The ABC

of Community law

by Dr Klaus-Dieter Borchardt

European Documentation

The ABC of Community law

Directorate-General for Education and Culture

European Commission

This publication in the ‘European Documentation’ series is available in all official languages of the

European Union: Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and

Swedish.

IN THE SAME COLLECTION:

Europe from A to Z (1997)

Europe in 10 points (1998)

The European Commission (1999)

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It can be accessed through the Europa server (http://europa.eu.int).

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Cataloguing data can be found at the end of this publication.

Luxembourg: Office for Official Publications of the European Communities, 2000

ISBN 92-828-7803-1

© European Communities, 2000

Reproduction is authorised.

Printed in Belgium

PRINTED ON WHITE CHLORINE FREE PAPER

The ABC

of Community law

by Dr Klaus-Dieter Borchardt

Manuscript completed in September 1999

Cover: Graphic design by Mario Ramos

Fifth edition

INTRODUCTION:

FROM PARIS VIA ROME TO MAASTRICHT AND AMSTERDAM

FUNDAMENTAL VALUES OF THE EUROPEAN UNION

• THE EU AS GUARANTOR OF PEACE

• UNITY AND EQUALITY AS THE RECURRING THEME

• THE FUNDAMENTAL FREEDOMS

• THE PRINCIPLE OF SOLIDARITY

• RESPECT OF NATIONAL IDENTITY

• THE NEED FOR SECURITY

• FUNDAMENTAL RIGHTS IN THE EU

THE ‘CONSTITUTION’ OF THE EUROPEAN UNION

• STRUCTURE OF THE EUROPEAN UNION

• THE LEGAL CHARACTER OF THE EC AND THE EU

• THE TASKS OF THE EU

• THE POWERS OF THE EU

• THE INSTITUTIONS OF THE EU

European Council — European Parliament — Council of the European Union —

European Commission — European Court of Justice and Court of First Instance —

Court of Auditors — Other institutions

THE COMMUNITY LEGAL ORDER

• THE EU AS A CREATION OF LAW AND A COMMUNITY BASED ON LAW

• THE LEGAL SOURCES OF COMMUNITY LAW

The founding Treaties as the primary source of Community law —

The Community legal instruments as the secondary source of Community law —

International agreements — Sources of unwritten law — Agreements between the

Member States

• THE COMMUNITY’S RANGE OF TOOLS

Regulations and ECSC general decisions — Directives and ECSC recommendations

— Individual decisions — Non-binding measures by Community institutions

— Resolutions, declarations and action programmes

2

CONTENTS

5

11

11

11

12

12

12

13

13

18

18

22

26

27

30

57

57

58

63

• THE LEGISLATIVE PROCESS

Consultation procedure — Cooperation procedure — Co-decision procedure —

Approval procedure — Simplified procedure — Procedure for implementing measures

• THE SYSTEM OF LEGAL PROTECTION

Treaty infringement proceedings — Actions for annulment — Complaints for

failure to act — Actions for damages — Actions by Community staff — Appeals

procedure — Provisional legal protection — Preliminary rulings

• LIABILITY OF THE MEMBER STATES FOR INFRINGEMENTS OF COMMUNITY LAW

Member States’ liability for legal acts or failure to act — Liability for infringement

of Community law by the courts

THE POSITION OF COMMUNITY LAW IN RELATION

TO THE LEGAL ORDER AS A WHOLE

• AUTONOMY OF THE COMMUNITY LEGAL ORDER

• INTERACTION BETWEEN COMMUNITY LAW AND NATIONAL LAW

• CONFLICT BETWEEN COMMUNITY LAW AND NATIONAL LAW

Direct applicability of Community law — Primacy of Community law

CONCLUSIONS

TABLE OF CASES

Nature and primacy of Community law — Powers of the Community — Effects of

legal acts — Fundamental rights — General principles of law

APPENDIX: TABLE OF EQUIVALENCES REFERRED TO IN ARTICLE 12

OF THE TREATY OF AMSTERDAM

3

72

84

91

94

94

96

97

103

105

111

Until shortly after the end of the

Second World War our concept of

the State and our political life had developed

almost entirely on the basis of

national constitutions and laws. It was on

this basis in our democratic States that the

rules of conduct binding not only on citizens

and parties but also on the State and

its organs were created. It took the

complete collapse of Europe and its political

and economic decline to create the

conditions for and give a new impetus to

the idea of a new European order.

In overall terms, moves towards unification

in Europe since the Second World

War have created a confusing mixture of

numerous and complex organisations that

are difficult to keep track of. For example,

the OECD (Organisation for Economic

Cooperation and Development), WEU

(Western European Union), NATO (North

Atlantic Treaty Organisation), the Council

of Europe, the European Union (which

started life as the European Coal and Steel

Community, the European Atomic Energy

Community and the European Community)

coexist without any real links

between them. The number of member

countries in these various organisations

ranges from 19 (WEU) to 40 (Council of

Europe).

This variety of institutions only acquires a

logical structure if we look at the specific

aims of these organisations; these can be

divided into three main groups:

• The Euro-Atlantic organisations

The Euro-Atlantic organisations came into

being as a result of the alliance between

the United States of America and Europe

after the Second World War. It was no

coincidence that the first European organisation

of the post-war period, the OEEC

(Organisation for European Economic

Cooperation), founded in 1948, was

created at the initiative of the United

States. The US Secretary of State at the

time, George Marshall, called on the

countries of Europe in 1947 to join forces

in rebuilding their economies and

promised American help. This came in the

form of the Marshall Plan, which provided

the foundation for the rapid reconstruction

of western Europe. At first, the main aim of

the OEEC was to liberalise trade between

countries. In 1960, when the United States

and Canada became members, a further

objective was added, namely to promote

economic progress in the Third World

through development aid. The OEEC then

became the OECD.

In 1949, NATO was founded as a military

alliance with the United States and

Canada. In 1954, the Western European

Union (WEU) was created to strengthen

security cooperation between the countries

of Europe. It brought together the 5

INTRODUCTION: FROM PARIS VIA ROME

TO MAASTRICHT AND AMSTERDAM

countries that had concluded the Brussels

Treaty (United Kingdom, France, Belgium,

Luxembourg and the Netherlands) with

the addition of the Federal Republic of

Germany and Italy. Portugal, Spain and

Greece are now also members of the

WEU. The organisation offers its members

a platform for close cooperation on security

and defence, and thus serves both to

strengthen Europe’s political weight in the

Atlantic alliance and to establish a European

identity in security and defence

policy.

.• The Council of Europe and the

OSCE

The feature common to the second group

of 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.

These organisations include the Council of

Europe, which was founded as a political

institution on 5 May 1949. Its Statute does

not make any reference to moves towards

6

a federation or union, nor does it provide

for the transfer or merging of sovereign

rights. Decisions on all important questions

require unanimity, which means that

every country has a power of veto; the

same set-up is to be found in the United

Nations (UN) Security Council. The

Council of Europe is therefore designed

only with international cooperation in

mind. Numerous conventions have been

concluded by the Council in the fields of

economics, culture, social policy and law.

