Anthony Aust. Handbook of International Law

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29. See R. v. Bouchereau, Case 30/77 [1977] ECR 1999, paras. 13–14.

30. See p. 94 above.

31. On the Courts methods of working, see Wyatt and Dashwood’s European Union Law, 4th edn,

London, 2000, pp. 197–202.

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one from each member state. Their terms of appointment are as for the judges of the Court of

Justice. The CFI seldom sits in plenary session, most of its business being conducted in Chambers of

three or five judges giving, like the Court of Justice, a single judgment. Since 1999, a single judge

can deal with simple cases. There are no advocates-general, although any of the judges (apart from

the President) can be asked to perform the functions of an advocate-general, although this is rare.

There is an appeal from a judgment of the CFI to the Court of Justice on a point of law only, and

therefore preliminary rulings under Article 234 cannot be sought from the CFI (Article 225). The

appeal can concern only the operative part of the judgment, not the reasoning.

The CFI has jurisdiction in all cases brought by natural or legal persons against the Community or

its institutions, and all such actions must be begun in the CFI. The CFI was created to relieve the

Court of Justice of some of the burden of the increasing number of pending cases and so shorten the

time it takes the Court to give judgment. In 1988, pending cases had nearly doubled as compared to

1980 (605, up from 328). Even at the end of 2004 there were some 1,000 cases pending before the

Court and a similar number before the CFI; and it still takes the Court some two years to dispose of

a case, and the CFI somewhat less. The CFI was also intended to engage in a more detailed

investigation of the facts than the Court is able to do, and this the CFI has done.

The Court and the CFI can exercise only very limited jurisdiction over CFSP and PJCCM matters

(Articles 35 and 46 of the TEU).

Preliminary rulings

Since most questions of Community law will be raised in the courts or tribunals of member states, it

is vital for the proper functioning of the Community legal order that there should be uniform

interpretations. Article 234 provides a means whereby any court or tribunal (which is interpreted

liberally)

may seek a ‘preliminary ruling’ from the Court of Justice (not the CFI) concerning (a)

the interpretation of the EC Treaty, (b) the validity and interpretation of acts of Community

institutions (regulations, directives, etc.) and the European Central Bank (ECB), and (c) the

interpretation of the statutes of bodies established by an act of the Council where the statutes so

provide. The ruling is binding on the

32. Vaassen v. Beamtenfonds Mijnbedriff, Case 61/65 [1966] ECR 261.

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national court or tribunal and may require it not to apply even a subsequent national law.

‘Preliminary’ refers only to the fact that the court or tribunal must apply the ruling to the facts of the

case when giving judgment, not that the ruling is provisional.

The request (or reference) can be made only while proceedings are pending. Where a question of

Community law is raised by a party to the case or by a court or tribunal, and the court or tribunal

considers that a decision on it is necessary to enable it to give judgment, it may request a preliminary

ruling. Although a court or tribunal therefore has a discretion, unless it has complete confidence that

it can deal with the issue of Community law itself, it should make a reference.

But, where the

question is raised before a court or tribunal against which there is no judicial remedy (inter alia, a

final court of appeal), that court or tribunal must request a preliminary ruling. The reference by the

national court or tribunal should be self-contained and self-explanatory, setting out the basic facts of

the case and posing a general question of Community law, not the issue as it needs to be decided on

the particular facts. It should plausibly explain why a ruling is needed or run the risk of the Court

refusing to give one.

The parties, any member states and the Commission may submit written and

oral observations to the Court, as can the Council, the Parliament or the ECB if an act for which they

are responsible is in issue.

Common Foreign and Security Policy and Police and Judicial Co-operation in

Criminal Matters

The Council plays a much more dominant role in CFSP and PJCCM. Although the Commission can

take initiatives in those areas, in practice it is the member states, in particular the Presidency, which

take the lead. The Parliament has to be consulted, but is not directly involved in the decision-

making. The member states play a larger role due to the very different range of instruments available

under these two pillars. Under the CFSP, the Council adopts ‘common strategies’, ‘joint actions’ and

‘common positions’ (Article 12 of the TEU). These are not legally binding, merely agreed policy

positions. Under the PJCCM, the Council adopts

33. See Bingham MR in R. v. Stock Exchange, ex parte Else (1982) Ltd [1993] 1 All ER 420 at 426.

34. See the Note for Guidance on References by National Courts for Preliminary Rulings 1996, [1997] All

ER (EC) 1.

Page 479

‘framework decisions’ and ‘conventions’ (Article 34(2)). The former are rather like directives in that

they are binding on member states, but leave it to each member state how to implement them. The

latter are multilateral treaties to which member states are free to become, or not become, parties.

