Political aspects
Political institutions:
a) Parliamentary Assembly Of The Council Of Europe its members are appointed by each
country
b) The Council of Ministries of the Council of Europe
c) The Court of Justice of Human Rights (Strassbourg) NOT The European Court
In 1970 at London has been signed a treaty establishing the European Council (political) which
was created as an international organization of political cooperation of member states. The members
of the European Council were at that moment the members of the European Communities. The
representatives of the states are the chiefs of the European states, those having political attributions
in the states. The Council representatives are ministries. The Council of EU (2) is not an EU
institution, its something apart but it has a lot to say about the EU daily activities.
The representatives of European Council decided to meet twice a year and to discuss
political issues of common interest (normally in June and December). Council of Europe is another
organization acting in Europe. It was created in 1948 as an international organization of all EU
countries with view to protect European citizens against their own states. In 1950 was signed the
European Declaration of Rights. It has its own institution.
Nowadays members of the Council of Europe are from all the 47 European countries.
Members of the EU or European Council are 25.
The Council of EU (2) has not executive powers. It must legislate. Its acts are compulsory
regulations, decisions, considered national laws for all EU member states.
The Council of Ministries of the Council of Europe has executive powers. Its acts arent regulated,
they can be disobeyed by a strong European state.
The European law totality of legal rules regulating the European Union
EU can be divided taking into account its sources:
- primary law provided by establishing treaties and all the accession treaties (joining
countries)
- secondary law rules provided by the normative rights adopted by the European institutions
within their competences
According to the content EU has:
a) Institutional law representing the organization and function of institutions. Its provisions are
founded in primary and secondary law.
b) Material law includes provisions the 4 fundamental freedoms of the European Communities
(the function of economy). Free movement of goods, services, persons, capitals
The European Law is a juridical system of legal rules.
EU Law is the totality of legal rules referring to economic cooperation of member states and
a new system of legal rules. Branches of EU law may be organized according to the system.
f.e.: banking E law, business E law, company E law
Procedural law has 2 branches: civil procedure and criminal procedure.
All EU law branches must be related to the economic cooperation of member states.
We may obtain through the European cooperation:
- new legal rules such as procedural civil rules
- the harmonization of the national provisions (between the member who signed the agreement
and not between conventions)
The features of EU law
1. EU law has immediate applications after being adopted
2. EU law has direct application and direct effect
3. EU law has priority to be applied
1. EU law has immediate applications after being adopted
The relation between national legal order v. international legal order
International legal order is created through treaties or conventions adopted by legal states
acting like suveran independent and legal states => acts of international public law.
Normally there are 2 possible situations for applying the relation between national and
international legal order:
The Monist Theory:
According to this theory there are 2 attributes between the national legal order and the
international legal order; if a legal rule is adopted at an international level it will be immediately a
part of the national legal system without being adopted by the national institutions; the law is always
national only on the territory of the state that adopted the legal rule.
f.e. in RO we apply only RO law not FR/UK
The Dualist Theory:
This theory states per a contrario (on the contrary) that the national legal order is something
apart from the international legal order. A rule can be applied to that territory only if its
transformed/modified by the national system (being transformed by the national state even if
nothing in its content was changed).
f.e. we take the Convention and put it in the national form that is adopted by the RO Parliament and
becomes a RO law; outside our borders, where we apply our national legal order, the international
legal order applies by using international legal law.
At European level according to the treaty was decided that because they are equal from a
juridical point of view (they were not because some had monist others had dualist systems).
The European countries Costa v. Enel was decided that all European countries must apply
the monist theory, otherwise the member states of the communities are not equal.
Special provisions regarding that modification have been adopted.
f.e. GB adopted the European act having one article saying that the international laws will be
applied immediately after entering into force. Nowadays all member states have an equal position.
2. EU law has direct application and direct effect
a) Direct application: EU legal rules can create rights and obligations for the citizens of member
states as well as for the member states. In order to understand that we must know that all rules
adopted at an international level are addressed to member states, because they are adopted they are
adopted with the agreement of member states. According to the rights and obligations the state has,
it will adopt national legal rules addressed to the citizens.
Theoretically speaking the treaties cant create direct rights and obligations for the citizens of
the states that signed these treaties. According to the solution given by the Court in the Vangent case,
community treaties have the power to create rights and obligations for the citizens of member states
because the main objective of this treaty is the life of the citizens, not the situation of member states,
therefore they should be considered direct addressees of these rules.
The Court said that the objective of the E.C. treaty was to create a common market, which
functions to the direct benefit of the citizens of member states. Therefore, the treaty is more than just
an agreement between member states. It creates a new legal order to which the subjects are member
states and their citizens.
Consequently, the citizens of member states participate within the decision of the making
process at European level. The Court said that by the signature of the treaty the member states have
recognized the legal rule issued by the E.C. institutions having the power to adopt legal rules that
can be invoked in front of national authorities. The same agreement can be used to explain the
situation where a negative obligation is imposed for the member states. In this case, the citizens will
have the positive right as opposed to the obligation of member states.
b) Direct effect: It means that a legal rule can be invoked in front of the Court of law and the judge
has the obligation to apply it. In our case according to the treaty provision the first judges that have
to apply community legal rules are the national judges. Community jurisdiction can solve only these
cases which are under their competences. In order to verify the competence of the Court of Justice
and Tribunal. We have to look at the conditions provided.
If the litigation is taken
- individually (one citizen over state)
- collectively (citizens over states)
If we invoke our rights against the state, EU rules have a vertical legal effect.
If we invoke our rights against the citizens equal to us, EU rules have a horizontal effect.
The secondary E.C. legislations have different direct effect. Some have complete direct effect while
the decision of the Council or Commission has only effect over someone equal to us.
3. EU law has priority to be applied
Because EU legal rules apply immediately after being enforced I means that EU legal rules
have priority to be applied over national legal rules. Member states decided that the priority of
applying E.C. legal rules was decided the moment they signed the treaty. Consequently a national
law can be applied in the same field (European cooperation) only if there isnt a legal rule adopted at
European level or there isnt a contrary legal rule adopted at the European level.
The priority of European rules was explained in the same case Costa v. Enel where the
following were presented:
1. the priority of European laws is an essential condition of the existence of E.C.s legal
systems. It means that the European legal system cant exist if a national legal system is
opposed.
2. the Court said that the priority results from the specific nature of the E.C. law. The specific
nature of E.C. law rises from the trait provisions that create it.
3. the priority can be invoked not only in front of the justice of E.C. but also in front of any
national judicial instance, because the national judge is the first judge that must apply E.C.
legal rules (because of its first feature of immediate application).
4. all EU legal rules have priority to apply against any national legal rules (for the EU members
that agreed through their signature of becoming an EU member)