The most important — and best known —

of these is the Convention for the Protection

of Human Rights and Fundamental

Freedoms (ECHR) of 4 November 1950.

The Convention not only enabled a

minimum standard for the safeguarding of

human rights to be laid down for the

member countries; it also established a

system of legal protection which enables

the bodies established in Strasbourg under

the Convention (the European Commission

on Human Rights and the European Court

of Human Rights) to condemn violations

of human rights in the member countries.

This group of organisations also includes

the Organisation for Security and Cooperation

in Europe (OSCE), founded in 1994

at the Conference on Security and Cooperation

in Europe. The OSCE is bound by

the principles and aims set out in the 1975

Helsinki Final Act and the 1990 Charter of

Paris. Alongside measures to build up trust

between the countries of Europe, these

aims also include the creation of a ‘safety

net’ to enable disputes to be settled by

peaceful means. As events of the recent

past have shown, Europe still has a long

way to go in this respect.

• The European Union

The third group of European organisations

comprises the European Union, which

itself has grown out of the European Coal

and Steel Community, the European

Atomic Energy Community and the European

Community.

The feature that is completely new in the

EU and distinguishes it from the usual type

of international association of States is that

the Member States have ceded some of

their sovereign rights to the EC at the

centre and have conferred on it powers to

act independently. In exercising these

powers, the EC is able to issue sovereign

acts which have the same force as laws in

individual States.

The foundation stone of a European

Community was laid by the then French

Foreign Minister, Robert Schuman, in his

declaration of 9 May 1950, in which he

put forward the plan he had worked out

with Jean Monnet to pool Europe’s coal

and steel industries. This would, he

declared, constitute a historic initiative for

an ‘organised and vital Europe’, which

was ‘indispensable for civilisation’ and

without which the ‘peace of the world

could not be maintained’. The ‘Schumann

Plan’ finally became a reality with the

conclusion of the founding Treaty of the

European Coal and Steel Community

(ECSC) by the six founding States

(Belgium, Germany, France, Italy, Luxembourg

and the Netherlands) on 18 April

1951 in Paris (Treaty of Paris) and its entry

into force on 23 July 1952. A further

development came some years later with 7

the Treaties of Rome of 25 March 1957,

which created the European Economic

Community (EEC) and the European

Atomic Energy Community (Euratom);

these began their work when the Treaties

entered into force on 1 January 1958.

The creation of the European Union (EU)

by means of the Treaty of Maastricht

marked a further step along the path to the

political unification of Europe. Although

the Treaty was signed in Maastricht on 7

February 1992, a number of obstacles in

the ratification process (approval by the

people of Denmark only after a second

referendum; legal action in Germany to

have Parliament’s approval of the Treaty

declared unconstitutional) meant that it

did not enter into force until 1 November

1993. The Treaty refers to itself as ‘a new

stage in the process of creating an ever

closer union among the peoples of

Europe’. As well as making a number of

changes to the E(E)C Treaty and the

Euratom Treaty, it contains the instrument

establishing the European Union —

although it does not bring this process to

completion. Like the creation of the EC, it

is a first step on the path leading ultimately

to a European constitutional

system which will embrace the EC as

such. The EU saw a further development

in the form of the Treaty of Amsterdam

which was signed on 2 October 1997 and

entered into force on 1 May 1999 after

completion of the ratification process in

the Member States. One innovation which

deserves special mention here is the new

provisions of the EU Treaty concerning

flexibility, whereby Member States which

intend to establish closer cooperation may

make use of the institutions, procedures

and mechanisms laid down in the Treaties,

subject to the provisos specified. This ultimately

opens the way for a multi-speed

Europe, albeit with restrictions. The resultant

European Union does not, contrary to

some accounts in the media, replace the

European Communities but instead places

it under the same umbrella as the new

‘policies and forms of cooperation’ (Article

47 EU). Hence the ‘three pillars’ upon

which the European Union is built: the

European Communities; common foreign

and security policy; and justice and home

affairs. These will be considered in some

detail in a separate chapter on the constitution

of the EU.

The Member States of the EU comprise

first of all the six founder members of the

EC, namely Belgium, Germany (including

the territory of the former GDR following

the reunification of the two Germanys on

3 October 1990), France, Italy, Luxembourg

and the Netherlands. On 1 January

1973, the United Kingdom, Denmark

(now excluding Greenland, which in a

referendum in February 1982 voted by a

narrow majority not to remain in the EC)

and Ireland joined the Community;

Norway’s planned accession was rejected

in a referendum in October 1972 (53.5 %

against EC membership). In 1976 and

1977, Greece, Portugal and Spain applied

for membership. This ‘enlargement to the

south’ was completed on 1 January 1986

with the accession of Portugal and Spain;

Greece had already been a member of the

Community since 1 January 1981. The

next enlargement took place on 1 January

8 1995 when Austria, Finland and Sweden

joined what had by then become the European

Union (EU), thanks to the Treaty of

Maastricht that had entered into force on 1

November 1993. In Norway, a referendum

led to a repeat of the outcome 22 years

before, with a small majority (52.4 %)

against Norwegian membership of the EU.

The EU has therefore comprised 15

Member States since 1 January 1995.

Applications for membership have also

been received from Turkey (1987), Cyprus

(1990), Switzerland (1992 — the application

is not being processed at the

moment), Hungary (1994), Poland (1994),

Romania (1995), Latvia (1995), Slovakia

(1995), Estonia (1995), Lithuania (1995),

Bulgaria (1995), the Czech Republic

(1996), Slovenia (1996) and Malta (application

renewed in 1998). In its ‘Agenda

2000’ document, the Commission in July

1997 set out for the Council of the EU its

position regarding the applications. The

European Council met in Luxembourg in

December 1997 and laid down the overall

framework for the enlargement process,

which encompassed all applicant countries

(except Switzerland). This process

consists of three stages:

• The European Conference, which met

for the first time on 12 March 1998 in

London, provides a multilateral framework

encompassing the 10 central and east

European countries (CEECs), Cyprus and

now also Malta. It will offer a forum for

political consultations on questions of

common foreign and security policy

(CFSP), justice and home affairs,

economic cooperation and collaboration

between regions.

• The accession process has been

launched with the 10 CEECs, Cyprus and

Malta. The idea is that these countries

should become members of the EU on the

basis of the same criteria, and should be

subject to the same conditions for participation

in the accession process. A special

‘pre-accession strategy’ is to be used to

enable all applicants to bring themselves,

as far as possible, into line with EU law

prior to their accession. As part of a

review procedure, the Commission

provides the Council with regular reports

(the first of which was submitted at the

end of 1998) on the progress being made

by the CEECs on their way towards

membership, where appropriate with

recommendations on the start of accession

negotiations.

• Accession negotiations began on 31

March 1998 with the six countries recommended

by the Commission (Cyprus,

Hungary, Poland, Estonia, the Czech

Republic and Slovenia). Negotiations are

being conducted bilaterally with the individual

applicant countries and may be

concluded at different times.

