Has EU law overruled English customary law
Sources of Union Law in the European Union
4th part sources of Union law
There is one between primary law, international treaties and secondary law Hierarchy of norms. Secondary law may not contradict primary law and international treaties; international treaties may not contradict primary law.
A. The primary law
The Primary law consists of different legal sources.Thiele European law p. 103; Arndt / Fischer / Fetzer European law pp. 43–45.
Belong to primary law
the founding contracts,
the logs, appendices and Explanations,
the general principles of law and
the common law.
I. The founding contracts
For immediate applicability, repeat the description in paras. 73–75.
The founding agreements include:
the TFEU, EUV and the SAB,The ECSC Treaty was concluded for fifty years and has now expired.
the Maastricht Treaty,
the Amsterdam Treaty,
the Treaty of Nice,
the Lisbon Treaty,
the Accession Treaties with all member states that acceded after the establishment.
The Founding agreements predominantly regulate the rights and obligations of the member states and the Community institutions. Only in exceptional cases can individual provisions of the founding agreements directly establish rights and obligations for natural or legal persons.Streinz European law marginal numbers 450–455. A single provision from the founding contracts must then be directly applicable in the specific case.
The ECJThiele P. 104; Karpenstein 48-50. had declared, among other things, the following provisions of the EC Treaty to be directly applicable, so that with regard to these standards it is no longer necessary to check in a specific case whether the requirements for direct applicability are met:
Immediately applicable are:
II. The protocols, annexes and declarations
In Art. 51 TEU the Logs and Attachments of the contracts declared to be part of the contracts. Exceptions to contractual regulations for individual member states are recorded in these protocols and the text of the contract is specified in more detail. The legally binding protocols are generally only binding on the EU bodies and the state bodies entrusted with the implementation of Union law. However, they also apply in the relationship between the citizen and the respective member state if they meet the requirement of direct applicability.Examination scheme marginal 73.
Explanations can also be attached to the contracts. They are not legally binding interpretative aids for the contract texts.
III. The general principles of law
Article 340 (2) TFEU refers to general legal principles. According to this, the Union is liable for damage caused by its institutions or servants in accordance with the general legal principles that are common to the Member States.
General principles of law include
the Fundamental rights of Union law,The founding contracts do not contain any express assignment of competencies in favor of the ECJ regarding the development of fundamental Union rights; ECJ Case 11/70, Internationale Handelsgesellschaft / Import- und Vorratsstelle, Slg 1970, 1125 Rn. 3.
the general principles like that Rule of law and
elementary notions of law and justice to which every legal system is committed.Arndt / Fischer / Fetzer European law p. 44.
The ECJ determines these legal principles primarily through Comparative law the Constitutional principles of the member states and from the ECHR.
In principle, these general legal principles are only binding on the Union bodies and the state bodies entrusted with the enforcement of Union law. However, they also apply in the relationship between the citizen and the respective member state if they meet the requirement of direct applicability.Examination scheme in marginal 73.
IV. Common law
This is a legal rule that has arisen through long practice and legal conviction. In practice, customary law is of secondary importance. Customary regulations generally only bind the Union bodies and the state bodies entrusted with the enforcement of Union law. However, they also apply in the relationship between the citizen and the respective member state if they meet the requirement of direct applicability.Examination scheme in marginal 73.
B. The international treaties
The Union can do with others Subjects of international law such as with associated states or conclude international agreements with international organizations in accordance with Article 218 TFEU. According to Art. 216 (2) TFEU, the agreements concluded by the Union are binding on the Union's institutions and the member states. When they come into force, international treaties will become an integral part of Union law.
International treaties generally only bind the Union bodies and the state bodies entrusted with the enforcement of Union law. However, they also apply in the relationship between the citizen and the respective member state if they meet the requirement of direct applicability.Examination scheme in marginal 73; Streinz European law marginal numbers 536-538. See also ECJ Rs 104/81 (Kupferberg) = Pechstein Decisions of the ECJ para. 51. For the workers' rights, freedom of movement and social security rights of nationals of the associated states, this ECJ- jurisprudenceKarpenstein Practice of EC law para. 77 et seq. Has become of considerable importance.
Out Association Agreement The direct applicability of relevant standards can result in claims of the citizens of the association states against a member state of the Union.
