UNIT 20
PART ONE- ON CASES INVOLVING A FOREIGN ELEMENT
DEFINITION AND TERMS
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The part of national law called the conflict of laws, or private international law, establishes rules for
dealing with cases involving a foreign element (i.e. contact with some system of foreign law).
The foreign elements may be events which have taken place in a foreign country or countries, or they may
be the foreign domicile, residence, or place of business of the parties
the case may involve a contract between an English and a Croatian person, made by correspondence, to
be performed partly in England and in Croatia or in a third country partly
Any case involving a foreign element raises potential conflict of laws issues.
The area of private law involving a foreign element is referred to as the conflict of laws or private
international law
Conflict of laws is concerned with cases in which the parties or other relevant issues are connected with
more than one country
Conflict of laws rules indicate which court should have jurisdiction and which of the 'conflicting' laws
should be applied.
As to the term 'private international law', the subject is 'international' because of the facts of the case, or
the parties to it, are connected with another country or countries.
It is 'private' as opposed to 'public' international law because it is not concerned with relations
between states, but with disputes between persons arising out of their marriages, contracts
THE MEANING OF A COUNTRY IN PRIVATE INTERNATIONAL LAW
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For the purposes of the conflict of laws, a 'country' is any territorial unit having its own separate system of
law,
Scotland and Northern Ireland are separate countries because they have separate legal systems.
On the other hand, Wales is not a country, because its system of law is the same as that of England- he
UK cannot be the relevant country for the purposes of those branches of private law for which there is no
such thing as the law of the UK
one needs to know whether a tort was committed in Ontario, not whether it was committed in Canada- It
does not follow that a country, for conflict of laws purposes, cannot coincide with a sovereign
independent state- they coincide because many states have a uniform legal system throughout their
territory
ISSUES TO BE DECIDED IN CONFLICT OF LAW CASES
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1. Which court has jurisdiction to decide the case?- jurisdiction- The first point which has to be decided is
whether a national court has jurisdiction to deal with the case
2. Which law should be applied?- choice of law- If a national court does exercise jurisdiction, will it apply
the rules of national law or those of a foreign country with which the case has connectionsThe rules that determine which law the court applies in a case involving foreign elements are called
choice of law rules
Once the relevant choice-of-law rule has been established, this will point the court to a factor that
connects the dispute to the legal system of a particular countryThis is called a connecting factor- where an event or transaction took place
factors point to a law that is connected to a person that is involved in the dispute, such as the law of their
domicile or habitual residence
3. How will foreign judgment be recognized and enforced?
The question is whether the judgments of foreign courts can be given effect in another country
INTERNATIONAL REGULATION
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Originally, all three 'conflict of law' questions were determined by domestic law, but today the area is
subject to increasing international and European regulation
In some areas of law, there are international treaties governing conflict of law issues- Originally, all three
'conflict of law' questions were determined by domestic law, but today the area is subject to increasing
international and European regulation
In some areas of law, there are international treaties governing conflict of law issues
Alternatively an international treaty may implement a co-operative procedure which requires mutual
recognition of foreign rulings
These treaties do not interfere with substantive domestic law
By signing an international treaty, a signatory state makes a commitment to adhere to the principles of
the treaty- where other states make the same commitment, this ensures a level of consistency in how
cross-border issues are treated
UNIT 21
PART ONE- REGULATING RELATIONS BETWEEN STATES
Definition and subjects of international law
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International law can be defined as a body of rules which regulate the behaviour of states and other
entities in their relations with each other
What is required for other entities is that they be recognised as possessing at least a degree of
international legal personality
International legal personality
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International legal personality entails the possession of international rights and duties as well as the
procedural capacity to seek redress for alleged violations and be held accountable for non- fulfilment of
duties.
States are the primary and original subjects of international law and they possess full international legal
personality
Other entities- international organisations
An international organisation is established by agreement and has states as its members.
The key to determining the international personality of international organisations is its constituent
document
Sources of international law
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international agreements
international custom
general principles of law recognised by civilised nations
judicial decisions- Material Sources
teachings of jurists- Material Sources
Hierarchy of sources
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Any treaty provision existing between the parties to the dispute must be applied;
if there is no treaty, then a rule of international custom.
