Allocation and Determination of Responsibilities, Powers and Competence in European Countries

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Contents

  1. ADVERTISEMENT
  2. Basic Law for the Federal Republic of Germany
  3. How do the institutions relate to each other?
  4. European Commissioner

TEU articles 4 and 5 state that powers remain with the member states unless they have been conferred, although there is a debate about the Kompetenz-Kompetenz question: who ultimately has the "competence" to define the EU's "competence". Many member state courts believe they decide, other member state Parliaments believe they decide, while within the EU, the Court of Justice believes it has the final say. The judiciary of the EU has played an important role in the development of EU law.

It interprets the treaties , and has accelerated economic and political integration. Under the Treaty on European Union article 19 2 there is one judge from each member state in the Court of Justice and General Court 28 on each at present [77]. Judges should "possess the qualifications required for appointment to the highest judicial offices" or for the General Court, the "ability required for appointment to high judicial office". The CJEU 's duty is to "ensure that in the interpretation and application of the Treaties the law is observed", although realistically it has the ability to expand and develop the law according to the principles it develops consistently with democratic values.

Examples of landmark, and frequently controversial judgments, include Van Gend en Loos holding EU law to created a new legal order, and citizens could sue for treaty rights , [80] Mangold v Helm establishing equality as a general principle of EU law , [81] and Kadi v Commission confirming international law had to conform with basic principles of EU law.

The Statute of the Court and TFEU require judges are appointed only if they have no political occupation, with independence "beyond doubt". A "grand chamber" of 15 more senior judges sit on questions of "difficulty or importance", or those requested by member states.

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Judges can only be dismissed if all other judges and Advocate Generals unanimously agree. Advocate Generals are appointed by the court to give reasoned submissions on cases, especially involving new points of law. Unlike judges on the Court, they write opinions as themselves, rather than collectively, and often with a command of prose and reason, and while not binding are often followed in practice.

Unlike the UK where judges always write their own opinions, referendaires often assist drafting the judgments in the Court of Justice. The Court's Translation Directorate will translate every final judgment into the 24 official languages of the European Union. The three main kinds of judgments the Court of Justice gives following 1 preliminary rulings, requested by the courts of member states, [87] 2 enforcement actions, brought by the Commission or Member States, against the EU, a member state, or any other party that is alleged to violate EU law, [88] and 3 other direct actions, where the EU or member state is involved as a party to the dispute, and gives final rulings.

In each case a judge is designated to actively manage the hearing called a rapporteur and draft the judgment probably with help from referendaires. The court always deliberates and votes before the final opinion is written and published. Cases in the General Court can be appealed to the Court of Justice on points of law.

How do the institutions relate to each other?

While there is no formal appeal procedure from the Court of Justice, in practice its actions are subject to scrutiny by both the supreme courts of member states and the European Court of Human Rights , even if the final balance of power is unresolved. Since its founding, the EU has operated among an increasing plurality of national and globalising legal systems. In the first major case in , Costa v ENEL , a Milanese lawyer, and former shareholder of an energy company, named Mr Costa refused to pay his electricity bill to Enel , as a protest against the nationalisation of the Italian energy corporations.

By contrast, the Court of Justice held that ultimately the Treaty of Rome in no way prevented energy nationalisation, and in any case under the Treaty provisions only the Commission could have brought a claim, not Mr Costa. However, in principle, Mr Costa was entitled to plead that the Treaty conflicted with national law, and the court would have a duty to consider his claim to make a reference if there would be no appeal against its decision.

The Court of Justice , repeating its view in Van Gend en Loos , [94] said member states "have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves" [95] on the "basis of reciprocity".

Basic Law for the Federal Republic of Germany

This meant any "subsequent unilateral act" of the member state inapplicable. In "accordance with the principle of the precedence of Community law", said the Court of Justice , the "directly applicable measures of the institutions" such as the Regulations in the case "render automatically inapplicable any conflicting provision of current national law".

This was necessary to prevent a "corresponding denial" of Treaty "obligations undertaken unconditionally and irrevocably by member states", that could "imperil the very foundations of the" EU. Generally speaking, while all member states recognise that EU law takes primacy over national law where this agreed in the Treaties, they do not accept that the Court of Justice has the final say on foundational constitutional questions affecting democracy and human rights.

In the United Kingdom, the basic principle is that Parliament, as the sovereign expression of democratic legitimacy, can decide whether it wishes to expressly legislate against EU law. It was held in R Factortame Ltd v Secretary of State for Transport that "whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act was entirely voluntary" and so "it has always been clear" that UK courts have a duty "to override any rule of national law found to be in conflict with any directly enforceable rule of Community law".

