Legal Order of European Community - Essay Example

Today many of us are so accustomed to the incessant and dynamic changes in most aspects of modern societies that we normally limit our interest only to the most sensational and outstanding events. However, there are numerous processes operating in the world that may be not immediately very visible but which hold a great potential in terms of their prospective influence on the global system of international relations. One of such extremely important processes has been the gradual emergence of what can be termed 'a new legal order' in frames of the European Community (EC), which, in its turn, represents perhaps the most significant political and economic formation that appeared in the latter half of the twentieth century, and which has numerous unique qualities and continues to undergo further transformations. With these points in mind, let us try to find out to what degree it is justified to view the EC as representing a new legal order, and what aspects of this order are indeed unusual. For this purpose we will overview the history of the European law and legal structures, and then will try to single out those specific qualities of European law that contributed to the emergence of a new legal order within the EC. First of all, we should from the very beginning chart a clear interrelation between the EC law and the European Union (EU) law, which stems from the EU structure according to treaties. The EC is one of the so-called three pillars of the EU and is related to economic and social aspects of the single European market. The remaining two pillars are represented, in accordance with the Treaty of the European Union also known as the Maastricht Treaty, by Internal Security (Police and Judicial Co-operation in Criminal Matters), and by Common Foreign and Security Policy. In the outlined context, the EC law is contained in the EC Treaty, EC Recommendations, EC Directives, and in the case-law of the European Court of Justice (ECJ) (Van Gerven, 2005, pp.12-27). 1 The ECs legal nature was fundamentally influenced by the ECJ, created in 1952, in its two precedent-setting judgements of 1963 and 1964. The first one was the famous Van Gend & Loos case, in which the transport company from Netherlands filed a suit against the states customs because a higher than usual duty was imposed on import of chemical products from Germany. "Van Gend & Loos" company viewed this action as a violation of the twelfth Article of the EEC Treaty (today this is the twenty-fifth Article of the EC Treaty), which banned increases of custom duties or introduction of new ones between Community members. The Dutch court passed this matter to the ECJ and asked for the clarification of the relevant Treaty article. This seemingly minor case instigated the ECJ to formulate some important fundamental principles that contributed to the formation of the legal order of the EC. During the Van Gend & Loos case investigation judges considered the issue of whether individuals also can appeal to the EEC Treaty articles, and in spite of the opinion of the Advocate General and a number of governments, judges of the Court issued the resolution which stated that the EEC treaty was meant to be something more than only an agreement between states, but rather that it as well was related to all peoples. Thus, according to the logic of the Court, newly established European institutions empowered by sovereign rights affected both member states of the Community and their citizens. The conclusion that followed from these observation was that a new legal order was created in the international law which limited sovereignty of states in some areas for their benefit, and was equally binding for their citizens. 2 Soon, ECJ used Costa/ENEL case to clarify its position in more detail. This case stemmed from the situation when Italy in 1962 nationalised electrical industry and passed the assets to the National Electricity Board (ENEL). Mr Costa, who was a shareholder of one of the nationalised companies, claimed that his dividends were stolen, and refused to pay bill for electricity. In the arbitration court he protected his position by pointing out that this nationalisation violated terms of the EC Treaty. Again, the ECJ was requested to interpret aspects of the EC Treaty relevant for this case. The court declared that in contrast to traditional international treaties: ". . . the EEC Treaty has created its own legal system which . . . became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane . . . the Member States have limited their sovereign rights . . . and have thus created a body of law . . .". 3 In conclusion the ECJ pointed out that: ". . . the law stemming from the Treaty . . . could not . . . be overridden by domestic legal provisions . . . without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail". 4 Thus, we can see that the mentioned cases have laid foundation for the general principle that domestic local courts must, where it is applicable, apply domestic law in strict accordance with the European law. At the same time, another feature of the new legal order of the EC, which is not mentioned in the EC Treaties but rather was established by the ECJ in the wake of Van Gend & Loos case, has become the principle of direct effect which enables some elements of European legislation to be enforced by citizens of the member states of the EC. More specifically, the ECJ ruled that citizens of the EC can enforce their rights provided by the EC legislation in treaties, directives, regulations, etc in national courts on condition that certain criteria are satisfied. These criteria for the establishment of direct effect are called the "Van Gend en Loos criteria", and include the following clauses - the provision must be stated clearly and precisely, it must grant a concrete right for a claimant, and it must be non-dependent or unconditional. So, one of the crucial qualities of a new legal order within the EC is the special correlation between domestic legal systems of the EC member states and the general EC law. However, from the practical point of view numerous difficulties may and do arise when attempts to reconcile domestic law and the EC law are made. One of the main reasons