The legal order created by the European

Community has already become an established

component of our political life.

Each year, on the basis of the Community

Treaties, thousands of decisions are taken

that crucially affect the Member States and

lives of their citizens. The individual has

long since ceased to be merely a citizen of

his country, town or district; he is also a

Community citizen. For this reason alone

it is of crucial importance that the

Community citizen should be informed 9

about the legal order that affects his daily

life. Yet the complexities of the Community

and its legal order are not easy to

grasp. This is partly due to the wording of

the Treaties themselves, which is often

somewhat obscure, with implications

which are not easy to appreciate. An additional

factor is the unfamiliarity of many

concepts with which the Treaties sought to

break new ground. The following pages

are an attempt to clarify the structure of

the Community and the supporting pillars

of the European legal order, and thus help

to lessen the incomprehension prevailing

among the citizens of the EU (1).

10

(1) Following the Treaty of Amsterdam, the articles

of the Treaty were renumbered. The new

numbering has been used in this booklet.

The table of equivalences in the appendix is

intended to help locate familiar articles

which are now numbered differently.

The foundations of a united Europe

were laid on fundamental ideas and

values to which the Member States also

subscribe and which are translated into

practical reality by the Community’s operational

institutions. These acknowledged

fundamental values include the securing

of a lasting peace, unity, equality,

freedom, security and solidarity. The EU’s

declared aims are to safeguard the principles

of liberty, democracy and the rule of

law which are shared by all the Member

States (Article 6(1) EU). Together with the

protection of human rights and basic freedoms,

these principles have been reinforced

in the EU Treaty in that, for the first

time, it makes provision for measures to

be taken if these principles are violated

(Articles 7 and 8 EU). In practical terms,

this means that if the Heads of State and

Government, acting on a proposal by one

third of the Member States or by the

Commission, and after obtaining the

assent of the European Parliament, declare

that a serious and persistent breach of the

EU’s underlying principles has occurred,

the Council may, acting by a qualified

majority, suspend certain of the rights

deriving from the application of the EU

Treaty and EC Treaty to the Member State

in question, including voting rights in the

Council. When doing so, however, the

Council must give particular consideration

to the possible consequences of such a

decision for the rights and obligations of

natural and legal persons. On the other

hand, the obligations on the Member State

in question under the EU Treaty and EC

Treaty continue to be binding.

• THE EU AS GUARANTOR

OF PEACE

There is no greater motivation for European

unification than the desire for peace.

In Europe this century, two world wars

have been waged between countries that

are now Member States of the European

Community. Thus, a policy for Europe

means at the same time a policy for peace,

and the establishment of the Community

simultaneously created the centrepiece of

a framework for peace in Europe that

renders a war between the Community’s

Member States impossible. More than 40

years of peace in Europe are proof of this.

• UNITY AND EQUALITY AS THE

RECURRING THEME

Unity is the recurring theme. Present-day

problems can be mastered only if the

European countries move forward along

the path that leads them to unity. Many

people take the view that without European

integration, without the European

Community, it would not be possible to

secure peace (both in Europe and worldwide),

democracy, law and justice,

economic prosperity and social security,

and guarantee them for the future. Unemployment,

inadequate growth and environmental

pollution have long ceased to 11

FUNDAMENTAL VALUES

OF THE EUROPEAN UNION

be merely national problems; nor can they

be resolved at national level. It is only in

the context of the Community that a stable

economic order can be established and

only through joint European efforts that we

can secure an international economic

policy that improves the performance of

the European economy and contributes to

social justice. Without internal cohesion,

Europe cannot assert its political and

economic independence from the rest of

the world, win back its influence in the

world and retrieve its role in world politics.

Unity can endure only where equality is

the rule. No citizen of the Community

may be placed at a disadvantage or

discriminated against because of his

nationality. Discriminatory treatment on

the grounds of gender, race, ethnic origin,

religion or beliefs, disability, age or sexual

orientation must be stopped. All Community

citizens are equal before the law. As

far as the Member States are concerned,

the principle of equality means that no

State has precedence over another and

natural differences such as size, population

and differing structures must be

addressed only in accordance with the

principle of equality.

• THE FUNDAMENTAL

FREEDOMS

Freedom results directly from peace, unity

and equality. Creating a larger entity by

linking 15 States immediately affords

freedom of movement beyond national

frontiers. This means, in particular,

freedom of movement for workers,

freedom of establishment, freedom to

provide services, free movement of goods

and freedom of capital movements. These

fundamental freedoms under the founding

Treaties guarantee businessmen freedom

of decision-making, workers freedom to

choose their place of work and consumers

freedom of choice between the greatest

possible variety of products. Freedom of

competition permits businessmen to offer

their goods and services to an incomparably

wider circle of potential customers.

Workers can seek employment and

change their place of employment

according to their own wishes and interests

throughout the entire territory of the

EU. Consumers can select the cheapest

and best products from the far greater

wealth of goods on offer that results from

increased competition.

• THE PRINCIPLE OF

SOLIDARITY

Solidarity is the necessary corrective to

freedom, for inconsiderate exercise of

freedom is always at the expense of

others. For this reason, if a Community

framework is to endure, it must also

always recognise the solidarity of its

members as a fundamental principle, and

share both the advantages, i.e. prosperity,

and the burdens equally and justly among

its members.

• RESPECT OF NATIONAL

IDENTITY

The national identities of the Member

States is respected (Article 6(3) EU). The

12 idea is not for the Member States to be

‘dissolved’ into the EU, but rather for them

to contribute their own particular qualities.

It is precisely this variety of national

characteristics and identities that lends the

EU its moral authority, which is in turn

used for the benefit of the Community as a

whole.

• THE NEED FOR SECURITY

Lastly, all these fundamental values

depend on security. In the most recent

past, a period of movement and change —

and one in which many unknown challenges

had to be faced — security has

become a basic need which the Community

must also try to satisfy. Every action

by Community institutions must bear in

mind that people and firms need

constancy, consistency and reliability in

terms of job security, general economic

and business conditions and social security.

• FUNDAMENTAL RIGHTS IN

THE EU

Against the background of fundamental

values and the concepts that underlie

them, the question necessarily arises of the

fundamental rights of individual citizens

of the Community, especially since the

history of Europe has, for more than 200

years, been characterised by continuing

efforts to enhance the protection of fundamental

rights. Starting with the declarations

of human and civil rights in the 18th

century, fundamental rights and civil liberties

have now become firmly anchored in

the constitutions of most civilised States.

This is especially true of the EU Member

States, whose legal systems are 13

constructed on the basis of the rule of law

and respect for the dignity, freedom and

right to self-development of the individual.

There are also numerous international

conventions on the protection of human

rights, among which the European

Convention for the Protection of Human

Rights and Fundamental Freedoms (ECHR)

of 4 November 1950 is of very great

significance.

