Course 1 12.01.

2009 European Union Law The Creation of the European Communities After the Second World War in Europe there had been moves towards unification between European states. The first intention was to create a federal entity in Europe as the United States of America but it was not accepted mainly because the federal entity was a way of political integration. Therefore inspiration for the creation of the three organisations known as the European communities came from the plan made in 1950 by Robert Schuman, the French foreign minister, and Jean Monnet, who was responsible for overseeing the French economic recovery after the war. Thus, on the 9th May 1950 Robert Schuman made a declaration in which he put forward the plan he had worked out with Jean Monnet to pool Europes coal and steel industries. This proposal evolved out of the need to reconstruct Europe after the war. The Schuman plan for the European integration was inspired by the theories of supra-nationality. The plan intended to create a supranational organisation, the community, with institutions capable of making policies and rules which were compulsory for the member states. The feature that was completely new in the Schuman plan and distinguished the community from the usual type of international associations of states was that the member states had transferred some of their rights to the community and had given it powers to act independently. In order to exercise these powers the community was able to issue acts which have the same force as law in individual states. The Schuman plan had replaced the global integration with integration by sectors of the economy and the political integration with the economic one. Therefore the unification of European Union States had to be accomplished firstly in the economic field.

Afterwards their political integration could be achieved as a result of the solidarity and the common interests of member states. On the basis of the Schuman plan the six founding states namely Belgium, France, Germany, Italy, Luxembourg and the Netherlands had concluded the founding treaty of the European Coal and Steel Community (ECSC). The treaty was concluded on the 18th of April 1951 in Paris and it entered into force on 23rd July 1952. The treaty of Paris was concluded for 50 years and therefore its duration had expired in 2002. The main objective of the European Coal and Steel Community was to create a common market in the production of coal and steel. The treaty of Paris had also created four institutions of the European Coal and Steel Community as follows: 1. The High Authority composed of individual personalities and which received the power of making compulsory decisions. 2. The Parliament who was responsible with the political control over the High Authority 3. A Special Council of Ministers who where the representatives of the member states 4. The Code of Justice which was supposed to ensure the application of the Community Law Afterwards in a new state of the economy with a new development of production and exchanges the six member states of the European Coal and Steel Community had continued the negotiations in 1955 and 1956 in two groups concerning the common market in general and the market of atomic energy. As a consequence the six member states had signed two treaties in Rome on 25th March 1957 creating the European Economic Community and the European Atomic Energy Community (EURATOM). These two communities began their work when the treaties of Rome entered into force on 1st January 1958. The European Economic Community treaty provided the creation of a common market which should cover all the territories of member states and which should have the same features as a national market.

These objectives required the creation of a customs union meaning free internal circulation of merchandise and external protection through a common customs taxation. It also required the free circulation of persons, companies, services and capital and the protection of free competition. The European Economic Community treaty also provided the harmonisation of the general economic policies of member states and the establishment of common policies in the field of agriculture, transportation, commercial relations with third countries and so on. Therefore the European Economic Community was concerned with general economic integration achieved by combining the different interests of member states into a common market where goods, persons, services and capital could circulate freely. The European Atomic Energy Community treaty was based on the idea of an accelerated development of atomic energy; as the European Coal and Steel Community treaty, it covered a limited sector of the economy namely the atomic energy industry. The two treaties of Rome have also created community institutions for each European community. However, within the two treaties signed in Tome the decision making instance began the council composed of representatives of member states. Each European community had its own institutions with the exception of the Code of Justice and the Parliament. Thus a convention signed in 1957 and an annex to the treaties of Rome provided that the three European communities had two institutions in common: the Parliament and the Code of Justice. As for the other two institutions each European community had its own Council and its own Commission. Within the treaties of Rome the Commission was the Community institution that corresponded to the high authority of the European Coal and Steel Community. The evolution of the European communities

Concerning the evolution of the European communities there have been three directions as follows: 1. The institutional unification 2. The enlargement of the communities by the accession of new member states 3. The amendment or the revision of the founding treaty by adopting subsequent treaties The founding treaties are the treaty of Paris, which founded the European Coal and Steel Community, and the two treaties of Roma, which founded the European Economic Community and the European Atomic Energy Community. In which regards institutional unification, there had been two steps as follows: 1957 a convention annex to the Treaty of Rome provided that the three communities had two common institutions: the Parliament and the Code of Justice Through the merger treaty signed in 1965 in Brussels a single council and a commission were formed from the merger of the six different institutions including the High Authority of the European Coal and Steel Community. After the merger the tree communities functioned with shared institutions. In which regards the enlargement, the member states of the European communities comprised first of all the 6 founding states. Concerning Germany it now includes the territory of the former German Democratic Republic following the reunification of the two on the 3rd of October 1990. On 1st January 1973 the UK, Denmark and Ireland joined the communities. Norways planned accession was rejected in a referendum in October 1978. In 1976 and 1977 Greece, Portugal and Spain applied for membership. This enlargement to the south was completed on 1st January 1986 with the accession of Portugal and Spain, while Greece had already been a member of the community since 1981. The next enlargement took place on 1st January 1995 when Austria, Finland and Sweden joined the European Union created by the treaty of Maastricht which has entered into force on 1st November 1993. In Norway a referendum led to a repeat

of the outcome obtained 22 years before. Therefore Norway is not a member state of the European Union. On 16th April 2003 in Athens the Czech Republic, Cyprus, Lithuania, Latvia, Slovakia, Slovenia, Malta, Poland and Hungary signed the treaties of accession to the European Union. They had become member states on 1st May 2004. On 1st January 2007 Romania and Bulgaria had become member states of the European Union. Therefore the European Union now has 27 member states. 3) the amendment of the founding treaty -The single European Act, Treaty of Maastricht on the European Union, the Amsterdam Treaty, Treaty of Nice and the Treaty of Lisbon.

The Single European Act:

It was signed in 1986 and it entered into force in 1987. The Single European Act represented the first major revision to the EEC treaty. It followed a number of unsuccessful attempts to change the institutional balance within the EEC.

The Single European Act contained two types of provisions: Provisions related to the revision of the Treaty of Rome Provisions concerning the European corporation in the field of foreign policy

The Single European Act was a result of a 1985 white paper issued by the commission which showed that many obstacles to trade between member states still remained. Therefore, the objective of the single European Act was the removal of all barriers between member states where they physical, technical

or fiscal and therefore, the achievements of the single or internal markets. The Internal Market Initiative carried the support of all member states, including the UK. The Internal Market had to be completed by 1992 as a space without any internal barriers were goods, persons, services and capital could circulate freely. In order to create the Internal Market, the member states had accepted some institutional revisions and less complicated voting procedures. The Single European Act had also mentioned for the first time the existence of the European Council made up by the heads of states and Governments of member states and it had provided its structure and organization.

The treaty of Maastricht (or the European Union)

The Treaty of Maastricht was a further step in the process of the European integration initiated by the creation of the European Community. It represents the most important document adopted since the Treaty of Rome because it went beyond the economic objective of the European Community and it stated the political attitude of the European Union. The Treaty of Maastricht was prepared by two conferences in 1990. The first conference considered the economic and monetary union and the second conference the political union. Actually, several member states (namely Germany and France) believed that the economic and monetary union could not be effective without political union. The Treaty of Maastricht providing for economic, monetary and political union between member states was signed in Maastricht on 7th February 1992. It is a very complex document comprising 17 protocols and 33 declarations. The UK and Denmark had chosen not to participate into the monetary union. The UK had also refused to participate in arrangements concerning the social policy. Although the treaty was signed in February 1992 a number of obstacles in the ratification process meant that it did not enter

into force until 1st November 1993. The treaty refers to itself as a new stage in the process of creating an ever closer union among the peoples of Europe following the line set by the Treaty of Rome. Nevertheless, the European Union created y the Treaty of Maastricht does not replace the European Community. The treaty does not create a new juridical entity next to the Communitys. In fact, the EU does not have any juridical personality and cannot participate in international agreements. Its existence is only political. The EU does allow the unity between the European Community and new policies and forms of cooperation between member states. The Treaty of Maastricht states that the Union is based on the European Community completed with the policies and forms of cooperation. Its mission is to organize the relations between the member states and their nations. The EU consists of three pillars as follows: The European Community which has been enlarged by economic and monetary Union. (Only the first pillar is governed or regulated by Community Law) 2. The Common Foreign and Security Policy Safeguarding the common values, fundamental interests and Independence of the EU Increasing the Security of the EU and of its member states Promoting World Peace and increasing International Security Promoting International Cooperation Promoting Democracy and the Rule of Law Safeguarding Human Rights and fundamental Freedoms
1.

3. The Cooperation in Justice and Home Affairs

The aim of the cooperation between Police and Judicial Authorities is to afford citizens freedoms, security and justice by preventing and fighting against crime (terrorism, drugs and arms trafficking, corruption and fraud). Judicial Cooperation is also concerned with facilitating and accelerating cooperation in relation to judicial proceedings and the enforcements of judgments establishing minimum rules related to the elements of criminal acts and to penalties especially concerning organized crime, terrorism and drugs traffic. As the Common and Security Office the cooperation in Justice and Home Affairs takes place outside the decisions making procedures of the communities on the basis of collaboration between member states. One of the Major innovations established by the treaty of Maastricht is the creation of the European citizenship over and above the national citizenship. Therefore every citizen who is a national of a member states is also a citizen of the EU. The citizenship grants new rights to the European citizens as follows: The right to circulate and to reside freely within the Community The right to vote and to stand as a candidate for European and local elections in the state where the citizen resides The right to protection by the diplomatic authorities of another member state on a territory of a third country where the state of origin is not represented The right to petition the European Parliament and to submit a complaint to the Ombudsman (mediator European appointed by the European Parliament in order to receive complaints about the way the community institutions work). The Treaty Maastricht had also established the principle of subsidiarity as a general rule. This principle provides that in areas that are not within its exclusive powers the Community shall only take action if the objectives can be best be achieved by action at community level rather than at national level. The EU must be conceived as a unitary

system. As consequence it is not possible to the accede to only one of its elements. The unity of the three pillars of the EU is ensured by the Community Institutions. Only the European Council made up by the heads of state and government of its member states is an institution of the Union which must define the general political guidelines of the European Union. Finally the Treaty of Maastricht has dropped the word economic from the expression European economic community and therefore since its entering into force the three now two communities are known collectively as the European Community are known collectively as the European Community.