for this is that the EC Treaty and Directives are composed in general terms, so that many regulations contained in them can have ambiguous interpretations in various circumstances. In such cases, in accordance with the Article 234 of the EC Treaty which aims to procure the uniform interpretation of the EC law, the ECJ continues to play an important role for the functioning of the legal order of the EC. For example, the Article postulates that when domestic courts have doubts about effects of treaties or directives, they may transfer the matter to the ECJ in form of a request for clarification. In its turn, the ECJ shall answer the questions referring only to the essence of the EC law, will return a case to the referring court, but will not formulate the final decision on a matter being submitted. In the process of its operation the ECJ employs the case-law as an important source of the European law used for the interpretation of both domestic and EC legislation.5 In this way, the ECJ functions as the Supreme Court of the EU limited to matters over which it has competency and guided by the principle that when a matter goes beyond the scope of the EC law national courts are not obliged to interpret legislation from the point of view of the EC law or to repeal legislation. Aside from the discussed declaratory legal function, the Article 234 of the EC Treaty among other matters of concern prescribes to the ECJ during its operation the duty of handling cases when a member state is accused in non-implementation of some legal requirements, or of claims about the exceeding of the authority by the European institutions, like for example the European Commission. Also, as far as we have touched upon the topic of the principle of direct effect, it should be observed that individuals cannot directly plead to the ECJ, but instead have to initiate a case in the so-called courts of first instance. 6 With all the mentioned points in mind, we can characterise the peculiarity of the legal order of the EC by the following features: The overall institutional structure of the EC is built in such a way as to ensure that the EC is promoting by its actions common European interests reflected in the chosen objectives; A greater power is granted to the EC institutions in contrast to other international organisations, and their regulatory legitimacy extends to areas which traditional states usually consider sovereign; The established legal order of the EC is independent from legal systems of the member states; The EC law is directly and fully applicable to all member states and to their citizens; The EC law is superior over national law. Therefore, an existing legal system of the EC makes the Community an autonomous formation with sovereign rights and with a legal order not only independent from individual member states, but obligatory for them in defined legal fields. From this point of view, we can understand the notion of a 'new legal order' as the one related to the unique ways that Europe has chosen for its integration into the Community unlike anything the world had seen before. 7 However, despite its contribution to the emergence of an unprecedented level of integration, it would not be completely justified to consider the new European legal order completely good and satisfactory. Indeed, the legal system of the EC is still in the search of ways to transcend its current situation of sustaining unity based on diversity of mixed legal traditions, and to transform the EC law from a set of rules into law as culture. One of the examples of how this process of fine tuning, if we may use this term, of the new legal order of the EC works is represented by the interaction between such different legal traditions with their own specific histories and methodologies as the civil law tradition, widespread in the European continent, and the common law tradition of the United Kingdom and Ireland. One of the solutions to alleviate possible disagreements between these traditions is to employ methods of the comparative law, which provides helpful tools to correlate the further development of the EC legal order.8 Now, as long as the word 'new' reflects tendencies of recent decades, we can wonder what newer developments can be in store for the EC and the legal order that has been formed within it. In this regard, it would be helpful to consider the ultimate general prospects of the European development in terms of the aims of the European integration and in relation to the formation of a finalised geographic confines of the united Europe. Indeed, the EU is currently continuing to experience rapid transformations that hold promise of leading the united Europe to new forms of implementation of the union. Of course, one of the most crucial factors generating such transformations is the enlargement of the EU, which brings to light many questions that could be latent before, and one of such questions is related to the possibility of the adoption by Europe of a form more reminiscent of a traditional state. Two of the most essential requirements for the adoption of such a similarity are constitutionalism as a form of governance, which in Europe is a very urgent and controversial matter, and the striving to define the territorial finality, which for Europe is a pressing issue as well. Speaking about the sentiment towards the advancement of the process of constitutionalisation in Europe, we can recall that yet some decades ago the traditional practice of basing of relations on international treaties dominated, and any attempt of integration was perceived by European states as an element of their foreign policies. With time, the level of penetration of co-operative efforts of integration processes participants into their mutual internal affairs reached a point when the model of international relations was no longer valid, and it rather turned out that by 1980s European states were formulating a common policy and thus were developing signs of an emerging polity. By the time of the agreement by European governments on the Constitutional Treaty in June of 2004, the peculiar state-like language was already employed, which demonstrates that at least in the realm of official terminology, if not yet in its concrete political