C. Secondary law
Reread the brief explanation of the hierarchy of standards in marginal 83.
The Secondary law includes the right that the Union institutions give themselves. It must never exclude a legal consequence that is mandatory under primary law and international treaties. According to Art. 13 Para. 2 TEU, all Union organs have to comply with the provisions of the treatiesWhat is meant are the TEU and the TFEU. to act in accordance with the procedures, conditions and objectives set out in the Treaties.
Note the hierarchy of standards!
Secondary law is intended to give concrete form to primary law and international treaties. An interpretation of secondary law must always be made in the light of primary law and international treaties. Secondary law consists of different legal sources, which are listed in Art. 288 TFEU.
Legal sources of secondary law are
Read more about the enactment of legal acts that were adopted without or after a legislative process under paras 206–214.
Secondary legal norms can be initiated in different ways:
Art. 288 TFEU itself is not one Competence norm for the enactment of secondary law norms. The competence norm must result from the substantive legal regulations of the contracts.
According to Art. 296 (1) TFEU, the Union institutions enjoy freedom of choice with regard to the form of actionIn other words, they can set the right through a regulation, directive, decisions, recommendations or statements, which they want to use to implement a legislative procedure if the type of legal act to be adopted is not already specified by the treaties.
Please note in a cloister that the determination of the form of action in individual cases does not depend on the respective designation by the acting Union body, but solely on which legal effects are to be generated by the selected form of action.
I. The regulation
According to Art. 288 (2) TFEU new version have ordinances general validity. They are binding in their entirety and are directly applicable in every Member State. Regulations refer in the abstract to an indefinite number of cases and an indefinite number of people. Because of their abstract and general character, they are the laws of the Union. The regulation is therefore binding in its entirety in terms of its entire content and applies in all Member States.
The regulation applies when it comes into force in the member states, without the legislative bodies of the member states having to order this validity separately. The national courts and authorities in the member states have to apply the regulations themselves and disregard conflicting national law. Depending on the content of the regulation, the individual is directly entitled or obliged by an ordinance, because an ordinance, as a Union law standard, becomes part of the national legal system. A national act of implementation, incorporation or transformation is inadmissible as this would call into question the direct effect of the regulation.ECJ Slg. 1985, 1057. Only if incomplete (limping) regulations the member states are obliged to enact national implementing and specifying provisions to the extent necessary to implement the limping regulation.Karpenstein Practice of EC law marginal number 53. A substantive addition or any other change is not permitted in order to ensure the uniformity of the application of Union law.
Regulations Just like national laws, they establish rights and obligations for individuals in relation to the state, but also for natural or legal persons among themselves.For comparison: the directly applicable primary law only establishes a legal relationship between the individual and the state, Karpenstein Practice of EC law marginal number 55.
II. The Directive
According to Art. 288 (3) TFEU, the directive is binding for each member state to which it is addressed with regard to the objective to be achieved, but leaves the choice of form and means to the national authorities. The directive must therefore be transposed into national law in each Member State to which it is addressed.
Guidelines are to be implemented in national law.
1. The national implementation
There is a deadline for the implementation of up to three years for the member states, which is specifically specified in the last articles of the directive, in the event of non-compliance the Commission can initiate infringement proceedings according to Art. 258 TFEU against the member state that does not implement it in time. The admitted Scope for implementation leads to the fact that the directives are not always implemented in a timely and complete manner in all Member States, which jeopardizes the uniformity of the application of Union law. In part, this problem is countered by directives with very detailed regulatory content, so that there is hardly any leeway for the Member States to implement. On the other hand, the Commission is trying to issue regulations rather than directives.Streinz European law marginal numbers 482-487.
When it comes to implementation, there is usually a Creative leeway Regarding the form and means of implementation, so that the member states can determine themselves which legal acts and techniques are to be used to implement the objective of the directive. However, the form and means must be best suited to achieve the goal. The selected national provision for the implementation of the directive must correspond in priority to the one that has regulated the matter up to now. These must be binding national standards that meet the requirements of legal certainty and clarity.
