, i theyare to be true to the undamental requirements o law and democracy, must

thereore have both legal and democratic legitimacy: the elements on which

it is ounded, its structure, its powers, the way it operates, the position o the

Member States and their institutions, and the position o the citizen.

Following the ailure o the reaty establishing a Constitution or Europe o29 October 2004, the EU constitution is still not laid down in a compre-

hensive constitutional document, as it is in most o the constitutions o its

Member States, but arises rom the totality o rules and undamental values

by which those in authority perceive themselves to be bound. Tese rules

are to be ound partly in the European reaties or in the legal instruments


32/140


VAN GEND & LOOS

In this legal dispute, the Dutch transport company Van Gend & Loos fled

an action against the Netherlands customs authorities or imposing an im-

port duty on a chemical product rom Germany which was higher than du-

ties on earlier imports. Te company considered this an inringement oArticle 12 o the EEC reaty, which prohibits the introduction o new im-

port duties or any increase in existing customs duties between the Member

States. Te court in the Netherlands then suspended the proceedings and

reerred the matter to the Court o Justice or clarifcation as regards the

scope and legal implications o the abovementioned article o the reaty

establishing the EC.

Te Court o Justice used this case as an opportunity to set out a number o

observations o a undamental nature concerning the legal nature o the EU.

In its judgment, the Court stated that:

Te objective o the EEC reaty, which is to establish a common market, theunctioning o which is o direct concern to interested parties in the Com-

munity, implies that this reaty is more than an agreement which merely

creates mutual obligations between the contracting States. Tis view is con-

frmed by the preamble to the reaty, which reers not only to governments

but to peoples. It is also confrmed more specifcally by the establishment

o institutions endowed with sovereign rights, the exercise o which aectsMember States and also their citizens ... Te conclusion to be drawn rom

this is that the Community constitutes a new legal order o international law

or the beneft o which the States have limited their sovereign rights, albeit

within limited felds, and the subjects o which comprise not only Member

States but also their nationals


33/140


or IL 1 926. In proceedings beore the arbitration court in Milan, one o

the arguments put orward by Mr Costa to justiy his conduct was that the

nationalising act inringed a number o provisions o the EEC reaty. In

order to be able to assess Mr Costas submissions in his deence, the court

requested the Court o Justice to interpret various aspects o the EEC reaty.In its judgment, the Court o Justice stated the ollowing in relation to the

legal nature o the EEC:

By contrast with ordinary international treaties, the EEC reaty has created

its own legal system which ... became an integral part o the legal systems o

the Member States and which their courts are bound to apply. By creating aCommunity o unlimited duration, having its own institutions, its own per-

sonality, its own legal capacity and capacity o representation on the inter-

national plane and, more particularly, real powers stemming rom a limita-

tion o sovereignty or a transer o powers rom the States to the Community,

the Member States have limited their sovereign rights ... and have thus cre-ated a body o law which binds both their nationals and themselves.

On the basis o its detailed observations, the Court reached the ollowing

conclusion:

It ollows rom all these observations that the law stemming rom the reaty,

an independent source o law, could not, because o its special and original

nature, be overridden by domestic legal provisions, however ramed, without

being deprived o its character as Community law and without the legal

basis o the Community itsel being called into question. Te transer by the

States rom their domestic legal system to the Community legal system o the


34/140


the transer o powers to the Union institutions to a greater degree than

in other international organisations, and extending to areas in which

States normally retain their sovereign rights;

the establishment o its own legal order which is independent o the

Member States legal orders;

the direct applicability o Union law, which makes provisions o Union

law ully and uniormly applicable in all Member States, and bestows

rights and imposes obligations on both the Member States and their

citizens;

the primacy o Union law, which ensures that Union law may not be

revoked or amended by national law and that it takes precedence over

national law i the two conict.

Te EU is thus an autonomous entity with its own sovereign rights and a

legal order independent o the Member States, to which both the MemberStates themselves and their nationals are subject within the EUs areas o

competence.

Te EU has, by its very nature, certain eatures in common with the

usual kind o international organisation or ederal-type structure, as well as

a number o dierences.

Te EU is itsel not yet a fnished product; it is in the process o evolving

and the orm it fnally takes still cannot be predicted.