The view of the German Constitutional Court from the Solange I and Solange II decisions is that if the EU does not comply with its basic constitutional rights and principles particularly democracy, the rule of law and the social state principles [] then it cannot override German law.

This suggests the EU's legitimacy rests on the ultimate authority of member states, its factual commitment to human rights, and the democratic will of the people. As opposed to the member states, the relation of EU law and international law is debated, particularly relating to the European Convention on Human Rights and the United Nations.

All EU member states are party to both organisations through international treaties. This was thought necessary before the Treaty of Lisbon to ensure that the EU gave adequate protection to human rights, overseen by the external European Court of Human Rights in Strasbourg. This included a Saudi national, Mr Kadi. In Kadi v Commission , Mr Kadi claimed there was no evidence that he was connected to terrorism, and he had not had a fair trial : a fundamental human right. The Court of Justice held that even UN member cannot contravene 'the principles that form part of the very community legal order'.

How do the institutions relate to each other?

The content of those core principles remains open to ongoing judicial dialogue among the senior courts in Europe. While constitutional law concerns the European Union 's governance structure, administrative law binds EU institutions and member states to follow the law. Both member states and the Commission have a general legal right or "standing" locus standi to bring claims against EU institutions and other member states for breach of the treaties. From the EU's foundation, the Court of Justice also held that the Treaties allowed citizens or corporations to bring claims against EU and member state institutions for violation of the Treaties and Regulations , if they were properly interpreted as creating rights and obligations.

However, under Directives , citizens or corporations were said in to not be allowed to bring claims against other non-state parties. These rules on " direct effect " limit the extent to which member state courts are bound to administer EU law. All actions by EU institutions can be subject to judicial review , and judged by standards of proportionality , particularly where general principles of law, or fundamental rights are engaged.

The remedy for a claimant where there has been a breach of the law is often monetary damages, but courts can also require specific performance or will grant an injunction, in order to ensure the law is effective as possible. Although it is generally accepted that EU law has primacy, not all EU laws give citizens standing to bring claims: that is, not all EU laws have " direct effect ".

Van Gend en Loos , a postal company, claimed that what is now TFEU article 30 prevented the Dutch Customs Authorities charging tariffs, [] when it imported urea-formaldehyde plastics from Germany to the Netherlands. After a Dutch court made a reference, the Court of Justice held that even though the Treaties did not "expressly" confer a right on citizens or companies to bring claims, they could do so.

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European Commissioner

Historically, international treaties had only allowed states to have legal claims for their enforcement, but the Court of Justice proclaimed "the Community constitutes a new legal order of international law". Because article 30 clearly, unconditionally and immediately stated that no quantitative restrictions could be placed on trade, without a good justification, Van Gend en Loos could recover the money it paid for the tariff. Member states come under a duty not to replicate Regulations in their own law, in order to prevent confusion.

For instance, in Commission v Italy the Court of Justice held that Italy had breached a duty under the Treaties, both by failing to operate a scheme to pay farmers a premium to slaughter cows to reduce dairy overproduction , and by reproducing the rules in a decree with various additions. While the Treaties and Regulations will have direct effect if clear, unconditional and immediate , Directives do not generally give citizens as opposed to the member state standing to sue other citizens.

In theory, this is because TFEU article says Directives are addressed to the member states and usually "leave to the national authorities the choice of form and methods" to implement. In part this reflects that directives often create minimum standards, [] leaving member states to apply higher standards.

For example, the Working Time Directive requires that every worker has at least 4 weeks paid holidays each year, but most member states require more than 28 days in national law. First, if a Directive's deadline for implementation is not met, the member state cannot enforce conflicting laws, and a citizen may rely on the Directive in such an action so called "vertical" direct effect. So, in CIA Security v Signalson and Securitel the Court of Justice held that a business called CIA Security could defend itself from allegations by competitors that it had not complied with a Belgian decree from about alarm systems, on the basis that it had not been notified to the Commission as a Directive required.

She claimed that the law not counting her years under age 25 was unlawful age discrimination under the Employment Equality Framework Directive. The Court of Justice held that the Directive could be relied on by her because equality was also a general principle of EU law. In Foster v British Gas plc the Court of Justice held that Mrs Foster was entitled to bring a sex discrimination claim against her employer, British Gas plc , which made women retire at age 60 and men at 65, if 1 pursuant to a state measure, 2 it provided a public service, and 3 had special powers.

Fifth, national courts have a duty to interpret domestic law "as far as possible in the light of the wording and purpose of the directive". In Marleasing SA v La Comercial SA the Court of Justice held that a Spanish Court had to interpret its general Civil Code provisions, on contracts lacking cause or defrauding creditors, to conform with the First Company Law Directive article 11, [] that required incorporations would only be nullified for a fixed list of reasons.