When implementing the Directive, the Member States must choose those forms of domestic action that are best suited to ensuring the effectiveness of Union law in practice. Therefore, implementation in mere administrative provisions is ruled out, since the beneficiary of the directive should be able to invoke the national standard implementing the directive before national authorities and courts (Requirement of effective implementation).
The ECJ to TA-LuftECJ Case C-361/88 or C-59/89, Commission / Germany “TA-Luft”; Pechstein Decisions of the ECJ para. 30, ECJ Judgment of May 30, 1991 - 1991 ECR, I-2567 and 2607.
In the Federal Republic of Germany the RL 80/779OJ 1980 No. L 229/30. and RL 82 / 884ABl. 1982 No. L 379/15. by the TA-LuftGMBl. 1986 I, 95/202. implemented, an administrative regulation according to § 48 BImSchG. The TA-Luft is issued by the Federal Government after hearing the parties involved and with the consent of the Bundesrat. The Federal Administrative Court had only recognized with regard to some regulations of the TA-Luft that these were binding for the administrative courts. When implementing the guidelines mentioned above, the ECJ decided that there was no proper implementation. The TA-Luft is bound to the assessments made in the BImSchG, so that the administrative courts are only bound to the TA-Luft within the limits set by law. Therefore, there is no clear implementation of the guidelines.
The national implementation standard must contain effective sanctions for violations of the implemented directive.
2. The direct applicability of the directive in the relationship between the individual and the state
In principle, a directive has no legal effects in the legal relationship between the individual and the state before its national implementation. Exceptionally, however, if certain conditions are met, a directive can be directly applicable to the legal relationship between the individual and the state (vertical direct effect).
Definition: vertical direct effect
Under one vertical direct effect the direct applicability of a directive in the relationship of the individual to the state is understood.
How to check: The direct applicability of a directive (vertical direct effect)
Expiry of the implementation deadline and
no or inadequate implementation of the directive and
provisions of the directive that are unconditional in terms of content and
sufficiently precise provisions of the directive and
no direct applicability in the relationship of citizens to one another
horizontal direct effect
vertical direct effect in directives with double effect
The directive confers rights on individuals vis-à-vis the Member State or
objective content of the directive.
3. State liability under Union law
From the direct vertical effect of the directive in the relationship of the individual to the state, the Union law state liability claim can arise, which from ECJ in his Francovich judgmentPechstein Decisions of the European Court of Justice No. 64. has been developed. The ECJ has confirmed its case law on state liability in other judgmentsECJ Case C-334/92, Teodoro Wagner Miret / Fondo de Garant`a Salarial, Coll. 1993, I-6911. and added the requirement of a manifest and material error of judgment.ECJ Case C-392/93, The Queen / H.M. Treasury, ex parte: British Telecommunications, Coll. 1996, I-1631, Rn. 38 ff. It should therefore be noted that Community law is a new legal system in which individual rights can arise also on the basis of clear obligations on the part of the Member States, which are governed by the national courts in the Member States are to be protected.Herrmann Examination revision course European law marginal numbers 81–83.
How to check: The Union law state liability claim
The prerequisites for the direct vertical effect of a directive are met
Failure to implement as a manifest and significant error of judgment by the defaulting Member State
Existing causal link between the failure to implement and the damage that has occurred
Consequence: Liability of the defaulting Member State towards the plaintiff in accordance with national state liability law.
Union law should be interpreted as effectively as possible. A Member State that is a Implementation deadline is not complied with in time, should not be able to invoke its citizens on the failure to implement a directive. It is true that there is a possibility that the Commission will initiate infringement proceedings under Article 258 et seq. TFEU against the Member State that has not complied with its implementation obligation. But even in the case of the condemnation of this defaulting state according to Article 260 TFEU by the ECJ implementation can only be carried out by the defaulting state itself.
The Francovich judgment of the ECJECJ 1991-I, 5357 = Pechstein Decisions of the ECJ para. 64. Pechstein Decisions of the ECJ para. 64, see also case processing Musil / Burchard Examination course in European law marginal numbers 342–381.
In order to guarantee employees a minimum financial protection in the event of the employer's insolvency, EC Directive 80/987 / EEC was issued, which was supposed to guarantee the employee a share of unfulfilled wage claims against his employer. The Member States had to introduce a guarantee system for this. Italy had not implemented the directive in time. The Italian Francovich demanded the minimum guarantee or compensation from Italy. He argued that his employer had gone bankrupt. Because of the lack of implementation of the guidelines, I have none Minimum wage guarantee passed. A few months earlier, he had only been paid occasionally.