The Treaty of Amsterdam

signed on 2nd October 1997 was the result of two years of discussion and negotiation in a conference of member states government representatives. It had entered into course on 1st May 1999 after being ratified by the 15 member states under their constitutional procedures. The Amsterdam Treaty amended and renumbered the Treaty of Maastricht on EU and the Treaty of Rome, thus consolidated versions of EU treaty and EC treaty are attached to it. The Treaty of Amsterdam consists of three parts, an annex and 13 protocols. The first part covers the amendments to the Treaty of Maastricht on EU and to the founding treaties. The second parts deals with the simplifications of the founding treaties. The third part contends the general and final provisions of the treaty. The main reforms introduced by the treaty of Amsterdam are as follows: Providing guarantees in order to protect fundamental rights in the EU such as the equality between man and woman, the non-discrimination and data privacy Changes concerning the freedom of movement within the EU

 The development of the concept of European Citizenship The development of common strategies for employment and the coordination of national policies within this area Providing the right of each European Citizen to have access to the documents adopted by the Community Institutions and the right to communicate with the Institutions in his/her language. Changes in the working of Community Institutions such as the composition of the European Commission or the extension of the qualified majority voting within the Council of the EU. Course 3 26.02.2009 European Union Law The Community Law refers to the legal regulation of activities under the first pillar of the European Union, namely the European Communities. The European Union Law refers to the legal regulation of all pillars of the European Union including the European Communities. As a definition, the Community Law includes all legal rules applicable within the Communities legal order which regulates the organisation and the functioning of Community institutions as well as the specific rules that must be applied in the different fields of economic activities provided by the Treaties. The Community Law has become the specific instrument for the achievement of European integration. Concerning the definition of the Community Law in van GendenLoos Case, Case no. 26/1962 the Court of Justice of the European Communities had stated the legal nature of the European Communities providing that they constitute a new legal order for whose benefits the member states have limited their rights and the subjects of which comprise not only the member states but also their nationals. In the same way in Costa versus ENEL Case (Case no. 6/1964) the Court of Justice had developed its reasoning providing that the Community Law constitutes a

new legal order which became an integral part of the legal system of member states and which their courts of law are bound to apply. The Community Legal order is characterised by autonomy meaning it constitutes a legal system which is different from the international legal order and the national legal systems of member states. However the Community Law must not be conceived as a external system of law because it is integrated in the national legal system of each member state of the European Communities. Therefore the Community Law must be applied on the territory of each member state as its own national law. The Community law includes mainly the following legal rules: 1. All legal rules contained in the founding treaties, the revision treaties as well as the treaties of accession of new member states 2. All legal rules contained in the secondary legislation meaning the acts adopted by the Community institutions in the application of the treaty. In a wider meaning the Community Law also includes the written and even unwritten rules that are also applicable within the Community Legal System such as the general principles of law belonging to the national legal system of member states, the case law of the Court of Justice of European Communities, the rules related to the external relations of the European Communities and so on. Classification of the Community Legal Rules The Community Legal Rules may be classified in accordance with 2 criteria as follows: I. According to its sources the common law may be divided in the following categories: a. The primary common law which had been created by the founding treaties, the revision treaties and the treaties of accession of new member states

The secondary common law which is the result of the activities of Community institutions in the application of the treaties II. According to its content the Community Law may be divided in the following categories: a. Institutional community law which deals with the organisation, the functioning and the powers of the Community institutions, the relationship between them, the financial resources and the external relations of the communities b. Material common law which deals with the specific rules that must be applied within the different areas of economic activity provided by the Community treaties
b.

The characters of the Community Law The Community Law must be conceived as an integral part. Therefore, it has the following characters: 1. The direct applicability of Community law which means that its legal rules are directly and automatically applicable within the national legal systems of member states. Therefore the legal provisions of Community Law take effect into the legal system of member states as soon as they enter into force without the need to be incorporated in the national law by means of national legal provisions. As a consequence the national courts of law are obliged to apply the community legal provisions in the international legal order of member states 2. The direct effect of Community law which means that its legal rules are able to create directly rights for individuals in member states which may be invoked and on which individuals may rely before their national courts of law. Concerning the direct effect of Community law it had been recognised for the first time by the Court of Justice of European Communities in VanGendenLoos Case (Case no. 26/1962). Thus, the Court of Justice had stated that the direct effect of commercial provisions derives from the

specificity of the new legal order created by the European communities. The achievement of the European integration requests and implies the direct effect of Community law. In addition the Court of Justice had explained that the Community treaties refer not only to member states but also to their citizens which may be affected by the exercise of powers given to the community institutions. Therefore the Community law is intended to create directly rights for individuals in member states. These rights may be invoked by individuals before their national courts of law which are obliged to protect them. The direct effect of Community Law may be: a. Vertical direct effect. Thus when a community obligation is imposed upon a member state itself the legal provision that contains it may create vertical direct effect reflecting the relations between the state and individuals. Such a provision may only be invoked against the state and not against individuals. Several articles of the treaties as well as several categories of community acts namely the directives and the decisions addressed to the member states may produce only vertical direct effects. b. Horizontal direct effect arises when an obligation is imposed upon individuals, reflecting the relation between individuals. Therefore such legal provisions may be invoked horizontally in the relation between individuals (for example the article that provides nondiscrimination 119/EEC treaty which provides equal pay for equal work). However, several categories of Community acts such as the regional or the decisions addressed to individuals as well as some articles of the Community treaties especially those concerning the free competition, the free movement of persons, the non-discrimination, the equality between men and women and so on are able to produce complete direct effects meaning they can be invoked by individuals either horizontally or vertically.

The supremacy of community law which means that its legal rules have priority over all national provisions. Thus, in order to give effect to the objectives of the European Commission and to ensure that the community law is applied uniformly for all the member states it is essential that the Community law takes priority over national law. The accomplishment of the European Union integration between the member states would not be possible if the community provisions could be subordinated to the national law of the different member states. However the supremacy of the community law is not expressly provided by the treaties. Therefore the supremacy was developed firstly by the Court of Justice of the European Communities in Costa versus ENEL case (case no. 6/ 1964). The Court of Justice had stated that the community provisions would be devoid by any meaning and efficiency if a member state could unilaterally change their effects by adopting national legislative measures which could prevail over the community law. Therefore it is impossible for the member states to give priority to an unilateral subsequent national measure over the Community law. The validity of the community law can never be called into question by reference to the national law. In addition, as stated by the Court of Justice of the European Communities in Simmenthal SpA Case (Case no.106/1977) all national courts of law are obliged to apply directly and immediately the provisions of community law even if there is a conflicting national law in force the national courts of law must not take into consideration any national conflicting law which could impede the application of Community law. Supremacy of the European Union Law
3.

The EC Treaty is considered an integral part of the legal system of the Member States. Such a status implies that the Treaty is applied in the court system of each Member States.

Art. 5 of the Treaty requires Member States to take all appropriate measures to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Communitys tasks. Member States shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty. The Court of Justice (ECJ) has a jurisdiction on such matters. In the Costa v Enel (Case 6/64) 1964, the ECJ ruled that there is a permanent limitation of sovereign rights for Member States. In 1962, the Italian government passed a law to nationalize the Electricity industry. The law created Nazional Energia Electrico (ENEL). Costa, a citizen, refused to pay his electric bill, on the basis that the new law violated the Italian Constitution and the EEC Treaty. The Italian Constitution Court ruled that the Treaty was a subordinate to any Italian legislation. The ECJ addressed that issue by affirming that such an action by the Italian court would jeopardize the attainment of the objectives of the Treaty set out in Article 5(2) and causes discrimination, which prohibited by Art. 7. Art. 189 of the Treaty give precedence to Community law. Regulations issued by Community institutions for example are binding and directly applicable in all Member States. In 1998 ruling, the ECJ held that a national law adopted after an EC law with which it is incompatible, the national law should be regarded as non-existent. (See Simmenthal in Ministero della Finanze v In. Co. Ge., Case C-10-22/97.) The ECJ considers the effect of EC law as creating a new legal order.

Prioritatea legii Comunitatii: Costa vs. ENEL In cazul Costa vs. E.N.E.L., CEJ a formular faptul ca legea Comunitatii are intaietate in fata legislatiei domestice:

Un contribuabil italian, Flaminio Costa, a refuzat sa plateasca companiei nationalizata de electricitate (ENEL) relativ modesta suma de 1925 lire. Costa a argumantat ca pe data de 6 Decembrie 1962 legea italiana a nationalizarii companiei de electricitate a violat Art. 102, 92, 53 si 37 ale TCEE (distorsiuni in competitie, subventii neadecvate, etc.) Curtea de Apel de la Milano a cerut CEJ sa faca o reglementare preliminara a conflictului intre nationalizarea italiahna si articolele TCEE mentionate mai sus. Curtea Europeana nu a fost rugata sa decida daca Costa trebuia sa-si plateasca factura la electricitate. Obiectul petitiei a fost clarificarea relatiei intre legea europeana si legea nationala.

Cand s-a reglementat intaietatea legii Comunitatii in fata legii nationale, Cej a declarat ca Comunitatea are o ordine legala autonoma care a fost recunoscuta de catre statele membre cand au renuntat la anumite drepturi suverane. Legea Comunitatii are intaietate in fata legislatiei nationale, deoarece ar periclita realizarea obiectivelor tratatului daca legii CE i s-ar atribui grade variate de validitate din partea unui stat membru sau al altuia. Astfel, legea nationala care se afla in conflict cu legea CE nu se poate aplica in cazuri specifice.

Atunci cand CEJ reglementeaza ceva, satele membre sunt legate prin tratat sa ia masurile necesare pentru a duce la indeplinire aceste regulamente. In acest caz, nici autoritatilor italiene si nici curtilor italiene nu li s-a permis aplicarea prevederilor legii nationalizate.

