The Acquis Communautaire or Body of EU Law - Essay Example

The acquis communautaire or body of EU law is the body of common rights and obligations which bind all the Member s within the European Union. It is founded principally on the treaties, plus the wide range of secondary legislation enacted under them. New entrants to the EC must accept the existing acquis. One of the cardinal principles of EC law is that of national procedural autonomy. This means that while EC law creates many substantive rules of law, the means by which these are enforced is the responsibility of national law. In other words, EC rules of law must take their place just like ordinary rules of national law, depending on their availability and enforcement according to national procedural rules. This is subject to the principles of equivalence and effectiveness, i.e. national procedural rules must not discriminate against EC law rights and must afford full effectiveness to EC law rights. Where national rules of procedure respect these principles, EC law normally does not require any particular regime of procedural or adjectival law to exist in the member states. In particular, EC law does not normally create any remedies in its own right, leaving the law on remedies to national law. In these fields of law, the doctrine of supremacy of Community law is well established. In case of conflict between Community law and national law, the member states courts are obliged to respect the Community law which to a large extent has direct effect in the member states and also in relations between private parties. Member states courts might sometimes hesitate to set aside national law provisions regarded as important because they are contrary to Community law and they normally know their own national law better than Community law. Thus, there are problems not only of obstruction but also of ignorance. There has been and still is an ongoing struggle to secure the full application of Community law in the member states. . The instrument used to secure the control of the interpretation and judicial development of Community law remains in the hands of the ECJ, and is not left to the national courts in the member states1. The national court has to decide if a reference should be made or not. A party cannot appeal to the ECJ from a national court. If the national court decides to make a reference to ECJ, proceedings are stayed in the national court until the ECJ gives its ruling. The Court has also assessed the legality of derogations to Community rules by reference to fundamental rights. In particular, the Court has applied article 10 of ECHR to a case in which a Member State justified a measure having equivalent effect to quantitative restrictions based on the need to secure protection of fundamental rights, such as media plurality2. The key factors that have helped in developing the Community legal system, are that the obligation in Community law to duly motivate any decision3, the principle of transparency to which Community and domestic Administrations have to comply with, individuals' right to have their legal positions fully and effectively protected4 and the principle of the liability of a Member State for breach of Community law5. The judgments of the Court, in this aspect, have played a fundamental role in trying to build an even playing field to secure a minimum standard of substantive judicial protection of Community rights. The Court has asserted a founding principle of the EC legal system that national judicial remedies must be adequate, and any impediment to Community rights being enforced effectively should be removed in the name of the supremacy of Community law6. In 1976, the Court had insisted that an essential element of the Community's constitutional order was the freedom of Member States to implement their Community obligations according to their individual traditions of public law and civil and criminal justice7. The only conditions set down by the Court of Justice were equal treatment and effectiveness. National courts and administrations were prohibited from making it more difficult for individuals to vindicate their Community rights as compared to their domestic rights -"principle of equivalence". Furthermore, procedural requirements could not render it impossible, in practice, for individuals to exercise their Community rights in national courts "principle of effectiveness". The shift from national autonomy toward European uniformity is associated most notably with the Francovich decision, in which the Court required that national courts afford individuals a damages remedy against government for the failed, or poor, implementation of Community law, regardless of whether a damages remedy would have been available under national law8. Since Francovich, the Court has found that national governments may be held liable for laws, judicial decisions and, most relevant for present purposes, administrative measures that infringe European law9. The Court has developed a law of administration, which applies not only to the Commission, but also to national bureaucracies. Since the late 1980s, the Community legislator, when adopting substantive rules for different policy areas, began experimenting with a variety of institutional arrangements to guarantee better implementation. The most important exception here is the EC law remedy of damages against the state for a breach of EC law attributable to the state, which causes loss to others. In the case of Francovich & Bonifaci v. Italy, the European Court of Justice (ECJ) held for the first time that where a state failed to implement a directive and a person was as a result of that failure