Harmonisation of Law in the European Union - Essay Example

Harmonisation of Law in the European Union The European Union was founded on the basis of the Treaty on European Union (the Maastricht treaty), and consists of European countries. In order to bring into existence a single Market, there is a vital need to standardise the EU Law. This process is termed as Harmonization1. The European Union is committed to engendering legal unity. It aims to achieve this objective by the harmonisation of many areas of law, such as contract law, criminal law and family law. Efforts to establish The Common European Code of Private Law (“The Common Frame of Reference on the Principles of European Contract Law”) were made in the 1980s. This exercise was emulated, in engendering the Commission for European Family Law, in 2001. The chief aim behind these initiatives was to harmonise family law in the Member States and establish a universal set of principles for European Family Law. All the same, the ECJ had already made several endeavours, by means of its case law to create European Family Law2. In the Nordic countries, two important harmonisation processes had transpired. The first was during the period from 1909 to 1929, when efforts were undertaken to establish the Nordic Model of Marriage; and the second, in the late 1990s, when amendments and adjustments were made to this Nordic Model, in order to take into account the changes that had taken place in some countries. The provisions of international private law, proved to be of immense help in dealing with the problem posed by increasing immigration. The Nordic Member States and the rest of the EU, accordingly, spared no effort, in effecting the harmonisation of private international law3. The free movement of workers and their families is significantly affected by the harmonisation of family laws. The latter have acquired importance, due to the Lisbon Strategy and the Roadmap for Equality; which are seized with improving labour force participation4. With the advent of the European Economic Community in 1957, there has been a concentrated effort to unify the European nations. The European Union, which was the culmination of these initiatives, has provided a law that is to reign supreme in all the Members States. What commenced as an endeavour to implement a common economic market system, has now emerged into a complex organisation that controls a significant number of economic and political areas5. The EU has over a period of time, emerged as a constitutional system. Its law has direct effect upon domestic legislation, or in other words, EC Law has supremacy over national laws. The influence of EC Law on domestic law is not superficial; and a large amount of legislation has been developed in EC Law, in the areas of business law, consumer law, contract law, immigration law, and labour law6. EC law has supremacy over the national legislation of the Member States. Such dominance is derived from a complex legal process, which is not stated, explicitly in the founding treaties. There are certain general principles of Community Law that have brought about this supremacy. One of these is the principle of direct effect of EU Law, which was established by the ECJ in the Van Gend en Loos case. This doctrine requires national judges to adopt the EU Law7. The doctrine of direct effect was first attributed to the treaties and regulations of the EU. Subsequently, it was extended to apply to the directives issued by the EU. Member States are required to incorporate the provisions of a directive into their national laws and to implement them within the prescribed period of time. Failure to comply with these requirements renders them liable. This principle can be invoked by individuals against the state, as well as other individuals. However, a Member States is precluded from resorting to the direct effect, in respect of individuals8. The second principle is that of the primacy of EC Law over national legislation. This principle ensures that EC Law prevails over national legislation, in the event of any conflict between them. The relevant doctrine states that there is a ‘consubstantial link between the autonomy and primacy of Community Law.’ The third principle, in this context, is that of fair co-operation among Member States. It has been specified in Article 5 EC. According to this Article, the Member States are required to initiate all possible measures to meet the Treaty obligations. The Member States are also required to implement the decisions of the various EU institutions, and the obligations imposed by these institutions. As such, the Member States have to ensure that they facilitate the achievement of the tasks of the EU9. Harmonisation of legislation in all the Member States is essential, for establishing a single market within the EU. In fact, it constitutes a legal process of standardising the legal systems of the various Member States. The principal sources of EU Law are the EC Treaties, which are known as the primary legislation. Another, source consists of Regulations, Directives, decisions, recommendations and opinions of different European institutions, which is collectively known as secondary legislation of the EU. The third source of EU Law is comprised of the decisions of the European Court of Justice and the Court of First Instance10. Under the concept of supremacy of EU Law, the Community law prevails over the national legislation of the Member States. In the event of a conflict between the national law and EU Law, the national law is deemed to be subservient to the EU Law. The principle of supremacy applies to the primary and secondary EU Law. Article 10 EC imposes several obligations on the Member States and requires them to fulfil those obligations. The ECJ plays an important role in maintaining the integrity of the European integration11. The ECJ has always promoted the concept of the EU; and has always attempted to uphold the spirit of the Treaties that constitute the basis of this extraordinary Union. It strives with might and main to implement the provisions of the various Treaties of the EU. The ECJ has scant regard for political arguments and interests, and accords considerable significance to the proper interpretation of these Treaties. The Schmidberger decision greatly influenced the subsequent case law of the ECJ12; and in this manner, proved to be a landmark decision. EU legal order does not have direct enforcement power; and its enforcement effort has to rely on the rule of law of its Member States. The Maastricht Treaty empowered the ECJ to punish recalcitrant Member States, which wilfully avoid the application of EU Law, by imposing suitable monetary fines. This new power has proven to be very effective, in ensuring the proper implementation of EU Law in the European Union. Moreover, the