A search through the Community Treaties

for express provisions concerning the

fundamental rights of individual Community

citizens is disappointing. In contrast to

the legal systems of the Member States,

the Treaties establishing the European

Communities do not contain any enumeration

of fundamental rights. However, the

European Parliament, the Council and the

Commission, as the policy-making bodies

of the EU, solemnly issued a joint declaration

on fundamental rights on 5 April

1977. They underscored the importance

of securing these rights in the Community

and undertook to preserve them in the

exercise of their powers and in the pursuit

of the Community’s objectives. At the

Copenhagen European Council on 7 and 8

April 1978, the Heads of State or Government

of the Member States issued a declaration

on democracy in which they

endorsed the 1977 declaration. The two

declarations may not generate directly

exercisable rights for the Community’s citizens,

but they are of great political significance

as evidence of the status accorded

to human rights in the Community. The

EU Treaty now also gives this commitment

legally binding form by stipulating that the

EU shall respect ‘fundamental rights, as

guaranteed by the European Convention

for the Protection of Human Rights and

Fundamental Freedoms signed in Rome

on 4 November 1950 and as they result

from the constitutional traditions common

to the Member States, as general principles

of Community law’ (Article 6(2) EU).

However, a Community legal order safeguarding

fundamental rights was relatively

late in coming; it was not until 1969 that

the Court of Justice of the European

Communities had established a body of

case law to serve as a basis. This was

because in the early years the Court had

rejected all actions relating to basic rights

on the grounds that it need not concern

itself with matters falling within the scope

of national constitutional law. The Court

had to alter its position not least because it

was itself the embodiment of the primacy

of Community and its precedence over

national law; this primacy can only be

firmly established if Community law is

sufficient in itself to guarantee the protection

of basic rights with the same legal

force as under national constitutions.

The starting point in this case law was the

‘Stauder’ judgment, in which the point at

issue was the fact that a recipient of

welfare benefits for war victims regarded

the requirement that he give his name

when registering for the purchase of butter

at reduced prices at Christmas time as a

violation of his human dignity and the

principle of equality. Although the Court

of Justice came to the conclusion, in interpreting

the Community provision, that it

was not necessary for recipients to give

14 their name so that, in fact, consideration

of the question of a violation of a fundamental

right was superfluous, it declared

finally that the general fundamental principles

of the Community legal order,

which the Court of Justice had to safeguard,

included respect for fundamental

rights. This was the first time that the Court

of Justice recognised the existence of a

Community framework of fundamental

rights of its own.

Initially, the Court developed its safeguards

for fundamental rights from a

number of provisions in the Treaties. This

is especially the case for the numerous

bans on discrimination which, in specific

circumstances, address particular aspects

of the general principle of equality. Examples

are the prohibition of any discrimination

on grounds of nationality (Article 12

EC), preventing people being treated

differently on the grounds of gender, race,

ethnic origin, religion or beliefs, disability,

age or sexual orientation (Article 13 EC),

the equal treatment of goods and persons

in relation to the four basic freedoms

(freedom of movement of goods — Article

28 EC; freedom of movement of persons

— Article 39 EC; the right of establishment

— Article 43 EC; and freedom to provide

services — Article 50 EC), freedom of

competition (Article 81 f. EC) and equal

pay for men and women (Article 141 EC).

The four fundamental freedoms of the

Community, which guarantee the basic

freedoms of professional life, can also be

regarded as a Community fundamental

right to freedom of movement and

freedom to choose and practise a profession.

Specific guarantees are also provided

for the right of association (Article 137 EC

and Article 48(1) ECSC), the right to petition

(Article 21 EC and Article 48(2) ECSC)

and the protection of business and professional

secrets (Article 287 EC, Article 194

Euratom and Article 47(2) and (4) ECSC).

The Court of Justice has steadily developed

and added to these initial attempts at

protecting fundamental rights through

Community law. It has done this by recognising

and applying general legal principles,

drawing on the concepts that are

common to the constitutions of the

Member States and on the international

conventions on the protection of human

rights to whose conclusion the Member

States have been party. Prominent among

the latter is the ECHR, which helped to

shape the substance of fundamental rights

in the EC and the mechanisms for their

protection. On this basis, the Court has

recognised a number of freedoms as basic

rights secured by Community law: right of

ownership, freedom to engage in an occupation,

the inviolability of the home,

freedom of opinion, general rights of

personality, the protection of the family

(e.g. family members’ rights to join a

migrant worker), economic freedom,

freedom of religion or faith, as well as a

number of fundamental procedural rights

such as the right to due legal process, the

principle of confidentiality of correspondence

between lawyer and client (known

as ‘privileged communications’ in the

common-law countries), the ban on being

punished twice for the same offence, and

the requirement to provide justification for

a Community legal act.

15

One particularly important principle,

regularly invoked in disputes with the

Community, is the principle of equal treatment.

Put simply, this means that like

cases must be treated alike, unless there is

some objectively justifiable ground for

distinguishing them. But the Court of

Justice has held, contrary to international

custom, that this principle does not

preclude nationals and home-produced

goods from being subjected to stricter

requirements than citizens or products

from other Member States. This ‘reverse

discrimination’ is the inevitable result of

the limited scope of the Community’s

powers. Under the Court’s judgments

issued up to now, the Community rules

requiring liberalisation, which flow from

the fundamental freedoms, apply only to

cross-border trade. Rules regulating the

production and marketing of homeproduced

goods or the legal status of

nationals in their own Member State are

affected by Community law only if the

Community has introduced harmonisation

measures.

The cases decided by the Court of Justice

have given the Community an extensive

body of quasi-constitutional law. In practical

terms, the principle of proportionality

is foremost among these. What this means

is that the objectives pursued 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

fundamental principles underlying

Community law are the general principles

of administrative law and the concept of

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 for

this — must be secured in the administrative

procedures of the Commission and

the judicial procedures of the Court of

Justice. Particular value is also attached 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 of this transparency

is that any EU citizen or legal

person registered in a Member State may

have access to Council or Commission

documents.

With all due respect for the achievements

of the Court of Justice in the development

of unwritten fundamental rights, this

process of deriving ‘European fundamental

rights’ has a serious disadvantage:

the Court of Justice is confined to the

particular case in point. The result of this

can be that it is not able to develop fundamental

rights from the general legal principles

for all areas in which this appears

necessary or desirable. Nor will it be able

to elaborate the scope of and the limits to

the protection of fundamental rights as

generally and distinctively as is necessary.

As a result, the Community institutions

cannot assess with enough precision

whether they are in danger of violating a

fundamental right or not. Nor can any

Community citizen who is affected judge

in every case whether one of his fundamental

rights has been infringed.

16

For a long time, EC accession to the ECHR

was regarded as a way out of this situation.

In its Opinion 2/94, however, the

Court held that, as the law now stands, the

EC has no competence to accede to the

Convention. The Court stated that respect

for human rights was a condition for the

lawfulness of Community acts. However,

accession to the Convention would entail

a substantial change in the present

Community system for the protection of

human rights in that it would involve the

Community entering into a distinct international

institutional system as well as

integration of all the provisions of the

Convention into the Community legal

order. The Court took the view that such a

modification of the system for the protection

of human rights in the EC, with

equally fundamental institutional implications

for the Community and for the

Member States, would be of constitutional

significance and would therefore go

beyond the scope of the dispositive

powers provided for in Article 308 of the

EC Treaty.