Te only eature that the EU has in common with the traditional inter-


35/140


Trough these dierences between the EU and the traditional type o inter-

national organisation, the EU is in the process o acquiring a status similar to

that o an individual state. In particular, the Member States partial surrender

o sovereign rights was taken as a sign that the EU was already structured

along the lines o a ederal state. However, this view ails to take into account

that the EU institutions only have powers in certain areas to pursue the ob-

jectives specifed in the reaties. Tis means that they are not ree to choose

their objectives in the same way as a sovereign state; nor are they in a posi-

tion to meet the challenges acing modern states today. Te EU has neither

the comprehensive jurisdiction enjoyed by sovereign states nor the powers to

establish new areas o responsibility (jurisdiction over jurisdiction).

Te EU is thereore neither an international organisation in the usual sense

nor an association o states, but rather an autonomous entity somewhere in

between the two. In legal circles, the term supranational organisation is

now used.

THE TASKSOF THE EU

Te list o tasks entrusted to the EU strongly resembles the constitutional

order o a state. Tese are not the narrowly circumscribed technical tasks

commonly assumed by international organisations, but felds o competence

which, taken as a whole, orm essential attributes o statehood.

Te list o tasks entrusted to the EU is very wide-ranging, covering eco-

nomic, social and political action.

Te economic tasks are centred around establishing a common market that

unites the national markets o the Member States and on which all goods


36/140


already become a reality. Tis single market also makes itsel elt in everyday

lie, especially when travelling within the EU, where identity checks at na-

tional borders have long since been discontinued.

Te internal market is backed up by the economic and monetary union.

Te EUs task in economic policy is not, however, to lay down and operate

a European economic policy, but to coordinate the national economic pol-

icies so that the policy decisions o one or more Member States do not have

negative repercussions or the operation o the single market. o this end, a

Stability and Growth Pact was adopted to give Member States the detailed

criteria which their decisions on budgetary policy have to meet. I they ail todo this, the European Commission can issue warnings and, in cases o con-

tinuing excessive budgetary defcit, the Council can also impose penalties.

Te EUs task in monetary policy was and is to introduce a single currency in

the EU and to control monetary issues centrally. Some success has already been

achieved in this area. On 1 January 1999, the euro was introduced as the sin-gle European currency in the Member States which had already met the con-

vergence criteria established or that purpose. Tese were Belgium, Germany,

Ireland, Spain, France, Italy, Luxembourg, the Netherlands, Austria, Portugal

and Finland. On 1 January 2002 the national currencies o these States were

replaced with euro bank notes and coins. Since then, their day-to-day pay-

ments and fnancial transactions have been made in only one currency theeuro. Greece and Sweden had, initially, ailed to meet the convergence criteria.

Greece was included on 1 January 2001. Sweden, which could not meet the

criteria principally due to the act that it did not participate in the exchange

rate mechanism o the European Monetary System (the waiting room or the

euro), is subject to a derogation in that the Commission and the European Cen-


37/140



38/140


is initiated. Te new Member States are also obliged to adopt the euro as their

national currency as soon as they meet the convergence criteria. None o the

new Member States has an opt-out clause, and most o the new Member States

wish to introduce the euro as soon as possible. Slovenia (1 January 2007),

Cyprus (1 January 2008), Malta (1 January 2008) and Slovakia (1 January

2009) have already achieved this, extending the euro area countries which

have the euro as their currency to a current total o 16 Member States.

In addition to the area o economic and monetary policy, there are many other

economic policy areas in which the EU has responsibilities. Tese include in

particular agricultural and fsheries policy, transport policy, consumer policy,

structural and cohesion policy, research and development policy, space policy,environment policy, health policy, trade policy and energy policy.

In social policy the EU has the task o ensuring that the benefts o economic

integration are not only elt by those active in the economy, but also shape the

social dimension o the single market. One o the starting points or this has

been the introduction o a social security system or migrant workers. Underthis system, workers who have worked in more than one Member State, and

thereore allen under dierent social insurance schemes, will not suer a disad-

vantage with regard to their social security (old-age pension, invalidity pension,

health care, amily benefts, unemployment benefts). A urther priority task

o social policy, in view o the unemployment situation in the EU, which has

been a source o concern or a number o years, has been the need to devise aEuropean employment strategy. Tis calls on the Member States and the EU to

