The European law is the law on state in Europe .
The term is considered to be "the conceptual umbrella for several legal systems ( international organizations ) that are interwoven in many ways", and "in terms of history / politics - as well as EC / EU - are part of the European unification ".
A distinction is made between European law in the broader sense and European law in the narrower sense . European law in the narrower sense traditionally referred to Community law, i.e. the law of the European Communities including domestic implementation; Through the institutional transformation beginning with the Maastricht Treaty in 1992, it was predominantly transferred to European Union law , known as Union law ; in addition, the law of the European Atomic Energy Community remains as Community law , which is institutionally linked to the EU. European law in the broader sense also includes the law of other European international organizations .
As the EU's intended accession to the ECHR of the Council of Europe according to Article 6 of the EU Treaty shows, no clear and consistent separation can be drawn between the two regimes of European law. (European) integration as “condition, process and goal” is an evolving process that is subject to constant change. The European law underlying subject matter is Europe is and will remain for the time being a "construction site".
European law in the narrower sense
Since the entry into force of the Lisbon Treaty, the law of the European Union has been referred to as Union law . The law of the European Atomic Energy Community, which is institutionally linked to the EU but still legally independent, has equal rights with Union law.
Union law is differentiated from international law (and the associated European law in the broader sense) in particular by two peculiarities that affect its relationship to the national law of the member states: its partially direct applicability in the member states without a national transposition act and the priority of Union law over national law . Union law is a supranational legal system of its own that is to be classified as supranational, but not as ordinary international law . The correct term since the Lisbon Treaty has accordingly been Union law, while Community law has only historical value.
Strictly speaking, these statements do not apply in the area of the Common Foreign and Security Policy (CFSP). It is more organized under international law; this is particularly evident in
- that decisions are made unanimously,
- that the decisions taken are addressed to the Member States and the institutions of the Union, but not directly to the citizens and
- that the Court of Justice of the European Union - apart from the case of Art. 275 (2) TFEU - does not have jurisdiction in this area. So neither the obligations arising from the decisions in the framework of the CFSP can be sued, nor can legal acts in this area be challenged.
European law in the narrower sense consists of primary law and its subordinate secondary law; The case law of the European Court of Justice is of particular importance .
Primary law is the central legal source of European law in the narrower sense. It consists of the agreements concluded between the member states (founding, revision and accession agreements). The member states continue to have the "constituent power" and are therefore referred to as "masters of the treaties". The most important primary law treaties today are the Treaty on European Union (EU Treaty) and the Treaty on the Functioning of the European Union (FEU Treaty), also known as the Treaties (Art. 1 (2) sentence 1 TFEU). In addition, the Treaty establishing the European Atomic Energy Community (Euratom Treaty) is still in force. Primary law also includes the protocols attached to these contracts, which regulate very specific issues, but are considered to be legally equivalent to the TEU / TFEU provisions “as part of the contracts” (Art. 51 TEU).
Development of primary law
Primary law initially consisted of the founding treaties concluded in Paris in 1951 and Rome in 1957
- European Coal and Steel Community , for
- European Atomic Energy Community and to
- European Economic Community , whose organs were replaced in 1967 by the so-called
- Merger agreement were merged.
In the course of European integration , these treaties were changed several times; the most important changes to the contract were:
- the Single European Act (1986, in force 1987),
- the Maastricht Treaty (1992, in force 1993),
- the Amsterdam Treaty (1997, in force 1999),
- the Treaty of Nice (2001, in force in 2003) and
- the Lisbon Treaty (2007, in force in 2009)
The most fundamental treaty change was the establishment of the European Union in the Maastricht Treaty . The European Union rested on three pillars or pillars. The first pillar consisted of the European Communities : the Communities exercised sovereignty delegated by the Member States in certain policy areas; therefore one spoke here of supranational areas (politics). The second and third pillars comprised police and judicial cooperation in criminal matters and the common foreign and security policy ; these areas are organized on an intergovernmental basis, i. In other words, the European Union has no sovereignty in these areas.
Unlike the European Communities , the European Union itself did not initially have its own legal personality ; it only achieved this through the Treaty of Lisbon , which merged the European Union with the European Community , but not with the European Atomic Energy Community .
|European Communities||Three pillars of the European Union|
|European Atomic Energy Community (EURATOM)||→||←|
|European Coal and Steel Community (ECSC)||Contract expired in 2002||European Union (EU)|
|European Economic Community (EEC)||European Community (EC)|
|→||Justice and Home Affairs (JI)|
|Police and judicial cooperation in criminal matters (PJZS)||←|
|European Political Cooperation (EPC)||→||Common Foreign and Security Policy (CFSP)||←|
|Western Union (WU)||Western European Union (WEU)|
|dissolved on July 1, 2011|
Content of primary law
Primary law contains the basic regulations on the functioning of the European Union. Because of the functional similarity between primary law and national constitutions, the European Court of Justice repeatedly referred to it as the “constitutional document of the Community”.
