The Issue of Harmonisation or Unification of Law in the Context of the European Union - Essay Example

THE EUROPEAN UNION AND HARMONISATION Harmonisation of national laws is an important aspect of the integration of the EU. For this purpose, the EC law provides several substantive legal principles and institutional arrangements; which are instrumental, in achieving the maximum possible level of harmonisation of national laws. The principle of autonomous interpretation of EC Law and the principle of interpretation of national law in accordance with the relevant Directive are two important substantive law provisions provided by EC Law. In the context of the institutional arrangements, the ECJ plays a significant role in the harmonisation process. It interprets the Directives or Regulations, whenever a Member States refers any dispute to it. 1 The European Union is an international entity that is characterised by an intricate legal and administrative structure. Its legal system is directly effective in its Member States and has precedence over national legislation. The EC Law overrides the domestic law of the Member States.2 This is an exceptional system, in which the international law adopted by a country overrides national law. EC Law has been developed from several sources, one of these are the founding treaties of the EU, which are termed the primary legislation of the EU. The regulations, directives, decisions, recommendations and opinions of the EU’s institutes, constitute the secondary legislation of the EU. The decisions of the European Court of Justice (ECJ) and the Court of First Instance constitute the third source of EC Law.3 EC Law overrides the domestic legislation of the Member States. The European Community plays an important role in the EU and it is one of the pillars of the EU. These Treaties establish the fundamental policies of the EU, its institutional structure, legislative procedures and the powers and obligations of the EU.4 The Treaties of the EU constitute its constitutional law. The EU Law insists on the harmonisation of the laws of Member States; which requires them to enact their national laws, in accordance with the provisions of the directives or regulations. Therefore, national laws should not exceed the terms of the directives or regulations of the EC. The Member States are required to transpose European legislation into their national legislation and implement it. However, on occasion, the Member States are not above implementing European legislation in a manner that promotes protectionism. 5 The ECJ had established the principle of autonomous interpretation of the EC Law in the year 1964, by means of its decision in a particular case. Under the principle of autonomous interpretation, there can be only one interpretation of a term employed in the EC Law. Moreover, such correct interpretation should exist independently, without any reference to domestic or other interpretations of that term.6 Article 249(3) EC requires the national courts to interpret domestic law, in the light of the wording of the relevant EC Directives. Exceptions to this duty are permitted, only if the Directive explicitly refers to national law. This principle regarding the interpretation of national law, in a manner that gives effect to the wording of EC Directives, is aimed at achieving the objective of Article 249 (3) EC.7 The intention behind the principle of autonomous interpretation of EC Law and the principle of interpretation of national law in the light of the wording of relevant EC Directive is to restrict national law from interpreting EC Law provisions, in keeping with their national legal system. The combination of these principles ensures the application of national law in accordance with the EC private law. 8 Article 234 EC provides the necessary jurisdiction to the ECJ to interpret the provisions of the Treaties and to issue preliminary rulings, regarding such interpretation. The ECJ has also been empowered to rule on the validity and interpretation of the acts of the Community’s institutions. National courts or tribunals can refer questions concerning such interpretation to the ECJ for clarification. 9 In the event of a conflict between national law and the EC Law, national courts may approach the ECJ, and beseech the latter to provide a ruling. Similarly, if the national law fails to provide any judicial remedy against the decision of a national court or tribunal, then the matter is to be brought before the ECJ. 10 The EC secondary law has developed over time during the expansion of the EU and the integration process. Such harmonisation served to establish contract terms. The secondary law concentrates on the concept of consumer protection. The European Commission’s empowerment to enact competition law resulted in the establishment of block exemption regulations that mould contract terms. The latter have also made their presence felt in areas such as environmental policies, health and safety policies, and in the expansion of product related technical standards of the EC.11 Harmonisation of the legal order has influenced the national private law of the Member States. This has been achieved by the setting up of common standards, regarding the objectives to be achieved through the harmonisation process. Thus, there are common standards that address misleading advertising and insider trading, processed cereal – based foods and baby foods for infants and young children, and sweeteners used in the preparation of food products. 12 In this manner, the harmonisation process has penetrated into various fields within the EU. In the area of consumer protection, the EC has established increasingly higher standards. These standards have been combined with the development of the concept of minimum harmonisation in the EU. Under the concept of minimum harmonisation, public interest is given primary importance and Member States are required to implement the EC standards in the light of relevant EC Directives. 13 However, the concept of minimum harmonisation stresses the legitimacy of public interest objectives; which can cause a Member State to exceed the norms specified in the related EC Directive. In addition to this drawback, there is no uniformity in the application of standards to domestic and imported products. Such minimum harmonisation could result in the reverse discrimination of domestic products. 