The Italian court involved the ECJ by way of the preliminary ruling procedure in accordance with Article 234 of the EC Treaty.Today Art. 267 TFEU. The ECJ decided that the state is not necessarily the debtor of the guarantee claim. However, Italy is liable for the fact that it failed to transpose the directive within the prescribed period. Francovich was awarded a compensation claim against Italy. The Italian Republic had to compensate the applicant for the damage he suffered as a result of the failure to transpose the directive in time.
With regard to the guideline provisions, which establish neither subjective public rights nor burdens on individuals, but merely standardize objective official duties, the state agencies are already obliged to fulfill the obligations contained in the guideline due to the objective effect of the guideline provisions.See the ECJ- Decision on Delena Wells of January 7, 2004 - Coll. 2004, p. I-723 = Pechstein Decisions of the European Court of Justice No. 35. Since all state bodies in the member states have to cooperate in the fulfillment of the national obligations arising from Community law, the Union law state liability also extends to actions and omissions of the national legislative and judicial organs.Herrmann Exam revision course European law marginal 82 f. ECJ Case C-224/01, Koebler 2003 ECR I-10239, Rn. 53; Pechstein Decisions of the ECJ para. 68.
4. The direct applicability of the directive in relation to citizens
Direct applicability of guidelines among private individuals (horizontal direct effect) is in the h.L.Thiele European law p. 117; Arndt / Fischer European law pp. 196-199. and from ECJ declined. A private person should not be able to derive a basis for claims against another private person directly from a directive. This rejection is justified by the fact that in the relationship between private individuals, the sanctioning nature of the direct applicability of guidelines that are not implemented in good time or incompletely cannot come into play. Only the defaulting Member State is to be sanctioned by the direct applicability of the directive that it has not implemented in due time. The citizen, on the other hand, should be able to trust that his rights will only be encumbered by the provisions of a directive once this has been implemented in national law.
Definition: horizontal effect
Under the horizontal effect the direct applicability of a policy not implemented in time between private individuals is understood.
The Faccini Dori decisionof ECJECJ 1994-I, 3325; Arndt / Fischer / Fetzer Cases on European law pp. 37–45. See also case processing Musil / Burchard Examination course in European law marginal numbers 342–381.
Faccini Dori had signed a contract for a paid language course with a language school at the train station. She wanted to withdraw from the contract shortly afterwards. The resignation was not accepted by the language school. The EC directive on consumer protection in the event of contracts concluded outside of business premises (Doorstep Selling Directive) Faccini would have given Dori the right to withdraw within seven days. However, Italy had not implemented this directive in a timely manner.
The ECJ recognized the Union law compensation claim against the defaulting state under national liability law because of the failure to implement the guidelines in due time. The ECJ on the other hand, rejected the horizontal effect of the directive that was not implemented in time.
A directive that is not implemented in good time generally has no horizontal direct effect.
Exceptionally, there is a horizontal direct effect of a directive that has not been implemented in good time or is incompletely implemented if one side, regardless of its legal form, offers a service in the public interest under state supervision. The ECJ takes the concept of the state relatively broadly in connection with direct applicability. The forms of action of the state, whether under public or private law, should therefore be irrelevant.Streinz European law marginal number 494. Arndt / Fischer / Fetzer European law marginal number 199 f.
The Rieser decision of the ECJECJ Case C-157/02, case of a policy not fully implemented.
Art. 7 of Directive 93/89 / EEC stipulates that tolls and user charges on roads within the community may not lead, either directly or indirectly, to a different treatment based on the nationality of the transport company or the point of origin or destination of the traffic. When transposing this directive into national law, Austria nevertheless increased the toll for the entire stretch of the Austrian Brenner motorway, which is mainly used by truck hauliers from other Member States, but not for the sections that are mainly used by Austrian hauliers. The Austrian Rieser GmbH, which is active in international freight traffic, also used the routes to which the increased fees applied. Rieser, citing EC-RL 93/89 / EEC, demanded part of the tolls paid from the Autobahn and Schnellstraßen-Finanz-AG (Asfinag).