Reglementarile CEJ privind intaietatea legii Comunitatii in cazul Costavs. ENEL s-a dezvoltat intr-o alta reglementare (vezi Simmenthal vs. Comisia Comunitatilor Europene ) Intaietatea legii Comunitatii : Simmenthal vs. Comisia Comunitatilor Europene

Simmenthal vs. Comisia Comunitatilor Europene (9 Martie 1978) se refera la urmatoarele puncte: In IULIE 1973, o firma italiana, Simmenthal, importa carene de vita din Franta si conform legislatiei italiene trebuia sa plateasca o taxa pentru controlul sanitar. Simmenthat a argumentat ca aceste taxe sunt o violare a legii CE cu privire la circulatia libera a bunurilor si a cerut o recompensa. Controalele sanitare au fost introduse in urma regulamentelor CE care a cerut astfel de masuri. CEJ a continuat in reglementarile privind Costa vs. ENEL:A reafirmat faptul ca legislatia nationala nu este aplicabila aici in privinta violarii legii Comunitatii si mai departe a stablit ca statele membre sunt obligate sa nu adopte nici o legislatie domestica care sa contravina legii existente a Comunitatii. Facts Mr Costa was an Italian citizen opposed to nationalising the Italian energy company ENEL, because he had shares in it. He refused to pay his electricity bill in protest, and argued that nationalisation infringed EC law on the State distorting the market.[1] The Italian government believed that this was not even an issue that could be complained about by a private individual, since it was a national law decision to make.

Decision The Court ruled in favour of the government, because the relevant Treaty rule on an undistorted market was one on

which the Commission alone could challenge the Italian government. As an individual, Mr Costa had no standing to challenge the decision, because that Treaty provision had no direct effect.[2] But on the logically prior issue of Mr Costa's ability to raise a point of EC law against a national government in legal proceeding before the courts in that Member State the ECJ disagreed with the Italian government. It ruled that EC law would not be effective if Mr Costa could not challenge national law on the basis of its alleged incompatibility with EC law. It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.[

Direct effect Direct effect is a principle of European Community law according to which certain pieces of European legislation are enforceable before the courts of European Union member states. Direct effect is not explicitly mentioned in any of the EC Treaties, but was established by the European Court of Justice in Van Gend en Loos v. Nederlandse Administratie der Belastingen,[1] in which the court held that obligations imposed upon member states by the treaties could be enforced by individuals, in the form of individual legal rights, before national courts. The principle has subsequently been applied to legislation adopted under the treaties in the form of regulations and directives. The criteria

In Van Gend en Loos [1963] ECJ.,[2] the European Court of Justice laid down the criteria (commonly referred to as the "Van Gend criteria") for establishing direct effect: The provision must be sufficiently clear and precisely stated, It must be unconditional or non-dependent, The provision must confer a specific right for the citizen to base his or her claim on. If these criteria are satisfied, then the citizen is able to enforce the right(s) in question in the national courts.

Varieties of direct effect In Van Gend en Loos[3] it was decided that a citizen was able to enforce a right granted by European Community legislation against the state - the question of whether rights could be enforced against another citizen was not addressed. In Defrenne v. SABENA,[4] the European Court of Justice decided that there were two varieties of direct effect: vertical direct effect and horizontal direct effect, the distinction drawn being based on against whom the right is to be enforced. Vertical direct effect concerns the relationship between EC law and national law - specifically, the state's obligation to ensure its observance and its compatibility with EC law, thereby enabling citizens to rely on it in actions against the state (or against an "emanation of the state" as defined in Foster v. British Gas plc.[5] Horizontal direct effect concerns the relationship between individuals (including companies). If a certain provision of EC law is horizontally directly effective, then citizens are able to rely on it in actions against each other. Directives are usually incapable of being horizontally directly effective due to the fact that they are only enforceable against the state. Certain

provisions of Treaty law and acts such as Regulations from the Council or Commission are capable of being directly enforced horizontally. The ECJ held that under the term of Art 249 of the Treaty, Regulations "shall have general application" and "shall be . . . directly applicable in all Member States." Therefore, by reason of their nature and function in the Community law system, regulations are capable of creating rights for individuals which national courts must protect.

Application of direct effect Direct effect is applicable when the particular provision relied on fulfils the Van Gend en Loos criteria. It is therefore applicable in the case of treaty articles (Van Gend en Loos was a claim based on a treaty article), in which case it can be both vertically and horizontally directly effective.

Regulations Regulations can also be subject to direct effect. As under Article 249 of the EC Treaty they are "directly applicable" (as distinct from directly effective), they are incapable of being conditional. As that criterion for direct effect is always satisfied in the case of regulations, if a specific right is conferred, then the regulation can be both vertically and horizontally directly effective.

Decisions Decisions are directly effective against whomever they are addressed, as under Article 249 of the EC Treaty "they are binding in their entirety on the party to whom they are addressed".hm

Directives In Grad v Finanzamt Traunstein,[6] a case involving VAT, the ECJ ruled that a directive could be directly effective, as they imposed an obligation to achieve a required result. As the ECJ held in Becker, another case involving VAT, "wherever the provisions of a directive appear...to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or insofar as the provisions define rights which individuals are able to assert against the State."

In Pubblico Ministero v. Ratti,[7] however, it was held that if the time limit given for the implementation of the directive has not expired, it cannot have direct effect. Directives were directly effective only if the prescribed date, by which the Member State should have implemented it, had passed. Additionally, in instances where the Member State has introduced the required legislation, but has done so defectively, the directive may still be directly effective, as in the Verbond van Nederlandse Ondernemingen (VNO) case.

Unlike Treaty provisions and regulations, directives cannot have horizontal effect (against another private individual or company), as this is adjudged contrary to the principles of equality (see Marshall v Southampton and South West Hampshire AHA (1986)). As such, Directives are currently only vertically directly effective (i.e. against the state, a concept interpreted broadly by the ECJ, including state schools and other "emanations of the state").

Direct effect on procedural law In Comet v. Produktschap,[8] the European Court of Justice established that the procedural rules of each member state generally apply to cases of EC law. However, two basic principles must be adhered to: "equivalence" (the procedure for EU cases must be equivalent to the procedure for domestic cases) and "effectiveness" (the procedure cannot render the law functionally ineffective). Since then, the ECJ has ruled that national courts have general authority to interpret their own procedural laws, since they tend to be more familiar with local procedure than the European court. However, member state courts have to follow the basic principles of equivalence and effectiveness when interpreting the validity of their procedural law.

The Romanian registration tax European Commission spokesperson for taxation Maria Assimakopoulou told MEDIAFAX Tuesday the Commission wrote a letter to Romanian authorities on Dec 22 saying new car tax regulations seem to be not in line with EU legislation. "The Commission and the Romanian authorities have been in regular contacts as regards the new car tax legislation in Romania. Those discussions with the Romanian authorities are informal and confidential. We try to help the Romanian authorities understand the different elements of compatibility with community law for any new national legislation to be introduced in the car taxation area, Assimakopoulo said. She added the Commission wrote a letter to the Romanian authorities on 22 December, ascertaining that based on information received from Romanian authorities, a first analysis showed that the new measures didnt seem to be in line with European legislation.

In this letter we ascertain that the information provided to us is incomplete to make a full analysis of the new legislation. However, our first analysis based on the information provided is that the new measures seem not to be in line with the EU legislation Within this process, I can confirm that the Commission wrote a letter to the Romanian authorities on 22 December. In this letter we ascertain that the information provided to us is incomplete to make a full analysis of the new legislation. However, our first analysis based on the information provided is that the new measures seem to be not in line with the EU legislation, Assimakopoulou said. The European Commission informed the Romanian Government that the emergency decree issued by the former cabinet, which triples the countrys car tax, breaches EU laws and Romanian authorities are working to find a solution to comply, Romanias head of the Department for European Affairs, Vasile Puscas, told MEDIAFAX late Monday. "The European Commission found the emergency decree breaches European laws and we have to fix it, Puscas said. He added he will have talks in the upcoming period with Prime Minister Emil Boc and the ministers involved, to find a solution. Romanias new coalition government was sworn in on Dec 22, 2008. The countrys car tax could be lower in value at the time of vehicle registration and later included in the annual tax paid by owners and calculated in ratio with the vehicles pollution standards, according to one of the variants the government is considering in a move to change the car tax regime. Environment minister Nicolae Nemirschi presented at the end of last year several variants to change the car tax regime in a press conference Monday and said a decision will be made after

the propositions are analyzed by the government and after European institutions are consulted. He said one option would be to suspend the decree the former liberal government passed in December and go back to the tax values charged in July. The minister presented another variant, where the registration tax would be lowered, but vehicle owners would pay an annual tax calculated in ratio to the cars pollution standards. A decision in about the car tax will be made after Jan 15, after the Ministry of Environment and the Ministry of Transport analyze this vehicle taxation regime. Romanias former liberal government decided April to introduce the pollution tax for cars, calculated depending on the technical data of each car, based on carbon dioxide emissions, which replaced as of July 1, 2008, the tax for the first registration of cars which was then effective. Amendments to the car tax brought a fall in the number of new cars, and boosted used car imports. On the backdrop of the increase in the number of imported second-hand cars, the government decided via an emergency decree in December to triple the car tax for used cars, and to suspend it for new cars with Euro4 engines of up to 2,000 cubic centimeters, registered or the first time in Romania and the European Union.

Romanian Economy minister Varujan Vosganian has said that the first car registration tax will be changed after the Romanian state will reach an understanding with the European Commission in this regard.

His declaration comes after EC officials said they might launch a new step forward in the ongoing process of sanctioning Romania on this issue by the end of the year. The announcement was made by the spokesperson of the EC Commissioner on taxes, Maria Assimakopoulou, quoted by NewsIn Thus, a reasoned opinion letter has been sent to Romanian officials regarding the way authorities need to modify the tax. If Romania will disregard the letter, the European Commission will forward the case to the European Court of Justice. The European Commission expects Romania to officially send its legislation on the issue.

EU officials argue that the first car registration tax imposed by the Romanian government directly contradicts article 90 of the EU Treaty and the European Court jurisprudence. European Commission argues that the tax is discriminating between the second hand cars sold by Romanians and EU citizens. Moreover, its value exceeds the residual value of very old cars.

