Living and judging on the frontier. European myth, dream or… daily legal reality ?

INTRODUCTION

The legal foundation the uniform laws of European Union lies in the Treaty of European Union and the Treaty on the Functioning European Union, which was agreed by the 28 governments of the member states in the year 2007. The European Union is open to admit new states if they comply with the rules of the Union and the existing members are free to exit the Union in accordance with their own constitutional requirements[1]. European Union Law is a system of rules/laws, which are legally binding on all the sovereign member states, with an objective to promote peace, and wellbeing of its people. The European Union has created a Sui Generis status of international law under which the sovereign states are bound to follow the laws laid down by the Union. The European Union has various institutions, social and economic policies that transcend the geographical boundaries of member states for the purposes of cooperation and development of its people.[2] The citizens of member states are entitled to participate in the law making and legislation of European Union, through the parliament and their respective national governments. The Council of European Union constitutes of representation of member states, the parliament is elected directly by the citizens of the member states, while the court of justices is established to promote the Rule of Law and Human Rights of the people.[3] The European Union Court of Justice in the case of Debrenne V. Sabena held that “European Union is not merely an economic union but is intended to ensure social progress and seek the constant improvement of the living and working conditions of their peoples.[4] The European Union is a giant step in undoing the damage done by frequent wars and altercations. But we are yet to find out that the idea or dream of the European Union is transcended into reality or not, and what are the differences between the dream of European Union and its actual implementation and practice. Law is ought to be dynamic, and any flaws in the current system will be pronounced by practice and will be resolved by amendments.

 

EUROPEAN COMMISSION:

European Commission is the critical executive body of the European Union.[5] The main function of the commission is to propose legislative acts to the Parliament, the article 17(2) expressly provides that “Union legislative act may only be adopted on the basis of a Commission proposal, except where the treaties provide otherwise”. Article 17(1) of the Treaty of European Union categorically states that the Commission should “promote the general interest of the Union” while Article 17(3) adds that Commissioners should be “completely independent” and not “take instructions from any Government”. This means that the Commission has a monopoly on initiating the legislative procedure, although the Council or Parliament is the “de facto catalysts of many legislative initiatives”.[6] The European Commission consists of one member from each of the member states and adequate representation of each of the state is ensure to put forth their respective concerns in the functioning of European Union, therefore in no way the European Union is a myth, it is a reality and gaining its prominence with each passing day.

 

LEGISLATURE:

The Parliament and the Council of European Union constitutes the European Union’s Bicameral legislature. While the Commission has a monopoly on initiating or proposing legislation, the European Parliament and the Council of European Union adopt it or may reject it, including the right to amend it during the legislative process.[7] Under Article 9 and 10 of the Treaty of European Union, the Union observes the principle of “Equality of its citizens” and is founded on “Representative Democracy”. Although they cannot normally adopt legislation without a Commission proposal being put to them, both Council and Parliament have the right to request the Commission to draft a proposal for their consideration. In the Council, “qualified majorities” or consensus of the Council are required, depending on the subject matter, to legislate.[8] The legislature of the European Union effectively conforms with all the degrees of legislative procedure in a sovereign state and it is ensured that all the laws passed by it are enforced effectively.

 

JUDICIARY:

The judiciary of the European Union has played a critical role in the development of European Union law. The Judiciary has been assigned the functions of interpretation of Treaties, and accelerate economic and political integration.[9] The Court of Justice of the European Union (CJEU) is the main judicial body, there is also a higher Court of Justice which has been assigned the powers to deal with cases of the importance of majority of general public, the General Court that deals with issues of detail but without general importance, and then a separate Court of Auditors. Under Article 19(2) of the Treaty on European Union, it is provided that there shall be one judge from each member state in the Court of Justice and General Court (28 on each at present).[10] 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”).[11] A president is elected by the judges for three years. While TEU article 19(3) provides that the Court of Justice is the ultimate court to interpret questions of EU law, in practice, most EU law is applied by member state courts, e.g. the English Court of Appeal, the German Bundesgerichtshof, the Belgian Cour du travail, etc.).[12] Member state courts can refer questions to the Court of Justice of the European Union for a preliminary ruling. It is the duty of the Court of Justice of the European Union duty 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 create a new legal order, and citizens could sue for treaty rights),[13] Mangold v Helm (establishing equality as a general principle of EU law),[14] and Kadi v Commission (confirming international law had to conform with basic principles of EU law).[15] Internally, the European Union Civil Service Tribunal deals with EU staff issues. It can be inferred from the functioning of the European Union Judiciary that it has all the resources to effectively enforce the legislations made by the European Union Legislature, and as of now there is little evidence of the futility and infructuousness of the laws made by the European Union. The judiciary can effectively enforce its orders with cooperation of the instrumentalities of the member states.