Furthermore, CFSP decisions on common strategies require unanimity (abstentions are ignored),

although when implementing a common strategy, or adopting a joint action or common position, a

qualified majority is all that is needed, unless the decision has military or defence implications. If a

member state declares that for ‘important and stated reasons of national policy’ it intends to oppose

adoption of a decision by qualified majority, a vote must not be taken, although the Council can,

again by a qualified majority, ask the European Council to take a decision by unanimity (Article 23

of the TEU). Under the PJCCM, the Council must act unanimously when adopting framework

decisions and conventions. Unless it provides otherwise, a convention enters into force (for the

ratifying states only)

once at least half of the member states have ratified. Measures implementing

conventions are adopted within the Council by a majority of two-thirds of the parties.

Legal personality and treaties

The EC and Euratom each has legal personality in the law of each member state (Articles 281 and

282). It is also now clearly accepted by non-member states that the EC and Euratom also have

international legal personality.

Each can therefore conclude treaties with states on subjects for

which it has competence, and they have done so on many occasions.

Where the EC has exclusive

competence, the member states can no longer conclude treaties that deal only with those subjects.

It is now for the EC alone to enter into such treaties, provided of course that the other negotiating

states agree to this. But, where competence is shared between the EC and its member states, or

where the area of application of a treaty includes overseas territories of member states,

both the

EC and the member states

35. See p. 77 above.

36. See pp. 198-9 above.

37. See generally Chapter 9 of MacLeod, Hendry and Hyett, The External Relations of the European

Communities, Oxford, 1996; P. Eeckert, External Relations of the European Union, Oxford, 2004.

38. See p. 481 below.

39. For example, the Convention on the Conservation of Antarctic Marine Living Resources 1980

(CCAMLR), 402 UNTS 71 (No. 22301); ILM (1980) 837; UKTS (1982) 48; TIAS 10240; B&B Docs.

628.

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can become parties. Such a treaty is known as a ‘mixed agreement’. There are some treaties, such as

ILO conventions, to which member states are parties, but which do not allow for the EC to be a party

even if it has exclusive competence for the subject matter. In those cases, the member states that are

parties to the treaty have an obligation to protect the interests of the EC. But these internal matters

are of no direct concern to the other parties.

Where there is shared competence, such as for social security matters, the member states can still

conclude bilateral treaties with third states or with each other, although in doing so they must ensure

that the treaty is consistent with Community law. To protect member states’ rights when the EC

alone concludes a treaty on a subject of shared competence, the member states will usually insist on

the inclusion of what is known as a ‘Canada Clause’, which declares that the member states retain

power to enter into treaties on the subject.

Some treaties contain a provision under which the EC

can make a ‘declaration of competence’ about the respective competences of itself and its member

states with regard to the matters covered by the treaty.

But the TEU does not confer international legal personality on the EU. This was for political

reasons, some member states not having wished to enhance the status of the EU in this way. So,

when the member states wish to conclude a treaty with a third party within the CFSP and PJCCM

fields, the Council concludes it. This will change if the Constitution enters into force.

Human rights

Article 6 of the TEU confirms, what the Court of Justice had previously held, that the EU must

respect, as general principles of Community law, the fundamental rights guaranteed by the European

Convention on Human Rights 1950 (ECHR). This is hardly surprising given that all member states

are also bound by the ECHR. Article 46(d) of the TEU gives the

40. See MacLeod, Hendry and Hyett, The External Relations of the European Communities, Oxford,

1996, pp. 234–5. The name of the clause has nothing to do with Canadian federalism, but because the

clause was first used in a Canada–EC treaty of 1976, OJ 1976 L260/1.

41. See Article 5 of Annex to the UN Convention on the Law of the Sea 1982 (n. ** above) and Article

47 of the Fish Stocks Agreement 1995, 2167 UNTS 3 (No. 37924); ILM (1995) 1542; UKTS (2004) 19.

42. See p. 484 below.

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Court jurisdiction over human rights questions with regard to action by the institutions insofar as the

Court has jurisdiction in respect of the EC, Euratom or the EU. Naturally, human rights must also be

respected by member states when implementing Community measures.

At present, the EU is not a

party to the ECHR, and therefore the European Court of Human Rights has no jurisdiction over EU

institutions. However, Article 17 of Protocol No. 14 to the ECHR provides for the EU to accede to

the ECHR, although this cannot happen until all the parties to the ECHR have ratified the Protocol.

The Charter of Fundamental Rights was proclaimed on 7 December 2000 by the European

Council.

