The European Community Law - Essay Example

The European Community Law The European Economic Community (EEC) was an association created in 1957 by the Treaty of Rome in order to integrate the economies of Europe. After the 1st of November, 1993 it has been renamed as the European Community. This term also commonly refers to the European Communities, which comprise the EC, the European Coal and Steel Community (ECSC) and the European Atomic Energy Community (Euratom). The EC is the principal component of the European Union (EU) 1. In 1991 the governments of the 12 member states signed the Treaty on European Union or the Maastricht Treaty, which was then ratified by the national legislatures of all the member countries. The Maastricht Treaty transformed the EC into the EU. At present the total number of EU member countries is 25. The EU has a number of objectives, chief among them being to promote and expand cooperation among member states in economics, trade, social issues, foreign policy, security, defense and judicial matters. Under the Maastricht Treaty, European citizenship was granted to citizens of each member state, border controls were relaxed and suitable modifications in the customs and immigration agreements were brought about in order to allow European citizens greater freedom to live, work, and study in any of the member states2. The European Court of Justice developed constitutional principles in order to ensure the effective and uniform application of Community law within the Member States.The distinction between the EC and national legal systems and the maintenance of the supremacy of the Community law, direct and indirect effects, loyalty and subsidiarity are important factors of the European legal order. However, the development of these principles has not been uniformly well received by the Member States, because of the adverse effect that they have had on the balance of the relationship between Community law and Member States' national law. In EC law the constitutional principles have been linked with the judicial review principles. Many constitutional courts, including those of Germany and Italy, refused to accept these constitutional principles in the absence of the acceptance by the ECJ of specific judicial review principles, such as human rights protection. While the judicial review principles have mainly been developed to ensure the effective and uniform application of Community administrative law, it has been argued that the manner of their development is the clearest demonstration that the ECJ has taken on a role larger than that originally envisaged for it in the Treaty3. The reason for such developments is that for a number of years, Member States of the European Community were increasingly failing to comply with the Community law. The issues raised by this non-compliance phenomenon have been addressed in a variety of ways in the Community legal order. Articles 226/228 of the European Community Treaty have been formulated primarily to secure compliance of the Member States through the authority of the rulings of the European Court of Justice, and subsequent to the Maastricht Treaty, through the threat of or by the actual imposition of pecuniary sanctions. The European Commission itself is contributing to the compliance effort by making a much more systematic use of infringe­ment procedures and the pressure on Member States to discharge their Community obligations is increasing. Article 226 ECT clarifies the legal situation, where the Commission’s attention is drawn to a suspected infringement. This process encompasses the exchange of information between the commission and the member state concerned and entails a spirit of cooperation. This leads to an amicable cessation of the breach of EC law in a great majority of the cases and article 226 ECT advocates voluntary compliance through conciliation. Post litigation non − compliance is dealt with by article 228(2) of the EC Treaty and this is innovative in the sense that it leads to the imposition of monetary sanctions against the non − complying member states. The Commission in the process of implementing the procedures under article 226 and article 228 collects information regarding the detection of infringement from various sources. Further, it also advices member states as to how to end an infringement. While exercising its discretionary power, the Commission decides on the most appropriate means of enforcing the Community Law. That there is an increasing focus on enforcement at the Community level is evidenced by the Commission's White Paper on European Govern­ance, wherein reference is made to Commission’s aim to provide a more effective enforcement of the Community law, in order to strengthen the credibility of the Union and its institutions. The five princi­ples of good governance for a successful reform of governance in Europe are openness, participation, accountability, coherence and effectiveness. Of these effectiveness is the most important as it affects the respective functions of the Commission in overseeing the application and enforcement of European policies and of the Member States in developing and implementing them. This White Paper on Governance has enabled the Commission to exercise its function of a guardian of the treaties in accordance with its prime objective of effectiveness. As a consequence, the Commission's primary role of negotiating the Member States’ compliance with the Community Law is not only confirmed, but also substantially reinforced. With regard to post-litigation non-compliance however, its suitability has been viewed with suspicion, albeit, its effectiveness Vis – a – Vis litigation management has been acknowledged. Nevertheless, considering the gravity of post-litigation infringements situation and the strong correlation between the perspective of systematic litigation and Member States' compliance, it was suggested that systematic litigation would achieve compliance more effectively4. Any legal