Article 90 of the EC Treaty provides: No Member State shall impose, directly or indirectly, on the products of other member states any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Furthermore, no Member State shall impose on the products of other member states any internal taxation of such a nature as to afford indirect protection to other products. In Case 323/87 Commission v Italy (Taxation of rum), 1989 ECR 2275 . the ECJ stated:

The Court has consistently held that the purpose of Article 95 [now Article 90], as a whole, is to ensure the free movement of goods between the member states under normal conditions of competition, by eliminating all forms of protection which might result from the application of discriminatory internal taxation against products from other member states, and to guarantee absolute neutrality of internal taxation as regards competition between domestic and imported products (see the judgment of 9 July 1987 in Case 356/85 Commission v Belgium (Taxation of Wine and Beer), 1987 ECR 3299 .). Supremacy of the European Union Law

The EC Treaty is considered an integral part of the legal system of the Member States. Such a status implies that the Treaty is applied in the court system of each Member States. Art. 5 of the Treaty requires Member States to take all appropriate measures to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Communitys tasks. Member States shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty. The Court of Justice (ECJ) has a jurisdiction on such matters. In the Costa v Enel (Case 6/64) 1964, the ECJ ruled that there is a permanent limitation of sovereign rights for Member States. In 1962, the Italian government passed a law to nationalize the Electricity industry. The law created Nazional Energia Electrico (ENEL). Costa, a citizen, refused to pay his electric bill, on the basis that the new law violated the Italian Constitution and the EEC Treaty. The Italian Constitution Court ruled that the Treaty was a subordinate to any Italian legislation. The ECJ addressed that issue by affirming that such an action by the Italian court would

jeopardize the attainment of the objectives of the Treaty set out in Article 5(2) and causes discrimination, which prohibited by Art. 7. Art. 189 of the Treaty give precedence to Community law. Regulations issued by Community institutions for example are binding and directly applicable in all Member States. In 1998 ruling, the ECJ held that a national law adopted after an EC law with which it is incompatible, the national law should be regarded as non-existent. (See Simmenthal in Ministero della Finanze v In. Co. Ge., Case C-10-22/97.) The ECJ considers the effect of EC law as creating a new legal order.

Prioritatea legii Comunitatii: Costa vs. ENEL In cazul Costa vs. E.N.E.L., CEJ a formular faptul ca legea Comunitatii are intaietate in fata legislatiei domestice:

Un contribuabil italian, Flaminio Costa, a refuzat sa plateasca companiei nationalizata de electricitate (ENEL) relativ modesta suma de 1925 lire. Costa a argumantat ca pe data de 6 Decembrie 1962 legea italiana a nationalizarii companiei de electricitate a violat Art. 102, 92, 53 si 37 ale TCEE (distorsiuni in competitie, subventii neadecvate, etc.) Curtea de Apel de la Milano a cerut CEJ sa faca o reglementare preliminara a conflictului intre nationalizarea italiahna si articolele TCEE mentionate mai sus. Curtea Europeana nu a fost rugata sa decida daca Costa trebuia sa-si plateasca factura la electricitate. Obiectul petitiei a fost clarificarea relatiei intre legea europeana si legea nationala.

Cand s-a reglementat intaietatea legii Comunitatii in fata legii nationale, Cej a declarat ca Comunitatea are o ordine legala

autonoma care a fost recunoscuta de catre statele membre cand au renuntat la anumite drepturi suverane. Legea Comunitatii are intaietate in fata legislatiei nationale, deoarece ar periclita realizarea obiectivelor tratatului daca legii CE i s-ar atribui grade variate de validitate din partea unui stat membru sau al altuia. Astfel, legea nationala care se afla in conflict cu legea CE nu se poate aplica in cazuri specifice.

Atunci cand CEJ reglementeaza ceva, satele membre sunt legate prin tratat sa ia masurile necesare pentru a duce la indeplinire aceste regulamente. In acest caz, nici autoritatilor italiene si nici curtilor italiene nu li s-a permis aplicarea prevederilor legii nationalizate.

Reglementarile CEJ privind intaietatea legii Comunitatii in cazul Costavs. ENEL s-a dezvoltat intr-o alta reglementare (vezi Simmenthal vs. Comisia Comunitatilor Europene ) Intaietatea legii Comunitatii : Simmenthal vs. Comisia Comunitatilor Europene

Simmenthal vs. Comisia Comunitatilor Europene (9 Martie 1978) se refera la urmatoarele puncte: In IULIE 1973, o firma italiana, Simmenthal, importa carene de vita din Franta si conform legislatiei italiene trebuia sa plateasca o taxa pentru controlul sanitar. Simmenthat a argumentat ca aceste taxe sunt o violare a legii CE cu privire la circulatia libera a bunurilor si a cerut o recompensa. Controalele sanitare au fost introduse in urma regulamentelor CE care a cerut astfel de masuri. CEJ a continuat in reglementarile privind Costa vs. ENEL:A reafirmat faptul ca legislatia nationala nu este aplicabila aici in privinta violarii legii Comunitatii si mai departe a stablit ca

statele membre sunt obligate sa nu adopte nici o legislatie domestica care sa contravina legii existente a Comunitatii. Facts Mr Costa was an Italian citizen opposed to nationalising the Italian energy company ENEL, because he had shares in it. He refused to pay his electricity bill in protest, and argued that nationalisation infringed EC law on the State distorting the market.[1] The Italian government believed that this was not even an issue that could be complained about by a private individual, since it was a national law decision to make.

Decision The Court ruled in favour of the government, because the relevant Treaty rule on an undistorted market was one on which the Commission alone could challenge the Italian government. As an individual, Mr Costa had no standing to challenge the decision, because that Treaty provision had no direct effect.[2] But on the logically prior issue of Mr Costa's ability to raise a point of EC law against a national government in legal proceeding before the courts in that Member State the ECJ disagreed with the Italian government. It ruled that EC law would not be effective if Mr Costa could not challenge national law on the basis of its alleged incompatibility with EC law. It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.[

Direct effect

Direct effect is a principle of European Community law according to which certain pieces of European legislation are enforceable before the courts of European Union member states. Direct effect is not explicitly mentioned in any of the EC Treaties, but was established by the European Court of Justice in Van Gend en Loos v. Nederlandse Administratie der Belastingen,[1] in which the court held that obligations imposed upon member states by the treaties could be enforced by individuals, in the form of individual legal rights, before national courts. The principle has subsequently been applied to legislation adopted under the treaties in the form of regulations and directives. The criteria In Van Gend en Loos [1963] ECJ.,[2] the European Court of Justice laid down the criteria (commonly referred to as the "Van Gend criteria") for establishing direct effect: The provision must be sufficiently clear and precisely stated, It must be unconditional or non-dependent, The provision must confer a specific right for the citizen to base his or her claim on. If these criteria are satisfied, then the citizen is able to enforce the right(s) in question in the national courts.

Varieties of direct effect In Van Gend en Loos[3] it was decided that a citizen was able to enforce a right granted by European Community legislation against the state - the question of whether rights could be enforced against another citizen was not addressed. In Defrenne v. SABENA,[4] the European Court of Justice decided that there were two varieties of direct effect: vertical direct

effect and horizontal direct effect, the distinction drawn being based on against whom the right is to be enforced. Vertical direct effect concerns the relationship between EC law and national law - specifically, the state's obligation to ensure its observance and its compatibility with EC law, thereby enabling citizens to rely on it in actions against the state (or against an "emanation of the state" as defined in Foster v. British Gas plc.[5] Horizontal direct effect concerns the relationship between individuals (including companies). If a certain provision of EC law is horizontally directly effective, then citizens are able to rely on it in actions against each other. Directives are usually incapable of being horizontally directly effective due to the fact that they are only enforceable against the state. Certain provisions of Treaty law and acts such as Regulations from the Council or Commission are capable of being directly enforced horizontally. The ECJ held that under the term of Art 249 of the Treaty, Regulations "shall have general application" and "shall be . . . directly applicable in all Member States." Therefore, by reason of their nature and function in the Community law system, regulations are capable of creating rights for individuals which national courts must protect.

Application of direct effect Direct effect is applicable when the particular provision relied on fulfils the Van Gend en Loos criteria. It is therefore applicable in the case of treaty articles (Van Gend en Loos was a claim based on a treaty article), in which case it can be both vertically and horizontally directly effective.

Regulations

Regulations can also be subject to direct effect. As under Article 249 of the EC Treaty they are "directly applicable" (as distinct from directly effective), they are incapable of being conditional. As that criterion for direct effect is always satisfied in the case of regulations, if a specific right is conferred, then the regulation can be both vertically and horizontally directly effective.

Decisions Decisions are directly effective against whomever they are addressed, as under Article 249 of the EC Treaty "they are binding in their entirety on the party to whom they are addressed".hm

Directives In Grad v Finanzamt Traunstein,[6] a case involving VAT, the ECJ ruled that a directive could be directly effective, as they imposed an obligation to achieve a required result. As the ECJ held in Becker, another case involving VAT, "wherever the provisions of a directive appear...to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or insofar as the provisions define rights which individuals are able to assert against the State."

In Pubblico Ministero v. Ratti,[7] however, it was held that if the time limit given for the implementation of the directive has not expired, it cannot have direct effect. Directives were directly effective only if the prescribed date, by which the Member State should have implemented it, had passed. Additionally, in instances where the Member State has introduced the required

legislation, but has done so defectively, the directive may still be directly effective, as in the Verbond van Nederlandse Ondernemingen (VNO) case.

Unlike Treaty provisions and regulations, directives cannot have horizontal effect (against another private individual or company), as this is adjudged contrary to the principles of equality (see Marshall v Southampton and South West Hampshire AHA (1986)). As such, Directives are currently only vertically directly effective (i.e. against the state, a concept interpreted broadly by the ECJ, including state schools and other "emanations of the state").

Direct effect on procedural law In Comet v. Produktschap,[8] the European Court of Justice established that the procedural rules of each member state generally apply to cases of EC law. However, two basic principles must be adhered to: "equivalence" (the procedure for EU cases must be equivalent to the procedure for domestic cases) and "effectiveness" (the procedure cannot render the law functionally ineffective). Since then, the ECJ has ruled that national courts have general authority to interpret their own procedural laws, since they tend to be more familiar with local procedure than the European court. However, member state courts have to follow the basic principles of equivalence and effectiveness when interpreting the validity of their procedural law.