The only possible way to solve once and

for all the question of fundamental rights

in the EC is to create a body of such rights

applying specifically to the EU by means

of amendments to the existing EC and EU

Treaties. The European Parliament’s

‘Declaration of fundamental rights and

freedoms’, which set out a comprehensive

catalogue of human rights, could serve as

a basis for this. This is the only way to

effectively enhance the protection of

human rights in the EU — assuming, of

course, that all Member States are in

agreement about the nature and scope of

these rights. It is quite obvious that this

consensus has been lacking up to now;

the Member States have not gone any

further than a general, but nevertheless

binding, commitment to respect and safeguard

fundamental freedoms in the

context of the EU.

17

Every social organisation has a constitution.

A constitution is the means by

which the structure of a political system is

defined, i.e. the relationship of the various

parts to each other and to the whole is

specified, the common objectives are

defined and the rules for making binding

decisions are laid down. The constitution

of the EU, as an association of States to

which quite specific tasks and functions

have been allotted, must thus be able to

answer the same questions as the constitution

of a State.

Unlike most of the constitutions of its

Member States, the EU constitution is not

laid down in a comprehensive constitutional

document, but arises from the

totality of rules and fundamental values by

which those in authority perceive themselves

to be bound. These rules are to be

found partly in the founding Treaties or in

the legal instruments produced by the

Community institutions, but they also rest

partly on custom.

In the Member States the body politic is

shaped by two overriding principles: the

rule of law and democracy. All the activities

of the Union, if they are to be true to

the fundamental requirements of law and

democracy, must have both legal and

democratic legitimacy: the elements on

which it is founded, its structure, its

powers, the way it operates, the position

of the Member States and their institutions,

and the position of the citizen.

What answers, then, does the Community

order afford to these questions concerning

its structure, its fundamental values and its

institutions?

• STRUCTURE OF THE EUROPEAN

UNION: THE ‘THREE

PILLARS’

First pillar:

the European Communities

The first pillar is made up of the three

European Communities (E(E)C, Euratom,

ECSC), which have been deepened and

enlarged by economic and monetary

union. When the EU was established, the

‘European Economic Community’ was

renamed the ‘European Community’. The

EEC Treaty became the EC Treaty. This

change was intended to give expression to

the transition from a purely economic

community to a political union. However,

this change of name did not affect the

three existing Communities (ECSC,

Euratom, EC) since it did not entail any

formal unification of them. In the course

of the establishment of the EU, some institutions

of the EC changed their names.

The ‘Council of the European Communities’

has since 8 November 1993 been

referred to as the ‘Council of the European

Union’. The ‘Commission of the European

18 Communities’ has become the ‘European

THE ‘CONSTITUTION’

OF THE EUROPEAN UNION

The European Union

19

First pillar:

the European

Communities

Second pillar:

common foreign

and security policy

Third pillar:

cooperation in justice

and home affairs

EC

•Customs union and

single market

•Agricultural policy

•Structural policy

•Trade policy

New or amended

provisions on:

•EU citizenship

•Education and

culture

•Trans-European

networks

•Consumer protection

•Health

•Research and

environment

•Social policy

•Asylum policy

•External borders

•Immigration policy

Euratom

ECSC

Foreign policy

•Cooperation,

common positions

and measures

•Peacekeeping

•Human rights

•Democracy

•Aid to non-member

countries

Security policy

•Drawing on the

WEU: questions

concerning the

security of the EU

•Disarmament

•Financial aspects of

defence

•Long-term:

Europe’s security

framework

•Cooperation between

judicial authorities in

civil and criminal law

•Police cooperation

•Combating racism and

xenophobia

•Fighting drugs and the

arms trade

•Fighting organised

crime

•Fighting terrorism

•Criminal acts against

children, trafficking in

human beings

Commission’. On 17 January 1994, the

‘Court of Auditors’ was renamed the ‘European

Court of Auditors’. However, the

legal acts of the respective bodies still

constitute legal acts of the Community at

any given time.

The first pillar embodies Community jurisdiction

in its most highly developed form.

Within the framework of the EC, the

Community institutions may draw up

legislation in their respective areas of

responsibility which applies directly in the

Member States and may claim precedence

over national law. At the heart of the EC is

the single market with its four basic freedoms

(free movement of goods, free

movement of workers, freedom to provide

services and free movement of capital and

payments) and its rules on competition.

Policy areas for which the Community is

responsible include: economic and monetary

affairs (centred around the single

European currency, the euro); agriculture;

visa requirements, asylum and immigration;

transport; taxation; employment;

trade; social welfare, education and youth

welfare; culture; consumer protection and

health; trans-European networks; industry;

economic and social cohesion; research

and technology; the environment; and

development aid.

Second pillar:

common foreign and security policy

Before the Treaty on European Union

came into being, political cooperation

between the Member States was on the

basis of the ‘European political cooperation’

(EPC) arrangements set up in 1970,

which were enhanced and expanded

upon under the Single European Act in

1986/87. These arrangements involved

regular consultations between foreign

ministers and ongoing contacts between

their government departments. The aim of

EPC was to bring about better communication

and greater convergence of the

Member States’ positions on all major

foreign policy issues and, if possible, a

joint course of action. All decisions had to

be taken unanimously, however. When

security-related issues were involved,

cooperation was limited to the political

and financial aspects. Recent political

crises (the Gulf War, the civil war in

former Yugoslavia, the break-up of the

Soviet Union) made it very apparent that

this foreign and security policy instrument

was not sufficient to enable the EU, as the

largest trading power in the world, to

bring its weight properly to bear on world

affairs. In the EU Treaty, the Heads of State

or Government have now agreed to gradually

develop a common foreign and security

policy with the following declared

aims:

• safeguarding the commonly held values,

fundamental interests and independence

of the EU;

• strengthening the security of the EU and

its Member States;

• securing world peace and increasing

international security in line with the

principles set out in the Charter of the

United Nations, and the principles and

aims of the 1975 Helsinki Final Act and

20 the 1990 Charter of Paris, which in

1994 were embodied in the Organisation

for Security and Cooperation in

Europe (OSCE);

• promoting international cooperation;

• promoting democracy and the rule of

law, and safeguarding human rights and

basic freedoms.

Since the EU is not an individual State,

these aims can only be achieved step by

step. Traditionally, foreign 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 difficult to define is that only

France and the United Kingdom have

nuclear weapons. Another problem is that

some Member States are not in NATO

(Ireland, Austria, Finland, Sweden) or the

WEU (Denmark, Greece, Ireland). Most

‘common foreign and security policy’

decisions are therefore still currently taken

on the basis of cooperation between

States. In the meantime, however, a range

of tools has emerged in its own right; this

was reflected in the Treaty of Amsterdam

and has acquired a firm legal framework

through cooperation between States. For

example, decisions of principle are passed

in the context of the second (and third)

pillars, common positions are set out, joint

actions and measures carried out and

framework decisions passed. Framework

decisions in particular are similar in

essence to an EC directive although, like

the other tools available to the EU, they

are not valid or directly applicable in the

Member States. Nor can these decisions

and measures be challenged before the

European Court of Justice.

