By Andreea Micu, Partner and Ramona Badescu, Associate
Stoica & Asociatii – Attorneys at Law
The legal framework of the European Union has become a daily part of our lives. Each year, the European Union’s institutions issue thousands of legislative acts which have a great impact on the Member States, but also on their citizens. We live in times in which a citizen of a Member State is not only subject to the rules of law issued by its origin country, but also to the rules of law enacted at the European level, becoming, somehow, “a citizen of two states situated at different levels”, similar to the organisation of a federal state. Consequently, it becomes vital that each person gets familiar with the rights and obligations arising from the European Union legal order as well as with the legal mechanisms that allow their enforcement.
Let’s take a short ride into the “legal world” of the economic, political and social giant called European Union and get a glimpse of the legal instruments that, after all, ensure the functioning of the European Union.
The European Union was created through several international agreements signed by the Member States, which are usually called founding treaties. These founding treaties (briefly the Treaties of Maastricht, Amsterdam, Nice and Lisbon) contain the basic provisions regarding the EU objectives and powers, the organisation and functioning of EU institutions and the principal economic rules governing the functioning of the European Union, such as the free movement of persons or the free movement of goods. You must know that the legal provisions of the treaties are directly applicable in the national legal order and they create direct rights and obligations for the Member States and for the citizens.
However, the founding treaties set forth only the basic rules governing the EU (primary law) whereas the more complex and detailed legislation of each area regulated by Union law is comprised in other legal sources such as regulations, directives, decisions, delegated acts and implementing acts, recommendations and opinions etc. (secondary legislation). The most important secondary legal sources for the natural and legal persons of each Member State are the regulations and directives.
The EU regulation is addressed to all Member States, as well as to natural and legal persons. It is directly applicable in the national order of each Member State and it is binding in its entirety. Consequently, the EU regulations lay down the same law throughout the Union, regardless of international borders, and apply in all Member States, which are not entitled to ignore or modify their content. As well, the EU Regulations are characterised by direct applicability, which means that they create rights and obligations for each natural and legal person under the same circumstances a national legal provision does, without being necessary to be transposed into the national legal order by way of adopting a specific national law. That is why regulations are one of the most powerful legal instruments available for the European Union in order to reach its objectives. On the other hand, the EU regulations are also very important tools for each natural or legal person since they create rights that each person can exercise directly in front of national public authorities, including the domestic courts of law.
The EU directive is also an important legislative instrument alongside the EU regulation. However, the aim of an EU directive is not the strict uniformization of the laws of the Member States, but their harmonisation. Consequently, the EU directive addresses only to Member States and it is binding with respect to the intended result. It creates an obligation for the Member States to adopt legislative and administrative instruments within a specified time frame in order to attain the specific objective contained by the EU directive, but the State is free to choose its own legal paths/norms in view of reaching such objective. What happens, however, if a Member State does not transpose the provisions of the directive into its legal order or it transposes them incorrectly or incompletely? According to the Court of Justice of the European Union (CJEU), under particular conditions, a natural or legal person can directly rely on the rights set forth the by an EU Directive against national public authorities, including before domestic courts (“the vertical direct effect of the EU Directive”).
The EU legal order benefits of autonomy, in relation to the national legal order of each Member State. In the interaction between the two types of legal orders, the CJEU has established certain rules which aim to pursue the objectives of the European Union: the Union law is directly applicable to national law (direct applicability of union law to national laws), which means that the Union law grants rights and imposes obligations directly to the Member States and its natural and legal persons, without being necessary for the Member States to adopt legislative transposition instruments; the Union law supersedes all contrary national provisions (primacy of Union Law over national law), which means that in a conflict between a Union legal provision and a national one, the Union law will override the national law; the national law must be interpreted in accordance with the union law, which means that each public authority with competence in applying the law must pay attention that any national legal disposition be interpreted in accordance with the Union law.
Which are the instruments available for each natural or legal person in order to actually and effectively benefit of the rights set forth in the Union law? There are at least two instruments worth mentioning: the preliminary ruling and the liability of member States for infringement of the Union law.
The preliminary ruling procedure is specific to court cases. This is a procedure by means of which a national court is able to request the CJEU to either indicate the correct interpretation of a Union law provision or to examine the validity of the Union institutions’s legislative acts such as regulations or directives from the perspective of the founding treaties. The preliminary ruling procedure is important because it creates the premises for the CJEU to ensure a uniform interpretation of the Union law regarding the rights and obligations stemming from the Union law and it results in a binding ruling on the referring court and all other courts which judge the same case. As well, it also has a great influence on subsequent similar cases, as an indirect source of law or guidance for the interpretation of EU and national law.
The procedure for engaging the liability of Member States for infringement of the Union law has been established through the case law of the CJEU and it grants the possibility to a natural or legal person to file an action before its national courts in order to request damages incurred as a result of the infringement of the Member State of any of its obligations under the Union law.
To conclude, the EU legal order has very important legal tools that allow it to play a crucial role in our daily lives, which makes it more important for us to get acquainted with them so we can take our day-to-day legal decisions in a wise and efficient manner.