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3.3.  The legal system of the European Union

    Common policies, which are the essence of multinational integration, are based on common legislation. Inherent in the concept of a common policy is its binding force on the member states. The latter must give the common institutions the legal means to implement common policies and to enforce their decisions on all the parties concerned and on their citizens. Hence, common policies are shaped by legal acts agreed by the common institutions, implemented by the member states and/or the common institutions and controlled by the common institutions [see chapter 4]. The national laws of the member states are harmonised in a great number of fields in the context of common policies. A special law, based on the treaties, based on the treaties, which was formerly called acquis communautaire and now ''acquis of the EU'', is thus built to bring into being common policies, a law that is superimposed and takes precedence over national law, even the constitutional law, of the Member States, whether national legislation predates or postdates European legislation. In fact, according to the Court of Justice, the Member States have definitively transferred sovereign rights to the Community (and now the Union) they created, and they cannot subsequently go back on that transfer through unilateral measures [see Case 6/64], unless they decide to break away from the EU. If they do not opt for such a radical measure, they cannot contravene European legislation, to the making of which they have contributed, by invoking their national, even their constitutional law. This is another feature of the multinational integration process, which distinguishes it from intergovernmental cooperation, where decisions may have political consequences but do not carry a legal binding force on the participating states. A multinational integration process, such as that of the EU, could not function, if each Member State could circumvent the common legislation by bringing into play its national - including its constitutional - law.

    The legal instruments, which substantiate the common policies, have legal effect only if a treaty provision empowers the competent institutions - the European Parliament and/or the Council - to enact them (principle of conferral or of attribution of powers). Article 288 of the Treaty on the functioning of the EU (ex Article 249 TEC) provides for five forms of legal instruments, each with a different effect on the Member States' legal systems. Some are directly applicable in place of national legislation, while others permit the progressive adjustment of that legislation to the European legislation.

    The regulation has a general scope, is binding in all its elements and is directly applicable in each Member State. Just like a national law, it gives rise to rights and obligations directly applicable to the citizens of the European Union [see in particular Cases 43/71 and 39/72]. Regulations enter into force on a date which they lay down or, where they do not set a date, on the twentieth day following their publication in the Official Journal of the European Union (OJ). The regulation substitutes European law for national law and is therefore the most effective legal instrument provided for by the Treaty. As "European laws", regulations must be complied with fully by those to whom they are addressed (individuals, Member States, European institutions).

    The directive binds any Member State to which it is addressed with regard to the result to be achieved, while allowing the national authorities competency as to the form and methods used. It is a sort of European framework law and lends itself particularly well to the harmonisation of national laws. It defines the objective or objectives to be attained by a common policy and leaves it to the Member States to choose the forms and instruments necessary for complying with it. Since the Member States are only bound by the objectives laid down in directives, they have some discretion, in transposing them into national law, in taking into account of special national circumstances. They must, however, "ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Union" (Article 4 TEU). Although they are generally published in the Official Journal, Directives take effect by virtue of being notified to the Member States to which they are addressed. The latter are obliged to adopt the national measures necessary for implementation of the Directive within time-limits set by it, failing which they are infringing European legislation.

    The decision is binding on the addressees it indicates, who may be one, several, or even all the Member States or one or more natural or legal persons. This variety of potential addressees is coupled with a variety in the scope of its contents, which may extend from a quasi regulation or a quasi directive to a specific administrative decision. It takes effect on its communication to the addressees rather than on its publication in the Official Journal. In any case, according to the Court of Justice, a decision can produce direct effects creating for the individuals rights that national jurisdictions must safeguard [Case 9/70 and Joined cases C-100/89 and C-101/89].

    The above legal acts are normally used, on the basis of the Treaty and following the originally called ''Community method'' (now European method) [see section 4.3.], for harmonising or approximating national legislations. Their effects are binding on the Member States, the European institutions and, in many cases, the citizens of the Member States. This is the case of laws or decisions which must apply uniformly in all Member States. Where a Member State fails to comply with European law, the Commission has powers of its own (action for non-compliance) to try to bring the infringement to an end and, where necessary, may refer the case to the Court of Justice of the European Union [see section 4.1.2].

    However, the objectives of the common policies are also sought by non-binding concerted action, taking the form of coordination of national policies, mechanisms for exchanging information, bodies for cooperation, European programmes and/or financial support. Therefore, in addition to the above binding acts, which form the European law, the Council and the Commission can adopt Recommendations suggesting a certain line of conduct or outlining the goals of a common policy and opinions assessing a current situation or certain facts in the Union or the Member States. Furthermore, the Council and the European Parliament adopt Resolutions, which are also not binding, suggesting a political desire to act in a given area. These instruments enable the European institutions to suggest guidelines for coordination of national legislations or administrative practices in a non-binding manner, i.e. without any legal obligations for the addressees - Member States and/or citizens.