Third pillar: cooperation in justice

and home affairs

The aim underlying cooperation between

police and judicial authorities is to afford

citizens freedom, security and justice by

jointly preventing and combating crime

(especially terrorism, trafficking in human

beings, illicit drug and arms trafficking,

corruption and fraud), racism and xenophobia

(Articles 29 and 30 EU). The directive

on money-laundering and the

creation of a European police authority,

Europol, which has been operative since

1998, are two very positive steps that have

been taken.

Judicial cooperation is also concerned

with facilitating and accelerating cooperation

in relation to proceedings and the

enforcement of decisions, facilitating

extradition between Member States, establishing

minimum rules relating to the

constituent elements of criminal acts and

to penalties in the fields of organised

crime, terrorism and illicit drug trafficking

(Articles 31 and 32 EU).

As with foreign and security policy, cooperation

in this area takes place outside the

decision-making procedures of the EC and

on the basis of collaboration between

individual countries.

21

• THE LEGAL CHARACTER OF

THE EC AND EU

Any consideration of the legal nature of

the EC and the EU must start by looking at

their respective characteristic features.

1. The legal character of the EC

The legal nature of the EC was set out in

two precedent-setting judgments by the

European Court of Justice in 1963 and

1964.

• Van Gend & Loos

In this legal dispute, the Dutch transport

company Van Gend & Loos filed an action

against the Netherlands customs authorities

for imposing an import duty on a

chemical product from Germany which

was higher than duties on earlier imports.

The company considered this an infringement

of Article 12 of the EEC Treaty (now

Article 25 of the EC Treaty), which

prohibits the introduction of new import

duties or any increase in existing customs

duties between the Member States. The

court in the Netherlands then suspended

the proceedings and referred the matter to

the European Court of Justice for clarification

as regards the scope and legal implications

of the abovementioned Article of

the Treaty establishing the EC.

The European Court of Justice used this

case as an opportunity to set out a number

of findings of a fundamental nature

concerning the legal nature of the EC. In

its judgment, the Court stated that:

‘The objective of the EEC Treaty, which is

to establish a common market, the functioning

of which is of direct concern to

interested parties in the Community,

implies that this Treaty is more than an

agreement which merely creates mutual

obligations between the contracting

States. This view is confirmed by the

preamble to the Treaty, which refers not

only to governments but to peoples. It is

also confirmed more specifically by the

establishment of institutions endowed

with sovereign rights, the exercise of

which affects Member States and also their

citizens. The conclusion to be drawn from

this is that the Community constitutes a

new legal order of international law for

the benefit of which the States have

limited their sovereign rights, albeit within

limited fields, and the subjects of which

comprise not only Member States but also

their nationals.’

• Costa/ENEL

Just a year later, the ‘Costa/ENEL’ case

gave the Court an opportunity to set out its

position in more detail. The facts of this

case were the following: in 1962, Italy

nationalised the production and distribution

of electricity and transferred the assets

of the electricity undertakings to the

National Electricity Board (ENEL). As a

shareholder of Edison Volt, one of the

companies that was nationalised, Mr

Costa considered that he had been

deprived of his dividend and consequently

refused to pay an electricity bill for

ITL 1 926. In proceedings before the arbitration

court in Milan, one of the argu-

22 ments put forward by Mr Costa to justify

his conduct was that the nationalisation

infringed a number of provisions of the EC

Treaty. In order to be able to assess Mr

Costa’s submissions in his defence, the

court requested the European Court of

Justice to interpret various aspects of the

EC Treaty. In its judgment, the Court stated

the following in relation to the legal nature

of the EC:

‘By contrast with ordinary international

treaties, the EEC Treaty has created its own

legal system which ... became an integral

part of the legal systems of the Member

States and which their courts are bound to

apply. By creating a Community of unlimited

duration, having its own institutions,

its own personality, its own legal capacity

and capacity of representation on the

international plane and, more particularly,

real powers stemming from a limitation of

sovereignty or a transfer of powers from

the States to the Community, the Member

States have limited their sovereign rights ...

and have thus created a body of law

which binds both their nationals and

themselves.’

On the basis of its detailed observations,

the Court reached the following conclusion:

‘It follows from all these observations that

the law stemming from the Treaty, an independent

source of law, could not, because

of its special and original nature, be overridden

by domestic legal provisions,

however framed, without being deprived 23

of its character as Community law and

without the legal basis of the Community

itself being called into question. The

transfer by the States from their domestic

legal system to the Community legal

system of the rights and obligations arising

under the Treaty carries with it a permanent

limitation of their sovereign rights,

against which a subsequent unilateral act

incompatible with the concept of the

Community cannot prevail.’

In the light of these judgments, the

elements which together typically characterise

the special legal nature of the EC

are:

• the institutional set-up, which ensures

that action by the EC is also characterised

by the overall European interest,

i.e. is reflected in or influenced by the

Community interest as laid down in the

objectives;

• the transfer of powers to the Community

institutions to a greater degree than with

other international organisations, and

extending to areas in which States

normally retain their sovereign rights;

• the establishment of its own legal order

which is independent of the Member

States’ legal orders;

• the direct applicability of Community

law, which makes provisions of

Community law fully and uniformly

applicable in all Member States, and

bestows rights and imposes obligations

on both the Member States and their

citizens;

• the primacy of Community law, which

ensures that Community law may not be

revoked or amended by national law,

and that it takes precedence over

national law if the two conflict.

The EC is thus an autonomous entity with its

own sovereign rights and a legal order independent

of the Member States, to which

both the Member States themselves and

their nationals are subject within the EC’s

areas of competence.

2. The legal nature of the EU

The EU is no longer merely a planned

objective of the integration process, but

rather an international organisation in its

own right established by the Treaty of

Maastricht.

What is unusual about this organisation is

its function as an ‘umbrella’ for the three

European Communities, its complementary

policies and the forms of cooperation

between the Member States.

The EU’s legal order nevertheless falls a

long way short of that of the EC. For

example, the principles of autonomy,

direct applicability and primacy of

Community law, which are so essential to

the legal order of the EC, do not apply to

the other two pillars of the EU. Instead,

these pillars basically consist of

programmes and declarations of intent

which are translated into practice through

cooperation between governments and

are deliberately not allowed to go beyond

the preliminary stage of a subsequent,

24 ‘institutionalised’ Union. The fact that the

EU uses the institutions of the EC when

carrying out its tasks does not alter this

situation because, as ‘institutions of the

Union’, these may only act in accordance

with the Treaty on European Union, i.e.

only in the context of cooperation

between the Member States in the second

and third pillars. The Treaty on European

Union does not constitute an ‘EU constitution’

regulating all aspects of that Union.

3. Distinctness from other types of

political organisation

The EC and the EU have, by their very

nature, certain features in common with

the usual kind of international organisation

or federal-type structure, and a

number of differences.