- The economic constitution
The economic constitution is geared towards the creation of the European internal market: The fundamental freedoms (freedom of movement of goods, services, people and capital) are intended to protect cross-state market economy activities from restrictions; For individual subject areas (in particular agricultural policy , transport and energy supply) there are special regulations that take into account the traditionally strong regulation of these areas by the Member States.
The FEU Treaty also contains important regulations on competition law : The Commission is granted control rights in the field of competition law in the narrower sense, in cartel law and state aid law.
A third area of the European economic constitution consists of the provisions on economic and monetary union . In order to establish the monetary union, convergence criteria were set up, which are continuously checked. Economic union is also reflected in the provisions governing the regional and structural policies of the Community, the funds of which are intended to contribute to the economic and social coherence of the Member States.
- The competency order
The competencies of the European Union have peculiarities compared to the nation state: The community lacks comprehensive sovereignty; the “ principle of limited individual authorization ” applies ( Art. 5 Para. 2 EU Treaty ). Nevertheless, some competences - in particular the competences for legal alignment ( Art. 114 and 115 TFEU ) and the rounding off competence ( Art. 352 TFEU) - are very broad. The Maastricht Treaty therefore introduced the principle of subsidiarity : on the basis of the principle of subsidiarity, the European Union can now only act if uniform regulation is required and the planned goals can be better achieved together ( Art. 5 (3) EU Treaty).
The competences of the Community, which are now competences of the Union, were increasingly supplemented in the course of European integration, starting with the Single European Act (EEA). Examples of newly introduced competencies as of July 1, 1986 (EEA) are research and development policy, the policy of economic, social and territorial cohesion, environmental policy and cultural policy. The subsequent revision treaties (Maastricht, Amsterdam, Nice and most recently Lisbon) have continuously expanded these competencies by adding further policies.
- The institutional provisions
The institutional provisions ( Art. 223 ff. TFEU ) regulate the functioning of the organs . While the competence norms define the competences of the European Union (so-called association competence ), the institutional provisions regulate the distribution of competences of the organs in the exercise of these competences (so-called organ competence); together they regulate the legislative process .
- External relations
The regulations on external relations concern, on the one hand, foreign trade relations and, on the other hand, other foreign policy. The former falls within the competence of the Community ( Art. 207 , 216 ff. TFEU ); this is part of the provisions of the EU Treaty ( Art. 11 ff. EU Treaty).
In the context of the common commercial policy, the relationship between European law and GATT in particular is unclear.
- Other content of primary law
Also of importance are the provisions on Union citizenship , the provisions on the area of freedom, security and justice and the provisions on treaty amendments ( Article 48 EU ) and the accession of new Member States ( Article 49 EU). It is also worth mentioning that the FEU Treaty contains numerous individual rights, such as the rules on European citizenship and fundamental freedoms (the latter as part of the rules of the TFEU on the European internal market ).
Unwritten primary law
Unwritten European law is usually also counted as primary law (even if the exact rank of these unwritten norms is unclear). The unwritten primary law consists in particular of the so-called general legal principles of Community or Union law, which the European Court of Justice created in judicial training and which include the fundamental rights recognized in European law and general principles of the rule of law. EU customary law is a rare form of unwritten primary law. It is controversial whether general principles of international law can be classified as a legal source of European law.
Due to the importance of unwritten primary law, the role of the European Court of Justice in the development of European law can hardly be underestimated. From a formal point of view, it is responsible in the highest instance for the review of legal acts of secondary law on primary law and the review of the law of the individual member states on European law (primary and secondary law). Proceedings can in particular be initiated by the institutions of the European Union , the Member States, the courts of the Member States or individuals.
In fulfilling this task, the European Court of Justice has in many cases not limited itself to an interpretation of primary law, but has made a significant contribution to the legal order of the European Communities through judicial training. Examples include the case law on the Community legal system as a sui generis legal system ( van Gend & Loos ), the primacy of Union law over national law ( Costa / ENEL ) and the development of Community fundamental rights ( Stauder ). These and other cases have a decisive influence on the character of European law. This great importance of jurisprudence justifies speaking of a case law system , at least in certain areas .