In the context of the preliminary ruling procedure, the Austrian court seised the question of whether a private person could invoke the direct applicability of the incompletely implemented directive vis-à-vis another private person ECJ according to Art. 234 EGVToday Art. 267 TFEU. in front. The ECJ decided that such an appeal was admissible, since the state uses the Asfinag, which is organized under private law, to fulfill its sovereign tasks.
Note that, as an exception, if the state uses legal entities organized under private law to fulfill its sovereign tasks, a horizontal direct effect is possible.
Definition: Directive with a double effect
A Double-acting directive favors one party, but has unintended negative effects on the rights of third parties.Thiele European law p. 118.
At Double-acting guidelines the direct applicability is disputed, as the beneficiary can only enforce the right granted by the directive before the national authorities if a third party is burdened as a result. This concerns, for example, guidelines on environmental protection, which set up certain - burdensome - approval reservations for a plant operator. The ECJKarpenstein Practice of EC law marginal number 71. affirms the direct applicability of directives with double effect, although this also affects the legal relationship of private individuals. In contrast to the inadmissible horizontal direct effect, an appeal by the individual to the direct applicability of a directive with double effect is permissible when it comes to the fulfillment of obligations which, according to the respective directive provision, are not incumbent on the individual but on the authorities.Herrmann Examination revision course European law, nos. 50–53.
The ECJ- Judgment on Delena WellsECJ EWS 2004, 232. Pechstein Decisions of the European Court of Justice No. 35 et seq.
Mrs. Wells bought a house in the immediate vicinity of a disused quarry. Later, a contractor was allowed to reopen the quarry without one Environmental impact assessment according to the relevant, but not yet implemented, EU EIA Directive. Ms. Wells sued a German administrative court to have the operating license revoked. According to § 48 VwVfG, this coveted annulment presupposed the illegality of the approval as an administrative act.
The national court lodged a preliminary ruling under Article 234 of the EC TreatyToday Art. 267 TFEU. the ECJ raises the question of whether the regulation on environmental impact assessment from the EIA Directive, which was not implemented in Germany in good time, is directly applicable and whether it is permissible to invoke this directive due to its double effect on the construction company. The ECJ affirmed the direct applicability of the directive despite its double effect, since the plaintiff had not directly asserted the direct applicability of the directive, which was not implemented in time, to the building contractor. Based on these ECJ-Decision, the contractor's operating license was revoked.
5. The preliminary effects of the directive not yet to be implemented
A directive can already have legal effects before the end of its implementation period and before it is transposed into national law. From the date of publication of a directive pursuant to Article 297 (1) TFEU, the principle of Contract loyaltythat actions are taken in the Member States that are likely to seriously jeopardize the objective set by the directive.Thiele European law p. 114; Streinz European law marginal number 509. Already from the time of Publication of a policy All state organs must therefore observe this directive when interpreting national law because of its preliminary effect.Streinz European law marginal number 509.
The question of when national courts start Directive-compliant design are obliged is so far of that ECJ not clearly decided. However, he had ECJ already in a judgment of December 18, 1997ECJ 1997-I, 7411 - Inter-Environnement. decided that directives have a preliminary effect on national legislation before the end of the implementation period Arndt / Fischer / Fetzer Cases on European law, p. 49. The BGHBGH NJW 1998, 2208. has since established that the national courts had already issued the Legal training competence be entitled to interpret national law accordingly.
Duty to Directive-compliant design
National law is to be interpreted in accordance with directives in the regulatory area of directives. This applies regardless of whether the implementation period has already expired or not.
BGH-Decision on the preliminary effect
The RL 97/55 / EG allows the comparative advertising under certain circumstances. The BGH considered it advisable to take this guideline into account before the implementation period expires. In its previous case law, the BGH comparative advertising as a violation of morality according to § 1 UWG in the version before the implementation of the guidelines is strictly prohibited. The concerns that a guideline-compliant interpretation before the end of the implementation period encroaches on the competences of the national legislator are from the point of view of the BGH unfounded as long as conformity can be established by means of interpretation in national law and as long as the legislature does not have any scope for implementation.BGH NJW 1998, 2208.