If there is neither a prevailing treaty provision nor a custom then general principles;
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in the absence of any of the foregoing, judicial decisions and writings of jurists should be applied.
Customary international law derives from the practice of states.
State practice may give rise to customary international law when that practice is uniform, consistent and
general, practice is obligatory
Treaties are evidence of the express consent of states to regulate their interests according to
international law.
Most international legal relationships between states are now governed by treaties.
Generally a treaty only binds the parties to it, while a general rule of customary international law binds all
states.
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UNIT 23
PART ONE- THE COUNCIL OF EUROPE
THE ESTABLISHMENT OF THE COUNCIL
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The dramatic experience of World War II. was an initiative to consider ways to Europian Unity that would
prevent new totalitarian regimes and foster peace, fundamental rights and freedom
One of the first attempts was made by 5 countries- they created a collective defence alliance by signing
the Brussels Treaty in 1948.
The main goal was to show that Western European states can cooperate in achieving peace and
prosperity
Other 5 states were invited to attend the conference on the establishment of a Council of Europe, held in
London in 1949.
These 10 states signed the statute of the council of europe which entered into force after ratification
procedure
Council brings together 47 states and has its permanent seat in Strasbourg
THE GOALS OF THE COUNCIL
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1.
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The main goals of council are the protection and support of human rights, parliamentary democracy, Rule
of law- In order to achieve these goals, Council drafted European Concention on Human Rights (ECHR)
Drafted in 1950, entered into force 1953
Signing and ratification of this treaty is the main precondition for the membership in the council of europe
Rebuplic of Croatia has been a full member of the council since 1996.
The convention laid down human rights and fundamental freedoms and established an enforcment
mechanism through the European Court of Human Rights- judicial organ of Council of Europe which
provides protection against human rights violation
If individual person or organisation feels that their rights have been violated under the convention by
state party, they can take case to the court, lodging an individual aplication
State is bound by a judgment of the Court which confirms or dismisses violation of rights- they have to
ensure the payment of compensation to the applicant for the damaged they sustained- sometimes they
can reach a friendly settlement and inform a court about it
Application contains basic information about applicant and representative of the applicant ( lawyer or a
non-lawyer) and also contains a name of a state agains which the application is drafted and a subject
matter
Three crucial prerequisites for a complete appliation
the statement of the facts of the case, which show that the applicant suffered a significant disadvantage
the statement of alleged violation(s) of the Convention and/or its Protocols;
information about available remedies in the country of the applicant, including appeals- Since there is a
six-month time limit to address the ECHR, it is important to indicate the date of the final decision of the
domestic courts
Valid applications are examined by the Court that decides on their admissibility- if that there has been
non-exhaustion of domestic remedies or non-compliance with the six-month time-limit, or if it finds that
any other admissibility criteria have not been met, it can declare a case inadmissible
This first stage of proceedings before the Court, called the admissibility stage, is followed by the merits
stage, during which the state party is notified of the complaint and both parties have the opportunity to
submit their observations, and relevant information or material to the Court
Once the Court declares an application admissible, there are 2 courses of action (Article 38)- Examination
of a case and Friendly settlement
A judgement delivered by a chamber becomes final after the expiry of a three-month period during which
the applicant or Government may request the referral of the case to the Grand Chamber in an appeal
procedure- The judgment of the Grand Chamber is final
There is a seconf type of application- an inter-state application- when a state also lodge an application
against another State Party to the Convention- almost all applications have been lodged by individuals,
alleging one or more violations of the concention
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Frequent violations- The fairness and length of court proceedings (Art. 6), prtection of property , violation
of the right to life (Art. 2), prohibition of torture (Art. 3)
ORGANISATION OF THE ECHR- court
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Judges are elected for a non-renewable term of nine years by the Parliamentary Assembly of the Council
upon the proposal of three candidates from each member state
Structure of the Court
Single judge- who decides on admissibility of individual applications
Committees (3 judges)- can rule on the admissibility of cases as well as their merits
Chambers (7 judges)- decides on cases involving more complex issues that have not been ruled on so
frequently
Grand Chamber (17 judges)- parties may request a referral of the case to tha Grand Chamber for a fresh
