Legal Families

1
Legal Families

• Prof. dr. sc. Hana Horak

2
Introduction

• Why 'Basic Law' course?
• Objectives of the course
• Topics to be covered
• Reading suggestions

3
Classifying legal systems of the world

• No two national legal systems are the same, but
  there are sufficient similarities between some of
  them to allow classification
• Different criteria have been used for the
  purposes of such classification, incl. historical
  background and development, ideology, sources of
  law, division of law in the legal system, etc.
• Most authors agree on existence of two major
  legal traditions
• the Romano-Germanic civil law tradition
• the Anglo-American common law tradition.

4

• Then, there are so-called 'religious legal
  traditions', such as
• -Muslim law,
• -Hindu law,
• -Jewish law,
• -canon law (the law of the church)
• Some authors also distinguish African
  (indigenous) customary law.
• However, many legal systems are mixed, they have
  elements of more than one legal tradition.

5
Civil law tradition -1

• The most widely distributed and arguably the
  oldest one
• Dates back to 450 B.C., and Justinian
  compilation of Roman law -Corpus Juris Civilis
• Corpus Juris Civilis is a collection of
  fundamental works in jurisprudence issued by
  order of Justinian I, Byzantine Emperor, approx.
  529-534 A.D.

6
Civil law tradition 2

• Rediscovery of Roman legal science took place in
  XI century, with University of Bologna being the
  principal legal center
• Development of civil law tradition was guided and
  shaped not by law practitioners, but by legal
  scholars, professors who tried to reconstruct and
  explain the Roman law (Corpus Juris Civilis)

7
Codification

• 17th-18th century -Scandinavian countries
• Later on -codification in Bavaria, Saxony,
  Prussia and Austria
• 1804 -French civil code
• 1896 -German civil code. The last two codes
  served as the models for many other countries,
  i.e.
• French civil code was brought by Napoleon to
  Belgium, the Netherlands, parts of Poland, Italy,
  west regions of Germany was followed in former
  French colonies
• German civil code influenced Austria, the Czech
  Republic, Slovakia, Greece, Hungary, Italy,
  Switzerland, former Yugoslavia, Brazil, Japan,
  Korea.

8
Common law tradltlon-1

• England never experienced a reception of Roman
  law, or movement for codification
• The origins of common law tradition can be
  traced back to 1066 - Conquest of England
• Creation of highly centralized legal system,
  matters of royal concern were resolved by the
  king who exercised judicial, executive and
  legislative powers

9
Common law tradition-2

• Local issues (except of an extraordinary nature )
  remained in the local courts (courts of the
  shires and hundreds)
• ... Later, judicial powers were assumed by three
  royal (unified, or 'common') courts
• (i) tax disputes
• (ii) disputes between subjects which did not
  involve a direct interest of the king, such as
  title to land
• (iii) disputes with a direct royal interest.
• Local courts started to lose their jurisdiction.

10
Writ system

• However, jurisdiction of the common courts was
  limited by the writ system.
• Writ (form of action) -'a command of the King
  directed to the relevant person (official,
  judge), containing a brief indication of a matter
  under dispute and instructing the addressee to
  call the defendant into his court and to resolve
  the dispute in the presence of the parties'
  (Zweigert and Koelz, 1998, p.184)
• Writs were issued in the name of the King by
  the highest royal officials, later -by the
  Chancellor, on payment of a fee by the plaintiff,
  without hearing the defendant.

11
Further evolution -'equity'

• A plaintiff unable to obtain a proper writ was
  left with no remedy. To counter this problem and
  provide relief other than money damages, in 15th
  century a formal Court of Chancery was created
  with jurisdiction over pleas in equity
• Law of equity introduced the rules of trust and
  provided for such remedies as injunctive relief
  and specific performance
• " Reforms throughout the centuries, such as
  solving issues of overlapping jurisdiction,
  structural changes, fusion of rules of law and
  equity, abolishing rigid forms of action,
  introduction of more uniform procedure, etc.