system which does not render itself to effective enforcement is of no value. Initially the responsibility of law enforcement was vested solely with the state, with the passage of time the influence of individuals in this process is significant. In the context of the European Union the inadequacy of non – individual enforcement of the Community Law is glaringly obvious. The public and the private models of law enforcement procedures are co – existent and co – operative as is illustrated by the role of individual complainants in this procedure. This participation can be discussed under three categories: The European Court of Justice, right from its earliest rulings, established the principle of direct effect. The Direct Effect Doctrine states that the institutional or state enforcement procedures can be achieved by means other than that inherent in Articles 226 and 227. This is clearly demonstrated by the Case Van Gend en Loos, wherein the principle of allowing private individuals to bring actions before national courts based on Community Law was established. The Community Law is dependent to a large extent on the national laws of the Member States for enforcement purposes. Article 234 permits private individuals to invoke the Community Law and urge the national court to clarify and certify as to how Community Law is to be applied to the European Court of Justice. This direct effect on EC Law is the most important and effective possibility that individuals can resort to in order to enforce EC Law. Stated simply, unlike public enforcement procedures, which are enforced by the Commission, in the case of direct private enforcement there is a decentralization of the enforcement power. Since, the EC Law cannot be enforced by the Commission on its own fully; the ECJ has encouraged the role of individuals and shifted the emphasis in the law enforcement from Articles 226 and 227 to Article 234. This has shifted the emphasis of enforcement from the public to the individual. The Van Gend en Loos Case also established that an action under Article 234 does not preclude an action under Article 226 and that individuals may rely on Community Law irrespective of the fact whether or not the Commission has initiated a procedure under Article 226 against a Member State. Such action, though indirectly benefiting the public at large, can be initiated by individuals having a personal or private interest in the proceedings5. Despite its obvious effectiveness, it must be borne in mind that direct effect is limited in its applicability. The causes for this are that the national court may not be fully able or equipped in respect of directive provisions to deal with such cases or that the Community provisions may not be sufficiently precise and unconditional to have such an effect. Even though such a ruling may favour an individual it does not of itself correct any shortcomings in the national law, thereby a state of uncertainty is created. From the foregoing it is obvious that the principle of direct effect is limited in its scope. In order to ameliorate this situation the ECJ introduced the principle of state liability, which states that in the eventuality of a Member State not fulfilling its obligations, damages can be claimed for such a breach, independently of the direct effect principle. It will suffice to state that the specific characteristics of both the direct effect and the state liability principles permit their application in such a manner that one takes over where another leaves off. The European Commission is the sole institutionalized supervisor and its role in the enforcement of EC Law is on the basis of Article 226. This Article vests it with certain discretionary powers to initiate proceedings against Member States which it considers to have failed to fulfill some Treaty obligation. In case of non − compliance by the Member State with its directives the Commission will bring the matter before the Court of Justice. Infringement of Community Law can be brought to the Commission’s notice by any natural or legal person by lodging a complaint with it. However, no specific legal provisions exist for passing orders in respect of complaints made by the Commission. It is to be clearly understood, that the Commission is not a court of law and it can neither award damages nor under any duty to stop an infringement of Community law. All the same, this does not imply that the Commission is under no obligation to protect the complainant’s interests. The Court of Justice can be approached if an individual’s complaint is not taken cognizance of or if the Commission displays biased behaviour in selection of cases. Due to its limited investigative powers and resources the Commission has to perforce rely on the endeavours of the complainants to enforce the laws. The public model of enforcement suffers from a number of deficiencies which reduce its effectiveness in respect of enforcement procedures because the Commission’s limited investigative powers and resources. This is more so in the case of recalcitrant Member States, which obdurately refuse to comply with the judgment of the ECJ. Private enforcement does not envisage such a situation as the action is limited to the national courts. The European Environmental Bureau or EEB comprises of a federation of 136 environmental citizens’ organizations, which are based in all EU Member States, most of the accession countries and a few of their neighbouring countries. These organizations range from the local and the national to the European and the International. The aim of the EEB is to protect and improve the environment of Europe with the active participation of the citizens of Europe. Enforcement of EU environmental legislation is the collective responsibility of its citizens, the EU-Institutions and the member states. Implementation has a broader meaning than enforcement as a law is normally enforced by the administrative authorities, whereas to be enforceable EU Law usually requires