The EU is itself not yet a ‘finished

product’; it is in the process of evolving

and the form it finally takes still cannot be

predicted.

The only feature that the EU has in

common with other international organisations

is that it, too, came into being as a

result of an international treaty. However,

the anchoring of the EC within the EU’s

organisational structure has in itself made

the EU a considerable departure from the

traditional kind of international ties. This is

because, although the Treaties establishing

the EC were based on international

treaties, they led to the creation of independent

Communities with their own

sovereign rights and responsibilities. The

Member States have ceded some of their

sovereign powers to these Communities.

In addition, the tasks which have been

allotted to the EC are very different from

those of other international organisations.

While the latter mainly have clearly

defined tasks of a technical nature, the EC

has areas of responsibility which together

constitute essential attributes of statehood.

Through these differences between the EC

and the normal type of international

organisation, the EC and thus also the EU,

is in the process of acquiring a status

similar to that of an individual State. In

particular, the Member States’ partial

surrender of sovereign rights was taken as

a sign that the EU was already structured

along the lines of a federal State.

However, this view fails to take into

account that the EU’s institutions only

have powers in certain areas to pursue the

objectives specified in the Treaties. This

means that they are not free to choose

their objectives in the same way as a

sovereign State; nor are they in a position

to meet the challenges facing modern

States today. The EU has neither the

comprehensive jurisdiction enjoyed by

sovereign States nor the powers to establish

new areas of responsibility (‘jurisdiction

over jurisdiction’).

The EU is therefore neither an international

organisation in the usual sense nor

an association of States, but rather an

autonomous entity somewhere in between

the two. In legal circles, the term ‘supranational

organisation’ is now used.

25

• THE TASKS OF THE EU

The list of tasks entrusted to the Community

resembles the constitutional order of a

State. These are not the narrowly circumscribed

technical tasks commonly

assumed by international organisations,

but fields of competence which, taken as a

whole, form essential attributes of statehood.

Under the EC Treaty, the task of the EU is,

by establishing a common market that

unites the national markets of the Member

States and on which all goods and services

can be offered and sold on the same

conditions as on an internal market, and

by the gradual approximation of national

economic policies in all sectors, to weld

the Member States into a community.

The concept of establishing a common

market was revitalised by the programme

aimed at completion of the internal market

by 1992. This programme was born of the

realisation that, on the one hand, there

remained a series of national obstacles to

the full establishment of the freedoms on

which the common market is based and

that, on the other, important sectors of the

economy such as telecommunications and

public procurement were not included in

the common market. In its White Paper on

the completion of the internal market, the

European Commission presented the

Heads of State or Government of the

(then) 10 Member States in June 1985 with

some 300 proposals for legal instruments,

complete with a detailed timetable,

designed to remove all intra-Community

barriers by the end of 1992. At the Milan

Summit in the same year, the Heads of

State or Government entrusted the

Commission with the political task of

implementing the single market

programme. However, to achieve in just

seven years what the original Member

States had failed to achieve in nearly three

decades, a mere declaration of political

intent and the adoption of a programme

was not enough: the substance of Project

1992 had to be incorporated into the

Treaties of Rome. This was done by the

Single European Act, which added to the

E(E)C Treaty various new provisions,

including an Article stipulating that the

Community should take all the necessary

measures to establish the internal market

progressively by 31 December 1992

(Article 14, ex Article 7a EU, and prior to

that Article 8a EC). In all major respects,

this was achieved within the required time

frame, with the Community institutions

succeeding in laying down a legal framework

for a properly functioning single

market. This framework has now been

fleshed out very largely by national transposition

measures, with the result that the

single market has already become a

reality. This single market also makes itself

felt in everyday life, especially when travelling

within the EU, where identity

checks at national borders were long since

discontinued.

The Treaty on European Union represented

a step into a new economic and

social dimension for the EC. The introduction

of the euro (Article 121(4) EU) as the

single European currency in 11 of the 15

Member States (Denmark Sweden and the

26 United Kingdom declined to participate,

whilst Greece is still trying to meet the

criteria for eligibility) on 1 January 1999

was another clear sign of the interpenetration

of the Member States’ economies and

further strengthened the EU. As the only

legal currency within the EU, the euro

will, on 1 January 2002, replace the

national currencies in all general payment

transactions, thereby becoming the

currency of all EU citizens. The introduction

of the concept of citizenship of the

Union (Article 17 ff. EC) further enhanced

the rights and interests of nationals of the

Member States within the EU. Citizens

enjoy the right to move freely within the

Union (Article 18 EC), the right to vote

and stand as a candidate in municipal

elections (Article 19 EC), entitlement to

protection by the diplomatic and consular

authorities of any Member State (Article

20 EC), the right to petition the European

Parliament (Article 21 EC) and, in the

context of the general ban on discrimination,

the right to be treated by all Member

States in the same way as they treat their

own nationals (Article 17(2) in conjunction

with Article 12 EC). The unemployment

situation in the EU, which has been

a source of concern for a number of years,

has meant that the need to devise an

employment strategy has become a

priority task. With this in mind, a separate

new Title relating to employment (Title

VIII, Articles 125–130) was added to the

EC Treaty. This calls on the Member States

and the EC to develop a strategy for

employment and particularly to promote a

skilled, trained and adaptable workforce,

in addition to which labour markets

should be made adaptable to economic

change. Employment promotion is

regarded as a matter of common concern,

and requires Member States to coordinate

their national measures within the

Council. The EC will contribute to a high

level of employment by encouraging

cooperation between Member States and,

if necessary, complementing their action

while respecting their competences.

The EU Treaty also provides for new policies

and forms of cooperation on foreign

and security policy, and on police and

judicial cooperation.

• THE POWERS OF THE EU

Neither the Treaties establishing the EC

nor the Treaty on European Union confer

on the Community and its institutions any

general power to take all measures necessary

to achieve the objectives of the

Treaty, but lay down in each chapter the

extent of the powers to act (principle of

specific conferment of powers). This

method has been chosen by the Member

States in order to ensure that the surrender

of their own powers can be more easily

monitored and controlled. The range of

matters covered by the specific conferments

of power varies according to the

nature of the tasks allotted to the EC and

EU.

In the EC, the scope of the powers is very

far-reaching. For instance, in the common

transport policy any appropriate provisions

may be enacted (Article 75(1) EC)

and in agricultural policy (Article 34(2)

EC) and in the sphere of freedom of movement

of workers (Article 40 EC) all necessary

measures may be taken. On the other 27

hand in competition law (Article 81 ff.

EC), culture and education (Articles 150

and 151 EC), public health and consumer

protection (Articles 152 and 153 EC) and

environment policy (Article 175 EC), the

scope for discretion on the part of the

Community and its institutions is limited

by narrowly defined conditions.