12
Vocabulary

• Trust-property, either real or personal, that is
  held by one party for the benefit of another
  party. Property held in trust comprises two
  interests a legal interest and an equity
  interest. The legal interest is held by the
  trustee (person who holds the legal title to
  property which is administered for the benefit of
  someone else) and the equitable interest is held
  by the beneficiary (the one who is intended to
  benefit from the property, even though she is not
  the legal owner)
• Injunction - an order of the court prohibiting a
  person from doing something or requiring to do
  something
• Specific performance - a court order to make a
  party perform her obligations under the contract
  .

13
Distribution of the common law

• Most of the Commonwealth countries belong to the
  common law family Australia, Canada(Quebec has
  civil law system), India, New Zealand , South
  Africa (later partially accepted civil law
  tradition (Roman Dutch later), therefore, now
  mixed system)
• The United States (Louisiana rests on civil
  later)
• Pay attention Great Britain (England, Wales and
  Scotland) has no common legal system. While many
  English statutes are applicable in Scotland, the
  Scotish private law is based primarily on Roman
  law and tehrefore represents a mix of common and
  civil law.

14
Sources of law in civil law countries

• Where one has to look to determine what legal
  rules are applicable to govern the relationship
• (i)primary sources (binding), such as enacted law
  and custom for a number of countries, sometimes,
  also general principles of law and
• (ii)secondary sources (not binding, may have
  weight when primary sources areabsent, unclear or
  incomplete), such as case law and the writings of
  the legal scholars
• Enacted law is the main source of law , includes
  legal rules adopted by the parliament, as well as
  issued by executive and administrative agencies
• Court decisions are not binding in a subsequent
  cases.

15

• Sources of law have different legal force, they
  form so-called 'hierarchy' of legal acts
• constitution has greater legal force,
• it is followed by legislation (laws produced by
  the parliament )
• executive decrees (acts of the government ),
  administrative regulations, etc.
• In federal states special rules concerning
  correlation between federal and state law
• Besides, international law rules have special
  effect on national law of the country.

16
Sources of law in common law countries

• Case law (as a primary source of law)
• legislation
• Customs, conventions, royal prerogative, etc.
• In common law countries precedents exist
  separately as law to be followed
• In general, the decisions of a higher court are
  binding (i.e. must be followed) upon all rower
  courts ('doctrine of binding precedent')
• Decision which interpret legislation become a
  source of law (as much as the law they
  interpret), thus, judges create new law the
  statute alone may be viewed as incomplete until
  it has been interpreted.

17

• Precedents have been characterized as being
  precise and flexible
• Decision based on particular facts gives some
  assurance that in subsequent indentical fact
  situation a similar conclusion will be reached
• Common law lawyers have become ecceptionally
  skillful at distinguishing fact situations (in
  order to acquire different decision)
• The statute World not be able to include all
  these factual varioations and possible solutions
  to them
• In civil law countries precedents also have value
  since they may provide assistance in determining
  how statutory laww is interpreted (teaching
  function), but the courts do not need to follow
  earlier decisions.

18

• Legislation acts of principal legislative body,
  judicial interpretation will follow
• Custom plays important role in many legal system
  (e.g. in England) initial establishment of
  custom requires proof that it existed
  uninterrupted for a long period of time and that
  it existed by common consent (not by the use of
  force)
• Conventions (influential source of English law)
  unwritten source of law (together with custom) .

19
Civil law vs. Common law two major differences

• 1. The civil law emerged from Roman law

• a. The coomon law was created by English courts

• 2. Civil law has been codified in most
  continental countries

• b. The common law is still largely case law

20
National law, International law and European law

• National law - the law of certain country (law of
  the Netherlands, Belgium, Sweden, etc.)
• International law - usually we mean 'Public
  International law ,i.e. that law that regulates
  the relationship between the states, and
  international organizations. As opposed to Public
  Intemational Law, 'Private International law (or
  'Conflict of Laws') rules allow to determine
  which national law has to be applied to
  situations crossing over the borders of one
  particular state and involving so called 'reign
  element'
• European law most of the time we mean 'law of
  the European Union' (to be discussed further in
  the course).