further legislation in the member states. This commission is assisted by committees comprised of experts who represent the member states. The institutions which enforce the EU Law in the member states are: The Commissions, The Petition Committee and The Ombudsman. Further, the role of the citizens of the member states also plays a major role in this endeavour. In accordance with the provisions of article 211 of the treaty, the Commission has to ensure the proper functioning and development of the common market. The commission is empowered to file a case before the European Court of Justice, against any member state which violates the EU Law. This power is extended to any citizen of the European Union and any natural or legal person residing or having its registered office in a member state. A complaint can be filed if the transgression comes within the ambit of the communities’ fields of activities and which affects such a person directly. The European Parliament Petition Committee is legally required to deal with such petitions and has to decide officially whether or not it will act on that issue. Such petitions have to be registered and the petitioner has to be informed of the decisions taken with the reasons thereof – rule 175, article 7. However, the committee cannot be made to comply with the views or wishes of the petitioner6. Proceedings under Article 226 are the means by which the Community ensures that Member States observe the obligations they have undertaken. This includes both the general obligation to take appropriate measures to ensure fulfillment of Treaty obligations (see Article 10) and the specific requirements of the Treaty and EU legislation. Member States may also bring proceedings under Article 227 against other Member States for alleged breach of Treaty obligations. Such proceedings are very rare. Where a Member State fails to comply with an ECJ ruling under Article 226 or 227 further proceedings may be taken under Article 228 which may result in fundamental penalties being imposed. The following cases illustrate the action taken by the Commission against its Member States namely, Spain and Italy for infringement of its laws. In the case of Spain, law 6/1994, with regard to town planning for the Valencia Community (LRAU), the Commission sent its opinion to the Spanish Government under Article 226 of the EC Treaty. In this the Commission took the view that the award of integrated action programmes in accordance with the LRAU comprises public works contracts and in some cases public services contracts bringing it within the ambit of the provisions of the Directive 93/37/EEC(Public Works Contracts), 92/50/EEC(Public Services Contracts) and the general principles of the Treaty. The Commission noted that the Spanish Authorities had not complied with its warning and that the draft legislation communicated to the public was inadequate in putting an end to this infringement. The main drawback of this draft legislation, as highlighted by the Commission, was that no provision had been made to find a suitable solution in respect of the transition period applicable to the LRAU. Subsequent to the judgment of the ECJ dated 13th January 2005, the Commission decided to send a formal notice to the Spanish Government under Article 228 of the EC Treaty. The ECJ in its judgment (case C - 84/03) ruled that Spain had failed to comply with its obligations under directives 93/36/EEC and 93/37/EEC, concerning the notions of awarding authority, inter-administrative co-operation and the use of negotiated procedures in cases not covered by the directives in question. In order to implement this ruling, Spain approved on 11th March 2005, Royal Decree No. 5/2005, providing urgent reform to stimulate productivity and improve public contracts. However, The Commission opined that the Royal Decree did not fully meet the obligations placed on the Kingdom of Spain by the aforementioned ruling, in as much as that the scope of the Royal Decree did not comply fully with the scope of the relevant provisions of directives 93/36/EEC and 93/37/EEC7. In respect of Italy’s, purchase of light helicopters the Commission referred it to the ECJ for infringement of European Public procurement law. This case concerns a decree issued by the Minister of the Interior on 11 July 2003 for the purchase of light helicopters to be used by the Police and the National Fire Brigade. This decree was made without applying the rules of tender as set out in Directive 93/36/EEC on public supply contracts. The Commission considered that this decree infringed on the Directive 93/36/EEC as Italy had not met any of the strict conditions, particularly those required for the purpose of special security measures and secret contracts. In the case of Commission of the European Communities V Italian Republic, case 7/68, the Commission filed before the ECJ under Article 169 of the Treaty an application, declaring that the Italian Republic by continuing to levy progressive tax ( even after 1st January 1962) on exports to the other member states of the community, of articles having an artistic , historic, archaeological or ethnographic value, had failed to fulfill the obligation imposed on it by Article 16 of the Treaty establishing the EEC. The Italian pleaded inability to comply as their parliament was under dissolution. However, the ECJ held that as the action was preceded by a prolonged exchange of views between the Commission and the Italian Government, which had begun before the expiry of the second stage of this transitional period, in order to persuade the authorities to do what was necessary to amend the provisions that had been criticized by the Commission, the contention of the Italian Government was held to be inadmissible; whereas, the action of the commission was held to be admissible by the ECJ8. The law making institutions of the Community are required to act within the limits of the powers conferred on them by the Treaty (see Article 7) and in enacting