14 The development of a single market is one of major objectives of the European Union. This entails harmonisation of the private international laws of the Member States of the EU. Under this harmonisation process, each and every Member State is required to adopt the European legal system, which is designates as the acquis communautaire. Moreover, nations that are admitted to the EU are required to adopt this European Union Law.15 This EU legal system is comprised of uniform commercial law provisions. This in turn, serves to promote the concept of a single internal market, within the EU. The Directives and Regulations issued by the EU had significantly harmonised the provisions of the national commercial laws and contract laws of the Member States. The European Commission had established an action plan in the year 2003, so as to ensure harmonisation of contract laws in the EU.16 The continuing integration in Europe has been coupled with an increase in the number of EU Regulations, relating to the area of private law. This development has compelled the Member States of the EU to pay heed to the changes taking place in the private of not only the EU, but also the other Member States.17 An all inclusive European Civil Code is in the process of being drafted. This is principally, on account of the important developments taking place in the areas of contract and tort laws. The European Civil Code would serve as a future European model of private law. This Code is expected to constitute the benchmark or reference, for any piece of legislation to be introduced, in this area, not only in the Member States, but also at the EU level. However, the process of harmonisation has not achieved much progress, in the field of family and succession law, at the EU level. It has been contended that such poor development was due to the deed differences that exist in the family laws of the different Member States.18 The case law appended below, discloses the role of the ECJ in promoting the harmonisation of EC Law, in the EU. Direct effect is a term that was first employed in the Van Gend en Loos case. For the establishment of Direct effect, in respect of primary EU Law, the provision should be unambiguously stated, it should be categorical and should grant an explicit right.19 Thereafter, another important development transpired, namely the decision in Factortame, which rendered EC Law superior to the domestic law of a Member State.20 Subsequently, the Cassis de Dijon decision served to establish the mutual recognition of goods by Member States, which led to the development of the single market.21 In Commission v Italy, the Direct effect of Regulations was enforced by the ECJ. 22 In Pubblico Ministerio v Tullio Ratti, the ECJ held that if a Member State failed to implement a directive properly, or within the stipulated time, then it would be estopped from refusing to recognise its binding effect if appealed against by individuals relying on rights under that directive. 23 The idea of European integration cropped up after the Second World War came to an end. The publicly stated reason for establishing the EU was to engender the economic prosperity of the Member States. In addition, France and the Benelux nations were of the opinion that such an endeavour would prevent German domination and dissuade it from embarking upon another war. These public posturing, served to conceal the objective of the founders of the EU, which was to render it an economic, monetary, industrial, political and military association.24 The underlying reasons behind the formation of the EU were imperialistic from the inception of this process. It was claimed by the promoters of European integration that the objective was to advance the trade interests of its members. The position of the UK was different from that of the other European nations; because, the UK was economically stable and politically well – established, at that point of time. It enjoyed considerable military prowess and was situated in a strategically superior position in Europe.25 The UK believed that European integration would improve its trade with Europe, by developing commercial relations with other European nations. However, the other European nations were of the opinion that they could gain political security and establish themselves internationally, by participating in this integration. For these nations, integration was a necessity; whereas, for the UK, European integration was a luxury.26 From the very first day of its becoming a Member State of the EU, every nation has to implement the Community Law. A very important aspect of the EC Law is the Direct effect. “It applies to those aspects of EC law that are enforceable directly by EU citizens in their own Member State, regardless of whether the Member State has introduced specific national laws to implement the provisions.”27 The intention behind the harmonisation of laws is to maintain similar standards, in all the Member States of the EU. Harmonisation of laws in various spheres eliminates the differences, amongst the Member States, in respect of their domestic legislation. This principle ensures the same laws and rights throughout the EU, and the ECJ plays a major role in ensuring such harmonisation. The ECJ is an absolutely crucial part of the Community method of governance, and all that it implies for integration and national sovereignty. The achievements of the European Community are truly extraordinary, and these achievements can be attributed in the main, to its redoubtable legal order. A few of its major achievements are the open borders between the Member States, the considerable trade in goods and services, migration of workers from one Member State to another and the huge multinational relationships that exist amongst the companies. These features have brought about the integration of the common market with the life of the residents of the Member States. In addition, community legal order has emerged as an extremely successful negotiator for peace. The true strength of the European Community is its legal order; which bestows it with universal jurisprudence. The principal objectives of the EC can be achieved, only by enacting and putting into effect uniform legislation. Bibliography 1. Articles/ Books Mel Kenny, ‘Globalization, Interlegality and Europeanized Contract Law’ (2003) 21 Penn State International Law Review 569. Peter Rott, ‘What is the Role of the ECJ in EC Private Law? - A Comment on the ECJ judgments in Océano Grupo, Freiburger Kommunalbauten, Leitner and Veedfald’ (2005) 1(1) Hanse Law Review 6. 2. Other Sources Brad MacDonald, The Milestone to EU Unification is about to be cut loose (2007) < http://thetrumpet.com/index.php?q=4282.2522.0.0> at 12 January 2010. Commission v Italy (Case 39/72) [1973] ECR 101. Direct effect (2008) Eurofound < http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/directeffect.htm> at 12 January 2010. Duncan Alford, A Guide on the Harmonization of International Commercial Law (2005) < http://www.nyulawglobal.org/globalex/Unification_Harmonization.htm> at 12 January 2010. European Union Law – Definition (2009) at 10 January 2010. Katherine Boele-Woelki, Restatements of European Family and Succession Law (2000) < http://www.ejcl.org/43/editor43.html> at 12 January 2010. NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen, (Case 26-62) [1963]. Pubblico Ministero v Tullio Ratti (Case 148/78) [1979]. Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Case 120/78) [1979]. The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others (Case C-213/89) [1990]. Read More