The Romanian registration tax European Commission spokesperson for taxation Maria Assimakopoulou told MEDIAFAX Tuesday the Commission wrote

a letter to Romanian authorities on Dec 22 saying new car tax regulations seem to be not in line with EU legislation. "The Commission and the Romanian authorities have been in regular contacts as regards the new car tax legislation in Romania. Those discussions with the Romanian authorities are informal and confidential. We try to help the Romanian authorities understand the different elements of compatibility with community law for any new national legislation to be introduced in the car taxation area, Assimakopoulo said. She added the Commission wrote a letter to the Romanian authorities on 22 December, ascertaining that based on information received from Romanian authorities, a first analysis showed that the new measures didnt seem to be in line with European legislation. In this letter we ascertain that the information provided to us is incomplete to make a full analysis of the new legislation. However, our first analysis based on the information provided is that the new measures seem not to be in line with the EU legislation Within this process, I can confirm that the Commission wrote a letter to the Romanian authorities on 22 December. In this letter we ascertain that the information provided to us is incomplete to make a full analysis of the new legislation. However, our first analysis based on the information provided is that the new measures seem to be not in line with the EU legislation, Assimakopoulou said. The European Commission informed the Romanian Government that the emergency decree issued by the former cabinet, which triples the countrys car tax, breaches EU laws and Romanian authorities are working to find a solution to comply, Romanias head of the Department for European Affairs, Vasile Puscas, told MEDIAFAX late Monday. "The European Commission found the emergency decree breaches European laws and we have to fix it, Puscas said.

He added he will have talks in the upcoming period with Prime Minister Emil Boc and the ministers involved, to find a solution. Romanias new coalition government was sworn in on Dec 22, 2008. The countrys car tax could be lower in value at the time of vehicle registration and later included in the annual tax paid by owners and calculated in ratio with the vehicles pollution standards, according to one of the variants the government is considering in a move to change the car tax regime. Environment minister Nicolae Nemirschi presented at the end of last year several variants to change the car tax regime in a press conference Monday and said a decision will be made after the propositions are analyzed by the government and after European institutions are consulted. He said one option would be to suspend the decree the former liberal government passed in December and go back to the tax values charged in July. The minister presented another variant, where the registration tax would be lowered, but vehicle owners would pay an annual tax calculated in ratio to the cars pollution standards. A decision in about the car tax will be made after Jan 15, after the Ministry of Environment and the Ministry of Transport analyze this vehicle taxation regime. Romanias former liberal government decided April to introduce the pollution tax for cars, calculated depending on the technical data of each car, based on carbon dioxide emissions, which replaced as of July 1, 2008, the tax for the first registration of cars which was then effective. Amendments to the car tax brought a fall in the number of new cars, and boosted used car imports. On the backdrop of the increase in the number of imported second-hand cars, the government decided via an emergency

decree in December to triple the car tax for used cars, and to suspend it for new cars with Euro4 engines of up to 2,000 cubic centimeters, registered or the first time in Romania and the European Union.

Romanian Economy minister Varujan Vosganian has said that the first car registration tax will be changed after the Romanian state will reach an understanding with the European Commission in this regard. His declaration comes after EC officials said they might launch a new step forward in the ongoing process of sanctioning Romania on this issue by the end of the year. The announcement was made by the spokesperson of the EC Commissioner on taxes, Maria Assimakopoulou, quoted by NewsIn Thus, a reasoned opinion letter has been sent to Romanian officials regarding the way authorities need to modify the tax. If Romania will disregard the letter, the European Commission will forward the case to the European Court of Justice. The European Commission expects Romania to officially send its legislation on the issue.

EU officials argue that the first car registration tax imposed by the Romanian government directly contradicts article 90 of the EU Treaty and the European Court jurisprudence. European Commission argues that the tax is discriminating between the second hand cars sold by Romanians and EU citizens. Moreover, its value exceeds the residual value of very old cars.

Article 90 of the EC Treaty provides: No Member State shall impose, directly or indirectly, on the products of other member states any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. Furthermore, no Member State shall impose on the products of other member states any internal taxation of such a nature as to afford indirect protection to other products. In Case 323/87 Commission v Italy (Taxation of rum), 1989 ECR 2275 . the ECJ stated: The Court has consistently held that the purpose of Article 95 [now Article 90], as a whole, is to ensure the free movement of goods between the member states under normal conditions of competition, by eliminating all forms of protection which might result from the application of discriminatory internal taxation against products from other member states, and to guarantee absolute neutrality of internal taxation as regards competition between domestic and imported products (see the judgment of 9 July 1987 in Case 356/85 Commission v Belgium (Taxation of Wine and Beer), 1987 ECR 3299 .). The community institutions are empowered under the provisions of the founding treaties In order to carry out their task in accordance with the provisions of the treaty to make regulations each directives take decisions, make recommendations or deliver opinions. These measures, known as acts, are defined by Art. 249 EC Treaty as follows: A regulation shall have general application, it shall b binding in its entirety and directly applicable in all MS. A directive shall be binding as to the result to be achieved upon each MS to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force Categories of acts which are compulsory:

The regulations provide general rules which apply uniformly throughout the EC. As it is binding and directly applicable, the regulation takes effect without further implementation and may be relied upon by individuals before the national courts of law. The regulation is essentially of a legislative nature and it involves immediate legal consequences in all MS for categories of persons regarded in a general and abstract manner. The features of regulations It is generally applicable, meaning that the regulation contains general and impersonal legal rules addressed to everybody It is directly applicable, meaning that it is automatically incorporated into the national law It is compulsory in its entirety for anyone falling within its terms in all MS and it does not require further action, being applicable by the national courts of law as soon as it enters into force Art. 254 EC Treaty provides that all regulations must be published in the Official Journal of the EU. They enter into force on the date specified on the regulation or, if no date is specified, 20 days after the publication. (community acts-exam)

The directives- are binding as to the result to be achieved upon each MS to which it is addressed allowing states a choice as to the means of implementation. A directive may be addressed to some or all of the MS and it is the main measure used in the harmonization of national legislations. Therefore, the directive sets out the result to be achieved but leaves some choice to each MS as to the form/method of achieving the final result. It usually provides the MS with a range of options they can choose from when implementing the measure. A directive is not directly applicable; it requires each MS to incorporate the directive into the national law in order to produce effects in the

national legal system. Every directive specifies a period of time which is usually 2 years by which time the MS should have achieved the result required. If a MS didnt achieve the final result within this time limit, a national of that MS may invoke before the national courts of law any right given under the directive. Art. 254 EC Treaty provides the directives which are adopted in accordance with the legislative procedure prescribed by Art. 251 EC Treaty, meaning the co-decision procedure must be published in the Official Journal of the EU. Such directives enter into force on the date specified in the directive or, if no date is specified, 20 days after the publication. All the directives which do not need to be published in the Official Journal must be notified to the MS to which they are addressed and will take effect on the date of notification.

The decisions being an individual act is addressed to specified persons, either states or individuals natural or legal persons. As it is compulsory in its entirety, the decision requires no further implementation. A decision is addressed to specific individuals or MS. Therefore, its essential features arise from the limitation of the categories of persons to whom it is addressed. According to the case law of the Court of Justice of the EC, the decisions produce direct effects, meaning they may create directly rights and obligations for the persons to whom they are addressed. Therefore, the decisions may be evoked before the national courts of law and must be taken into consideration as part of Community Law. Art. 254 EC Treaty provides that a decision must be notified to the persons or MS to whom it is addressed and it will take effect upon such notification. However, if a decision is adopted using the co-decision procedure it must be published in the Official Journal of the EU and it will enter into force either on the date specified in the decision or 20 days after the publication.

Only regulations, directives and decisions are legally binding. They must state the reasons on which they are based and they must refer to any proposals or opinions which were required to be obtained under the provisions of the Community Treaties. These procedural requirements are essential. Failure to comply with them may lead to the annulment of the act by the Court of Justice of the European Communities.

Categories of acts which are recommendations and opinions

not

compulsory:

Art. 211 EC Treaty empowers the Commission to formulate recommendations or deliver opinions on matters included in the Community Treaties not only when expressly provided for but also whenever it considers necessary. However, recommendations and opinions are not devoid of any legal significance. Thus, in Grimaldi vs. Fonds des Maladies Professionelles Case, Case no. C-322/1988, the Court of Justice of the EC has stated that national judges must consider relevant recommendations in dealing with cases before them mainly when they clarify the interpretation of other provisions of national or community law. The classification of community acts is not as precise as it appears from the provisions of the Treaty. The formal designation of an act as regulation, directive or decision may be misleading. This idea has lead the Court of Justice of the EC to examine the content of the act rather than its form concluding in several cases for example that when a regulation fails to lay down general rules, it is in fact a discussed decision. The cases are: Confdration Nationale des Producteurs des Fruits et Lgumes vs. Council, Cases no. 16 and 17/1962. Direct effect of Community Law curs 6 The direct applicability of Community Law is not the same as direct Effect. As a consequence, directly applicable provisions means those provisions which take effect into the legal systems

of MS without the need for further implementation. On the other hand directly effective provisions mean those provisions that create rights and obligations for individuals on which they may rely before their National Courts of Law. The regulations take effect without further implementation and they may be invoked by individuals either vertically or horizontally. Therefore, the regulations are directly applicable and they have vertical and horizontal direct effect. Unlike regulations, the directives are not directly applicable. However, the Court of Justice of EC has stated in Grad Case Case no.9/1970 the decisions and directives may be directly effective. The court has ruled that it would be incompatible with the binding nature of directives and decisions to exclude the possibility of direct effect. Therefore, as the directive requires implementation, once the time limit for the implementation has expired, the directive can be directly effective. However, the Court of Justice of the EC has ruled in several cases that the directive may produce vertical but not horizontal direct effect. The indirect effect of Community Law The principle of indirect effect of Community Law was stated by the Court of Justice of the EC in Von Colson and Kamann Case Case no. 14/1983. Thus, within a reference for preliminary ruling the Court of Justice of the EC was asked whether Art. 6 of the 1976 Equal Treatment directive had direct effect. In answering to the question, the Court of Justice had used Art. 10 EEC Treaty, former Art. 5 EEC Treaty, which requires MS to take appropriate measures in order to ensure the fulfillment of their community obligations. The Court of Justice has explained that these obligations applies to all national authorities including the courts of law in the MS. Therefore, even if the principle of direct effect does not apply, the courts of law in the MS are required to interpret and apply national legislation so as to comply with community law. In such cases the Community Law produces an indirect effect. The institutional system of the European Communities