forms, the EU is ready for statehood.9 So, even though the European constitutional discourse does not develop in a straight line but rather is evolving according to the influence of unique European experiences, the appearance of the European constitution will greatly influence the legal order of the EC at least because it may promote the formation of the above mentioned unified legal culture in Europe by means of increasing in citizens of member states of awareness and understanding of the new legal order in Europe. In the process of the territorial integration of Europe we can also find a great potential to influence the legal order of the EC. In the past, the notion of the territorial integration was centred on the problems related to the economic means of maintenance of a common market. However, akin to the mentioned situation of the growing mutual interaction between the states of the united Europe, in the 1990s there emerged the challenge to territorially integrate an expanding and diverse EU. Among other things, this challenge posed for the EU the problem of mutual management of its common border, which also belongs to the category of problems that states have before them. However, another peculiarity of the legal order of the EU in this connection is represented by the policy of cross-border co-operation which, instead of assignment to borders of a strictly dividing function, works to connect rather than separate border area communities. At the same time, a counteracting trend is present towards the securitisation of the borders of the united Europe in response to existing global threats. By the way, this problem highlights the connection between various pillars of the EU, and shows that the pillar concerning foreign and military policy may influence the legal order of the EC. The accession of the EU with new member states also may effect European treaties because in cases when legal systems and other segments of prospective members societies and economies do not fully correspond to required standards, like is currently the case with Bulgaria where problems with corruption, health and safety may even postpone its joining date, difficult dilemmas can arise as to whether keep strict standards or to loose them in order to complete the expansion of the EU.10 Besides, the existing lack of clear conception of what the ultimate borders of the EU might be makes the current ones fuzzy, and for example the question of Turkeys membership fully exemplifies this fundamental fuzziness of European borders. Indeed, the notion of European boundaries no longer is limited by geographic factors but rather is challenged by discussions about the role of the common cultural and religious heritage and world outlook as conditions that define belonging to Europe. Of course, any attempts to adapt the legal order of the EC to new circumstances will inevitably initiate further changes in the European legal system, and this process will most likely remain open-ended and somewhat contradictory, which is well confirmed by our discussion. All in all, we can conclude that the current legal order of the EC and its future development will correlate with the further growth of the influence of Europe on the international arena, the process of which can arguably be done in a more effective way through further integration, and possibly through a merger of European states and their legal systems into a single formation.11 However, I think that this possibility, at least in the foreseeable future, is destined to remain a kind of an ideal ultimate potential that can be approached but never completely reached. This is because there is a great deal of cultural, ethnic, and after all linguistic diversity within Europe itself, which, while not being an impenetrable barrier for further political and legal unification, is a barrier for the spread of a certain unifying national idea that cements traditional states of the world. Surely, it can be objected that there are numerous examples of states built around values of several distinct groups that populate them, but this argument is of little help here as many of European nations have many hundreds of years of experience of autonomous existence, including the legal sphere, so it seems implausible to expect them to completely abandon their perceived autonomy for any purpose. But all this is not to say that there can be no new unique ways for Europe to follow, and perhaps with time we will see some new forms of European coexistence that would be fitting for world views of European nations, and possibly non-European prospective members as well, and that would address the main problems and challenges that arise today before the European Community. Sources Chalmers, D., Hadjiemmanuil, C., Monti, G., and Tomkins, A. (2006). European Union Law. Cambridge University Press. Christiansen, T. (2005). Towards Statehood The EUs Move Towards Constitutionalisation and Territorialisation, Centre for European Studies, University of Oslo. Folsom, R., H. (2005). Principles of European Union Law. West Group Publishing. Helander, P. (2001). "Supremacy and Scope of Community Law - Room for Principles" Turku law journal, Vol.3: 43-58. Jurawelt, (2006). Direct effect and indirect direct effect. Retrieved July 03, 2006, from http://www.jurawelt.com/studenten/skripten/eur/6902 Lazowsky, A. (2006). Introduction to Law of the European Union. Retrieved July 07, 2006, from http://72.14.221.104/searchq=cache:nBIa2tzSoooJ:www.ibp.uw. edu.pl /download/2005-2006/EUlaw- f2005/OctoberNovember2005_1.pdf+%22 It+follows+from+all+these+observations+that+the+law%22&hl=en&ct=clnk&cd=7 Philipps-Universitt Marburg, (2006). The European legal system: between mixed legal traditions and law as culture. Retrieved July 10, 2006, from www.uni- marburg.de/studium/res/Europastudien/eurolegal Pusca, A., (Ed.). (2004). European Union: Challenges and Promises of a New Enlargement. International Debate Education Association. Sixth Form Law, (2006). Sources of EC Law - Primary Law and Secondary Law. Retrieved July 06, 2006, from http://sixthformlaw.info/01_modules/mod3/3_3_0_eu_law/ 07_sources_of_ec_law.htm Van Gerven, W. (2005). The European Union: A Polity Of States And Peoples. Stanford University Press. Read More