6. The blocking effect of the implemented policy
The national legal provisions adapted on the basis of a directive are no longer at the unlimited disposal of the national legislature. They may no longer be changed contrary to the guidelines.
Cases of guidelines that are not implemented on time or not fully implemented are often processed in exams.
III. The resolutions
According to Art. 288 (4) TFEU, a decision is binding in all its parts for those it designates. The rights and obligations of the customizable group of addressees are established directly by him. In contrast to the ordinance, the resolution regulates specifically and individually. The addressee of a decision can be a member state or a legal or natural person. Resolutions are directly applicable to its addressees. Resolutions against member states can have direct effects for individuals in the addressed member states.Streinz European law marginal number 515-518; Thiele European law p. 120; Herrmann Examens-Repetitorium Europarecht Rn. 53. Individuals can directly invoke a decision addressed to a member state if the following conditions are met:Arndt / Fischer / Fetzer European law p. 56; Karpenstein Practice of EC law marginal number 75.
The content of the resolution is unconditional and sufficiently precise,
the decision establishes individual rights vis-à-vis a member state and
the deadline set in it has expired.
Leberpfennig judgmentof ECJECJ 1970 ECR 825.Pechstein Decisions of the ECJ para. 41.
The council decided on a joint Sales tax system for the transport of goods by rail, road and inland waterway transport. This was put into effect in the Federal Republic of Germany. At the same time, a decision was made to the member states that with the entry into force of the new sales tax system, the member states would no longer be allowed to levy similar taxes. Nevertheless, due to a newly enacted law, the Federal Republic led the Road freight tax as a similar tax. Freight transport company G was charged this new tax. For his protection, he relied on the decision, which was directly applicable to him.
The ECJ pointed out that this decision, as a norm of European law, takes precedence over German law. The Federal Republic should therefore not have passed the road haulage tax. G could rely on this decision, which was not addressed to him, because its content was unconditional and sufficiently precise and justified rights of an individual vis-à-vis a Member State.
IV. Recommendations and opinions
In Art. 288 (5) TFEU it says to recommendationsthat they are non-binding. With the help of a recommendation, Union bodies can suggest certain behavior to the addressee.Streinz European law marginal 521 f. For example, according to Art. 117 (1) sentence 2 TFEU, the Commission can recommend measures to avoid Distortions of competition addressed to individual member states.
According to Art. 288 (5) TFEU is also a opinion not binding. Union institutions can express their views on an initiative in an opinion.Streinz European law marginal number 521 f. An example is the opinion of the European Parliament in accordance with Article 294 (2) TFEU in the co-decision procedure.
Recommendations and statements are non-binding aids for interpretation. They are open to the public, but are also often addressed to individual Member States. Despite their legal non-binding nature, they are of great political importance. National courts have to take these into account if they want to provide information on the interpretation of national implementing regulations under Union law.Arndt / Fischer / Fetzer European law p. 57; Thiele European law p. 120 f.
D. Secondary legal norms in the area of the CFSP, in the area of freedom, security and justice and data protection law
What is meant is the law that has been adopted by the EU in the previousBefore the Lisbon Treaty came into force. Policy fields of the second and third pillars could be enacted. One also spoke of Union secondary law.Karpenstein Practice of EC law para. 21; Streinz European law marginal numbers 4–8. The policy fields of the CFSP according to Art. 11–28 TEU old version (second pillar) and the PJZS according to Art. 29–43 TEU old version (third pillar) did not belong to the Community law of the European Community until the entry into force of the Lisbon Treaty, but were Subject of the intergovernmental cooperation of all member states regulated in the EUV old version. Union secondary law bound all member states in accordance with the general principles of international law, but was not directly applicable in the national law of the member states. A separate act of transformation was always required in each member state.Karpenstein Practice of EC law paragraphs 22, 91. Union secondary law thus did not have priority over national law.
I. Secondary legal norms in the area of the CFSP after the entry into force of the Lisbon Treaty
After the Lisbon Treaty came into force, the Union's competence for the CFSP is regulated in particular in Art. 2 Para. 4 TFEU in conjunction with Art. 24 Para. 1 TEU.The Union's competence in the CFSP extends to all areas of foreign policy and to all questions relating to the security of the Union, including the gradual definition of a common defense policy which can lead to a common defense.