consideration or a chamber ma yin exceptional situations initiate relinquishment proceedings
ORGANS OF THE COUNCIL OF EUROPE
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Besides Parliament Assembly- more of 600 reppresentatives of national parliaments of member states
Second main organ of the Council is The Committee of Ministers- decision making body
Composed of the foreign ministers of all member states- they meet once a year at ministerial session
The work on daily basis is carried out by permanent representatives of member states- ambasadors- who
form the committe of ministers deputies and meet once a week
UNIT 24
THE LEGAL FOUNDATIONS OF THE EUROPEAN UNION
PART ONE- KEY STAGES IN EU HISTORY
THE ROOTS OF THE EUROPEAN UNION
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History of unique economic and political partnership known as European Union started after the World
War II
Jean Monnet- architet of the European integration proces, argued that future military conflicts can be
avoided if Europe is structured on federal principles
The first strategies of European integration were rooted in the field of economy- the idea was to
commonly manage main resources which were used in war – coal and steel – and to support the
development of heavy industry and economic cooperation instead of using these resources for the
production of weapons
One of the founding fathers of the EU Robert Schuman, presented a declaration, later known as the
Schuman Declaration in 1950 and proposed the creation of a European Coal and Steel Community (ECSC),
whose members expanded cooperation in coal and steel production
The Treaty establishing the ECSC - signed in Paris (1951), came into force in July 1952. - supranational
European organisations that would become today's European Union began with the ECSC
THE FIRST COMMUNITIES
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The next step - to expand cooperation to other economic sectors and to achieve integration via traderesulted in the foundation of the European Economic Community (EEC)
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At the same time the European Atomic Energy Community (EURATOM) was established to regulate
nuclear energy as an essential resource for the development of industry and for the advancement of the
cause of peace
The founding documents signed by 6 countries in 1957 were the well-known Treaties of Rome, including
the EEC and EUROATOM treaties that came into force in 1958
Referring to ECSC, EEC and EUROATOM, the term European communities was used in documents and
legal acts in the period until the Maastricht Treaty (1992) that created the legal basis for the
establishment of the European Union
The Maastricht Treaty or Treaty on European Union- came into force in 1993
Its main purpose was to go further than common economic interests of the member states and to
introduce elements of a political union and cooperation
EU consisted of three pillars- firstly- the European communities (EEC, ECSE, EUROATOM), secondlycommon foreign and security policy and police, thirdly- judicial cooperation in criminal matters
The Maastricht Treaty included plans for establishing economic and monetary union and for the future
single currency of the EU- since 2002 the Euro has been used in the euro area
THE LEGAL BASIS OF THE EU TODAY
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The present day functioning of the EU isbased on the Treaty of Lisbon - in force since. 2009.
The goals of this Treaty- to make the EU more democratic, efficient and transparent, and to create
preconditions for meeting global challenges such as climate change, security and sustainable
development
Two treaties are currently in force: the Treaty on European Union (TEU) and the Treaty on the Functioning
of the European Union (TFEU)
Objectives and principles of the EU are defined by the TEU, whereas organisational and functional issues
are addressed in the TFEU
Based on the Lisbon Treaty new institutions of the EU were created, and changes were made in relation to
the powers of the existing institutions, especially in respect of the European Parliament, whose role in the
legislative procedure became more significant
A new institution: the High Representative of the Union for Foreign Affairs and Security Policy- represents
the EU's interests on the world stage
the Lisbon Treaty introduced the role of the permanent President of the European Council- appointed by
the governments of EU Member States
One of the key aims when introducing changes to EU institutions was to make new enlargement waves
and the accession of new Member States more efficient
CROATIAN MEMBERSHIP IN THE EU
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Croatia was the first state to join the EU since the Lisbon Treaty came into force- Croatia became the 28th
member state on 1 July 2013
The crucial milestones on Croatia’s way to the membership- signing of the Stabilisation and Association
Agreement in 2001 and Croatia’s application for EU membership in 2003, which was approved by the
Commission a year later- 2005 was important because the SAA entered into force and the negotiation
framework was adopted
The accession negotiations started in 2006 and lasted until 2011
Council of the EU adopted the decision on the admission of Croatia to the EU and 3 days later the EU and
Croatia signed the accession treaty- during the pre-accession period Croatia had to harmonise its national
legislation to make it compatible with EU law
PART TWO- SOURCES OF EU LAW
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There are three different sources of EU law: primary law, secondary law and supplementary law.