 

CONFLICT OF LAWS OF THE EUROPEAN UNION WITH MEMBER STATES:

Since the outset of its establishment of European Union, the Conflict of the laws made by the legislature of European union with the laws of member states, have been a major cause of concern for the advocates of integration of European Union and supporters of the dream of European Union.  The membership of European Union has operated among an increasing plurality of nations and globalizing legal systems.[16] This resulted in the European Court of Justice and the highest national courts in devising the principles to resolve conflicts of laws between different systems. Within the EU itself, the Court of Justice’s view is that if EU law conflicts with a provision of national law, then EU law has primacy. In the first major case in 1964, 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 nationalization of the Italian energy corporations.[17] He claimed the Italian nationalization law conflicted with the Treaty of Rome,[18] and requested a reference be made to both the Italian Constitutional Court and the Court of Justice under TFEU article 267.[19] The Italian Constitutional Court gave an opinion that because the nationalization law was from 1962, and the treaty was in force from 1958, Costa had no claim. By contrast, the Court of Justice held that ultimately the Treaty of Rome in no way prevented energy nationalization, 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,[20] 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”[21] on the “basis of reciprocity”.[22] EU law would not “be overridden by domestic legal provisions, however framed… without the legal basis of the community itself being called into question”. This meant any “subsequent unilateral act” of the member state inapplicable.[23] Similarly, in Amministrazione delle Finanze v Simmenthal SpA, a company, Simmenthal SpA, claimed that a public health inspection fee under an Italian law of 1970 for importing beef from France to Italy was contrary to two Regulations from 1964 and 1968. 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.[24] But despite the views of the Court of Justice, the national courts of member states have not accepted the same analysis. However, it is pertinent that the European Union law is evolving and member state laws are transitioning and evolving their laws at par with European Union laws.

 

EFFECTS ON CITIZENS:

The establishment of European Union has more benefits for the citizens of the member nations than the drawback associated with it. Beyond the right of free movement to work, the EU has increasingly sought to guarantee rights of citizens, and rights simply be being a human being.[25] But although the Court of Justice stated that ‘Citizenship is destined to be the fundamental status of nationals of the Member States’,[26] political debate remains on who should have access to public services and welfare systems funded by taxation.[27] In 2008, just 8 million people from 500 million EU citizens (1.7 per cent) had in fact exercised rights of free movement, the vast majority workers.[28] According to TFEU article 20, citizenship of the EU derives from nationality of a member state. Article 21 confers general rights to free movement in the EU and to reside freely within limits set by legislation. This applies for citizens and their immediate family members.[29] This triggers four main groups of rights: (1) to enter, depart and return, without undue restrictions, (2) to reside, without becoming an unreasonable burden on social assistance, (3) to vote in local and European elections, and (4) the right to equal treatment with nationals of the host state, but for social assistance only after 3 months of residence.

 

CONCLUSION:

Now, we can conclude from the discussions in this essay that the dream of an integrated European Union has been materialized to a great extent and the members states are aspiring to bring the national law in consonance with the laws of the European Union. It has to be understood that the integration of sovereign states at the scale of European Union needs a substantial amount of time, the member states and the administration of European Union needs to learn from its flaws in its administration, and should resolve every difference between the European Union or any member states with constructive dialogue among the member nations. European Union is an epitome of human compassion across the globe.