21
Sources used

• M.A. Glendon, MW. Gordon, C. Osakwe, Comparative
  Legal Traditions Text,Materials and Cases on the
  Civil and Common Law Traditions, with Special
  Reference to French, German, English and European
  Law(2nd ed., St. Paul, Minn. West Pub. Co.,
  1994)
• Glendon, MW. Gordon, C. Osakwe, Compatative Legal
  Traditions in a Nutshell/(Sp. Paul, Minn. West
  Pub. Co., 1982)
• Zweigerl and H. Koetz, Introduction to
  Comparative Law (3rd ed .. Oxford etc.
  Clarendon Press, 1998)
• Gubby, English Legal Terminology Legal Concepts
  in Language (Den Haag Boom Juridische uitgevers.
  2004)

22
Divisions of Law

• Prof.dr.sc. Hana Horak
• Sijecanj, 2010.

23
Public law and Private law

• Distinction is very important for civil lawc
  ountries, and much less important in common law
  countries
• However, no unifomity exists among civil law
  countries in distinguishing public and private
  law
• Generally speaking , public law is the law that
  governs the relationship between the individuals
  (physical or legal persons) and the state . Thus,
  in public law state is directly involved as a
  legal actor
• Public law includes at least
• constitutional law
• administrative law, and
• criminal law.

24
Public law and Private law 2

• By contrast, private law governs the
  relationship between private individuals without
  intervention of a state or government. In this
  areas of law state is not directly or primarily a
  party
• Private law includes at least
• civil law, and cemmercial law.
• Or, depending upon legal system and accepted
  classification of branches of law, one can say
  that private law includes the following branches
  contract law, tort law, family law, property law,
  etc. (see next slides).

25

• Distinction is ambiguous, besides, even such
  'traditional' private areas as family law are
  increasingly regulated by the state
• Classification of some areas is disputable
• e.g. civil procedure-included either in private,
  or in public law, depending upon legal system
• labor law, agricultural law, social security law
  -sometimes referred as 'mixed' public and
  private, sometimes described as sui generis
  (Glendon, Gordon, and Osakwe, p.266).
• Occasionally, public law would mean the law of
  general application, as opposed to private law,
  which concerns only a small class, or group, or
  even a single individual.

26
Public law vs. Private law

• Public law

• Private law

• defines the state or governs the relationship
  between the state and its citizens,
• tends to be more general, may involve multiple
  parties or interests,
• more likely to be prospective (forward looking),
• in some cases goes beyond awards of monetary
  damages (e.g. imprisonment)

• governs relationship between citizens,
• often retrospective, concerns with resolving
  secific disputes about past conduct between
  identified parties,
• rarely has public policy implications.

27
Administrative law

• When one speaks about public law often what is
  meant is administrative law
• Consists of norms that regulate the organization,
  functions, interrelation of public authorities
  (other than political and judicial), and the
  norms governing the relationship between the
  administrative authorities and the citizens
  (Glendon, Gordon, and Osakwe, p.267)
• E.g. -Tax law.

28
Civil law

• In civil law countries the norms of private law
  are divided into two groups civil law and
  commercial law
• Civil law - applies to everyone, basic provisions
  can be found in civil codes
• Commeroal law- concerns specific groups of
  persons and/or specific typesor activities , in
  most civil law countries the norms of commercial
  law have been codified in separate ccmmercial
  codes
• The term 'private law' is often used to designate
  civil law(in fact, the terms 'private law and
  civil law are often used interchangeably).

29
Civil law includes

• The law of persons (governs the status of
  individuals and legal entities, includes legal
  rules relating to names, domicile, civil status,
  capacity and protection of persons under legal
  incapacities of various sorts)
• Family law (regulates formation of marriages,
  legal effects of marriage, termination of
  marriage by divorce, separation, and annulment
  family support obligations)
• Marital property law (norms establishing and
  regulating so-called legal regime i.e. the
  system that governs the property relations of all
  spouses who do not choose an alternative regime
  by way of entering marriage contract also, norms
  that concern procedure for entering and altering
  marriage contracts)

30
It also includes

• Property law (distinction between movable and
• immovable property (in common law personal
  and real property), protection of the right of
  the ownership, etc.)
• Succession law (rules of disposition of property
  upon death by will or by intestate inheritance)
• The law of obligations (covers all acts or
  situations which can give rise to rights or
  claims, divided into three parts the law of
  contracts, the law of tort (delict) and the law
  of unjust enrichment).