develop a strategy or employment and particularly to promote a skilled, trained

and adaptable workorce, in addition to which labour markets should also be

made adaptable to economic change. Employment promotion is regarded as a

matter o common concern and requires Member States to coordinate their



39/140


FEU), entitlement to protection by the diplomatic and consular authorities

o any Member State (Article 23 FEU), the right to petition the European

Parliament (Article 24 FEU) and, in the context o the general ban on dis-

crimination, the right to be treated by all Member States in the same way as

they treat their own nationals (Article 20(2) in conjunction with Article 18

FEU). With respect to common oreign and security policy, the EU has, in

particular, the tasks o:

saeguarding the commonly held values, undamental interests and

independence o the EU;

strengthening the security o the EU and its Member States;

securing world peace and increasing international security;

promoting international cooperation;

promoting democracy and the rule o law, and saeguarding human

rights and basic reedoms;

establishing a common deence.

Since the EU is not an individual state, these tasks can only be carried out

step by step. raditionally, oreign and especially security policy are areas in

which the Member States are particularly keen to retain their own (national)

sovereignty. Another reason why common interests in this area are dicultto defne is that only France and the United Kingdom have nuclear weapons.

Another problem is that some Member States are not in NAO or the WEU.

Most common oreign and security policy decisions are thereore still cur-

rently taken on the basis o cooperation between states. In the meantime,

however a range o tools has emerged in its own right thus giving cooper



40/140


is also concerned with acilitating and accelerating cooperation in relation to

proceedings and the enorcement o decisions, acilitating extradition between

Member States, establishing minimum rules relating to the constituent elem-

ents o criminal acts and to penalties in the felds o organised crime, terror-

ism, tracking in human beings and the sexual exploitation o women and

children, illicit drug tracking and illicit arms tracking, money-laundering

and corruption (Article 83 FEU). One o the most signifcant advances in

EU judicial cooperation was the creation o Eurojust in April 2003 (Article 85

FEU). Based in Te Hague, Eurojust is a team o magistrates and prosecutors

rom all EU countries. Its job is to help coordinate the investigation and prose-

cution o serious cross-border crimes. From Eurojust the Council may establish

a European Public Prosecutors Oce in order to combat crimes aecting the

fnancial interests o the Union (Article 86 FEU). Further progress has been

made with the European arrest warrant, which has been valid throughout the

EU since January 2004. Te warrant can be issued or anyone accused o an

oence or which the minimum penalty is more than one year in prison. Te

European arrest warrant is designed to replace lengthy extradition procedures.

THE POWERSOF THE EU

Te reaties establishing the EU do not coner on the Union institutions

any general power to take all measures necessary to achieve the objectives o

the reaty, but lay down in each chapter the extent o the powers to act. As

a basic principle, the EU and its institutions do not have the power to decide

on their legal basis and competencies; the principle o specifc conerment o

powers (Article 2 FEU) continues to apply. Tis method has been chosen

by the Member States in order to ensure that the surrender o their own



41/140


exclusive competence o the EU (Article 3 FEU) in areas where it can

be assumed that a measure at EU level will be more eective than a

measure in any Member State that is not coordinated. Tese areas are

clearly set out and comprise the customs union, the establishing o the

competition rules necessary or the unctioning o the internal mar-

ket, the monetary policy o the euro States, the common commercialpolicy and parts o the common fsheries policy. In these policy areas

only the European Union may legislate and adopt legally binding acts,

the Member States being able to do so themselves only i so empow-

ered by the European Union or or the implementation o Union acts

(Article 2(1) FEU);

shared competence between the EU and the Member States (Article 4

FEU) in areas where action at European level will add value over ac-

tion by Member States. Tere is shared competence or internal market

rules, economic, social and territorial cohesion, agriculture and fsher-

ies, environment, transport, trans-European networks, energy supply

and the area o reedom, security and justice, and also or common sae-ty concerns in public health matters, research and technological devel-

opment, space, development cooperation and humanitarian aid. In all

these areas the EU can exercise competence frst, but only with regard

to matters laid down in the relevant Union instrument, and not to the

entire policy area. Te Member States exercise their competence to the

extent that the EU has not exercised, or has decided to cease exercising,

its competence (Article 2(2) FEU). Te latter situation arises when the

relevant EU institutions decide to repeal a legislative act, in particular

to respect the principles o subsidiarity and proportionality. Te Coun-

cil may, on the initiative o one or more o its members, request that the

C i i b i l li l i l i



42/140

administrative cooperation. In the areas o employment and economic

policy, the Member States explicitly acknowledge the need to coord-

inate national measures within the EU.

