The Origins of the European Legal Order

How the European Union developed in the 1990s, with more enlargement and the introduction of the internal market, cross-border travel and the euro. First, Article 4 of the 2004 Citizens` Rights Directive states that every citizen has the right to leave a Member State with a valid passport. This has historical significance for Central and Eastern Europe, when the Soviet Union and the Berlin Wall denied their citizens the freedom to leave the country. [240] Article 5 confers a right of entry on every citizen subject to national border controls. Schengen countries (not the UK and Ireland) have completely eliminated the need to present documents and police searches at borders. These reflect the general principle of free movement set out in Article 21 TFEU. Secondly, Article 6 allows any citizen to reside in another Member State for three months, whether employed or not. Article 7 allows stays of more than three months with proof of “sufficient resources”. not become a burden on the social assistance system.” Articles 16 and 17 give a right of permanent residence after 5 years without conditions.

Thirdly, Article 10(3) TEU requires the right to vote in local constituencies of the European Parliament, irrespective of the citizen`s place of residence. In the case of applications, the Court of Justice shall give preliminary rulings to allow the court or tribunal of the Member State to close the case and bring an appeal. The right to an effective remedy is a general principle of EU law enshrined in Article 47 of the Charter of Fundamental Rights. In most cases, regulations and directives will specify the relevant remedies to be granted or will be interpreted by law in accordance with the practices of the Member State. [147] The government may also be liable for the poor implementation of a directive or regulation and therefore have to pay damages. In Francovich v. Italy, the Italian government had not set up an insurance fund allowing employees to claim unpaid wages in the event of their employer`s insolvency, as required by the Insolvency Protection Directive. [148] Francovich, the former employee of a bankrupt Venetian company, was therefore entitled to claim 6 million lire from the Italian government as compensation for his loss.

The Court has held that where a directive confers identifiable rights on individuals and there is a causal link between a Member State`s infringement of the EU and the loss of a claimant, damages must be paid. The fact that the inconsistent law is an Act of Parliament is not a defence. [149] In Factortame, it was therefore irrelevant that Parliament imposed a British ownership quota for fishing vessels under primary law. Similarly, in Brasserie du Pêcheur v. Germany, the German government was liable for damages to a French brewing company for banning its imports that did not comply with the legendary Reinheitsgebot. It is not decisive that the German Parliament did not act intentionally or negligently. [150] It was sufficient that there be (1) a rule to confer rights, (2) that a breach be sufficiently serious, and (3) that there be a causal link between the breach and the damage. The Court recommended that an offence be considered “sufficiently serious” by weighing a number of elements, such as intentional or persistence.

[151] In Köbler v. Republic of Austria, the Court added that the liability of the Member States may also arise from judges who do not apply the law correctly. [152] On the other hand, it is also clear that EU institutions such as the Commission can be held liable for non-compliance under the same principles. [153] The only institution whose decisions do not seem appropriate to trigger an action for damages is the Court of Justice itself. In addition to human rights, the Court recognised at least five other `general principles` of EU law. First, legal certainty requires decisions to be forward-looking, open and clear. Second, when considering a discretionary act by a powerful government or body, decision-making must be “proportionate” to a legitimate aim. For example, if a government wishes to amend a labour law in a neutral manner, but this could have a disproportionately negative impact on women rather than men, the government must demonstrate a legitimate objective and that its actions (1) are appropriate or appropriate to achieve it, (2) do not do more than necessary, and (3) are reasonable to balance the competing rights of different parties. [176] Third, equality is seen as a fundamental principle: this applies in particular to workers` rights, political rights, and access to public or private services. [177] Fourth, the right to a fair trial has been declared a general principle, although it is true that this is clearly reflected in most human rights instruments.

Fifth, there is a general principle of solicitor-client privilege. The categories of general principles are not closed and may evolve according to the social expectations of people living in Europe. How the European Union developed from 2000 to 2009, when 12 new countries joined, the euro became legal tender and the Treaty of Lisbon was signed. This translation of Alle radici del mondo giuridico europeo, published in Italy in 1994, is a complete reassessment of the reflection on the common structural characteristics of the different European jurisdictions. Professor Lupoi argues for the existence of an earlier common law system dating from the sixth and eleventh centuries. Based on vulgar Roman legal culture and various Germanic customs, this law was codified in Latin and survives in a modified form in modern English common law. Legal sources from all over Europe are compared and discussed. Cultures that were once considered “barbaric” appear in a different light and common currents are seen.

Different countries in Europe represent several different legal traditions, including civil law (also known as Romano-Germanic law) and common law, as well as less influential systems such as Scandinavian law. However, they are all based on the common foundations of ancient Roman law, Christian theology and canon law, feudal law, and medieval Germanic law. European law, which emerged from these traditions, was characterised by the fact that legal institutions and processes were relatively autonomous from surrounding social, religious and moral norms and procedures. In other words, the rule of law does not arise solely from the existence of a moral norm, religious commandment or social custom, but is governed by a particular set of institutions and processes. This analytical separation of law from other areas of life has been maintained by a specialized profession of lawyers and jurists trained in a specific set of learning – either a code of law or a set of rules and doctrines contained in court decisions – understood as inherently coherent and historically continuous. Perhaps the most important feature of European law is the consideration of the individual human person as the holder of legal rights and obligations. In the West, the Treaty of Rome of 1957 decided to establish the first European Economic Community. It shares the Assembly and the Court of Justice with the Coal and Steel Community, but creates parallel bodies for the Council and the Commission. On the basis of the Spaak Report of 1956, it aims to eliminate all barriers to trade in a common market for goods, services, labour and capital, to avoid distortions of competition and to regulate areas of common interest such as agriculture, energy and transport. [21] A separate treaty establishing a European Atomic Energy Community for the management of nuclear power generation has been signed. In 1961, the United Kingdom, Denmark, Ireland and Norway applied for membership, which was vetoed by Frenchman Charles de Gaulle in 1963.

Spain also applied and was rejected because it was still ruled by the Franco dictatorship. In the same year, the Court declared the Community to constitute a `new legal order of international law`. [5] The 1965 Merger Treaty finally integrated the ECSC and Euratom into the EEC. Shortly afterwards, de Gaulle boycotted the Commission, which, in his view, was pushing supranationalism too far. The Luxembourg Compromise of 1966 provided that France (or other countries) could veto matters of “very important national interest”, in particular those relating to the common agricultural policy, instead of taking decisions by “qualified majority”. But after the events of May 1968 in France and the resignation of de Gaulle, the way was clear for the accession of the United Kingdom, Ireland and Denmark in 1973. Norway refused to participate in a referendum in 1972, while the United Kingdom confirmed its membership in a referendum in 1975. [22] Although it is generally accepted that EU law prevails, not all EU laws allow citizens to lodge a complaint: i.e.

not all EU laws have “direct effect”. [116] Van Gend en Loos v Nederlandse Administratie der Belastingen[117] held that the provisions of treaties (and EU regulations) have direct effect if they (1) are clear and unambiguous, (2) are unconditional and (3) do not oblige EU or national authorities to take other measures to implement them. Van Gend en Loos, a postal company, argued that today`s Article 30 TFEU prevents Dutch customs authorities from imposing customs duties[118] when importing urea-formaldehyde plastics from Germany to the Netherlands. Following a request from a Dutch court, the Court ruled that, although the Treaties do not “explicitly” confer on citizens or companies a right to complain, they can do so.

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