31
Vocabulary

• An 'obligation'-in civil law countries is the
  duty of one person (the debtor') to transfer the
  ownership of property or create a right over it/
  to do or not to do something to the benefit of
  another person (the 'creditor).
• May arise
• from the law alone(e.g. 'alimentary
  obligation').
• by contractor by reason of unilateral undertaking
  of one person because of a delict (e.g. a person
  has committed a fault,or must compensate for a
  damage caused by a thing under his care,or by a
  person for whom he must answer)
• from the fact that a person is, by reason of
  various circumstances, unjustly enriched at the
  expense of another person who has suffered an
  impoverishment
• The concept of 'obligatlon is unknown is common
  law tradition (David, Brierley, p.B7).

32
Contract law

• In civil law countries the code will first
  include the rules which are applicable to all
  contracts, and then the rules which are special
  for particular types(sorts)of contracts, such as
  sales, leases, agency, loans
• Contract is an agreement between two or more
  parties that is binding in law, i.e., contract is
  a legally enforceable agreement (Gubby, p.166)
• Contract creates rights and obligations that
  maybe enforced in the courts
• In general, no special requirements as to the
  form in which a contract has to be concluded (can
  be concluded orally, in writing, can be inferred
  from the conduct of the parties)

33
Contract law - 2

• However, some contracts require special form and
  will be invalid if the form was not observed
• Formation of contracts
• offer and acceptance
• intention to create legally binding
  relationship
• for common law, the presence of consideration.
• An 'offer' shows a willingness to enter into
  agreement without further negotiations (parties
  involved offeror and offeree)
• Acceptance -unconditional assent, communicated to
  the offeror by the offeree, to all the terms of
  the offer
• Notions of 'counter-offer', 'battle of the
  forms'

34
Contract law -3

• 'Postal rule'- in English law acceptance is
  complete when the letter is posted, even if such
  a letter never reaches offeror
• Consideration (common law requirement!) in a
  contract each party has to give value to the
  other either by exchanging promises or by a
  promise given in exchange for an act
• Therefore, as opposed to civil law, in the common
  law one-sided promises, such as gift, do not
  contribute binding contract (they are
  unenforceable)

35
Contract law 4

• Excuse for non--performance
• Frustration (impossibility) and force majeure
  clause,
• Frustrating event - an event beyond the control
  of the parties, that has made it impossible to
  carry out the contract or commercially pointless
  to do so
• Force majeure clause a provision of the
  contract that lists events considered to be
  outside the control of the parties and for which
  the parties cannot be considered to be in breach
  (Gubby, p.154). Ex. war, fire, flood, acts of
  God, labor disputes, compliance with the law or
  governmental order, accident, etc.
• Remedies for breach of contract
• -damages, specific performance, injunctions .

36
Tort law

• 'In modern civil codes much of tort law depends
  on short, general provisions that say that a
  person is liable for harm (or certain harms) that
  have been causes through his fault'
• J. Gordley and A.T. von Mehren, An Introduction
  to the Comparative Study of Private Law
  Readings, Cases Materials (Cambridge etc.
  Cambridge University Press, 2006), p.234

37
To give an example

• Art. 1382 of the French Civil Code states "Any
  act of a person which causes harm to another
  obligates the person through whose the harm
  occurred to make compensation for it". Art.
  1383 "A person is liable for the harm that he
  causes not only by his acts but by his negligence
  or imprudence'
• 823(1) of the German Civil Code
• "A person who intentionally or negligently
  unlawfully injures the life, body, health,
  freedom, property or similar right of an other
  is bound to compensate him for any damages that
  thereby occurs"

38
Torts in common law

• Common lawyer will ask whether the defendant
  committed a particular tort for which common law
  courts give relief, such as
• tort of negligence (the defendant is liable if he
  negligently harmed the person or property of the
  plaintiff),
• tort of battery (the defendant must make contact
  with the body of the plaintiff, something that is
  not acceptable, e.g. bashing the defendant on the
  head),

39
Torts in common law 2

• tort of assault (the defendant must have done
  something that makes the plaintiff to believe he
  may imminently be the victim of a battery, such
  as pointing the gun),
• tort of false imprisonment (the defendant is
  liable if he confined the plaintiff, it may be in
  any space, large or small, no matter how
  confinement is affected, by force or threats, or
  fraud there will be liability of the defendant
  even if he mistakenly but reasonably thought he
  had the right to confine the plaintiff), etc.