In addition to these special powers to act,

the Community Treaties also confer on the

institutions a power to act when this

proves necessary to attain one of the

objectives of the Treaty (Article 308 EC,

Article 203 Euratom, Article 95(1) ECSC —

subsidiary power to act). These articles do

not, however, confer on the institutions

any general power enabling them to carry

out tasks which lie outside the objectives

laid down in the Treaties, and the

subsidiarity principle further debars the

Community institutions from extending

their powers to the detriment of those of

the Member States. In practice, the possibilities

afforded by this power have been

used with increasing frequency since the

EC has, over time, been faced repeatedly

with new tasks that were not foreseen at

the time the founding Treaties were

concluded, and for which accordingly no

appropriate powers were conferred in the

Treaties. Examples are the protection of

the environment and of consumers, the

numerous research programmes

concluded since 1973 outside the European

Atomic Energy Community, or the

establishment of a European Regional

Fund as a means of closing the gap

between the developed and underdeveloped

regions of the Community. Now,

however, the Single European Act and the

EU Treaty specifically give the Community

jurisdiction in the abovementioned fields.

These specific provisions on the powers of

the EC have meant that the practical

importance of the subsidiary power to act

has very much declined.

Finally, there are further powers to take

such measures as are indispensable for the

effective and meaningful implementation

of powers that have already been

expressly conferred (implied powers).

These powers have acquired a special

significance in the conduct of external

relations. They enable the Community to

assume obligations towards non-member

countries or other international organisations

in fields covered by the list of tasks

entrusted to the Community. An

outstanding example is provided by the

‘Kramer’ case decided by the Court of

Justice. This case concerned the Community’s

capacity to cooperate with international

organisations in fixing fishing quotas

and, where considered appropriate, to

assume obligations on the matter under

international law. Since there was no

specific provision laid down in the EC

Treaty, the Court inferred the necessary

external competence of the Community

from its internal competence for fisheries

policy under the common agricultural

policy.

But the exercise of these powers by the EC

is governed by the subsidiarity principle,

taken over from Roman Catholic social

doctrine, which has acquired virtually

constitutional status through being

embodied in the EC Treaty (Article 5).

28 There are two facets to it: the affirmative

statement that the EC must act where the

objectives to be pursued can be better

attained at Community level, which

enhances its powers; and the negative

statement that it must not act where objectives

can be satisfactorily attained by the

Member States acting individually, which

constrains them. What this means in practice

is that all Community institutions, but

especially the Commission, must always

demonstrate that there is a real need for

Community rules and common action. To

paraphrase Montesquieu, when it is not

necessary for the Community to take

action, it is necessary that it should take

none. If the need for Community rules is

demonstrated, the next question that arises

concerns the intensity and the form that

they should take. The answer flows from

the principle of proportionality that has

entered Community law through the decisions

of the Court of Justice. It means that

the need for the specific legal instrument

must be thoroughly assessed to see

whether there is a less constraining means

of achieving the same result. The main

conclusion to be reached in general terms

is that framework legislation, minimum

standards and mutual recognition of the

Member States’ existing standards should

always be preferred to excessively

detailed Community rules. The application

of the subsidiarity principle was

further clarified in a Protocol annexed to

the Treaty of Amsterdam. The Protocol sets

out all the procedural and material

requirements deriving from the principle

of subsidiarity which have to be met by

the Community’s legal acts. Very specific

criteria for the application of this principle

now exist, and at the same time the

Community institutions’ task of monitoring

compliance with it has been made easier.

Under the second and third pillars of the

EU (common foreign and security policy,

and cooperation between police and judicial

authorities in criminal matters) the

powers of the Community institutions are

limited to encouraging and supporting

collaboration agreed on between the

Member States themselves in the Council.

There has been no transfer — either in

whole or in part — of powers from the

Member States to the Community institutions;

instead, the Member States remain

directly responsible for their joint foreign

and security policy and for cooperation

between their police and judicial authorities

in fighting crime. They have nevertheless

also given undertakings to cooperate

further and pursue joint courses of action

at EU level while working within the

Community’s institutional framework.

29

• THE INSTITUTIONS OF THE EU

30

European Court of Justice

15 Judges

European Council

15 Heads of State or

Government and the

President of the

Commission

Court of Auditors

15 members

Committee of the

Regions

222 members

Council of the EU

15 ministers

European Commission

20 members

European Parliament

626 members

Economic and Social

Committee

222 members

Germany

France

Italy

United Kingdom

Spain

Belgium

Greece

Netherlands

Portugal

Austria

Sweden

Denmark

Ireland

Finland

Luxembourg

10

10

10

10

8

5

5

5

5

4

4

3

3

3

2

11.36

11.36

11.36

11.36

9.09

5.68

5.68

5.68

5.68

4.54

4.54

3.41

3.41

3.41

2.27

21.96

15.63

15.39

15.75

10.53

2.72

2.81

4.16

2.66

2.16

2.37

1.41

0.97

1.37

0.11

2

2

2

2

2

1

1

1

1

1

1

1

1

1

1

Percentage

of total votes

Votes in

the Council

of

Ministers

Percentage

of total population

Members of the

Commission

European Investment

Bank

European

Central Bank

The third question arising in connection

with the constitution of the European

Community is that of its organisation.

What are the institutions of the Community?

Since the Community exercises functions

normally reserved for States, does it

have a government, a parliament, administrative

authorities and courts like those

with which we are familiar in the Member

States? Action on the tasks assigned to the

Community and the direction of the integration

process was intentionally not left

to Member States or to international cooperation.

The EC has an institutional system

that equips it to give new stimuli and

objectives to the unification of Europe and

to create a body of Community law that is

uniformly devised and applied in all the

Member States.

The main actors on the Community stage

are the European Council and the EC institutions

— the European Parliament, the

Council of the EU, the European Commission,

the European Court of Justice and the

Court of Auditors. There are also a number

of ancillary bodies: the European Central

Bank and the European Investment Bank,

and also the Economic and Social

Committee and the Committee of the

Regions. Of these institutions the Court of

Justice and Parliament, or ‘Assembly’ as it

used to be called, were from the outset

common to the three Communities. This

was provided for in a Convention between

the original six Member States that was

signed in 1957 at the same time as the

Rome Treaties. The process of creating

common institutions was completed in

July 1967 by the Treaty establishing a

single Council and a single Commission of

the European Communities (the ‘Merger

Treaty’). Since then all three Communities

have had one and the same institutional

structure.

European Council (Article 4 EU)

The European Council grew out of the

Summit Conferences of Heads of 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 European Council. In

1987, the Single European Act (Article 23)

formally incorporated the European

Council in the Community’s institutional

set-up. It is now a body of the European

Union (Article 4 EU).

The Heads of State or Government and the

President of the Commission meet at least

twice a year in this context. They are

accompanied by the Foreign Ministers and

a Member of the Commission (Article 4(2)

EU).

The function of the European Council is to

establish policy guidelines for European

integration in relation to both the EC and

the EU. In the Community context, it does

so by taking basic policy decisions and

issuing instructions and guidelines to the

Council or the Representatives of the

Member States meeting in the Council.

The European Council has in this way

directed work on economic and monetary

union, the European Monetary System,

direct elections to Parliament and a

number of accession applications.

31

European Parliament

(Articles 189–201 EC)