According to the Community treaties, the European Communities as well as the European Union have 5 community institutions as follows: The European Parliament The Council of the EU The European Commission The Court of Justice of the EC The Court of Auditors Concerning the Court of Auditors, it was created in 1977 to audit the accounts of the Community institutions but it was recognized as a separate Community institution by the Treaty of Maastricht of the EU. The 5 Community institutions are different from the other Community bodies such as the Economic and Social Committee or the Committee of Permanent representatives mainly because the Community institutions have the power to adopt compulsory normative acts addressed to the MS to the other Community institutions as well as to individuals in MS. The Community institutional system consists of the 5 community institutions and the other community bodies provided by the treaties. Each community institution must carry out the task entrusted by the Community Treaties and therefore, each community institution has its own role, represents and defenses specific interest ay community level as follows: 1. The European Parliament represents and defenses the interests of the citizens of MS 2. The Council of the EU represents the interests of the MS themselves

3. The European Commission represents the common interest, meaning the interest of the European Communities or the EU 4. The Court of Justice of the EC represents the interest of the law because it ensures the interpretation and the uniform application of Community Law by MS and Community institutions 5. The Court of Auditors verifies the legality and the regularity of operations concerning the accounts of the Community institutions The Community institutions are unique=> they do not correspond to other institutions either at national or international level. The balance of powers between Community institutions cannot be approached taking into consideration the traditional division of functions within an individual state into categories of legislative executive, administrative and judicial. Actually, at European level many of these duties are shared between different Community institutions. However, each Community institution must act within the limits of the powers conferred by the treaties in order to achieve the objectives of the Communities. But the Community treaties do not entrust the Community institutions with general powers, meaning the powers to take any measure which might be necessary for the achievement of objectives. Actually, the powers of the Communities institutions may be divided into 3 categories as follows:

Specific powers- expressly provided by the treaties within specific areas of economic activity in order to accomplish the objectives conferred upon the Communities by the MS Subsidiary powers- when the treaties entrust the Community institutions with the powers to take measures if the objectives may be accomplished better at community level

Implicit powers- not directly given to the Community institutions but are essential in order to exercise completely all the other powers

The European Parliament Under the founding treaties, the European Parliament was known originally as the Assembly. It was not elected, but its members were appointed from the members of the national parliaments of the MS. It had not direct legislative powers but played a consultative and supervisory role. Concerning the denomination of this Community institutions, in 1962 the members of the assembly have decided to use the denomination at European Parliament. This new denomination was expressly provided by the Single European Act and since 1987 the Assembly has been officially known as the European Parliament. The members of the European Parliament are now directly elected by the citizens of MS for 5 years. The first direct elections were held in 1979. However, despite the holding of direct elections since 1979, the MS have failed to reach an agreement on a uniform electoral procedure throughout the Community. As a consequence, the election of the members of the European Parliament is regulated in each MS by its own national provisions. Concerning the composition of the European Parliament, the Treaty of Nice had provided a new allocation of seats for the MS taking into account the enlargement of the EU to 27 MS. As a consequence, there are now 732 members of the European Parliament. The number of seats allocated in the European Parliament for each MS must ensure the proper representation of its population and therefore this number is proportional to the population size of each MS. Romania has 33 seats, France and UK 72, Germany 99. EU Law - course 7

The organization of the European Parliament Te members of the parliament elect its president together with 14 vice-presidents and 5 quaestors for 2 and half years. They form the bureau of the European Parliament which is its executive body responsible for the Parliaments budget and for administrative and staff matters. In the same time, there is another body namely the conference of the presidence which consists of the president of the parliament and the leaders of the different political groups and the European Parliament. The Conference of Presidence is the political governing body of the European Parliament and meets twice a month. It draws up the agenda for plenary sessions and establishes the terms and size of the committees and allegations of the European Parliament. The members of the European Parliament sit in the parliament according to political grouping, rather than nationality. Thus, there are 8 political groups also known as European Political Parties the largest ones being the European Peoples Party, the party of the European socialists, the group of European liberal, democrats and reform party. There are also non attached members of the European Parliament. Concerning the organization, under the Community Treaties, the European Parliament has the right to establish standing committees as well as temporary committees or committees of enquiry. Therefore, there are 17 standing committees on matters including foreign affaires, human rights, internal market, justice and home affaires, budgetary control, petitions etc. They prepare the work for the Parliaments plenary session and are very important for its proper functioning. Generally, each member o the European Parliament is also a member of one standing committee and the substitute in another one.

The sessions of the European Parliament

The Parliament holds a yearly session which is divided in 12 periods of session. It may also hold extraordinary sessions. Its meetings during sessions are public. Generally, the Parliament adopts decisions with the absolute majority of votes of attending members with several exceptions such as the budget or the censure motions.

The powers of the European Parliament Under the founding treaties, the Parliament had no legislative power. During the years its influence within the legislative process had grown. Thus, the Single European Act of 1986 has provided the cooperation and assent procedure (procedura avizului conform) which increased the role of the European Parliament in the adoption of community legislation. The Treaty of Maastricht of the EU had introduced in several areas the co decision procedure which recognizes the joint involvement in the legislative process of the European Parliament and the Council of the EU. The application of the co decision procedure was extended through the provisions of the Amsterdam Treaty and the Treaty of Nice. In the same time, since the 2 budgetary treaties of 1970 and 1975, the European Parliament has significant powers in the adoption of the budget of the European Communities. Therefore, today, the European Parliament exercises important powers of legislative budgetary and supervisory nature.

The participation of the European Parliament in the legislative process Certain provisions of the community treaties impose the consultation of the European Parliament by the Council of the EU before adopting acts within important areas. The consultation of the European Parliament is compulsory in such cases and the Court of Justice of the EU has decided that the failure to consult the Parliament led to the annulment of the act

adopted by the Council. Generally, the proposed legislation is submitted by the Commission to the Council of the EU. When the community treaties require, the proposal must be submitted to the European Parliament in order to deliver an opinion. In these cases, the Council of the EU cannot take a decision without asking and waiting for the opinion of the European Parliament. Actually, concerning the role of the European Parliament in the legislative process there are several categories of legislative procedures which involve different degrees of participation of the European Parliament together with the Council of the EU in the adoption of community acts. The legislative procedures are as follows: 1. The consultation procedure 2. The cooperation procedure 3. The assent procedure 4. The co decision procedure The most important legislative procedure is the co decision procedure because it recognizes the joint involvement in the legislative process of the European Parliament and the Council of the EU. Actually, the co decision procedure was provided in order to prevent a measure being adopted without the approval of both the Council of the EU and the European Parliament. The co decision procedure applies whenever the community treaties refer to it for the adoption of community act. However, the co decision procedure is now the general method of decision making for most community legislators

The supervisory power of the European Parliamnet. According to the community treaties and the amendment brought by the Treaty of Maastricht, the European Parliament supervises the activities of the other community institutions, mainly the European Commission. As a consequence, the Parliament has the power to censure the Commission and

require its resignation. Therefore, in such a case, a new Commission must be appointed. However, between 1972-1977 there have been proposed 4 censure motions but they have not attained the majority of votes of the members of the European Parliament required by the treaties namely 2/3 of the votes cast. Actually a single censure motion has been adopted in 1999 which led to the resignation of the entire commission. In addition, the European Parliament has the right to ask the commission or the council oral and written questions. Also, every year, the Commission has to prepare report on the activities of the community institutions and European communities which must be presented to the European Parliament. The European Parliament has also the right to establish committees of enquiry in order to investigate the cases of improper application of community law for criminal offences committed by the members of the community institutions. In exercising its supervisory power, the European Parliament may also receive individual or collective conditions from the European citizens concerning any issue in relation to the activities of the European Communities. In addition, according to the amendments brought by the Treaty of Maastricht, the Parliament has the right to appoint an Ombudsman whose role is to receive complaints fro the European citizens about the way the community institutions work. In these cases the community institutions subject to the investigation must supply the information requested and must give access to files. At the conclusion of the investigation the Ombudsman sends a report to the European Parliament and to the community institutions under investigation. The person who has made a complaint is also informed of the outcome. The European Parliament has also the right to participate within the disputes brought to the Court of Justice of the European Communities as a plaintiff or as a defendant. The Court of Justice of the EU has jurisdiction to verify the legality of the acts adopted by the European Parliament together with the Council of the EU as well as the acts adopted by the European

Parliament which were intended to produce legal effects in relation with third parties.

The budgetary power Since the first budgetary treaty of 1970, the European Parliament had received a more powerful role in the adoption of the budget of the European communities. Therefore, the communitys budgetary procedure is complex and the budgetary powers are shared between the Council of the EU and the European Parliament. Actually, the Commission prepares the preliminary draft budget. This is sent to the Council of the EU which considers it and establishes the draft budget voting it by qualified majority. The draft budget is then sent to the European parliament for a first reading. If the European Parliament adopts amendments or proposes modifications the draft must be sent back to the Council of the EU for a second reading. However, concerning the budgetary procedure, the role of the European Parliament is very powerful because it is entitled to reject the entire budget and to request a new preliminary draft budget. In such a case, the budgetary procedure must be reinitiated. Finally, the European Parliament has also the power to control the implementation of the budget after its adoption. In the exercise of this power it is assisted by the Court of Auditors.

The council of the European Union 2.4.2009 The composition and the functioning: After the Treaty of Maastricht the Council became known as the Council of the European Union. According to the Community treaties, the Council consists of a representative of each MS at ministerial level who is authorized to engage the government of their state. However, the composition of the Council depends

on the issues under discussion. As a consequence, the meetings are arranged by subject method with different ministers attending from the MS. Thus there is a General Affaires Council attended by foreign affaires ministers of MS which deals with external relations as well as many matters concerning the general community policy. There are also different technic or special councils which regard the issues such as transport, internal market, agriculture, justice, employment etc. The ministers responsible for these issues within MS will attend such meetings. The presidency of the council is held by each MS in turn for 6 month. Since the membership of the Council of EU fluctuates and is combined with full time responsibilities in the MS of origin much of the work of the Council is prepared and carried out by the Committee of permanent representatives or COREPER. This committee has been created through the Merger Treaty signed in 1965 in Brussels therefore, in Brussels each MS has a permanent team of representation that represents it and defends its interest at EU level. The head of each representation is the ambassador of each MS to the EU. These ambassadors known as permanent representatives meet within the Committee of Permanent representatives. The role of this committee is to prepare the work of the council except for agricultural issues which are prepared by a special committee on agriculture. The committee of permanent representatives is assisted by a number of working groups composed of experts and officials from the national administrations. The committee of permanent representatives plays an important role in the community decision making process because it considers the legislative proposals received from the commission and it helps to set the agenda for councils meetings. This agenda is divided into 2 parts as follows: Part A: includes less important issues on which the Committee of Permanent Representatives have already reached an agreement. These issues can be adopted by the Council without further discussion.