But, if a member state has failed to implement a Directive, a citizen may not be able to bring claims against other non-state parties.

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It must instead sue the member state itself for failure to implement the law. Litigation often begins and is resolved by member state courts. They interpret and apply EU law, and award remedies of compensation and restitution remedying loss or stripping gains , injunctions and specific performance making somebody stop or do something.

If, however, the position in EU law appears unclear, member state courts can refer questions to the Court of Justice for a " preliminary ruling " on EU law's proper interpretation. TFEU article says court "may" refer "if it considers" this "is necessary to enable it to give judgment", and "shall bring the matter before the Court" if there is no possibility for further appeal and remedy.

Any "court or tribunal of a Member State" can refer. This is widely interpreted. In Vaassen v Beambtenfonds Mijnbedrijf [] the Court of Justice also held that a mining worker pension arbitration tribunal could make a reference. By contrast, and oddly, in Miles v European Schools [] the Court of Justice held that a Complaints Board of European Schools, set up under the international agreement, the European Schools Convention, could not refer because though it was a court, it was not "of a member state" even though all member states had signed that Convention.


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On the other side, courts and tribunals are theoretically under a duty to refer questions. In the UK, for example, Lord Denning MR considered it appropriate to refer if the outcome of a case depended on a correct answer, [] and the Civil Procedure Rules entitle the High Court to refer at any stage of proceedings.

In a significant case, Three Rivers DC v Governor of the Bank of England [] the UK House of Lords felt confident that it was clear under the First Banking Directive that depositors did not have direct rights to sue the Bank of England for alleged failure to carry out adequate prudential regulation. Their Lordships highlighted that while some uncertainty might exist, the costs of delay in making a reference outweighed the benefits from total certainty.

By contrast, in ParkingEye Ltd v Beavis , a majority of the Supreme Court apparently felt able to declare that the law under Unfair Terms in Consumer Contracts Directive was acte clair , and decline to make a reference, even though a senior Law Lord delivered a powerfully reasoned dissent. The UK Supreme Court in R HS2 Action Alliance Ltd v Secretary of State for Transport devoted large parts of its judgment to criticism, in its view, an unpredictable 'teleological' mode of reasoning which, could decrease confidence in maintaining a dialogue within a plural and transnational judicial system.

Similarly, the German Constitutional Court in the Outright Monetary Transactions case referred a question for preliminary ruling on whether the European Central Bank 's plan to buy Greek and other government bonds on secondary markets, despite the Treaty prohibition on buying them directly, was unlawful. If references are made, the Court of Justice will give a preliminary ruling, in order for the member state court to conclude the case and award a remedy.

The right to an effective remedy is a general principle of EU law, enshrined in the Charter of Fundamental Rights article Most of the time Regulations and Directives will set out the relevant remedies to be awarded, or they will be construed from the legislation according to the practices of the member state. In Francovich v Italy , the Italian government had failed to set up an insurance fund for employees to claim unpaid wages if their employers had gone insolvent, as the Insolvency Protection Directive required. The Court of Justice held that if a Directive would confer identifiable rights on individuals, and there is a causal link between a member state's violation of EU and a claimant's loss, damages must be paid.

The fact that the incompatible law is an Act of Parliament is no defence. It was not decisive that the German Parliament had not acted willfully or negligently. The Court of Justice advised a breach is to be regarded as 'sufficiently serious' by weighing a range of factors, such as whether it was voluntary, or persistent. As well as preliminary rulings on the proper interpretation of EU law, an essential function of the Court of Justice is judicial review of the acts of the EU itself.

This includes legislation, and most other acts that have legal consequences for people. The cement company challenged the decision, and the Commission argued this was not really an "act", and so could not be challenged. The Court of Justice held a challenge could be made, and it was an act, because it "deprived [the cement company] of the advantages of a legal situation When both challenged this, the Commission argued that the demand for information could not be an act as there was no sanction. The Court of Justice disagreed, and held judicial review could proceed because the request produced "binding legal effects" since the information supplied or not could be relied upon as evidence in a final decision.

In any case, if a reviewable act of an EU institution is not found compatible with the law, under article , it will be declared void. However, only a limited number of people can bring claims for judicial review. But under article 4 a "natural or legal person" must have a "direct and individual concern" about the regulatory act.

The Commission argued that the exporters were not directly concerned, because France might decide not to limit exports, but the Court of Justice held this possibility was "entirely theoretical".


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By contrast in Municipality of Differdange v Commission [] a municipality wanted to challenge the Commissions decision to aid steel firms which reduced production: this would probably reduce its tax collections.