It should be noted that the EUs competences in the area o coordination o

economic and employment policy and in the area o common oreign and se-curity policy do not all under any o these three categories, and thereore do

not belong to this set o competences. However, a declaration is made stating

that the EUs common oreign and security policy will not aect the Mem-

ber States competence or their own oreign policy and national standing in

the world. In addition to these special powers to act, the Union reaties also

coner on the institutions a power to act when it is essential or the operationo the single market or or ensuring undistorted competition (see Article

352 FEU dispositive powers or exibility clause). Tese articles do not,

however, coner on the institutions any general power enabling them to carry

out tasks which lie outside the objectives laid down in the reaties, and the

Union institutions cannot extend their powers to the detriment o those o

the Member States. In practice, the possibilities aorded by this power wereused very oten in the past, since the EU was over time aced repeatedly

with new tasks that were not oreseen at the time the ounding reaties were

concluded, and or which accordingly no appropriate powers were conerred

in the reaties. Examples are the protection o the environment and o con-

sumers or the establishment o the European Regional Development Fund

as a means o closing the gap between the developed and underdeveloped

regions o the EU. Now, however, specifc jurisdiction has been given in the

abovementioned felds. Tese specifc provisions have meant that the prac-

tical importance o the dispositive powers has very much declined.

Te exercise o these powers requires the approval o the European Parlia-



43/140

law. Since there was no specifc provision laid down in the reaty, the Court

inerred the necessary external competence o the EU rom its internal com-

petence or fsheries policy under the common agricultural policy.

However, in the exercise o these powers, the EU is governed by the subsidi-

arity principle, taken over rom Roman Catholic social doctrine, which hasacquired virtually constitutional status through being embodied in the EU

reaty (Article 5(3)). Tere are two acets to it: the armative statement that

the EU must act where the objectives to be pursued can be better attained at

the Union level, which enhances its powers; and the negative statement that

it must not act where objectives can be satisactorily attained by the Mem-

ber States acting individually, which constrains them. What this means inpractice is that all Union institutions, but especially the Commission, must

always demonstrate that there is a real need or common rules and common

action. o paraphrase Montesquieu, when it is not necessary or the EU to

take action, it is necessary that it should take none. I the need or Union

rules is demonstrated, the next question that arises concerns the intensity

and the orm that they should take. Te answer ows rom the principleo proportionality that has entered Union law through the decisions o the

Court o Justice o the European Union, and is established in the EU reaty

in conjunction with the competence provisions (Article 5(4)). It means that

the need or the specifc legal instrument must be thoroughly assessed to see

whether there is a less constraining means o achieving the same result. Te

main conclusion to be reached in general terms is that ramework legislation,minimum standards and mutual recognition o the Member States existing

standards should always be preerred to excessively detailed legal provisions.

National parliaments can also now check compliance with the principles o

subsidiarity and proportionality. For this purpose, an early warning system has



44/140

the drat to ollow the subsidiarity principle. Tis reasoned opinion is sent to

the EU legislator together with the reasoned opinions o the national parlia-

ments so that they can be taken into account in the legislative procedure. I, by

a 55 % majority o the Members o the Council o the EU or by a majority o

the votes cast in the European Parliament, the EU legislator is o the opinion

that the proposal does not comply with the subsidiarity principle, the legisla-

tive proposal is not examined any urther.

THE INSTITUTIONSOF THE EU

Article 13 of the TEU (institutional framework)

1. The Union shall have an institutional framework which shall aim to

promote its values, advance its objectives, serve its interests, those of

its citizens and those of the Member States, and ensure the consistency,

effectiveness and continuity of its policies and actions.

The Unions institutions shall be:

the European Parliament,

the European Council,

the Council,

the European Commission (hereinafter referred to as

the Commission),

the Court of Justice of the European Union,

the European Central Bank,

the Court of Auditors.