Some of the principles developed in case law found their way into codified primary law in subsequent treaty amendments. For example, the fundamental rights recognized by European law have now been written down in the EU Charter of Fundamental Rights and incorporated into primary law with the Treaty of Lisbon via Article 6 (1) of the EU Treaty .
Secondary law (law derived from primary law) is the legal acts enacted by the organs of the European Union or the European Atomic Energy Community on the basis of primary law.
Secondary law must not violate primary law. In the event of a violation of primary law, the European Court of Justice can declare secondary law null and void.
Art. 288 TFEU provides for the following legal acts:
- Ordinance (general regulation with direct domestic validity; would correspond to a law in national law)
- Directive (general regulation to be transposed into national law by the member states within a certain period of time; it is binding with regard to the goal, but leaves the choice of form and means to the member states)
- Resolutions (binding regulation in individual cases; a decision is only binding for the addressees specified therein; would correspond to an administrative act under national law )
- Recommendations and opinions (not legally binding)
For these legal acts, certain legislative procedures are established as the standard procedure; In many cases, however, the regulations for individual policy areas deviate from these standard procedures. The majority of the legal acts are implemented within the framework of comitology .
For the individual types of procedure see: Legislation of the European Union
Legal acts not mentioned in Art. 288 TFEU are international treaties and so-called unspecific resolutions concluded by the Union.
European law in the broader sense
European law in the broader sense also includes - in addition to European law in the narrower sense - the law of other European organizations. Above all, the Council of Europe with the European Convention on Human Rights and the EFTA should be mentioned . Further agreements and organizations under European law are:
- the European Social Charter
- the European Convention on Human Rights (which established the European Court of Human Rights )
- the European Economic Area (EEA)
- the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (LugÜ)
- the European Convention on the Work of Drivers Employed in International Road Transport (AETR)
- the Schengen Convention (before its inclusion in EU law with the Amsterdam Treaty )
- the Organization for Security and Cooperation in Europe ( OSCE )
- the Organization for Economic Cooperation and Development ( OECD )
- the Western European Union (until its dissolution in 2010)
These agreements are international agreements between the participating states. Their law therefore only entitles and obliges the states themselves, but does not in itself produce any direct legal effect within the domestic legal systems; this requires a national (constitutional) validity norm (for example Art. 93 of the Dutch Constitution) or a state implementation act. This distinguishes them from European law in the narrower sense, which, according to the principle of priority of application of Union law, can also be applied directly without a member state implementation act (e.g. EU regulations and possibly also EU directives ).
There are numerous interfaces between the agreements under European law in the broader sense and European law in the narrower sense. For example, the European Commission and the European Court of Justice also act within the framework of the EEA Agreement. The European Court of Justice also uses the provisions of the European Convention on Human Rights to gain fundamental rights ; the Lisbon Treaty (therefore) even provides for the European Union's accession to the European Convention on Human Rights ( Article 6 (2) of the Treaty on European Union ).
Training in EU law
At numerous universities, European law (sometimes a combination of European and international law ) can be chosen as an elective in the first state examination in law. So far, in Germany only students at the Viadrina European University and the “European Lawyer” program at the Humboldt University in Berlin are allowed to take a compulsory examination in European law in the first state examination. Some universities also offer accompanying courses for European lawyers or European law economists and postgraduate courses for a master’s degree in European law .
- EU legislation
- Court of Justice of the European Union
- European Union
- European Union
- Precautionary principle
- Von Colson decision
- Michael Ahlt / Daniel Dittert: European law. Examination course for legal trainees , 4th edition, Munich 2011, Verlag CH Beck, ISBN 978-3-406-59650-6
- Hans-Wolfgang Arndt / Kristian Fischer: Europarecht , 9th edition, Heidelberg 2008, ISBN 978-3-8252-2238-3 .
- Jan Bergmann (Ed.), Handlexikon der European Union , 4th edition, Baden-Baden 2012, Verlag Nomos, with around 2,000 headwords
- Roland Bieber, Astrid Epiney , Marcel Haag: The European Union - European law and politics , 9th edition, Baden-Baden, Verlag Nomos, 2011 ISBN 9783832939465
- Armin von Bogdandy : What is European law ?: A continuation of the term and discipline . In: Juristentung 2017, pp. 589–597.
- Manfred A. Dauses (ed.): Handbook of EU commercial law . (Loose-leaf collection), 24th edition. Beck, Munich 2009. ISBN 978-3-406-44100-4 .