    While Resolutions and opinions are published in the "C" series (communications) of the Official Journal of the European Union (OJ), binding acts and recommendations are published in the "L" series (legislation) of the OJ, in order to stress their political importance. The same is true for the positions and actions of the common foreign and security policy (Articles 21 and 25 TEU [see section 8.2]. They are published in the L series of the OJ, although they do not have a legal binding force on the Member States, since the Court of Justice of the European Union does not have jurisdiction on their interpretation and implementation. They embody, however, political commitments for joint behaviour and/or action.

    The status of the European law is a unique one, in that its application depends, by and large, on the separate jurisdictions of the Member States. The European Union does not seek a total legal harmonisation, which would eliminate the distinctive features of national jurisdictions. However, both the European institutions and the Member States have a duty to ensure that European law is respected and to take the necessary steps when it is violated. This is a fundamental requirement of any legal system. The European Court of Justice has observed that domestic laws must be reconcilable with the need to apply European law uniformly so as to avoid unequal treatment of economic operators [Joined Cases 205/82 to 215/82]. The authorities of Member States, including the courts, must ensure compliance with the principle of uniform interpretation of directives, in the light of their wording and purpose [see Case C-462/99]. In case of conflict of laws, the national judge must, according to the European Court, not apply any contrary clauses of the national law, whether these are prior or subsequent to European law [see Case 92/78]. While national courts may consider whether a European legislative act is valid, the Court alone has jurisdiction to determine that a European act is invalid (see Joined cases C-143/88 and C-92/89 and Case C-119/05].

    One characteristic common to the Treaties establishing the European Communities (and now the European Union) [see chapter 2] is that they are not conventional international treaties which create rights and obligations for the States alone. These Treaties and the legislation derived from them engender rights and obligations not only for the Member States but also for their nationals [see section 9.2]. This "direct effect" of European (ex Community) law means notably that any person may ask his judge to apply the European law which contradicts the national law [see Case 26/62]. Citizens may thus invoke the European law before national courts and, if necessary, before the Court of Justice of the European Union [see section 9.3]. According to the Court, a Member State is obliged to make good damage caused to individuals, even where the national legislature is responsible for a breach of European (Community) law [see joined Cases C-46/93 and C-48/93, Case C-5/94 and joined Cases C-178/94, C-179/94]. An individual can apply for the annulment of a decision, a regulation or a directive of a general legislative nature, if he can prove that he is directly and individually affected by its provisions [Case T-136/95]. By virtue of the "Francovich" jurisdiction of the Court, in certain circumstances European (Community) law requires the Member States to compensate for damage sustained by individuals by reason of their failure to transpose a directive into national law where its purpose is to confer rights on them [Case C-6/90, see also section 9.3]. In the absence of measures transposing a directive within the prescribed period, the directive cannot on its own impose duties on an individual and cannot therefore be relied on in proceedings against him or her (absence of "horizontal" direct effect) [see Cases 152/84 and C-91/92]. Although a directive cannot of itself impose obligations on an individual, the national court is bound, when applying the provisions of national law enacted for the purpose of transposing obligations laid down by a directive, to consider them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive [Joined Cases C-397/01 to C-403/01]. Where a directive is transposed belatedly into a Member State's domestic law and the relevant provisions of the directive do not have direct effect, the national courts are bound to interpret domestic law in the light of the wording and the purpose of the directive concerned with a view to achieving the results sought by the directive [Case C-212/04]. Member States are liable for an infringement of EU law by a national court whose decision is not open to appeal [see Case C-379/10].

    European law evolves extremely rapidly. As demonstrated by the links of Europedia to the Eur-Lex database, several hundred legislative acts of the European Union (ex Community) are adopted and amended each year. In this book we mention the most important legislative acts, which make up the basic European law, presenting in the footnotes their numbers and the numbers of the Official Journal (OJ) where they are found as well as the numbers and OJ references of their most recent amendments. In fact, the Eur-Lex database of the Commission often presents in one (non-official) consolidated version the original act and all its subsequent amendments or a codified version of the act, repealing the original act. Europedia permits a direct link to the one or the other version of an EU act.

    In 2010, the ''acquis of the EU'' consisted of ca. 8400 regulations and nearly 2000 directives in addition to the primary law (the Treaties) [COM/2011/588]. The Commission is taking steps to simplify the acquis, An interinstitutional agreement established an accelerated procedure for the consolidation of Community (European) legislation. The Commission is taking steps to simplify the acquis, thus ensuring that all its legislative proposals are consistent with the political priorities of the Union and, where necessary, reviewing the approach followed and identifying the appropriate measures to be taken, such as modification, replacement or withdrawal of pending proposals [COM/2005/462].

    In order to secure a reliable, up-to-date and user-friendly body of EU law for the benefit of citizens and businesses, there is a need for repealing obsolete legal texts and rewriting others to make them more coherent and understandable. The accessibility of European legislation could certainly be facilitated, if any amending act incorporated and presented in a single text, adopted by the legislative authorities, the original act and all its subsequent amendments, as is actually done with consolidated versions, which, however, have no official status, as they are not approved by these authorities.

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    Your roadmap in the maze of the European Union.

    Based on the book of Nicholas Moussis:
    Access to European Union law, economics, policies
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