 Part B: which covers more important topics that do require discussion within the Council.

The voting procedures within the Council The general principle is that voting in the council is to be by majority unless the community treaties provide otherwise. Actually, the community treaties stipulate 3 different rules on voting as follows: 1. Unanimity 2. Simple majority which is rare 3. The qualified majority which is used in most circumstances

The actual voting rule that applies in a particular case is specified in the community treaty article under which a measure is adopted. Concerning the qualified majority voting it depends on a system of weighted votes. Thus the largest MS namely France, Germany, UK and Italy have 29 votes each and a smallest state Malta has 3 votes. The number of votes allocated to the other MS is between these 2 figures: Romania has 14 votes in the Council. The qualified majority is 258 votes out o 345 in cases where the council acts on a proposal from the commission. If it does not so, there is the additional requirement that the votes must be cast by at least 2/3 of the MS. In addition, any member of the council may request verification that the MS which constitute the qualified majority represent at least 62% of the population of the Union. If this condition is not met, the decision in question cannot be adopted. The qualified majority had been the main rule of voting in many areas since 1965. The areas in which decisions may be adopted in this way were extended by the Single European Act as well as the other subsequent treaties.

Therefore, the requirement of unanimity now generally applies only to the following cases: 1. Politically sensitive issues 2. Decisions which are very important for the nature of the Community 3. When the Council wants to adopt an act which is different form the proposal made by the other community institution namely the European Commission (most important & used case)

The powers of the Council: According to the community treaties the powers of the Council of the EU are the following: 1. It exercises the legislative power by adopting community acts which are compulsory 2. It ensures the coordination of the general economic policies of MS in order to accomplish the proper functioning of the economic and monetary union 3. In external relations the council authorizes the opening of negotiations with other states or international organizations and it delegates to the European Commission the power to negotiate and to conclude such international agreements. 4. It has the power to amend the community treaties and to complete them 5. It exercises the budgetary power sharing it with the European parliament
6.

Under the 2nd and 3rd pillars of the EU, the council ensures the cooperation between MS

The legislative power: The Council of the EU is a community institution which has the power to adopt the community legislation. However, the legislative process of the Community is complex because the Council doesnt act alone. Actually there are several legislative procedures namely .. which involve different degrees of power granted to the European Parliament. Nevertheless, there are several areas where the Council of the EU and the European Commission can take action without any intervention of the European Parliament. Thus, in such cases, the Council may act on a proposal from the Commission and take a decision in accordance with the voting requirements provided by the relevant treaty article. This procedure is used, for example, in relation to aspects concerning the free movement of workers, of capitals, the economic policy or the common commercial policy.

The European Council The European Council is not a community institution. It consists of the head of state and government of the MS plus the president of the European Commission. They are assisted by their foreign ministers and by another member of the European Commission. The European council has evolved very much during the years. Actually, meetings of the head of state or government of the MS have taken place since 1960s. However, the 1st mention of the European Council within a community treaty was made in the single European Act. Its composition, role and functioning are not provided by the Treaty of Maastricht on the EU. According to the Treaty of Maastricht, the European Council must ensure the development of the EU and must define its general political guidelines. The European Council must meet at least twice a year. However, the Lisbon

European Council of 2000 has decided that a 3rd meeting would be held each spring. The meetings which are called summits are presided by the head of state or governments of the MS which hold the presidency of the Council of EU. The European Council must submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the EU. Therefore, next to the Council of the EU, the European Council is another European body in which the interests of the MS are represented. The need for another body composed by representatives of MS was partially due to these agreements between the MS themselves. Thus, if the disagreements are on important issues, their resolution might be possible only by intervention at the highest level through the heads of state or governments themselves. The evolution of the European Council is also due to the need for authority at the highest political level. As a consequence, the general strategy for the EUs development can be better planned and approached.

The role European level

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The European council plays an important part establishing the limits within which the community institutions work. Generally, the European Council considers the following categories of issues: 1. The development of the European Community and the EU itself 2. Changes in the institutional structure of the European Community: the final decision concerning the enlargement of the European Parliament following the German

unification was taken in 1990 by a summit of the European Council 3. Significant initiatives that affect the activity of the European Community and EU 4. The state of the European economy: the European Council may take initiatives that are meant to fight against unemployment to promote growth and to increase the competition 5. The resolution of disputes between MS: concerning budgetary matters related to their financial contributions or to their financial benefits 6. The development of particular policy strategies such as the policies meant to fight against drugs or terrorism 7. External relations: the European Council considers important international negotiations such as those with the WTO 8. New accessions to the Community Thus, the European Council may authorize the formal opening of negotiations for candidate countries. As a consequence, all important developments of the Communitys internal structure or of its external relations have to be considered by the European Council. Nevertheless, the resolutions or declarations adopted by the European Council within its meetings do not have the force of law. They are not compulsory normative acts. However, the conclusions reached by the European Council provide the framework within which the community institutions will consider more specific policy issues and will adopt legislation.

The European Commission Composition, appointment function of the commission of commissioners and

The European Commission includes one commissioner from each MS but who does not represent his/her state. Therefore, the commissioners must be persons whose independence cannot be put into question and they must neither think or take instructions from any government or from any other body. Their internal office is 5 years and they may be reappointed. Concerning the appointment of commissioners, the method of choosing them has been substantially modified by the treaty of Nice. Therefore, following the amendments brought by the Treaty of Nice, the European Council nominates the person intended to be appointed as the president of the Commission. His nomination must be approved by the European parliaments with the majority of its members. If the proposed candidate does not receive majority of votes, then within 1 month the European Council must nominate another person. Afterwards, the president of the Commission together with the Council of the EU acting by qualified majority adopt a list of proposed commissioners drawn up in accordance with the proposals made by each MS. The president and the other commissioners are then subject of a vote of approval by the European Parliament. After the approval, the new Commission is appointed formally by the Council of the EU acting by qualified majority. The commissioners meet collectively as the College of Commissioners. Their meetings are held weekly on Wednesdays in Brussels. Their responsibilities are structured and allocated among the commissioners by the president. He has the power to assign the portfolios to the commissioners. Therefore, each commissioner has a portfolio and he is assisted in his work by his own personal staff or Cabinet consisting of national and community officials. In addition, concerning the organization of the Commission, it is divided in 27 directorates general covering the major internal areas over which the Commission has responsibilities such as external relations, competition, internal market, agriculture etc. There are also

different specialized services, such as the legal service or the translation service.

The powers of the Commission The Commission exercises the following powers: 1. It participates in the legislative process of the Community mainly because it has the right to initiate the Community legislation. In addition, the Commission has its own power decision and it may formulate recommendations or deliver opinions. 2. It is the guardian of Community treaties. 3. It acts as the executive of the Community. 4. In external relations, the Commission acts as the representative of the Community and EU and it may negotiate international agreements in accordance with the powers delegated to it b the Council of the EU. The participation of the Commission in the Communitys legislative process: The Commission plays an important part in the legislative process of the Community. The most significant legislative power of the Commission is its right of legislative initiative. Therefore, most community legislation must be made on the basis of a proposal from the European Commission. A community act whose content is different from the proposal made by the Commission may only be adopted by the Council by unanimity. This rule is meant to ensure that the Commissions right of legislative initiative is observed. In most cases the Commission is obliged to submit its proposals within a specified period of time. The noncompliance with this obligation may be sanctioned by the Court of Justice of the European Communities because any community institution or any MS may bring an action for failure to act against the Commission. Furthermore, the European Commission has the capacity in certain limited areas to adopt community legislation

without the formal involvement of any other community institution. For example, the European Commission has the power to adopt directives or decisions concerning the role of the MS in relation to public undertakings. In addition, the European Commission exercises delegated legislative power. Thus, the Council of the EU may delegate power to the Commission to make more specific regulations within a particular area such as agriculture or competition. This delegation of power is necessary because in certain areas of Community policies the market circumstances change very quickly and therefore, it is not enough time to adopt legislation according to the standard legislative procedures. The Commission has the right to formulate recommendation or to deliver opinions on matters covered by the Community treaties.

2. The Commission is guardian of the Community treaties: the Community treaties have empowered the Commission to ensure that the MS, the community institutions and even individuals in MS comply with the provisions of the Community law. Therefore, the Commission has the duty to investigate and to ring to an end the infringement of Community law by the MS. In this respect, the Commission has the power to bring connection for failure to fulfill obligations against the MS when they breach the provisions of Community law. Such an action enables the Court of Justice of European Communities to determine whether a MS had fulfilled its obligations under Community law and to request the state to bring the failure to an end without delay. However, before bringing the case to the Court of Justice of the European Communities, the Commission conducts preliminary procedure in which the MS in question is given the possibility to replay to the complaint requested. If this preliminary procedure does not result in the MSs compliance with its obligations under the treaties, the Commission may bring the action before the Court of Justice of the European Communities. In addition, the Commission is exclusively responsible for the enforcement of Community policies in

several areas such as the competition. In these areas, the Commission has the power to investigate and to analyze the treaty violations whether by individuals or by MS. 3. The Commission as the executive of the Community: the Commission must implement the rules adopted by the Council of the EU. In this respect, the Commission exercise a general supervisory role in order to ensure that these rules are uniformly and properly applied in all MS. In addition, the Commission plays an important role in the establishment of the Communitys budget. In addition, after the adoption of the budget, the Commission is responsible for its implementation.

