Introduction into the German law system - European law

1. History of the European Community

It could be said that the foundation stone of the later European Community was laid by Winston Churchill, who suggested the new establishment of the European family in his speech in Zurich in 1946. The reasons for this suggestion were war damages and overextension of debts in all European countries. The Marshall plan turned out to be a great help for Europe. For it´s implementation the ERP (European Recovery Program) and the OEEC (Organization for European Economic Cooperation) were founded. The Federal Republic of Germany became a member of these in 1949. In 1949 the Council of Europe was founded in Straßbourg. It had ten members; Germany joined them in 1951. Important international agreements followed, e.g. the European Convention about the Protection of Human Rights and Basic Rights (1950). The founding of the European Communities started with the founding of the European Coal and Steel Community (Montanunion, ECSC) on 18 th April 1951. By the agreements of Paris the European Defense Community was founded in 1955. In 1957 the countries of the Coal and Steel Community including Germany agreed to establish the European Economic Community (EEC) and the European Atomic Energy Community (EURATOM). As objective of the EEC the creation of a Common Market was defined. The contract of 1965 united the bodies of EEC, ECSC, EURATOM and established the Commission of the European Communities. Newly founded were the Council of Ministers, the Commission (with elected representatives), the European Council, the European Court of Justice and the European Parliament. The EU treaty, which defined the establishment of a common currency as an objective, was ratified in 1993. Today the EU has 27 members.

2. European Law

The field of European Law is subdivided in European Law in the wider and in the narrower sense. European Law in the wider sense includes the European Law in the narrower sense and legal regulations of organisations like the OECD (Organization for Economic Cooperation and Development), the OSCE (Organization for Security and Cooperation in Europe), the Western European Union, the European Council. The laws of these belong to the area of laws of nations. Only the member states of the particular contract are bound by it´s rules. The citizens of these states are only concerned if their government transforms the rules of the treaty into national laws. European agreements also belong to European Law, e.g. the European Convention on Human Rights or the Schengen Agreement about the abdiction of border controls.

European Law in the narrower sense is the law of the European Communities (EEC, EURATOM, ECSC till 2002) and the European Union. This system of law is superordinated to the national laws of the European countries.

The legal structure of the European Union is established by the so-called three pillars: The first pillar consists of the European Communities which coordinate e.g. agricultural policy, science and social policy. The second pillar is the common foreign- and security policy which deals with questions like humanitarian aid for extra-european countries or fighting terrorism.

The third pillar is the cooperation of police forces and legal authorities, e.g. in the field of cross-border levy of fines for traffic offences or measures against human trafficking. The EU will not get an individual legal personality till its constitution is signed and ratified.

The European Law in a narrower sense may be subdivided into primary and secondary law. Primary law includes international contracts like the Contract of Maastricht of 1992. The secondary law bases on these treaties and consists mainly of decrees (Verordnungen) and guidelines (Richtlinien). European decrees come into force directly in the member states without implementation by national laws. Guidelines oblige the member states to reach a certain aim within a certain period of time – e.g. the reduction of air pollutants by a specific percentage. The implementation of the guidelines takes place by enactment of national laws.

3. Procedures of European legislation

Proposals for new acts of legislation are only made by the European Commission.

The proposals must fulfil the following suppositions:

The Principle of Subsidiarity is a basic principle of European Law. The term "subsidiarity" describes a relation of superiority or subordination. In the area of legislation it means that the implementation of a law is performed by a subordinate organizational unit (in this case: the national government) and the superior organization (the European Commission) is stepping back. This principle intends the implementation of laws in a people-oriented way. It is written down in the preamble and in article 2 of the EU-Treaty.

Proposals for new laws are handed over from the European Commission to the Council and the European Parliament. The Council may modify proposals by a majority decision. If the Commission disagrees to this decision, the Council has to to achieve unanimity. In some areas of legislation European Parliament and European Council have equal rights to vote. In other matters the Parliament only takes part by consultation.

The Commission has the duty to keep a watch on the observance of European Law by the member-states. If a member state disobeys European Law, the Commission can initiate an Action of Breach of Contract against this state. If the state does not give sufficient explanations during this proceeding, the Commission can fix a time limit for the establishment of the loyality to the contract. If the time limit is unsuccessfully exceeded, the Commission may take legal action at the European Court of Justice. In case of a breach of the EU-Treaty the Commission also can advise individual persons or companies to pay a fine.

4. EU and Germany – practical aspects

German legislation has been influenced by EU-laws in all areas. Admittedly new guidelines are sometimes implemented slowly. An example is the implementation of the EU-guideline for bird-protection and the Flora-Fauna-Habitat (FFH)-guideline which intended to create a connected chain of nature reserves in the framework of the Natura-2000-programme. These plans met intense opposition by agricultural circles of the German people. The time limit for the implementation of the FFH-guideline expired at 5 th June 1994. The German codes of Building and Construction and of Regional Planning were changed on 1 st January 1998. These regulations refer to the Federal Nature Protection Code (Bundesnaturschutzgesetz) which was revised only in 1998 – after a threat of penal fees by the European Court of Justice. The Commission initiated a legal proceeding of reminding in the year 2000 and criticized the inadequate correlation of German laws with the guideline. Due to this, the Nature Protection Code was revised for a second time. A lot of neccessary special regulations were left to the federal states (Länder); this caused additional delays. After a third revision of the Nature Protection Code in 2002 there is still criticism about a lack of guideline-correlation in that law.

An example for a EU-decree (Verordnung) which came directly into force in the member states is the decree about the rights of airline passengers from 17 th February 2005. The decree increases the compensation for overbookings and guarantees the passengers a claim for supply services in cases of flight delays. The passenger gets the right to step back from the flight. If the flight is cancelled without further information, the passenger may claim certain compensations in money.

There are two kinds of possible legal actions at the European Court of Justice. These are the Action of Breach of Contract (Vertragsverletzungsverfahren) and the Action of Decision in Advance (Vorabentscheidungsverfahren). The Action of Breach of Contract is initiated by the European Commission against a member state. The Court has to evaluate a possible violation of the EU-treaty by the state. A member state also can initiate legal action against another state; this requires a preliminary proceeding with the participation of the European Commission. – During the Action of Decision in Advance, the European Court is being presented questions by national courts. These questions concern cases of the national courts which are affected by the interpretation of EU-laws. The national court suspends its legal procedure till the European Court of Justice decides about the questions. The national court is bound to follow the decision of the European Court. The presentation of questions is voluntary for most courts; only the highest courts (of the last stage of appeal) are obliged to present certain questions to the European Court.

A current example for such kind of proceeding is the legal action of the German Rewe-trading group of companies against a German financial authority. The group wanted to write off the losses of it´s subsidiary company in the Netherlands against taxes. German tax law does only permit this for losses of daughter companies positioned in Germany. The competent court presented the case to the European Court of Justice, which decided that the German regulation violates the Principle of Freedom of Establishment laid down in the EU-Treaty. The German Ministry of Finance is considering a revision of the law at present.

In the first half of 2007 Germany holds the presidential seat in the Council of the European Union for the 12 th time. Important issues in this time are the revival of the efforts for a common European constitution and the preparation for the inclusion of new members. Especially the joining of the Republic of Turkey is lively discussed in Germany.

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