In line with the dissolution of the previous pillar structure, the priority of secondary law over the law of the member states also applies to legal acts in areas of the previous second pillar.Hellmann The Treaty of Lisbon p. 63. This is however for the CFSP by Art. 24 Abs. 1 subpar. 2 TEU restricted to the effect that special provisions and procedures apply to them. The adoption of legislative acts is excluded. Of the possible legal acts of Art. 288 TFEU, only those decisions remain that, according to Art. 31 (1) subpara. 1 TEU are to be adopted unanimously by the Council and the European Council. Resolutions can be made according to Article 25b TEU to determine the
actions to be carried out by the Union and
viewpoints to be accepted by it
to be enacted. The European Parliament is not involved in the decision-making process.
The ECJ is with regard to these resolutions in accordance with Art. 2, p. 6 TEU not responsible. The only exceptions to this are the monitoring of compliance with Article 40 of the TEU and the monitoring of the legality of certain decisions in accordance with Article 275 (2) TFEU.
If a member of the Council abstains from voting in accordance with Article 31 (1) TEU, he or she can make a formal declaration. It is then not obliged to implement the decision, but accepts that it is binding on the Union. It must be taken into account that the decision is deemed not to have been adopted if at least one third of the Member States abstain from voting and make a corresponding declaration, provided that this third represents at least one third of the Union's population. However, according to Article 31 (2) TEU, resolutions with a qualified majority are still possible, as before, if these are not resolutions with military or defense implications.
Resolutions in the area of the CFSP can in all their parts according to Art. 4 TFEU must be binding. If the prerequisites for their immediate applicability are met, they can have priority of application in the member states.Hellmann The Treaty of Lisbon p. 76. According to Article 25a TEU, the Union also pursues the CFSP by defining general guidelines. According to Art. 26 Para. 1 TEU, the European Council determines the strategic interests of the Union and defines the goals and general guidelines of the CFSP, including in matters of defense policy. According to Article 26 (2) TEU, the Council designs the CFSP on the basis of these general guidelines.
The Common security and defense policy is an integral part of the CFSP in accordance with Article 42 (1) TEU. The Union carries out its tasks in this area of the common security and defense policy through missions which it may carry out using civil and military means in accordance with the principles of the United Nations Charter on Peacekeeping, Conflict Prevention and Strengthening International Security. According to Art. 2 Para. 4 TFEU, the Union is responsible for the gradual definition of a common defense policy. For a joint defense, according to Art. 42 Para. 1 TEU initially requires a unanimous decision by the European Council. All member states must agree to this decision in accordance with their national constitutional law. A decision as a prerequisite for a common defense will only be directly applicable if it has been approved by all member states. There is only intergovernmental cooperation between the Member States in this area.
No legislative acts can be adopted in the CFSP area. Of the possible secondary legal norms of Art. 288 TFEU, only resolutions can be passed in the CFSP.
II. The area of freedom, security and justice
According to Articles 67–89 TFEU, this area includes border controls, asylum and immigration, judicial cooperation in civil and criminal matters and police cooperation. The regulations on police and judicial cooperation, which were combined in the intergovernmental area of the PJZS until the entry into force of the Lisbon Treaty, have been integrated here. According to Article 4 (2j) TFEU, the Union shares its competence in the area of freedom, security and justice with the Member States, which can exercise their competence according to Article 2 (2) sentence 2 TFEU if and to the extent that the Union has not exercised its competence. Responsibility for maintaining public order and for protecting internal security remains with the member states in accordance with Article 72 TFEU. Due to the dissolution of the previous pillar structure, the legal acts in accordance with Article 288 TFEU are also available to the Union institutions in this area. Legislative acts in this area can now be fully implemented by the ECJ to be controlled.Hellmann The Lisbon Treaty p. 89.
The legal acts are binding in all their parts in accordance with Article 288 TFEU. If the prerequisites for their immediate applicability are met, they can have priority of application in the member states.Hellmann The Lisbon Treaty p. 76 ..