Its fifty Articles do not yet have legal status, but reflect and confirm human rights that are

already binding on member states as parties to the ECHR, or are taken from Council of Europe

conventions or Community directives. Because the Charter includes certain social and economic

rights, the scope of which may still not be clear, it remains somewhat controversial.

Acquis communautaire

This fancy phrase means only what the Community has achieved and built upon: constituent treaties,

legislation, general principles, judgments of the Court of Justice, treaties with non-member states,

etc. An applicant for membership therefore has to accept the acquis, subject only to those detailed

modifications that are acceptable to the existing members and included in the accession treaty.

Competence

This is shorthand for where power and responsibility for a particular matter lies: with the

Community or member states, or shared (Article 5). The Constitution would make this rather clearer

than it is now.

Comitology

Comitology means implementation of Community legislation by the Commission with the help of a

specialist committee.

43. Wachauf, Case 5/88 [1989] ECR 2609, para. 19.

44. ILM (2001) 266.

45. See the text to n. 8 above.

46. See J. Klabbers, An Introduction to International Institutional Law, Cambridge, 2002, pp. 178–80.

Page 482

European Economic Area

This confusing name was created by a 1992 agreement between the EC and the remaining members

of the European Free Trade Area (EFTA),

under which the latter enjoy the benefits of the single

market but without the full privileges and responsibilities of EC membership. The EEA agreement

now applies only to Iceland, Norway and Liechtenstein. Switzerland, a member of EFTA, has not

ratified the 1992 agreement.

Languages

The EC has twenty-one official languages: Czech, Danish, Dutch, English, Estonian, Finnish,

French, German, Greek, Hungarian, Irish,

Italian, Latvian, Lithuanian, Maltese, Polish,

Portuguese, Slovakian, Slovenian, Spanish and Swedish. Community legislation is issued in all the

languages and, in principle, meetings are interpreted into all the languages. Working groups and

other informal meetings are conducted in English and French.

Qualified majority voting

As from 1 November 2004, adoption by the Council by qualified majority voting (QMV) of a

proposal from the Commission has required at least 232 votes cast in its support, provided they are

cast by at least a simple majority of the members (i.e. thirteen). In other cases, the 232 votes must be

cast by at least two-thirds of the members (i.e. seventeen). In addition, when a decision is to be

adopted by QMV, any member may request verification that the members constituting the majority

represent at least 62 per cent of the total population of the Community. If they do not, the decision is

not adopted.

The 321 votes in the Council are allocated as follows: France, Germany, Italy and the United

Kingdom (29), Poland and Spain (27), the Netherlands (13), Belgium, the Czech Republic, Greece,

Hungary and Portugal (12), Austria, Sweden (10), Denmark, Finland, Ireland, Lithuania and

Slovakia (7), Cyprus, Estonia, Latvia, Luxembourg and Slovenia (4) and Malta (3). Thus any of the

four largest states can use their combined 112–116 votes to block a proposal (e.g. 321 – 112 = 209).

The Constitution would change this (see below).

47. See p. 468, n. 7, above.

48. Irish is used only in the governing treaties.

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Schengen

This is shorthand for the 1990 Agreement

(signed in the Luxembourg town of that name)

abolishing all (internal) immigration checks on travellers between the member states (and now also

Iceland and Norway), except Ireland, the United Kingdom and, for the moment, the ten new

members who joined in 2004. Under the Agreement, internal checks are allowed only for a limited

period when they are necessary for national security or public order reasons. The Schengen countries

have a common visa policy for third-state nationals, who once they have entered a Schengen country

with a visa issued by that country are then free to travel anywhere within the Schengen area.

Subsidiarity

This contrived term means merely that EC decisions should be taken as closely as possible to the

citizen. Unless a matter is one for which the EC has exclusive competence, the EC should not act

unless that would be more effective than action at the national, regional or local level (Article 5).

Treaty establishing a Constitution for Europe

A Treaty establishing a Constitution for Europe (‘the Constitution’) was adopted by an

Intergovernmental Conference (IGC) of the member states on 18 June 2004 and signed by all

member states on 29 October 2004.

It is intended to enter into force on 1 November 2006,

provided by then all twenty-five have ratified it. Several member states will first have referendums,

and two referendums have already rejected the Constitution.

Although it makes some important changes, the Constitution should not be seen as as radical a

development as some eurosceptics would have us believe. It will not give primacy to EU law, since

that principle was established long ago. Nor will it make the Union a state. It will not give the Union

competence in many new areas; decisions on tax harmonisation will still require unanimity. Rather,

the Constitution makes it clearer that the Union is the creation of the member states who, by coming

together in the Union, can pursue their common goals more effectively. The main changes would be:

49. ILM (1991) 68.

50. See www.europa.eu.int/constitution/.