number of Member States is increasing, and this has resulted in an enhancement, in the jurisdiction of the ECJ. Article 220 EC fortifies the standing of the ECJ and empowers it to ensure the authenticity of EU Law. As a result the Member States agreed to resolve disputed issues through the mechanism enshrined in Article 292 EC. Moreover, they expressed their willingness to comply with the rulings of the ECJ, in respect of disputes relating to supremacy of EC Law over domestic law. This move set aside the necessity for an impartial court that was to function as a referee13. The ECJ is the principal engine for the promotion and fortification of European integration. It leaves no stone unturned in its efforts to promote the spirit of the EU. In this endeavour, it relies to a major extent on the provisions of Article 234 EC Treaty; due to the fact that this Article enumerates the preliminary reference procedures. The ECJ has established the notion of legal precedent through its case law. This doctrine proved to be instrumental in the progress of EU law. In Van Gend en Loos14 case, the ECJ opined that EU law was to be safeguarded in the interests of the Member States and EU citizens. Similarly, the ECJ established the principle of supremacy of the EC Law in the case of Costa v ENEL15. Under this principle, the EC law prevails over domestic law of Member States. In this manner, the ECJ has strived hard to provide the legal standing for the EU law, by establishing its supremacy over domestic legislation. The ECJ established the doctrine of supremacy of EC Law in the cases of Costa16 and Simmenthal SpA17. It established the concept of direct effect of EC Law in Van Gend18. In the cases of Fracovich19, Brasserie du Pecheur20, Factortame21, and Kobler22, it held that Member States were liable for damages caused to individuals, due to breach of EC Law. In the beginning, the national courts had been reluctant to follow the principle of EU Law’s supremacy over their national legislation. Moreover, national courts tended to oppose the unconditional acceptance of the dominance of EU Law. on occasion, a number of national courts even went to the extent of challenging the legal authority of the ECJ23. Ultimately, the national courts were compelled to accept the supremacy of EU Law; and to adopt the obligations specified, under the provisions of the EC Treaty. A Member State of the European Union can be made liable to affected individuals, if it fails to implement the EU Directives; this was the ruling in Francovich24, von Colson25, and Marleasing26. Subsequent to the enlargement of the European Union of 2004, the national law courts of the newly joined Member States have to apply national as well as European law and this constitutes a dual role. Further, the judicial authorities of these member states have to take such measures as are required, in order to interpret domestic law in such a manner that it conforms to the European law.27 If this is not possible these judges have to permit the European Union Law to supersede the domestic law. The ECJ is seized with the proper implementation of law and public policy. In the Factortame cases, the UK had preferred to ignore the Single European Act and had contested the supremacy of EC Law over Parliamentary Sovereignty, in the context of Parliament’s right to enact legislation. The ECJ, on referral by the House of Lords, categorically stated that the UK government had erred in assuming its national legislation to be superior to EU Law. The result was the annulment of an Act of Parliament, and the imposition of a substantial penalty on the UK for having violated the EU Law28. The national courts have to interpret their domestic law in the light of EU Law. They have to interpret the provisions of their national law to conform to the EU Law. In the event of a conflict between national law and EU Law, the EU Law prevails over the former. Hence, the EU Law supersedes domestic law. The task before the new entrants to the prestigious EU is onerous. Moreover, they will have to exercise considerable caution, in order to ensure that their domestic law conforms to the EU Law. This will entail substantial legislative effort. The EC Law’s extraordinary success stems from the fact that it is founded on a broad range of legal traditions that are native to the European countries. This resulted in the unification of laws; which was furthered by mergers between legal firms, and internalisation of higher education, especially law, in the region. The unprecedented pace of political and economic integration; and the standardisation of business, contract and labour law indicate that Europe will soon be ruled by the EC Law29. The European Court of Justice has taken the initiative in engendering European integration and can be designated as its chief actuator. In addition, most of its decisions have served to strengthen European Community law. Thus, it can be surmised that the ECJ’s decisions play a major role in promoting the unification of EU Law. Bibliography 1. Articles/ Books Delmas-Marty, M. The European Union and Penal Law, 4 European Law Journal1, 88 (March 1998) Franz C. Mayer, Competences – Reloaded? The Vertical Division of Powers in the EU after the New European Constitution, 3 The Journal of International Constitutional Law 493, 494 (2005) Pylkkänen, A., Liberal family law in the making: Nordic and European harmonisation. 15 Feminist Legal Studies Issue 3 (2007) Sivaramakrishnan, Arvind. The European Court of Justice & the E.U. online edition of India’s National Newspaper Friday, March 30, 2001 The Application of European Law in the New Member States: Several (Early) Predictions 6 German Law Journal No. 3 (1 March 2005) 2. Other Sources BVerfGE 89, 155 (Maastricht Treaty Constitutionality) Carozza, Paolo. European law. ( 2010). In Encyclopædia Britannica. Retrieved January 9, 2010, from Encyclopædia Britannica Online: http://search.eb.com/eb/article-276638 Case 6/64 Costa v ENEL (1964) ECR 585 C 14/83 von Colson (1984) ECR 1891 Case 26/62 Van Gend en Loos v Nederlandse Tariefcommissie (1963) ECR 3 C-106/89 Marleasing SA v La Comercial Internacional 1992 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA (1978) ECR 629 C-112/00 Schmidberger v Austria (2003) ECR I-5659 Case C-224/01 Köbler v Austria (2003) ECR I-10239 European Union. Retrieved from http://www.politicalinformation.net/encyclopedia/European_Union.htm on 1 January 2010 Harmonisation, [online] (1 January 2010) Joined cases C-6/90 and C-9/90 Francovich v Italy (1991) ECR I-5337 Joined cases C-46/93 and C-48/93 Brasserie du Pêcheur v Germany and R v Secretary of State for Transport, ex parte Factortame (1996) ECR I-1029 Joined cases C-6/90 and C- 9/90 Andrea Francovich and others, Danila Bonifaci and others v Italian Republic (1991) ECR I-5357 Read More