unable to rely on the directive before national courts, the state would be liable to that person for any losses caused by its failure to implement the directive as it was bound to do in accordance with its obligations under the EC Treaty. Thus was created the first EC law remedy which national law had to deliver for a breach of EC law.In the EC Treaty, the only provision dealing with extra-contractual liability is Article 288(2) (ex 215), which governs the liability of Community institutions and their servants in the performance of their duties.10 If disputes "relating to compensation for damage" under Article 288(2) EC Treaty arise, then the ECJ has jurisdiction as conferred under Article 235 (ex 178) EC Treaty11 to decide in such cases. However, the EC Treaty does not contain any provision establishing extra-contractual liability on the part of the Member States or their organs and officials, nor is the ECJ given explicit jurisdiction over disputes relating to the liability of Member States for breaches of Community law.12 This changed with the famous Francovich judgment of 1991, where the ECJ for the first time laid down the principle of liability on the part of Member States for breaches of Community law.13 Francovich was a case concerned with the Community's worker protection directive,14 which was intended to ensure that employees would receive full payment of salary arrears in the event of insolvency of their employers.15 Since Italy failed to transpose the directive into national law, some employees, who had been unable to recover salaries owed to them by their bankrupt employers, sued the Italian government, seeking either the sums payable under the directive or damages for its non-implementation. The Italian courts hearing the cases referred the matter to the ECJ pursuant to Article 234 (ex 177) EC Treaty.16 Replying to the preliminary questions submitted by the Italian courts, the ECJ found the opportunity to make explicit the principle of liability on the part of Member States that fail to comply with their obligations under Community law. In some earlier cases,17 the ECJ had interpreted Article 10 (ex 5) EC Treaty18 as imposing on the Member States the duty to take all appropriate measures to ensure the fulfillment of the obligations incumbent upon them under Community law, including the duty to remedy violations of Community law. The point was that whenever rights conferred on individuals by Community provisions were violated, the Member States had to award the individuals judicial remedies.19 In this framework, the failure to transpose directives into national law was deemed to seriously weaken the rights which the directives were seeking to grant individuals.20 In establishing Member State liability for breaches of Community law, the ECJ stated that this principle of liability is inherent in the Treaty and that the States have to remedy losses and damages when they violate Community law. In subsequent cases, notably Factortame III, Brasserie du Pecheur, and Dillenkofer, the ECJ has elaborated on the Francovich damages remedy and it is available for all breaches of EC law by a member state, including violations of provisions of the EC Treaty, failures to comply with other provisions of EC law and failure to implement a directive properly. The ECJ has also explained the conditions under which a state will be liable, including that the breach of EC law is "sufficiently serious" - such as a failure to implement a directive at all, as in Francovich, or breach of an EC Treaty article as in Factortame III. As to the conditions that give rise to liability on the part of Member States for breaches of Community law, the ECJ said in Francovich that "they depend on the nature of the breach of Community law giving rise to the loss and damage."21In Brasserie du Pcheur, the Court removed this limitation by stating that the conditions for the liability of the Community (under Article 288(2) EC Treaty) and of the Member States must be the same. This statement was based on the fact that, according to the ECJ, the protection of individuals "cannot vary depending on whether a national authority or a Community authority is responsible for the damage."22In particular, the Court said that Community law confers a right to reparation where three conditions are met, the rule of law infringed confers rights on individuals, the breach is sufficiently serious and there is a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.23 A "sufficiently serious" breach, according to the Court said was one which persisted despite a judgment - or a preliminary ruling or settled case law - finding the infringement in question to be established.24 In Brasserie du Pcheur the ECJ addressed the obligations for reparation, referring them to the domestic legal system of each Member State.25 However, the ECJ's deferral to the national legal systems was made conditional on the principles of non-discrimination and effective protection. That is, the conditions of merit and form established by the national legislations with respect to claims for compensation under Community law could not be less favorable than those in similar claims of a domestic nature.26 Furthermore, the national legislations could not render the obtention of compensation practically impossible or excessively difficult.27 Constitutional law grants rights to individuals against the State, which binds all state organs; if a state organ violates an individual's constitutional right, the State is liable for the harm caused. This is not the case under Member State liability. In fact, while all Member States recognize liability for unconstitutional administrative