40
Commercial law

• Developed from mercantile customs into well-
  established separate branch of private law
• Generally speaking, includes corporations and
  other business legal entities, securities,
  banking, and negotiable instruments
• Civil codes are frequently brought into fill the
  gaps in the commercial codes and their
  supplementary laws since commercial codes lack
  the general principles and internal coherence of
  the civil codes (Glendon, Gordon, and Osakwe,
  p.273)

41
Commercial law 2

• Commercial law has increasingly been affected by
  a body of legislation regulating commercial and
  corporate activity(requirements of special
  permits, licenses, etc.)
• Sometimes it is hard to distinguish commercial
  law from administrative law
• 'Commercial law' gt 'commercial and economic
  law'(economic law-'regulatory law of the
  administrative state').

42
Other branches

• Corporate law
• Competition law (or Antitrust law)
• Distinction between substantive and procedural
  law.

43
Sources used

• M.A. Glendon, M.W.Gordon, C.Osakwe, Comparative
  Legal Traditions Text, Materials and Cases on
  the Civil and Common Law Traditions-with Special
  Reference to French, German, English and European
  Law (2nd ed., St Paul, Minn. WestPub.co., 1994)
  
• R.David and J.E.C. Brierley, Major Legal Systems
  in the World Today Introduction to the
  Comparative Study of Law(3rd ed., London Steven
  Sons, 1985)
• H. Gubby, English Legal Terminology Legal
  Concepts in Language (Den Haag Boom Juridische
  uitgevers, 2004).

44
Basic EU Law

• Prof.dr.sc. Hana Horak
• Sijecanj, 2010.

45
Structure of the lecture

• Why EU law?
• Summary of the European Integration
• The European Communities and the European Union
• The Institutions
• The Doctrines, Principles and Sources of the
  Community Law
• Conclusion

46
The birth of the European Communities

• 1951 -the Treaty of Paris establishing the
  European Coal and Steel Community (ESCS) was
  signed by six countries Germany, France, Italy,
  the Netherlands, Belgium and Luxembourg
• The ECSC received international legal status and
  separate and autonomous institutions, control
  over production and distribution of coal and
  steel, legislative and administrative powers in
  the area concerned
• 1957 -the same six countries signed two Treaties
  of Rome establishing the European Atomic Energy
  Community (Euratom) and the European Economic
  Community (EEC, now -EC), the latter one with a
  view of creating a "common marker'

47
The three Communities

• Remain legally distinct (the ECSC was created for
  50 years, it therefore expired in 2002)
• Originally each of three Communities had a set of
  autonomous institutions, but in 1967 institutions
  were merged (a single Council, a single Assembly,
  and a single Commission were created)
• The powers and functions of the institutions
  depend upon provisions of the Treaty under which
  they act.
• Further we will mainly discuss the European
  Economic Community (now the 'European
  Community'). Most of the times we will refer to
  it as the 'Community'. The Treaty establishing
  this community will be referred to as the 'EC
  Treaty'.

48
Further growth

• 1986 - signing of the Single European Act (with
  objective of completion of 'internal market',
  i.e. 'an area without internal frontiers in which
  the free movement of goods, persons, services and
  capital is ensured', Art. 14(2) of the EC Treaty)

49
The birth of European Union

• 1992 - signing of the Treaty of Maastricht (the
  'European Union Treaty', or the 'EU Treaty'),
  entered into force on November 1, 1993
• Provided for a European Union with main
  objectives being the establishment of an economic
  and monetary union ultimately including a single
  currency, a common foreign and security policy,
  the introduction of the citizenship of the
  European Union, co-operation in justice and home
  affairs, the maintenance of the acquis
  communautaire, etc.

50

• May 1, 1999 the Treaty of Amsterdam entered into
  force (in particular, changed the numeration of
  the Articles)
• 2001 -the Treaty of Nice (amended the EU Treaty,
  and the Treaties establishing the European
  Communities)
• July 18, 2003 -draft Constitution was presented
  to the European Council of Rome (later ratified
  by the Parliament and by ten Member States, but
  rejected at referenda in France and the
  Netherlands. In July 2005 the ratification
  process was temporary suspended as the Member
  States decided that they needed a 'period of
  reflections' to unable a broad debate in each
  country).

