INTRODUCTION TO EUROPEAN LAW

European Law in itself is also International Law. One of the main differences is the fact that all EC law is based on one Treaty, the EC-Treaty, instead of numerous Treaties on various subjects. Another difference is that several institutions and forms of legislation are based on this EC-Treaty, and this does not happen with Treaties in the field of International Private Law very often.

European Law is more important than we often realise since European Law must be applied over the national laws of the countries that have signed the EC-Treaty. Because European Law does not cover all areas where competition takes place between Member States or between undertakings that are or are not of the same Member State, other international rules and also national Regulations still play their role.

The EC has been working on a European civil code for several years now, but until this civil code comes into effect, the Dutch 'Burger/ijk Wetboek' will remain the law to be used by Dutch nationals as the 'Bundesgesetzbuch' or the 'Code Civif will remain the law to apply for German or French nationals.

To examine the effect EC law has over national laws see the case Costa vs. EN EL. This case exemplifies the theory related to the relationship between national and European Law and the effect of European Law on (Italian) nationals. In this case the nationalisation of an electricity company was found to be in order under Italian law, but in conflict with EC law. According to the European Court of Justice, Italian law was to be set aside in this case. The case Costa vs. ENEL is located in paragraph 1 .3.

Undertakings that operate within one country that is a Member State of the EC, or operate within several EC countries, have to be aware of the rules of European Law. They have to operate within the borders set by the EC-Treaty. The European Commissio~ investigates and decides whether or not the conduct of such an undertaking is, for example, in conflict with the rules of Art. 81 of the EC-Treaty.

Is there an agreement that restricts the competition within the EC, or does the undertaking abuse the dominant position they have according to Art. 82 of the EC-Treaty? If so the European Commission is known to have imposed heavy fines on several undertakings for breaking the rules on competition law issued by the EC.

The main objective of the EC is to achieve a general economic integration through the use of a common market where goods, persons, capital and services can circulate freely.

A very important condition to make this principle of a common market work is for the Member States to give up their sovereignty in those areas governed by the EC-Treaty. As a result of this the EC becomes a so-called supranational organisation, a 'State above the Member States', that is capable of making rules that bind the Member States of the EC, without their specific and prior consent.

The starting point here is the supremacy of EC law: EC law takes precedence over national law and in this way EC law is applied uniformly throughout the EC. Examine the case Costa vs. ENEL. We have to distinguish between:

1 directly applicable EC law;
2 directly effective EC law.

EC law that is directly applicable means that the provisions of EC law take effect in the legal systems of the Member States, without the need for further acts by the governments of these Member States. Therefore direct applicability is a concern of the Member States themselves.

Example: according to Art. 249 a Regulation is directly applicable. Directly effective EC law means that these provisions give rights or obligations on which nationals can rely before a national court. This is of interest to ind ividuals who are engaged in some kind of lawsuit against a third private party or their national government.

One knows whether a provis ion, for instance, a Treaty Article has a direct effect only if the ECJ has said it does. The ECJ decides whether this is the case, therefore one cannot assume that an Article or a Directive or a decision probably might or might not have direct effect without such a decision.

Example
In the Case Van Gend & Loos, the European Court of Justice laid down the conditions for a Treaty Article to have direct effect. In this case Van Gend & Loos, a transport company established in Holland, entered into a lawsuit against the Dutch customs authorities. In its view, Van Gend & Loos claimed that Dutch customs acted in conflict with Art. 12 of the EC Treaty.

Art. 12 EC Treaty prohibits the Member States from introducing new taxes amongst themselves, but it is only possible for Van Gend & Loos to rely on Art. 1 2 if it is directly effective. Therefore the Dutch court of law puts a question before the ECJ to give a preliminary ruling under Art. 234 in order to make sure whether or not this Article has a direct effect. Can Van Gend & Loos rely on Art. 1 2 before a Dutch court of law? In this particular case the ECJ has given the requirements for a Treaty Article to have a direct effect:

• The provision must be clear and unambiguous (interpretation of the text).
• The provision must be unconditional (example = no extra national measures necessary).
• The provision must take effect without further acts of the EC or the Member States.

These criteria have been used quite liberally in the cases that followed Van Gend & Loos. Final conclusion of the ECJ = Art. 12 is directly effective, so:

• Van Gend & Loos can rely on this Article before a Dutch court of law, and
• Van Gend & Loos did not have to pay the taxes that were issued contrary to Art. 1 2.

So bear in mind that from this moment on Art. 12 came directly into effect in all Member States of the EC. Other examples of Articles of the ECTreaty which the ECJ has decided have a direct effect:

• Free movement of persons (Art. 39).
• Free movement of goods (Art. 28, 29, 30).
• Right to equal pay for men and women (Art. 119).
• Competition law (Art. 81 + 82).

Therefore these Articles can be enforced before a national court by all EC nationals. Through the years the number of members of the EEC has grown to 25 Member States:

• Germany,
• France,
• Italy,
• Netherlands,
• Belgium,
• Luxemburg,
• United Kingdom,
• Ireland,
• Denmark,
• Greece,
• Spain,
• Portugal,
• Austria,
• Finland,
• Sweden,
• Poland,
• Lithuania,
• Latvia,
• Estonia,
• Czech Republic,
• Slovenia,
• Malta,
• Hungary,
• Cyprus,
• Slovakia .