action, no Member State recognizes liability for unconstitutional conduct by the legislative or judicial organs.28 Moreover, lack of liability for unconstitutional legislation is the common rule among the Member States. The ECJ decision in the Francovich case provided a way to overcome the long-standing rules protecting the State from liability in Italy.29 Under the Italian legal system, individuals' rights are divided into two main categories - diritti soggettivi (individual or subjective rights) and interessi legittimi (legitimate interests).30 Prior to the ruling in Francovich, under the Italian system, individuals had no rights in connection with the acts or omissions of the legislative body, and the legislative body, therefore, had no liability. The result of the Francovich ruling was that Member States were deemed to be liable when they failed to implement European Community law. The ECJ ruled that this non-implementation constitutes a violation of Member States' duties, which gives rise to liability and to enforceable rights in favor of individuals. Thus, the Italian practice of denying State liability in cases of interessi legittimi was now officially in conflict with the ECJ. Since, the Italian legal system is based on civil law and not a common law; this practice requires a major paradigm shift. Another proposed solution is to apply the rules of Article 288 EC Treaty, which deal with the extra-contractual liability of Community institutions, as the ECJ did in Brasserie du Pcheur. The disadvantage is that the criteria used for European Community liability need further development before they can be used as autonomous grounds for liability and it would take many years to harmonize this area of national law among the Member States. In fact until the Corte di Cassazione decision of July 22, 1999, No. 500, claims like Francovich, involving interessi legittimi, were limited by a restrictive interpretation of Art. 2043 Civ. Code, which deemed that only the violation of diritti soggettivi was protected. As a result of the decision of July 22, 1999, No. 500, it is deemed that Art. 2043 Civ. Code will be applied to all "individual interests significant for the legal order," including interessi legittimi. Therefore, Art. 2043 Civ. Code now can be used by Italian courts for any claim of the Francovich nature, regardless of whether it involves diritti soggettivi or interessi legittimi. The only way to resolve this legal impasse is to resort to the principle of direct effect of Community law in the national legal orders. The doctrine of effectiveness of Community law in the national legal orders is judge-made law. The term "direct effect" is not found in the EC Treaty and was employed by the ECJ for the first time in Van Gend & Loos.31 In this seminal decision the Court, in order to promote l'effet util of Community law, seized its early opportunity to establish the principle of direct effect of Treaty provisions.32 In respect of regulations, as per Art. 189 (now 249) EC Treaty, they are "directly applicable in all Member States."33 The ECJ affirmed on several occasions that regulations have direct effect and are, as such, capable of creating individual rights which national courts must protect. In Koebler v. Austria34, a university professor who had completed 15 years service at Austrian universities argued that his period of service in universities elsewhere in the EU should be taken into account to calculate his pension entitlement. The Austrian authorities refused to do so, on the ground that only periods worked in Austrian universities were relevant. He then raised an action in the Austrian courts claiming a violation of equal treatment as required by what is now Article 39 of the EC Treaty. The Austrian court referred the point to the ECJ under Article 234 of the EC Treaty. The ECJ effectively ruled that periods of service in the public sector in another member state were relevant for the purposes of salary and related matters in all member states. The Austrian court responded by withdrawing the reference. However, the Austrian courts went on to distinguish the other decision of the ECJ and dismissed Professor Koebler's claim. He then sued the Austrian state for damages arguing that Francovich meant that the state could be liable for losses caused to persons by its judiciary. The ECJ held that the state could be liable for breaches of EC law by its judiciary where breach of EC law was "sufficiently serious". In addition in such a case it also had to be shown that it was a court of last instance, which was responsible for the breach and that, the breach of EC law was "manifest". Since this was not so here, because EC law on the points in issue in Koebler was not clear before the ECJ's decision in the other case, the Austrian state was not liable. This is a dilution of EC Law. The CILIFIT Principle. Article 234 states that a court of final instance shall refer to the ECJ if it requires an interpretation of the EC Treaty to enable it to give judgment. It in the CILFIT case decided in 198235 the ECJ has explained how it interprets this obligation. The ECJ took widened the scope of the obligation to refer cases as it wanted to limit the discretion permitted to national courts of final appeal. In this decision it stated that "the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved". That is the notion of acte clair and includes the characteristic features of Community law and the particular difficulties to which its interpretation gives rise, the drafting in different languages, all equally binding, the use of terminology peculiar to Community law, the special meaning of legal concepts in Community