[1] TEU art 50. On the most sophisticated discussion of constitutional law and human rights principles for secession, see Reference Re Secession of Quebec [1998] 2 SCR 217, particularly [67] “The consent of the governed is a value that is basic to our understanding of a free and democratic society. Yet democracy in any real sense of the word cannot exist without the rule of law”. And [149] “Democracy, however, means more than simple majority rule”.

 

[2] See TEU arts 3(3) ‘It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment’. Art 4(3) ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties’.

 

[3] See TEU arts 13–19

[4] Defrenne v Sabena (1976) Case 43/75, [10]

 

[5]P Craig and G de Búrca, EU Law: Text, Cases, and Materials (6th edn 2015) ch 2, 31–40

 

[6] Craig and de Búrca (2014) 36

[7] P Craig and G de Búrca, EU Law: Text, Cases, and Materials (6th edn 2015) chs 2 and 5, 40–56 and 124–160

 

[8] TEU art 16(3) and TFEU art 238(3)

 

[9] P Craig and G de Búrca, EU Law: Text, Cases, and Materials (6th edn 2015) ch 2, 57–67

[10] Statute of the Court art 48

 

[11] TEU art 19(2) and TFEU arts 253–254

 

[12] Kuhnert, Jan; Leps, Olof (2017-01-01). Neue Wohnungsgemeinnützigkeit (in German). Springer Fachmedien Wiesbaden. pp. 213–258. ISBN 9783658175696. doi:10.1007/978-3-658-17570-2_8.

 

[13] (1963) Case 26/62

 

[14] (2005) C-144/04

 

[15] (2008) C-402

[16] P Craig and G de Búrca, EU Law: Text, Cases, and Materials (6th edn 2015) chs 9–10

 

[17] Ente nazionale per l’energia elettrica was privatised once again in 1999.

 

[18] This included TEEC arts 102 (on consulting with the Commission on distortions to the common market), art 93 (on state aids), art 53 (right of establishment), and art 37 (national monopolies of a commercial character should treat all EC nationals equally).

 

[19] At the time, TEEC art 177

[20] Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62

 

[21] “EUR-Lex – 61964CJ0006 – EN – EUR-Lex”. eur-lex.europa.eu. Retrieved 2016-11-08.

 

[22] “EUR-Lex – 61964CJ0006 – EN – EUR-Lex”. eur-lex.europa.eu. Retrieved 2016-11-08.

 

[23] (1964) Case 6/64, [1964] ECR 585

 

[24] (1978) Case 106/77, [1978] ECR 629, [17]-[18]

[25] See NN Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 CMLR 1597 and HP Ipsen, Europäisches Gemeinschaftsrecht (1972) on the concept of a ‘market citizen’ (Marktbürger).

 

[26] Grzelczyk v Centre Public d’Aide Sociale d’Ottignes-Louvain-la-Neuve (2001) C-184/99, [2001] ECR I-6193

 

[27] See T Marshall, Citizenship and Social Class (1950) 28-9, positing that ‘citizenship’ passed from civil rights, political rights, to social rights, and JHH Weiler, ‘The European Union belongs to its citizens: Three immodest proposals’ (1997) 22 European Law Review 150

 

[28] 5th Report on Citizenship of the Union COM(2008) 85. The ‘’First Annual Report on Migration and Integration’’ COM(2004) 508, found by 2004, 18.5m third country nationals were resident in the EU.

 

[29] CRD 2004 art 2(2) defines ‘family member’ as a spouse, long term partner, descendant under 21 or depednant elderly relative that is accompanying the citizen. See also Metock v Minister for Justice, Equality and Law Reform (2008) C-127/08, holding that four asylum seekers from outside the EU, although they did not lawfully enter Ireland (because their asylum claims were ultimately rejected) were entitled to remain because they had lawfully married EU citizens. See also, R (Secretary of State for the Home Department) v Immigration Appeal Tribunal and Surinder Singh [1992] 3 CMLR 358

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