51
The enlargement process

• As from January 1, 1973 the United Kingdom,
  Ireland, and Denmark are members of the
  Community
• January 1, 1981 -Greece is a Community member
• January 1, 1986 -Spain and Portugal are full
  members
• January 1, 1995 -Austria, Sweden and Finland
  joined the European Union
• May 1,2004 - the biggest enlargement ever,
  bringing 10 new Member States (Cyprus, the Czech
  Republic, Estonia, Hungary, Latvia, Lithuania,
  Malta, Poland, Slovenia, Slovakia)
• January 1, 2007 -the EU is joined by Bulgaria and
  Romania.

52
Three pillars under One Roof

• The EU is said to be based on three 'pillars'
• (i) The Communities constitute the first pillar
  of the European Union,
• (ii) The Common Foreign and Security Policy
  (CFSP) forms the second pillar,
• (iii) Police and Judicial Cooperation in
  Criminal Matters (PJCC) constitutes the third
  pillar of the EU.
• However, only the first pillar is governed by the
  Community law (Community is supranational in
  nature),the rest -fly intergovernmental
  cooperation, and, therefore, these areas are
  outside of the jurisdiction of the Community
  institutions
• The European Union is wider than the European
  Community.

53
The EU Treaty contents

• Preamble
• TITLE I Common provisions
• TITLE /I -Provisions amending the Treaty
  establishing the European Economic Community with
  a view to establishing the European Community
• TITLE III Provisions amending the Treaty
  establishing the European Coal and Steel
  Community
• TITLE IV Provisions amending the Treaty
  establishing the European Atomic Energy Community
• TITLE V Provisions on a common foreign and
  security policy
• TITLE VI Provisions on police and judicial
  cooperation in criminal matters
• TITLE VII Provisions on enhanced cooperation
• TITLE VIII Final provisions

54
The Institutions

• Five principal institutions (Art.7 of the EC
  Treaty)
• the European Parliament
• the Council
• the Commission
• the Court of Auditors
• the Court of Justice.
• Other. the European Council , the Economic and
  Social Committee, the Committee of the Regions,
  the ECs monetary institutions (Ch. 20), and
  agencies.

55
The European Parliament

• Consists of representatives of the peoples of the
  Member States, since 1979 elected by direct
  universal suffrage for a term of 5 years
• There are 785 MEPs (until the end of the
  2004-2009 session, after that there will be 736
  seats)
• Generally speaking, the seats are allocated
  depending upon the population of the State (today
  Germany has 99 seats, France, Italy and the
  United Kingdom -78, Poland and Spain -54, etc.)
• MEPs are grouped by political affinity and not by
  nationality.

56
The European Parliament - 2

• Holds annual sessions (i.e. lasting 12 months),
  meets on the second Tuesday in March
• May also meet in extraordinary session and
  so-called 'additional sessions
• Has its seat in Strasbourg, however, the periods
  of additional plenary sessions shall be held in
  Brussels, the Committees of the Parliament meet
  in Brussels, and the Secretariat of the
  Parliament and its departments remain in
  Luxembourg
• President of the European Parliament
  (now-Hans-Gert Pottering) is elected for a
  renewable term of two and a half years,
  represents the Parliament to outside world and in
  its relations with other Community institutions.

57
The task and powers of the European Parliament

• Previously, advisory and supervisory powers,
  however, the role increased by the Single
  European Act (introduced the co-operation
  procedure), and by the Treaty of Amsterdam
  ('co-decision' power)
• Yet, does not fully exercise the attributes of an
  elected representative body (legislating and
  raising of taxes)
• Main taska and powers
• to participate in the legislative process,
• to approve the nomination of the President and
  the members of the Commission,
• to participate in budgetary procedure,
• to initiate procedures in the Court of Justice
  against the Council or the Commission, in case
  the latter fail to act,
• to put questions to the Council, to the
  Commission and to the Presidency of the Common
  Foreign and Security policy.