law and the fact that every provision must be placed in context and read in the light of Community law as a whole. The ECJ has affirmed the CILFIT principle by referring to it in the Lyckeskog case36 and with great emphasis in the Koebler case, on the point of member state liability. The Koebler Doctrine on Member State Liability in Damages. The general principle of member state liability in damages for harm resulting from the breach of its obligations under Community law was established by the ECJ in 1991 in the well-known Francovich case.37 In this case, the breach involved the non-implementation of a directive. The ECJ referred to the general principles underlying the Treaty and ECJ's own task to ensure that the law was observed in the interpretation and application of Art 220 (1) EC Treaty. The ECJ found the principle of member state liability in damages to be "inherent in the system of the Treaty" and necessary to guarantee the full effect of its provisions. The Court also referred to the general principle of member state loyalty laid down in Art 10 (1) EC Treaty. Thus, the Community law principle on member state liability is judge-made law. The ECJ has clarified the Francovich principle in some later judgments, primarily the Brasserie du Pecheur-case, decided in 1996.38 Based on these cases the conditions for liability are: (I) the rule of law infringed must have been intended to confer rights on individuals, (II) a manifest and serious breach has occurred, (III) there has to be a direct and casual link between the breach of the obligation by the member state and the damage suffered by injured parties. The link between the CILFIT principle and the Koebler case is that a supreme court in a member state can always avoid the risk of taking decisions in breach of Community law by asking the ECJ for a preliminary ruling. In the case of Traghetti del Mediterraneo39 a dispute arose between two companies on the strength of the Italian competition law. The Italian Supreme Court decided in favour of the defendant without referring the case to the ECJ. Afterwards, the plaintiff sued the State of Italy for damages, claiming that the ECJ would have supported the plaintiff's claim on the basis of well-established Community law, had it been given the opportunity to rule on the case. A lower Italian court referred this case to the ECJ. According to Italian statutory law, damage caused by court decisions may only be awarded if the decision taken was caused by intention or gross negligence. Interpretation of legal rules and assessment of facts shall never give cause for damages. The ECJ was asked in the referral to consider if these restrictions are in conformity with EC law in light of the Koebler case. The Advocate General accepted the first limitation (requirement of intent or gross negligence) but not the latter. It was not considered appropriate to open up for litigation based on damage claims in which the judgments of the highest courts would be reviewed. Once again there is a dilution of the applicability of Community Law. In the European Community as a whole, several important questions remain unanswered. The first question is whether Francovich will lead to automatic liability for any breach of Community law. If this form of strict liability were recognized, States would be subject to large monetary claims, possibly even for losses not related to breaches of Community law.40 The second question is whether it would be possible for Member States to harmonize their legal remedies for breaches of Community law. The degree to which national courts can apply Community law depends on the remedies offered by their national legal orders. This disparity of remedies would undermine the uniform application of Community law. Therefore, the question is whether and in what way the European Community could compensate for its lack of legislation regarding remedies at the Community level. The simplest way is to create a system of harmonized remedies for Member States to apply in breaches of Community law.41 However, political and practical obstacles render this difficult to realize. First, Member States are not in favour of harmonizing their domestic rules. Second, since a public action for damages has repercussions in private law, a harmonization of remedies would affect not only public law remedies against the State, but also private law remedies. Member States will resist the Community's involvement in private law because this field is directly linked to cultural roots, social choices and national peculiarities. Third, whether the concept of liability could be extended to include individuals who violate Community law. At present Member States recognize the right to compensation for breaches of Community law provisions when they impose direct obligations upon individuals. The debate among legal scholars is whether the principle of individual liability for breaches of Community law is inherent in the Treaty. This seems to be a likely conclusion for the same reasons as the principle of State liability was established, that is, full effectiveness of Community law and full protection of the rights which Community law grants to individuals. Accepting the principle of individual liability for breaches of Community law would require the ECJ to specify the substantive conditions under which such liability arose, as it has done for the principle of state liability. If the ECJ specifies these conditions, they would necessarily override conflicting national rules and require a certain harmonization of private tort law. Finally, the major issue is whether and to what extent the principle of Member State liability for non-implementation