The Court of Auditors The Court of Auditors had been created by the second Budgetary Treaty in 1975 and it had begun its work in 1977. Since the entering into force of the Treaty of Maastricht on the European Union, the Court of Auditors has been recognized as the fifth Community institution. The Court of Auditors consists of one national from each Member State, appointed by the Council of the European Union, acting by qualified majority after the consultation of the European Parliament. The term of office is six years and it may be renewed. The members of the Court of Auditors must belong in their country to an external audit body or they must be especially qualified for this office. They must be persons whose independence cannot be put into question. In addition, during their term of office, they are not allowed to engage in any other occupation, paid or unpaid, and even after leaving office they must behave with integrity and discretion concerning the acceptance of certain appointments or benefits. A member of the Court of Auditors can be removed from office only by the decision of the Court of Justice of the European Communities. The general task of the Court of Auditors is to verifY the finances of the Communities. In this respect, the Court must examine the accounts of all revenue and expenditure of the Communities and of the bodies set up by the Communities. The audit provided by the Court must be based on records, but also, if necessary, it can be performed on the spot in the Community

institutions and in the Member States, in relation to the competent national audit body. The Court of Auditors draws up an annual report, which is adopted by a majority of its members, after the closing of each financial year. The report is sent to the other Community institutions and published in the Official Journal of the European Union, together with the replies of the institutions. In addition, the Court of Auditors must submit to the European Parliament and the Council of the European Union an annual Statement of Assurance concerning the regularity and legality of the accounts and transactions of the Communities. The Court of Auditors may also submit observations on specific questions or adopt special reports, as for example the 2006 Special Report concerning translation expenditure of the Commission, the Parliament and the Council. It can also deliver opinions, at the request of another institution, mainly concerning specific legislative proposals with a financial impact. The judicial system of the Communities Following the Treaty of Nice, the Court of Justice of the European Communities, the Court of First Instance and the judicial panels constitute the Community's judicial system. Concerning the judicial panels, their establishment is a result of the Treaty of Nice. The main reason for this amendment was to simplify Y the work of the Court of Justice and the Court of First Instance. As a consequence, the European Union Civil Service Tribunal has been created in 2004 to hear disputes involving the staff of the community institutions. The judgments of the Tribunal are subject to an appeal to the Court of First Instance. The Court of Justice of the European Communities The composition, the organization and the functioning of the Court of Justice The Court of Justice consists of one judge from each Member State. The judges must be appointed by common agreement of the governments of the Member States. The term of office is six years, but the judges can be reappointed. However, there is a partial replacement of judges every three years. The Court elects its President among its own judges, for a term of three years. The Court of Justice is assisted by eight Advocates General, Their duty is, mainly, to present, with complete independence,

an opinion in the cases assigned to them. Thus, the Advocate General participates at the oral stage of the judicial hearing but he/she also provides the Court of Justice with a written opinion, before the Court makes its decision. The written opinion presents the interpretation of the law applicable to the case and recommends to the Court how the case ought to be decided. This opinion is not compulsory for the Court, but it may have an influence when solving the case, mainly because the opinion of the Advocate General is intended to constitute an impartial and independent advice. The qualifications for selection as a judge or Advocate General of the Court require persons whose independence CalIDot be put into question and who possess the qualifications required for appointment, in their countries, to the highest judicial offices. As a consequence, a judge or Advocate General who, in the opinion of the other judges or Advocates General, no longer fulfills the conditions and obligations of office may be removed from office. Judges are not allowed to hold any other political or administrative office while they are members of the Court. Concerning the functioning of the Court of Justice of the European Communities, it may sit as a full Court, as the "Grand Chamber" or in chambers. It sits as a full Court when the case is considered as exceptionally important, such as in an action for dismissal of a commissioner. The Grand Chamber consists of thirteen judges and it is used at the request of a Member State or a community institution that is party to the proceedings, as well as in very important or complex cases. However, the great majority of cases are heard in chambers of three or five judges. The procedure before the Court of Justice of the European Communities The procedure before the Court of Justice is governed by its own rules of procedure. Actually, the procedure takes place in two stages, the written and the oral stages. However, the written part of the proceedings before the Court is much more important than the oral one. Thus, at the written stage, all applications, defences, and any submissions or relevant documents are communicated to the parties to the case. The oral stage, by contrast, is limited and short. The

Judge-Rapporteur, meaning the judge assigned in a given case to follow the progress of the case, prepares and presents to the Court the report for the hearing, which summarizes the facts of the case and the arguments of the parties. Then the parties or their legal representatives may make oral submissions to the Court, followed by the opinion of the Advocate General and the hearing of any necessary witnesses or experts. After the closing of the oral stage, the judges deliberate on the basis of a draft judgment drawn up by the Judge-Rapporteur. However, each judge may propose any changes to the draft judgment. Finally, the decisions of the Court of Justice are taken by majority. The judgments are signed by all judges who took part in the deliberation and the operative part of the judgments is pronounced in open court. The Court of First Instance The Court of First Instance was established in 1988 according to a Treaty amendment introduced by the Single European Act. It consists of one judge from each Member State. There are no separate Advocates General of the Court of First Instance, although any judge may be called upon to perform the task of an Advocate General. The members of the Court of First Instance must be chosen from persons whose independence cannot be put into question and who possess the qualifications required for appointment to high judicial offices. The Court of First Instance elects its own President from its judges. It sits in chambers of three and five judges, or sometimes as a single judge. It may also sit as a Grand Chamber or Full COUli when the complexity or importance of the case requires it. The jurisdiction of the Court of Justice of the European Communities According to the Community Treaties, the Court of Justice of the European Communities has jurisdiction in the following matters: 1. references for preliminary rulings; 2. actions for failure to fulfill obligations; 3. actions for annulment; 4. actions for failure to act; 5. appeals against the judgments given by the Court of First Instance. 1. References for preliminary rulings

The procedure for obtaining a preliminary ruling on the interpretation or validity of community law is very important because through preliminary rulings the Court of Justice has developed significant concepts, such as the direct effect or the .supremacy of community law. The preliminary rulings are meant to ensure the effective and uniform application of Community legislation and to prevent different interpretations. This procedure enables the national courts which need guidance on a point of interpretation or validity of community law to ask questions for clarification by the Court of Justice. The national proceedings before the national court of law are suspended until a ruling is given by the Court of Justice. However, the Court of Justice of the European Communities does not apply the law. Actually, it is for the national court of law, after obtaining the ruling of the Court of Justice, to apply the law and reach a decision in the case. The Court of Justice of the European Communities has jurisdiction to give preliminary rulings concerning the following matters: - the interpretation of Community Treaties; - the validity and the interpretation of acts of the community institutions. The jurisdiction of the Court of Justice within a preliminary ruling is restricted to questions of community law. Thus, the Court of Justice may not interpret the national law and it may not rule on the validity of a particular national provision under community law. According to the provisions of the community treaties, only a court of law or a tribunal of a Member State has the power to make a reference for a preliminary ruling to the Court of Justice of the European Communities. Within a reference for a preliminary ruling, the national courts of law or tribunals are allowed to ask questions on issues of Community law, which have been raised before them, either by one of the parties or by the court itself. In addition, the preliminary ruling must be necessary to the national court of law, in order to enable it to give judgment in the particular case. The ruling of the Court of Justice of the European Communities is compulsory for the national court which referred the questions. Thus, the national court is obliged to decide the

dispute before it according to the interpretation given by the Court of Justice. In addition, the ruling of the Court of Justice of the European Communities is also compulsory for any other national court before which the same problem is raised. 2. Actions for failure to fulfill obligations The Court of Justice of the European Communities has jurisdiction to hear actions against any Member State which failed to comply with its obligations provided by the community law. Such a failure covers any breach of community law, which may include actions as well as omissions on the pmi of Member States, including failure to implement directives or retention of national laws which conflict with community law. The action may be brought by the Commission, as it is usually the case, or even by a Member State. If the action is brought by a Member State against another Member State, the matter must first be brought before the Commission. However, in both cases, before taking the case to the Court of Justice, the Commission must inform the State concerned and must invite it to submit its observations. If the matter has not been resolved after the negotiations with the State, the Commission issues a reasoned opinion mentioning the infringement and requiring the state to take action to end the breach of community law. If the state concerned does not accept the opinion, the case may be brought to the Court of Justice of the European Communities. 3. Actions for annulment Within actions for annulment, the Court of Justice has jurisdiction to review the legality of the acts adopted by the community institutions which are compulsory. Therefore, the action for annulment refers mainly to regulations, directives and decisions, but also to all measures taken by the community institutions which are meant to have legal effects. The action for annulment may be brought by the following categories of applicants: 1. privileged applicants, namely Member States, the European Parliament, the Council of the European Union or the European Commission. They are considered privileged applicants because they are always allowed to bring an action, even if the act is addressed to some other person or body. 2. non-privileged applicants, namely individuals. They are allowed to bring an action only in certain circumstances. Thus, a natural or legal person is only entitled to challenge a decision

addressed to him or a decision addressed to another person, which is of direct and individual concern to him. The action for annulment may be brought within two months from the following dates: - the date of the publication of the act; - the date of notification of the act to the applicant; - the day in which the act was known by the applicant, in the absence of notification. After the expiry of the two-month period, the act can not be challenged any more. Concerning the grounds for annulment, the community Treaty provides four grounds, as follows: 1. lack of competence. The community institutions may adopt measures only if they are empowered to act by the treaties or secondary legislation. Thus, an act may be challenged on the ground that the adopting institution lacked the necessary competence to adopt it. 2. infringement of essential procedural requirements. This ground is based on the idea that the institutions which adopt compulsory measures must follow the correct procedures. For example, the failure to consult the European Parliament if the consultation is required by the Treaty has been considered to constitute an infringement of an essential procedural requirement. 3. infringement of the treaties or of any rule relating to their application 4. misuse of power which means that the act in question was adopted by the community institution using its powers in an improper manner. For example, an act which could have had the effect of reducing prices although the stated purpose was to prevent price discrimination. 4. Actions for failure to act If the European Parliament, the Councilor the Commission fail to act in infringement of the Treaties, the Member States and the other community institutions may bring an action before the Court of Justice to have the infringement established. Therefore, these applicants may challenge any omission on the part of the community institutions to adopt a compulsory measure if there is a legal obligation to act. Also the natural or legal persons have the right to complain to the Court of Justice that an institution had failed to address to that person any compulsory act.

However, no action may be brought unless the institution in question has first been called upon to act. Following such a call, the institution has two months in which to act or to define its position. If the institution fails to comply, the applicant may bring an action before the Court of Justice within another two months. The jurisdiction of the Court of First Instance The Court of First Instance is competent to hear the following categories of actions: - actions brought by natural or legal persons against acts of Community institutions or against a failure to act on the part of those institutions; - actions brought by the Member States against the Commission; - actions brought by the Member States against the Council relating to acts adopted in the field of State aid, 'dumping' and acts by which it exercises implementing powers; - actions based on contracts made by the Communities which expressly give jurisdiction to the Court of First Instance; - actions relating to Community trade marks; - appeals, limited to points of law, against the decisions of the Civil Service Tribunal.