legislative measures they should observe all essential procedural requirements such as the requirement to give reasons (see Article 253), observe also all general principles of law developed by the ECJ and they should not misuse their powers. If the Community institutions fail in these obligations, their actions or omissions may be challenged either directly in the European Court of Justice or indirectly through reference of an alleged invalid binding act from the national courts to the ECJ for a ruling on the validity of the measure. Free movement of persons is one of the fundamental freedoms guaranteed by Community Law and includes the right to live and work in another member state. It is an essential element of the internal market and of European Citizenship. The supranational context has developed within a wider frame of globalization. The European Union and its Member States are by no means immune to the pressures of globalization, including global population movements. The latter are often precipitated by the search for greater economic prosperity, by the volatility of capital investment and commodity markets, as well as by attempts to escape repressive or ineffective government regimes. All of these trends often give rise to clandestine and therefore illegal immigration. There are larger populations of third country nationals in each of the Member States than there are of nationals of other Member States. We can safely conclude that further thought is required to develop a model for European administrative infringement proceedings, which might legally assume the form of an administrative enforcement act. There should be a clear cut specification regarding the specific roles of the Commission and national administrations in the different infringement procedures, with a guarantee of coherence among infringement proceedings in different areas of European law. Certain procedural tools should necessarily be made available to all the areas, these are procedural rights for citizens and businesses, limitation periods and prescription, maximum periods of time for the Commission to act, deadlines for Member States' responses, presumed administrative action when Member States fail to respond to the Commission and direct prosecution of Member States that indulge in non – compliance9. Cases C-278/01 Commission v Spain and C-304/02 Commission v France illustrate that necessity to adapt the reference time-frame for assessing continuing non-compliance after the second judgment in order to determine when payment of the penalty becomes due. Wherever, implementation can be assessed only at periodic intervals, accrual of penalty payments over periods in which the infringement has ended, has to be avoided. The appropriate reference time-frame will therefore depend on the method of assessing compliance as provided for in the relevant legislation. The role of the public is crucial for enforcement of EU Law, as the competencies of the EP Petition Committee and the Ombudsman are concerned because, without complaints there can be no inquiries. But this also holds true for the work of the Commission in as much as a major part of the Commission’s infringements proceedings are initiated by complaints. It is most relevant to state that in practice the primary means of enforcing the EC Law occurs due to the courtesy of individuals and the concept of direct effect and not due to the courtesy of the European commission. From the foregoing discussion it can be concluded that individual participation plays a vital role in enforcement of EC Law. The effects of Globalization and the free movement of global population all over the world make it essential for even the people of the EC to participate actively in the enforcement procedures of the EC Law in their own interest. This participation has a direct effect on the accountability of the Government, because it is not possible for the Commission to become aware of the infringements that have taken place, without the active participation of the citizens of the Member Countries. This is because of the vastness of the Community and the limited resources at the disposal of the Commission. Notes. 1European Community, Encyclopaedia Britannica 2005 Deluxe Edition CD – ROM 2European Union, Microsoft Encarta Reference Library 2004 3European Law, http://www.law.warwick.ac.uk/lcc/iolis/european 4The Evolving Role of the European Commission in the Enforcement of Community Law: From Negotiating Compliance to Prosecuting Member States? Anne Bonnie, JCER volume 1, issue 2 5Van Gend en Loos, ECR 1, 1963, CMLR 105, 1963, in addition refer to the article Private Model Of Enforcement In European Community Law, Cagdas Ergun, University of Exeter, School of Law, EX4 6TJ, United Kingdom, 9th June 2002, for a fuller discussion. 6 New Chances for Better Enforcement of EU Environmental legislation, Seminar Report of the European Environmental Bureau ( EEB), Brussels, 20th September 2002 7 Spain: Law 6/ 1994 on Town Planning for the Valencia Community(LRAU), e Gov monitor , infringement procedures against Spain, Italy and Sweden, http://www.egovmonitor.com/node/4026 8 Commission of the European Communities V. Italian Republic , Case No 7/68, Court of Justice ECR 423 (1968), CMLR 1(1968), 10th December 1968 9The "Standard" Administrative Procedure for Supervising and Enforcing Ec Law: Ec Treaty Articles 226 And 228, 68 Law & Contemp. Probs. 135, Alberto J. Gil Ibáñez, winter 2004 Bibliography. Bonnie, John and McGarity, Thomas eds, The law of environmental protection, second edition, West, 1992, p 1100. R, Smith. Citizenship and the Politics of People – Building, Citizenship Studies 73, 2001. Lewis, Clive. Remedies and the Enforcement of European Community Law, Sweet and Maxwell, 1996. Craig de B, EU Law, Oxford, 1998. Jacobs, F.G. Directives in European Community Law, Oxford, 1995. Coppel, Jason. Individual Enforcement of Community Law: The Future of the Francovich Remedy, EUI Working Papers in Law, 1993. Read More