Approximation of laws in the European Union

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The harmonization of different legal and administrative provisions in the member states of the European Union is one of the competences of the European Union expressly regulated in the TFEU (Title VII, Chapter 3, Articles 114 to 118 TFEU) in order to ensure the functioning of the internal market (Art 115 TFEU). However, regulations on legal harmonization also result from other standards in the TFEU (formerly EGV), e.g. For example: about agriculture, free movement of workers, right of establishment, company law, the movement of services and capital, the free movement of persons and many others.

The approximation of laws was and is therefore a core element of Community activity. Through them, the community is built up and developed piece by piece. It is wrong to see the approximation of national laws as a Community activity which merely extends the establishment of the common market. Such a view overlooks the far-reaching economic and socio-political function of legal approximation and the need to consolidate the community economically and institutionally through legal approximation, i.e. the creation of common legal structures .

historical development

The jurisdiction and the scope of the regulatory area were fundamentally set out in Article 2 in conjunction with Article 3 Paragraph 1 lit. . h) in conjunction with Article 5, paragraph 2 of the EC Treaty regulated " approximation of national laws to the extent essential for the proper functioning of the common market is required ". However, these provisions have acquired a different and deeper meaning over the years as a result of changed social and legal framework conditions and the ever closer closeness of the Union member states.

Title VII, Chapter 3 TFEU on the approximation of legal provisions was already included in the founding treaty for the establishment of the European Economic Community in 1958 in Part Three, Title I, Chapter 3, Articles 100 to 102 of the EC Treaty . and has changed little substantially since then. The item numbering (as Articles 100 to 102 EGV) remained the same from 1958 to 1996. It was not until the Treaty of Amsterdam (1996) that the previous Articles 100 to 102 of the EC Treaty became Articles 94 to 97 of the EC Treaty, which in turn were renumbered and converted to Articles 114 to 118 TFEU by the Treaty of Lisbon (2007).

Article 114 TFEU

As part of the Single European Act and the creation of the EU (1993, previously EC ), Articles 100a to 100d of the EC Treaty were added to Article 100 of the EC Treaty. Articles 100a and 100b of the EC Treaty related to regulations on Union citizenship (Article 7a of the EC Treaty as amended in 1993) and Articles 100c and 100d of the EC Treaty to provisions relating to third countries whose nationals had to be in possession of a visa when crossing the external borders of the Union member states .

Article 100b of the EC Treaty was deleted with the Treaty of Amsterdam (1996) and Articles 100c to 100d of the EC Treaty were incorporated into the new provision under Title IV of the EC Treaty (visas, asylum, immigration) (now Title V TFEU - Area of ​​Freedom, Security and the Right ). Article 100a of the EC Treaty was changed to Article 95 of the EC Treaty by the Treaty of Amsterdam. The Treaty of Lisbon made Article 95 of the EC Treaty Article 114 TFEU and the European Parliament and the Council on an equal footing with the legislature in some areas (but not, for example, in the harmonization of tax law provisions - see Article 114 (2) TFEU).

Article 115 TFEU

The previous Article 100 of the EC Treaty (1958 to 1996) or 94 of the EC Treaty (1996 to 2007) became Article 115 of the TFEU (Directives), although the content of the Article has not changed significantly. At the adoption of directives on the approximation of laws and regulations by the Council with regard to the establishment and functioning of the internal market continues to require unanimity in the Council and that is European Parliament and the Economic and Social Committee only consulted.

Article 116 TFEU

The previous Article 101 of the EC Treaty (1958 to 1996) or Article 96 of the EC Treaty (as amended from 1996 to 2007) became Article 116 of the TFEU (distortion of competitive conditions) with the Treaty of Lisbon. The most important change in this article has resulted from the mandatory involvement of the European Parliament with the Lisbon Treaty. Otherwise the wording has remained almost the same.

Article 117 TFEU

Article 102 of the EC Treaty (1958 to 1996) and Article 97 (1996 to 2007) became Article 117 TFEU (risk of distortion of competition) with the Treaty of Lisbon, without any substantial changes in content.

Article 118 TFEU

Article 118 TFEU (protection of intellectual property) was taken almost verbatim from Article III-176 of the Constitutional Treaty (2003) by the Treaty of Lisbon and previously had no equivalent in the Community Treaties.

Further provisions on legal approximation

Equally central and important for the development of the Union are the special norms for legal approximation in the TFEU, e.g. B. in relation to agriculture, free movement of workers, right of establishment, company law, the movement of services and capital, the free movement of persons and many others, which have largely existed since the creation of the Community (now Union) in 1958.

aims

The aim of the legal approximation is “ neither the creation of new, uniform Community law nor the standardization of law in the traditional sense. The approximation of laws differs from both in that it does not affect the identity of the rights covered by it. It leads to the change of these rights, but not to their displacement. " . Through the Union-wide legal harmonization of national regulations, the national law of the Union member states does not become Union law, but the national legislature is given specifications on how to adapt the national law in each case so that, for example, B. a disruption of the internal market can be prevented or eliminated.

Limitation of sovereignty through approximation of laws

If an approximation of laws is decided at Union level, this may mean a restriction of the sovereignty of the Union member states. In future, these will no longer be able to put new independent rules into force that contradict the adopted legal alignment without this possibly constituting a breach of contract (Article 288 (3) TFEU, formerly 249 (3) TFEU).

Actors and procedures

For the adoption of binding secondary law (in particular directives) in the area of ​​legal approximation, the Council is in principle responsible alone and only exceptionally since the Treaty of Lisbon also the European Parliament .

If the Council has sole competence under Article 115 TFEU, it takes a unanimous decision on a proposal from the Commission and after merely consulting Parliament and the Economic and Social Committee .