of a Community provision should be interpreted as law across all Member States. In Van Gend & Loos, the ECJ stated that the Community constitutes a new legal order of international law for the benefit of which States have limited their sovereign rights. Conversely, if it is determined, as evidenced by the recent monetary union that the European Community is moving towards the formation of a federation, this point would be rendered a moot one. In respect of Italy, the issue of State liability was not new to the Italian legal system. Francovich merely highlighted difficulties which existed because of the inapplicability of Art. 2043 Civ. Code to violations of individuals' interessi legittimi by public authorities. The impact of decision No. 500 of July 22, 1999 was the elimination of the previous restriction of applicability of Art. 2043 Civ. Code to diritti soggettivi and this permitted claims involving interessi legittimi. In fact, the decision No. 500 has already been followed by subsequent conforming rulings issued by lower courts.42 However, in industrial disputes, the ECJ has allowed individuals to approach it directly, but it has not permitted collective organizations to place complaints directly before it. Article 37 permits third parties to intervene in proceedings where they can show a justifiable interest. Member States can define the procedures governing claims for violations of EC law, such as prescribing the time limits within which claims must be made. Nevertheless, such rules must comply with EU principles of equivalence and effectiveness. Further, these procedures must be equivalent to those available for similar claims for damages under national law, and the procedures must be effective to ensure that EC law is respected. Further, the present procedures give citizens no rights beyond lodging a complaint and the Commission, in its role of guardian of the Treaty, has a broad discretion as to whether to register a complaint and start proceedings. Since, nothing in the Treaty or the case law of the Court of Justice prevents the use of appropriate legislative instruments to give further rights to complainants the Commission has to take the initiative to adopt such instruments. However, this is not a good development as far as the EC as a single community is concerned; because it is a retrograde step in as much as there will not be uniformity in the application of the provisions of the EC Law. The free movement of goods, rights of workers, education and employment rights will be hindered. Finally, the aim of the EC to bring about uniformity will definitely be defeated if each member country is free to apply its own national laws to the detriment of EC Law. This will defeat the very purpose for which the EC was constituted. Bibliography 1. Barav, A., "Damages Against the State for Failure to Implement E.C. Directives," 141 New L.J. 1584. 2. Barav, A., "State Liability in Damages for Breach of Community Law in the National Courts," 16 Yearbook of European Law 87 (1996). 3. Bebr, G., Note, 29 CML Rev. 557 (1992). 4. Bermann, G.A., et al., "Cases and Materials on European Community Law," (West Publishing Co.) (1993). 5. Duffy, P., "Damages against the State: A New Remedy for Failure to Implement Community Obligations," 17 E.L. Rev. 133 (1992). 6. Caranta, R., "Governmental Liability after Francovich," 52 Camb. L.J. 272 (1993). 7. Caranta, R., "Judicial Protection Against Member States: A New Jus Commune Takes Shape," 32 CML Rev. 703 (1995). 8. Caruso, D., "The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration," 3 E.L.J. 3 (1997). 9. Craig, P.P., "Francovich, Remedies and the Scope of Damages Liability," 109 L.Q.R. 594 (1993). 10. Craig, P. & de Brca, G., "EU Law: Text, Cases, and Materials," (New York: Oxford University Press) (1998). 11. Emiliou, N., "State Liability under Community Law: Shedding More Light on the Francovich Principle" 21 E.L. Rev. 399 (1996). 12. Hanft, J.E., " Francovich and Bonifaci v. Italy: EEC Member State Liability for Failure to Implement Community Directives," 15 Fordham Int. L.J. 1237 (1992). 13. Harlow, C., "Francovich and the Problem of the Disobedient State," 2 E.L.J. 199 (1996). 14. Hartley, T.C., "The Foundations of European Community Law," (Oxford University Press) (1998). 15. Hervey, T.L., "Francovich Liability Simplified," 26 Indust. L.J. 74 (1997). 16. Kapteyn, P.J.G. & VerLoren van Themaat, P., "Introduction to the Law of the European Communities," (London: Kluwer Law International) (1998). 17. Lang, J.T., "New Legal Effects Resulting from the Failure of States to Fulfil Obligations under European Community Law: The Francovich Judgment," 16 Fordham Int. L.J. 1 (1992). 18. Lee, I.B., "In Search of a Theory of State Liability in the European Union," Harvard Law School, Jean Monnet Paper No. 9/99 (1999). 19. Malferrari, L., "State Liability for Violation of EC Law in Italy: The Reaction of The Corte di Cassazione to Francovich and Future Prospects in Light of its Decision of July 22, 1999, No. 500," 41 Heidelberg Journal of International Law 809 (1999). 20. Parker, K., "State Liability in Damages for Breach of Community Law," 108 L.Q.R. 181 (1992). 21. Ross, M., "Beyond Francovich," 56 Mod. L. Rev. 55 (1993). 22. Steiner, J., "From Direct Effects to Francovich: Shifting Means of Enforcement of Community Law," 18 E.L. Rev. 3 (1993). 23. Van Gerven, W., "Bridging the Gap between Community and National Laws: Towards a Principle of Homogeneity in the Field of Legal Remedies," 32 CML Rev. 679 (1995). 24. Van Gerven, W., "Bridging the Unbridgeable: Community and National Tort Laws After Francovich and Brasserie," 45 I.C.L.Q. 507 (1996). Read More