2. Each institution shall act within the limits of the powers conferred on


45/140

EUROPEAN COUNCIL27 Heads of State or Government, President of the European

Council and President of the Commission

EUROPEAN COMMISSION

27 Members (until 2014)

COURT OF JUSTICE OF THEEUROPEAN UNION

COUNCIL

27 Ministers

(one per Member State)

EUROPEAN

PARLIAMENT

751 Members (2)

COMMITTEE OF

THE REGIONS

350 Members (maximum)

EUROPEAN ECONOMIC AND

SOCIAL COMMITTEE

350 Members (maximum)

EUROPEAN

CENTRAL

BANK

COURT OF

AUDITORS

27 Members

(one per

Member State)

EUROPEAN

INVESTMENT

BANK

OVERVIEW OF THE EU INSTITUTIONS, ACCORDING TO THE TFEU



46/140

MEMBER STATE VOTES IN THE

COUNCIL

SEATS IN THE

EUROPEAN PARLIAMENT

GERMANY 29 99

FRANCE 29 78

ITALY 29 78

UNITED KINGDOM 29 78

SPAIN 27 54

POLAND 27 54

ROMANIA 14 35

NETHERLANDS 13 27

BELGIUM 12 24CZECH REPUBLIC 12 24

GREECE 12 24

HUNGARY 12 24

PORTUGAL 12 24

SWEDEN 10 19

BULGARIA 10 18

AUSTRIA 10 18

DENMARK 7 14

SLOVAKIA 7 14

FINLAND 7 14

IRELAND 7 13LITHUANIA 7 13

LATVIA 4 9

SLOVENIA 4 7

ESTONIA 4 6

CYPRUS 4 6



47/140

has an institutional system that equips it to give new stimuli and objectives

to the unifcation o Europe and to create a body o law that is uniormly

devised and binding in all the Member States in the matters alling within

its responsibility.

Te main players in the EU institutional system are the EU institutions the European Parliament, the European Council, the Council, the European

Commission, the Court o Justice o the European Union, the European

Central Bank and Court o Auditors. Te ancillary bodies in the institu-

tional system o the EU are the European Investment Bank, the European

Economic and Social Committee and the Committee o the Regions.

HE INSIUIONS

Te European Parliament (Article 14 EU)

Te European Parliament represents the peoples o the EU Member States.

It is an amalgamation o the ECSC Joint Assembly, the EEC Assembly andthe Euratom Assembly, which were combined to orm an assembly under

the 1957 Convention on Certain Institutions Common to the European

Communities (frst merger reaty). Te name was not ocially changed

to European Parliament until the EC reaty was amended by the reaty

on European Union, although this step merely reected what was already

common usage dating back to the Assemblys own change o its name toEuropean Parliament in 1958.

Composition and election

Since the entry into orce o the Lisbon reaty on 1 December 2009, the



48/140

into orce o the Lisbon reaty, an exception has been made or Germanyin the 200914 legislative period, permitting it to continue to have 99Members (MEPs elected in June 2009 cannot lose their seats because othe entry into orce o the Lisbon reaty) .

Te exact composition has yet to be determined by the Council. Tisshould have been done in time or the direct elections to the EuropeanParliament in June 2009. However, since the Lisbon reaty did not enterinto orce beore the elections in June 2009, the new rules on the composi-tion o the European Parliament could not be applied to the 200914legislative period. Instead, the distribution o seats resulting rom the

accession o Bulgaria and Romania applied or these elections to theEuropean Parliament. Upon the entry into orce o the Lisbon reaty on1 December 2009, the number o Members rose by 18 to 754, with thenew Members coming rom 12 dierent Member States.

Te composition o the European Parliament is shown in graphic ormbelow; this is the situation in the current 200914 legislative period. Techanges brought about by the Lisbon reaty are indicated.

PRESIDENT

14 Vice-Presidents

5 Quaestors (advisory)

Te President, Vice-Presidents and Quaestors make up the Bureau, which is

elected by Parliament or terms o two and a hal years. Another body, the

Conerence o Presidents, also includes the chairs o the political groups. It is

responsible or the organisation o Parliaments work and relations with the



49/140

PARLIAMENT PLENARY SESSION WITH 754 MEMBERS

MEMBER STATE SEATS IN THE EUROPEAN PARLIAMENT

GERMANY 99

FRANCE 72 + 2

ITALY 72 + 1UNITED KINGDOM 72 + 1

SPAIN 50 + 4

POLAND 50 + 1

ROMANIA 33

NETHERLANDS 25 + 1

BELGIUM 22CZECH REPUBLIC 22

GREECE 22

HUNGARY 22

PORTUGAL 22

SWEDEN 18 + 2

BULGARIA 17 + 1AUSTRIA 17 + 2

DENMARK 13

SLOVAKIA 13

FINLAND 13

IRELAND 12

LITHUANIA 12LATVIA 8 + 1

SLOVENIA 7 + 1

ESTONIA 6

CYPRUS 6

LUXEMBOURG 6



50/140

the European Parliament by direct universal surage o 20 September 1976, as

last amended by Council decision o 25 June and 23 September 2002 (known

as the Direct Elections Act). Under this act, each Member State lays down

its own election procedure, but must apply the same basic democratic rules:

direct general election, proportional representation, ree and secret ballots,

minimum age (or the right to vote, this is 18 in all Member States except

Austria, where the voting age was reduced to 16), renewable fve-year term

o oce, incompatibilities (MEPs may not hold two oces at the same time,

e.g. the oce o judge, public prosecutor, Minister; they are also subject to the

laws o their country, which may urther limit their ability to hold more than

one post or oce), election date and equality between men and women. Insome countries (Belgium, Greece and Luxembourg), voting is compulsory. In

addition, a statute or Members o the European Parliament came into orce

on 14 July 2009. Tis new statute makes the terms and conditions o MEPs

work more transparent and contains clear rules. It also introduces a uniorm

salary or all MEPs, which is paid rom the EU budget.

Now that it is directly elected, Parliament enjoys democratic legitimacy and

can truly claim to represent the citizens o the EU Member States. But the

mere existence o a directly elected Parliament cannot satisy the undamental

requirement o a democratic constitution, which is that all public authority

must emanate rom the people. Tat does not only mean that the decision-

making process must be transparent and the decision-making institutionsrepresentative; parliamentary control is required, and Parliament must lend

legitimacy to the Union institutions involved in the decision-making proc-

ess. A great deal o progress has been made in this area over recent years. Not

only have the rights o Parliament been continually extended, but the reaty



51/140

Article 10 of the TEU (representative democracy)

1. The functioning of the Union shall be founded on representative democracy.

2. Citizens are directly represented at Union level in the European Parliament.

Member States are represented in the European Council by their Heads of State orGovernment and in the Council by their governments, themselves democratically

accountable either to their national Parliaments, or to their citizens.

3. Every citizen shall have the right to participate in the democratic life of the Union.

Decisions shall be taken as openly and as closely as possible to the citizen.

4. Political parties at European level contribute to forming European political

awareness and to expressing the will of citizens of the Union.

However, the reason or this defcit is that, quite simply, no government in the

normal sense exists at EU level. Instead, the unctions analogous to govern-

ment provided or in the Union reaties are perormed by the Council and the

European Commission according to a orm o division o labour. Nevertheless,the reaty o Lisbon gave Parliament extensive powers in respect o appoint-

ments to the Commission, ranging rom election by Parliament o the Presi-

dent o the Commission on the recommendation o the European Council,

to Parliaments vote o approval o the ull college o Commissioners (right o

investiture). However, Parliament has no such inuence over the membership

o the Council, which is subject to parliamentary control only insoar as each o

its members, as a national Minister, is answerable to the national parliament.

Te role o the European Parliament in the EUs legislative process has in-

creased considerably. Te raising o the co-decision procedure to the level o

di l i l i d h i d h E P li



52/140

annual fnancial plan and giving it co-decision powers on all expenditure

(compulsory and non-compulsory expenditure are no longer distinguished).

Parliament has a right o assent to all major international agreements con-

cerning an area covered by co-decision, and to the Accession reaties con-

cluded with new Member States laying down the conditions o admission.

Te supervisory powers o the European Parliament have also grown signif-

cantly over time. Tey are exercised mainly through the act that the Commis-

sion must answer to Parliament, deend its proposals beore it and present it

with an annual report on the activities o the EU or debate. Parliament can,

by a two-thirds majority o its members, pass a motion o censure and thereby

compel the Commission to resign as a body (Article 234 FEU). Several such

motions have been put beore the Parliament, but none has yet been even near

achieving the required majority. Te resignation o the Santer Commission

in 1999 was triggered by Parliaments reusal to discharge it with regard to

fnancial management; the motion o censure that had also been brought was

unsuccessul, although only by small margin. Since in practice the Councilalso answers parliamentary questions, Parliament has the opportunity or dir-

ect political debate with two major institutions. Tese supervisory powers o

Parliament have since been boosted. It is now also empowered to set up special

Committees o Inquiry to look specifcally at alleged cases o inringement o

Community law or maladministration. A committee o this kind was used,

or example, to look into the Commissions responsibility or the delay in re-sponding to mad cow disease in the United Kingdom, which also represented

a threat to human lie and health. Also written into the reaties is the right

o any natural or legal person to address petitions to Parliament, which are

then dealt with by a standing Committee on Petitions. Finally, Parliament has

also made use o its power to appoint an Ombudsman to whom complaints



53/140

Te MEPs orm political groups. Given Parliaments status as a Union in-

stitution, these are Union-wide party political groupings that cut across na-

tional lines.