Stand still clause

Due to the formulation of the provisions on legal approximation in the TFEU alone, there is no obligation of the Union member states to withhold or abstain from national legislation as long as no Union-wide legal approximation has taken place in a specific area of ​​law (exceptions possible). However, if regulations have been adopted or if these are about to be concluded, loyalty to the treaty requires that Union member states not issue contradicting regulations.

Exceptions to the approximation of laws

Expressly excluded from the legal alignment are z. B. all provisions in the TFEU with regard to culture (Article 167 (5) TFEU) and partly under Article 168 TFEU (health care, from 1993).

The application of public policy cannot be opposed to legal approximation within the framework of the European Union .

Legal alignment outside the European Union

Due to the large internal market of the European Union, the EU regulations also affect third countries. They often have to adapt their legal standards accordingly if third country companies want to sell products in the European Union or if third countries purchase products from the European Union etc. This does not only apply to countries that want to join the European Union (see candidate countries of the European Union ) or the the European Union are already closely linked by treaties (see: European Economic Area , Turkey , Israel etc.), but also other states, such as B. Switzerland , in which regulations of the EU are voluntarily adopted through "autonomous follow-up" (see also: Reception of legal norms ).

Web links

literature

Individual evidence

  1. ↑ These are e.g. B. Laws and ordinances, judicial law ( case law ) etc.
  2. ↑ These are e.g. B. General administrative regulations, especially if they have been declared generally binding.
  3. ↑ Hans Claudius Taschner in Von der Gröben - Schwarze (ed.): Treaty on European Union and Treaty establishing the European Community , p. 1368, margin number 1. See also p. 1373, margin number. 5.
  4. ↑ Article 5 (2) of the EC Treaty ( subsidiarity clause ) was only introduced into the EC Treaty as Article 3a with the Maastricht Treaty in 1993, repealed Article 5 in 1996 with the Amsterdam Treaty and the Lisbon Treaty in 2007 and changed to Article 5 (3) EUV transferred.
  5. ↑ Article 3 para. 1 let. h) EGV was unchanged from 1958 to 2007.
  6. ↑ Hans Claudius Taschner in Von der Gröben - Schwarze (ed.): Treaty on European Union and Treaty establishing the European Community , p. 1373, margin no. 7 ff.
  7. ↑ See: Anton Schäfer in The draft constitution for the establishment of a European Union , 1st edition 2001, p. 275 f. or online edition .
  8. ↑ See: Antonius Opilio in EUV | EGV | AEU: Synopsis of the Treaties for the Establishment of a European Community or Union , 2nd edition 2008, pp. B-117 f.
  9. ↑ See: Antonius Opilio in EUV | EGV | AEU: Synopsis of the Treaties for the Establishment of a European Community or Union , 2nd edition 2008, pp. B-117 to B-124.
  10. ↑ See: Antonius Opilio in EUV | EGV | AEU: Synopsis of the Treaties for the Establishment of a European Community or Union , 2nd edition 2008, pp. B-117 ff. The co-decision procedure previously applied from 1996 to the Treaty of Lisbon .
  11. ↑ See: Antonius Opilio in EUV | EGV | AEU: Synopsis of the Treaties for the Establishment of a European Community or Union , 2nd Edition 2008, pp. B-117 f and B-122.
  12. ↑ See: Antonius Opilio in EUV | EGV | AEU: Synopsis of the Treaties for the Establishment of a European Community or Union , 2nd edition 2008, p. B-122.
  13. ↑ See: Antonius Opilio in EUV | EGV | AEU: Synopsis of the Treaties for the Establishment of a European Community or Union , 2nd edition 2008, p. B-123.
  14. ↑ In the preliminary draft of the Convention , Article III-68 (see CONV 850/03). See also: Anton Schäfer in The draft constitution for the establishment of a European Union (online edition).
  15. ↑ See: Antonius Opilio in EUV | EGV | AEU: Synopsis of the Treaties for the Establishment of a European Community or Union , 2nd edition 2008, p. B-124.
  16. ↑ Hans Claudius Taschner in Von der Gröben - Schwarze (ed.): Treaty on European Union and Treaty establishing the European Community , p. 1374, margin no. 12, with reference to Hans Peter Ipsen , European Community Law, p. 693 f.
  17. ↑ If a member state of the Union does not comply with this obligation, infringement proceedings can be initiated (Article 258 et seq. TFEU).
  18. ↑ The provision of Article 249 (3), now Article 288 (3) TFEU, has remained in force unchanged since the establishment of the Community / Union. See: Anton Schäfer in The draft constitution for the establishment of a European Union , II.24B (online edition).
  19. ↑ Hans Claudius Taschner in Von der Gröben - Schwarze (ed.): Treaty on European Union and Treaty establishing the European Community , p. 1380, margin no. 23 f, p. 1384, margin no. 33.
  20. ↑ Previously almost identical to Article 128 of the EC Treaty (1993 to 1996) and Article 151 (1996 to 2007). The Council had already established principles through resolutions in the field of culture and education (see: Antonius Opilio in EUV | EGV | AEU: Synopsis of the Treaties for the Establishment of a European Community or Union , 2nd edition 2008, p. B-186) , since before 1993 there was no explicit exception of culture from the scope of the EGV (see: Anton Schäfer in The draft constitution for the establishment of a European Union , II.24A and II.24B (online edition)).
  21. ↑ In the health care sector, there was no explicit exception to legal harmonization before 1993 (see footnote above: Anton Schäfer in The draft constitution for the establishment of a European Union ).
  22. ↑ See also: Bilateral agreements between Switzerland and the European Union .