58
Current legisltaive procedures

• Consultation (the European Parliament is merely
  consulted on the issue, instances are few
  nowadays),
• Co-operation (in fact, more elaborate
  consultation procedure under Art. 252 of the EC
  Treaty),
• Co-decision (due to this procedure the Parliament
  now shares with the Council real legislative
  power, see Art.251 of the EC Treaty),
• Assent (in a way, a veto right, when assent is
  required the Council can only act after obtaining
  the agreement of the Parliament).

59
The Council

• consists of a representative of each MS at
  ministerial level who is authorized to commit the
  government of that State (art. 203 of the EC
  Treaty),
• meets when convened by the President of the
  Council, or at the request of one of its members,
  or at the request of the Commission,
• approx. 80 Council meetings per year (most of the
  times in Brussels),
• meetings arranged by subject-matter with
  different ministers attending (the General
  Affairs and External Relations Council (GAERC) as
  a rule attended by foreign ministers, the
  Economics and Finance Council (Ecolin) -finance
  ministers, etc.),
• Currently 9 Council configurations (Employment,
  Social Policy, Health and Consumer Affairs
  Environment, Education, Youth and Cultures,
  etc.).

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• Presidency of the Council is held in turn by each
  MS for a six months period (Art. 203 of the EC
  Treaty), currently -by Portugal
• Since the Council meets no more than a few days a
  month, a more 'permanent' national presence in
  Brussels was required. Therefore, on a day-to-day
  basis the various Community activities are
  followed by Permanent Representatives who are
  high level civil servants with the rank of
  Ambassador. Together they form the Committee of
  Permanent Representatives, or so-called 'Coreper'
  (Comite des Representants Permanants) . They
  prepare the work of the Council and carry out the
  tasks that have been assigned to them by the
  Council.

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Secretary general of the Council of the
European Union

• the head of General Secretariat of the Council
  (direct administrative support to the Council)
• also acts as High Representative for the EU's
  foreign and security policy
• assists the Council in Foreign Policy matters,
  through contributing to the formulation,
  preparation and implementation of the European
  policy decisions
• acts on behalf of the Council in conducting
  political dialogue with third parties
• currently -Mr. Javier Solana.

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The European Council

• Composed of the Heads of State or of Government
  of the Member States and the President of the
  Commission, assisted by the Ministers of Foreign
  Affairs and a Member of the Commission
• According to Art. 4 of the EU treaty, it provides
  the Union with the necessary impetus for s
  development, defines the general political
  guidelines thereof
• In particular, defines the principles and general
  guidelines for the Common Foreign and Security
  Policy, and decides on common strategies to be
  implemented by the Union in areas where Member
  States have important interests in common
• issues general guidelines (but not binding
  decisions as the 'normal' Council does)
• meets four times per year.

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Tasks and powers of the Council

• Decision-making powers (in the whole spectrum of
  the Community's activities, in accordance with
  the provisions of the EC Treaty),
• has to ensure coordination of the general
  economic policies of the Member States,
• Co-ordinated strategy for employment (promotion
  of economic and social progress and a high level
  of employment were set as one of the objectives
  of the EU, therefore, the Member States and the
  Community work together towards 'developing a
  co-ordinated strategy for employment and
  promoting a skilled, trained and adaptable
  workforce and labour markets responsive to
  economic changes'. Yearly discussions at the EU
  level, and guide lines to the Member States.)

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The Commission

• As from January 1, 2005 one Commissioner from
  each Member State, further on (on reaching 27
  Members) the number of Commissioners will be
  changed (will be less than a number of Member
  States, exact number to be set by the Council
  acting unanimously, rotation system will be in
  place)
• Headed by the President (Mr. Jose Manuel Barroso)
  who is a 'first among equals'.

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The President of the Commission

• appointed by the govemments of the MSs, must then
  be approved by the European Parliament
• Art. 217 of the Treaty of Nice 'the Commission
  shall work under the political guidance of its
  President
• decides internal organisation of the Commission,
  allocates responsibilities to the Commissioners
  (portfolios can be reshuffled)
• plays important role in shaping overall policy of
  the Commission, negotiating with the Council and
  the Parliament
• represents the Commission.

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The commissioners

• chosen on grounds of their general competence,
  independent from respective national governments
  (do not represent their own MSs),
• serve for 5 years, the term can be renewed,
• each is in charge of particular policy area
  (consumer protection, competition, trade,
  taxation and customs union, fisheries and
  maritime affairs, research, science and
  enlargement, etc.).