Parliament holds its week-long plenary sessions in Strasbourg once a month,

except in August. Additional sessions may also be held, particularly in con-nection with the budget. Shorter sessions (lasting one or two days) are held

in Brussels. Lastly, emergency sessions may be convened to deal with current

major issues, enabling Parliament to set out its position without delay on

matters o importance (such as Union aairs, international aairs, violations

o human rights). All plenary sessions are open to the public.

POLITICAL GROUPS IN THE EUROPEAN PARLIAMENT 3

Group of the EuropeanPeoples Party

(Christian Democrats)

264 (+4)

Non-attached Members31

G f th P i

Group of the Greens/

European Free Alliance

Europe of Freedom and

Democracy Group

32

European Conservatives

and Reformists Group

54

Confederal Group of the

European United Left

Nordic Green Left

32



54/140

Decision-making procedures

An absolute majority o the votes cast is usually sucient or a decision to

be taken. As Parliament increases in importance, however, ever stricter re-

quirements are imposed with regard to MEPs attendance. A whole range

o decisions may be adopted only i supported by an absolute majority o allMembers o Parliament. Finally, any motion o censure against the Euro-

pean Commission must not only be backed by a majority o MEPs but also

requires two thirds o the votes cast to be in avour.

PERMANENT COMMITTEES OF THE EUROPEAN PARLIAMENT

Foreign Affairs Committee (with Human Rights and Security and Defencesubcommittees)

Development Committee

International Trade Committee

Budgets Committee

Budgetary Control Committee

Economic and Monetary Affairs Committee

Employment and Social Affairs Committee

Environment, Public Health and Food Safety Committee

Industry, Research and Energy Committee

Internal Market and Consumer Protection Committee

Transport and Tourism CommitteeRegional Development Committee

Agriculture and Rural Development Committee

Fisheries Committee

Culture and Education Committee

L l Aff i C i



55/140

sessions to be held in Strasbourg and Brussels, meetings o the political

groups and committees to be held in Brussels during weeks when Parlia-

ment was not sitting, and or Parliaments Secretariat-General to be based

in Luxembourg. Te Councils decision on the location o the seats o the

institutions confrmed the validity o these arrangements, subject to the

proviso that the 12 periods o monthly plenary sessions should be held in

Strasbourg. Te unsatisactory result o this decision is that MEPs and some

Parliament ocials and employees must commute between Strasbourg,

Brussels and Luxembourg a very costly business.

Te European Council (Article 15 EU)Te European Council grew out o the summit conerences o EU Heads o

State or Government. At the Paris Summit in December 1974 it was decided

that meetings should be held three times a year and described as the Euro-

pean Council. Since then, the European Council has become an independ-

ent body o the European Union (Article 13 EU).

Te Heads o State or Government and the President o the European Com-

mission meet at least twice every hal a year in this context. When the ques-

tions under discussion so demand, the Members o the European Council

can decide to seek the support o a Minister and, in the case o the President

o the Commission, o one Member o the European Commission to assistthem in their work (Article 15(3) EU).

Te reaty o Lisbon created the oce o President o the European Coun-

cil (4). Te President o the European Council, unlike the Presidency up to

now has a European mandate not a national one running or two and a



56/140

Te actual unction o the European Council itsel is to establish the gen-

eral policy guidelines or EU action. It does so by taking basic policy deci-

sions and issuing instructions and guidelines to the Council or the Euro-

pean Commission. Te European Council has in this way directed work

on economic and monetary union, the European Monetary System, direct

elections to Parliament and a number o accession issues.