- Carsten Doerfert / Jörg-Dieter Oberrath / Peter Schäfer: Europarecht (series of work books on commercial law), Stuttgart 2010, 3rd edition
- Hans von der Groeben, Jürgen Schwarze: EGV / EUV commentary in four volumes . Baden-Baden 2004, Nomos publishing house, 6th edition.
- Hailbronner / Wilms, Law of the European Union , loose-leaf commentary, 1st edition, Verlag W. Kohlhammer, ISBN 978-3-17-018569-2
- Ulrich Haltern : European law. Dogmatics in Context , 2nd edition, Tübingen 2007
- Matthias Herdegen : European law . 13th edition, Munich 2011
- Jean-Claude Alexandre Ho: Europarecht , 3rd edition, Dänischenhagen, 2011, ISBN 978-3-935150-50-7 .
- Jean-Claude Alexandre Ho: Key decisions on European law , 1st edition, Dänischenhagen, 2006, ISBN 3-935150-59-8 .
- Ulrich Karpenstein: Practice of EC Law , Munich 2006
- Kock / Stüwe / Wolffgang / Zimmermann: Public Law and European Law , 3rd edition, Verlag nwb, Herne 2004, ISBN 3-482-48343-4
- Alina Lengauer: Introduction to European Law , Vienna 2007
- Thomas Oppermann : Europarecht , 4th edition, Munich 2009
- Peter Schäfer: Studienbuch Europarecht - Das Wirtschaftsrecht der EG , 3rd edition, Stuttgart 2006, with supplement as of January 2008, ISBN 3-415-03667-7 , with numerous overviews, statistics and examination schemes as well as two exercise cases
- Hans-Joachim Schütz, Thomas Bruha, Doris König: Casebook Europarecht , Munich 2004
- Ulrich Sieber / Frant-Hermann Brüner / Helmut Satzger / Bernd von Heintschel-Heinegg , European criminal law. Manual , 1st edition, Baden-Baden 2011, Verlag Nomos, ISBN 978-3-8329-5603-5
- Rudolf Streinz: Europarecht , 8th edition, Heidelberg 2008
- Philipp Terhechte (Ed.): Administrative Law of the European Union. Specialist book , 1st edition, Baden-Baden 2011, Verlag Nomos, ISBN 978-3-8329-5328-7
- Alexander Thiele: Europarecht , 8th edition, Altenberge, 2011, ISBN 3-9806932-2-8 .
- Wolfgang Wessels : Legislation in the European Union . In: Wolfgang Ismayr (Ed.): Legislation in Western Europe. EU countries and the European Union. Wiesbaden: VS Verlag für Sozialwissenschaften 2008, pp. 653–683.
- ↑ Before the Treaty of Lisbon came into force, i.e. until November 30, 2009, European Community law was also part of European law in the narrower sense. Until its dissolution on July 23, 2002, the law of the European Coal and Steel Community also belonged to European law in the narrower sense. The European Political Cooperation (EPZ; 1970 to 1992) of the members of the communities in addition to the communities was partly also understood as European law in the narrower sense.
- ↑ Until the entry into force of the Lisbon Treaty has been in European law in the strict sense between the supranational acting Community law on the one hand and the international law acting law of the European Union (the right under the second and third pillar distinction). With the integration of the three pillars in the Lisbon Treaty, this distinction has become obsolete.
- ↑ Before the Treaty of Lisbon came into force, this only applied to Community law , but not to European Union law in the context of the second and third pillars .
- ↑ The legal acts enacted before the entry into force of the Lisbon Treaty in the context of the second and third pillars of the European Union on the basis of the EU Treaty were not counted as secondary law.
- ↑ Herdegen, Europarecht , 13th edition, Munich 2011, p. 1, Rn 1.
- ↑ Oppermann / Classen / Nettesheim, Europarecht , 4th edition, Munich 2009, p. 1 f., Rn 1 f.
- ↑ Herdegen, Europarecht, 13th edition Munich 2011, p. 1 ff., Rn 2 ff.
- ↑ Herdegen, Europarecht, 13th edition Munich 2011, p. 3 ff., Rn 6 ff.
- ^ Martin List: Construction site Europe. Introduction to the analysis of European cooperation and integration. Opladen 1999.
- ^ Presentation of the Court of Justice of the European Union. Retrieved August 18, 2010 .
- ↑ ECJ, judgment of July 15, 1964, cases 6–64, ECJ 1964, 1141 - "Costa / ENEL".