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Main task and powers of the Commission

• enforcement of the Community law,
• formulating recommendations and delivering
  opinions,
• exercising its own power of decision,
• participation in the legislative process,
• negotiation of international agreements and
  representation of the Community.

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The European Court of Justice ( the ECJ )

• Presently consists of 27 judges (one from each
  MS) assisted by eight Advocates General chosen
  from persons whose independence is beyond doubt
  and who possess the qualifications required for
  appointment to the highest judicial offices in
  their respective countries... , appointed by
  common accord of the governments of the MSs for a
  term of six years (Art. 223 01the EC Treaty)
• Judges and Advocates General are partiality
  replaces every three years
• The President of the Court (currently Judge
  Vassilios Skouris) is elected by Judges
  themselves for a renewable term of three years
• The ECJ meets as plenary body, or as a grand
  chamber of 13 judges, or in chamber of three of
  five judges
• Located in Luxembourg (together with the Court of
  First Instance).

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The function and jurisdiction of the Court

• The ECJ and the CFI shall ensure that in the
  interpretation and application of the EC Treaty
  the law is observed (Art. 220 of the EC Treaty),
• It arbitrates conflicts between the institutions
  of the Community, between the Community and the
  Member States, reviews the validity of
  legislative and administrative acts
• May be called upon by the courts of the Member
  States to decide on the interpretation of
  Community laws, or on validity of Community
  legislation when those courts need to resolve a
  dispute pending before them in which a question
  of Community law arises ('preliminary rulings'
  procedure).

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The Court of First Instance (the CFI)

• Established in October 1988 to assist the ECJ
  with ever increasing load of cases
• Comprises of at least one judge from each Member
  State (currently 27), but has no own Advocates
  General
• Jurisdiction
• actions brought by any natural or legal persons
  against acts of the Community instituitons
• actions brought by the MSs against the
  Commission
• actions seeking compensation for damage caused by
  the Community institutions or their staff
• some other cases
• The rulings of the CFI may be subject to appeal
  to the ECJ
• For your information The prefic C indicates a
  case before the ECJ, and the prefix T a case
  before the CFI

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Doctrines and principles of Community law

• The supremacy of Community law (the Community law
  prevails over national law, the national court
  must set aside any provisions of the national law
  which may conflict with the law of the
  Community)
• Principle of proportionality (any action of the
  Community shall not go beyond what is necessary
  to achieve the objectives of the Treaty, Art. 5
  of the EC Treaty).

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• Principle of subsidiarity (in areas outside its
  exclusive competence, the Community shall take
  action only if and in so far as the objectives of
  the proposed action cannot be sufficiently
  achieved by the Member States and can
  therefore... be better achieved by the Community,
  Art. 5)
• The doctrine of direct effect (developed by' the
  ECJ generally speaking, the Community law
  confers the rights on individuals and can be
  invoked by them in national courts).

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Sources of Community law

• Treaties
• Regulation -has general application, binding in
  its entirety, and directly applicable in all
  Member States (Art. 249 of the EC Treaty)
• Directive -binding, as to the result to be
  achieved, upon each Member State to which it is
  addressed, but leaves to the national authorities
  the choice of form and methods (Art. 249)
• Decision -binding in its entirety upon those to
  whom it is addressed (Art. 249)
• Recommendation and opinions have no binding
  force.

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Useful links

• The European Union online http//europa.eu
• The EU at glance http//europa.eulabclindex_en.ht
  m
• Homepage of the European Parliament
  http//wwW.europarl.europa.eu
• Homepage of the Council of the European Union
  htlp//www.consilium.europa.eu
• Homepage of the European Commission
  htlp//ec.europa.eu
• Homepage of the European Court of Justice
  http//curia.europa.eu

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Sources that have been used

• P.S.R.F. Mathijsen, A guide to European Union Law
  (9th ed., London Sweet Maxwell, 2007), pp.
  1-155.
• P. Craig and G. de Burca, EU Law Text, Cases,
  and Materials (4th ed., Oxford etc. Oxford
  University Press, 2008 Le. 2007)
• http//europa.eul