Te Council (Article 16 EU)

One representative of each Member State Government at ministerial

level, with composition varying according to the subject discussed,

i.e. either the General Affairs and External Relations Council or

the other eight sectoral Councils

Working parties

COMPOSITION

General Secretariat (approximately 2 200 officials)

Permanent Representatives

Committee Coreper I and II

Special Committee for

Agriculture



57/140

Composition and Presidency

Te Council is made up o representatives o the governments o the Mem-ber States. All 27 Member States send one representative as a rule, thoughnot necessarily, the departmental or junior minister responsible or the mat-

ters under consideration. It is important that these representatives are em-powered to act with binding eect on their governments. Te very act thatgovernments may be represented in various ways obviously means that thereare no permanent members o the Council; instead, the representatives sit-ting in the Council meet in nine dierent confgurations depending on thesubjects under discussion. Tese are: (1) General Aairs and External Rela-

tions Council: as the General Aairs Council, this Council coordinatesthe work o the Council in its various confgurations and, together with thePresident o the European Council and the European Commission, pre-pares the European Council meetings; as the Foreign Aairs Council, ithandles the EUs action abroad in accordance with the strategic guidelineso the European Council and ensures that the EUs action is consistent and

coherent. Te General Aairs and External Relations Council is made upo the Foreign Ministers; its general aairs meetings are chaired by the rul-ing Presidency, and those on oreign aairs are chaired by the High Rep-resentative o the Union or Foreign Aairs and Security Policy. Tere areeight urther Council ormations attended by the Ministers rom the Mem-ber States responsible or the areas concerned: (2) Economic and Financial

Aairs (commonly known as the Ecofn Council), (3) Cooperation in thefelds o Justice and Home Aairs, (4) Employment, Social Policy, Healthand Consumer Aairs, (5) Competitiveness, (6) ransport, elecommu-nications and Energy, (7) Agriculture and Fisheries, (8) Environment and(9) Education, Youth and Culture.


58/140



59/140

period o 18 months (team Presidency). Te Presidency is mainly respon-sible or overall coordination o the work o the Council and the committeesproviding it with input. It is also important in political terms in that theMember State holding the EU Presidency enjoys an enhanced role on theworld stage, and small Member States in particular are thus given an op-

portunity to rub shoulders with the major players and make their mark inEuropean politics.

Te seat o the Council is in Brussels.

Tasks

Te top priority o the Council is legislation, which it carries out togetherwith Parliament in the co-decision process. Te Council is also respon-sible or ensuring coordination o the economic policies o the MemberStates. It also establishes the budget on the basis o a preliminary dratrom the Commission, although this must still be approved by Parlia-

ment. In addition, it issues a recommendation to Parliament on givingdischarge to the Commission in respect o the implementation o thebudget, and is responsible or appointing the members o the Court oAuditors, the European Economic and Social Committee and the Com-mittee o the Regions. Te Council is also is responsible or concludingagreements between the EU and non-member countries or international

organisations.

Working procedures

Te Councils working procedures are set out in detail in its rules o pro-

cedure. In practice, the Councils activities are basically made up o three



60/140

the Council. o enable it to carry out all these tasks, it is divided up into

Coreper I (comprising the Deputy Permanent Representatives and primarily

responsible or preparatory work on more technical matters dealt with by the

various Councils) and Coreper II (comprising the Permanent Representa-

tives themselves and basically responsible or all policy matters). Agriculture

is the one area not subject to this division o tasks; a Special Committee onAgriculture (SCA, also known by its French abbreviation CSA Comitspcial de lAgriculture) was set up in 1960 and assumed Corepers tasks onagricultural matters.

Preparations or Council meetings by Coreper and the SCA are o two kinds.

Firstly, eorts are made to reach agreement at committee level, in connectionwith which the committees can draw on the assistance o around 100 per-

manent sector-specifc working parties within the Council. Tey may also

call on the services o ad hoc groups, which are assigned to deal with a par-

ticular problem within a specifed period. Secondly, preparatory work must

ensure that the issues to be discussed and decided on at Council meetings

have been worked out in advance, and that the Council members are prop-erly brieed. Tese dual approaches are reected in the agenda o meetings:

issues on which it was possible to reach agreement are reerred to as A items

and those questions which are undecided and need to be discussed urther

are known as B items.

Te General Secretariat provides administrative assistance to the Council(and also to Coreper and the SCA). In particular, it handles the technical

side o preparations or meetings o the Council, is in charge o providing

interpretation acilities (the representatives o the Member States speak in

their own language), ensures that any required translations are provided,



61/140

Te Council only discusses and reaches decisions on documents and dratswhich are available in the 23 ocial languages (Bulgarian, Czech, Dan-ish, Dutch, English, Estonian, Finnish, French, German, Greek, Hun-garian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese,Romanian, Sl

Documents

The ABC of European Union Law