The European agency FRONTEX was founded in 2004 to protect the external borders of the EU.VO 2007/2004, ABl 2004 L 349/1, amended by VO (EU) 1168/2011, ABl 2011 L 304/1 Art. 79 TFEU regulates the common immigration policy. Paragraph 1 states that the Union shall develop a common immigration policy which, at all stages, ensures effective management of migratory flows, adequate treatment of third-country nationals who are lawfully resident in a Member State, and the prevention and strengthening of the fight against illegal immigration and trafficking in human beings to ensure.
In Art. 80 TFEU, the EU has committed itself to the principle of solidarity for the implementation of policy in the field of border controls, asylum and immigration. This explicitly includes the fair division of responsibilities among the Member States, including in financial terms. When the great refugee movement began in 2015, mainly from African countries, but also from Afghanistan, Iran and Iraq towards Europe, the limits of this agreed solidarity quickly became apparent. In particular some of the Eastern European Member StatesThe Visegrád group from Poland, Hungary, Slovakia and the Czech Republic, which only joined the EU in 2004, only allowed a few refugees to enter their national territory. It was not possible to set quotas for the refugees to be admitted in the individual Member States. Germany in particular took in many of the refugees who entered the EU in Greece, Malta and Italy. Due to the large number of refugees and the catastrophic situation in the initial reception centers in Italy, Malta and Greece, the rules of the Dublin II Regulation were not complied with, Regulation 343/2003. Afterwards, the refugees have to apply for asylum in the EU country in which they entered the EU for the first time. The Federal Republic of Germany suspended this regulation until June 30, 2016.
In the Dublin III RegulationOJ 2013 L 180/31. of June 26, 2013, the criteria and procedures were defined according to which the Member State responsible for examining an application for international protection submitted by a third-country national or stateless person in an EU Member State should be determined. The ECJ has on 01/25/2018ECJ Rs C-360/16. in a preliminary ruling procedure, among other things, decided that Germany should not simply send refugees back to Italy in the event of an illegal re-entry from Italy into German territory. This was based on the case of the Syrian Aziz Hasan, who came illegally to Germany as a refugee via Italy. He had applied for asylum in both states. After the application was rejected in Germany, he was transferred back to Italy. Mr. Aziz returned illegally to Germany within a month and appealed against the dismissed complaint. His calling was successful. The Federal Republic of Germany appealed against it to the Federal Administrative Court. This faced that ECJ In the preliminary ruling procedure, inter alia, the following questions on the interpretation of Art. 29 (1) of the Dublin III Regulation:
Will a retrial be necessary for a transfer to Italy?
When does the deadline for the withdrawal request begin?
What are the consequences of a missed deadline?
The ECJ decided as follows:
The Federal Republic of Germany must submit a new application for readmission to Italy.
The two-month period begins to run from the point at which Germany becomes aware of the applicant's stay in its territory.
Due to the failure to meet the deadline, the applicant must be given the opportunity to apply for asylum in Germany. Exclusive responsibility for the asylum procedure is thus transferred to Germany.
III. The data protection law
According to Art. 16 TFEU, every person has the right to the protection of their personal data. In order to ensure a uniform level of protection within the EU, the European Parliament and the Council adopted the regulation on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of Directive 95/46 / EC (General Data Protection Regulation -EU GDPR)VO (EU) 2016/679. enact. The GDPR has been in force in all member states since May 25, 2018. As a regulation, it takes precedence over national data protection laws that conflict with its regulations. The GDPR contains 70 opening clauses, which leave scope for the legal formulations through the national legislation in the member states. The GDPR applies to all companies that process personal data within the EU (market location principle). It therefore also applies to all companies that are based outside the EU, but also process personal data within the EU. Facebook and Google. See also case processing Musil / Burchard 612-629. If different supervisory authorities in the individual member states are responsible due to a variety of processing locations, the lead management lies with the supervisory authority at the headquarters of the main office within the EU in accordance with Art. 56 Paragraph 1, Paragraph 2 of the EU GDPR. The possible fines of up to € 20 million or 4% of the worldwide annual turnover, which can be imposed by the competent supervisory authority in the event of inadmissible processing of personal data in accordance with Art. 83 Paragraph 4 or Paragraph 5 of the EU GDPR, are extremely high .
In the area of freedom, security and justice, all forms of action of Art. 288 TFEU can be used by the competent Union organs.
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