Primary law - based on the founding Treaties establishing the European Union
Secondary sources are legal instruments defined in the Treaties: unilateral secondary law, conventions
and agreements
Supplementary sources are elements of law not provided for by the Treaties: ECJ case law, international
law and general principles of law
Primary law includes the Treaty on the European Union and the Treaty on the Functioning of the
European Union- These treaties determine the distribution of competences between the Union and the
Member States and establish the powers of the European institutions- They provide the legal framework
within which the EU institutions implement European policies- also includes: the amending EU Treaties,
the protocols annexed to the founding treaties and to the amending treaties, the treaties on the accession
of new countries to the EU, the Charter of Fundamental Rights (since the Treaty of Lisbon — December
2009)
Secondary law comprises unilateral acts and agreements- Unilateral acts are laid down in Article 288 of
the Treaty on the Functioning of the European Union and include regulations, directives, decisions,
opinions and recommendations- so-called atypical acts such as communications, and white and green
papers, also belong to unilateral acts- conventions and agreements refer to international agreements
between the EU and a country or organisation, and agreements between member states and interinstitutional agreements
An EU regulation is a legal act that applies directly at the national level, when an EU regulation enters
into force, it becomes directly and immediately applicable within EU countries
A directive is a legislative act that sets out a goal that all EU countries must achieve, it is up to the
individual countries to devise their own laws on how to reach these goals
A decision is binding on those to whom it is addressed (e.g. an EU country or an individual company) and
is directly applicable- binding only on them
A recommendation allows the institutions to make their views known and to suggest a line of action
without imposing any legal obligation on those to whom it is addressed
An "opinion" is an instrument that allows the institutions to make a statement in a non-binding fashion,
in other words without imposing any legal obligation on those to whom it is addressed- recommendations
and opinions shall have no binding force- It can be issued by the main EU institutions (Commission,
Council, Parliament), the Committee of the Regions and the European Economic and Social Committee.
Supplementary law- Court of Justice case law, international law and general principles of law- these
principles are unwritten sources of law developed by the case law of the Court of Justice, they enable the
Court to implement rules in different domains, which are not specifically mentioned in the treaties
Article 291- 1. Member States shall adopt all measures of national law necessary to implement legally
binding Union acts
primary legislation, more specifically the Treaty on the Functioning of the European Union, lays down the
types of secondary legislation, as well as the binding or non-binding nature of each secondary legal act
The Treaty on European Union includes the general objectives of the Union and different provisions- as
common provisions, provisions on democratic principles, on EU institutions
The legal basis of the Union are established for instance within the chapter on common provisions,
whereas a state interested in membership in the EU can find the rules for its application in the final
provisions
UNIT 25
INSTITUTIONS OF EUROPEAN UNION
PART ONE- COMPOSITION AND FUNCTIONS OF THE MAIN EU INSTITUTIONS
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION AND THE MAIN EU INSTITUTIONS
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The legal basis for the powers and composition of the institutions of the European Union laid down in
Part 6 of the Treaty on the Functioning of the European Union (TFEU)
Main EU institution- European Parliament, Council of the European Union, European Council,
European Commission
Other institutions- Court of Justice of the European Union, Committee of Regions, European
Ombudsman- protects the interests of citizens of EU countries
The European Council- only one example of bringing together national leaders, heads of states or
governments, and EU leaders- the President of the European Commission and the High
Representative for Foreign Affairs and Security Policy of the EU- they work together on political
strategies and decide on the common foreign and security policy of the EU
LAW-MAKING INSTITUTIONS OF THE EU
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European Parliament- consists of 750 members who are directly elected by EU voters, number of
members for each member state is proportionate to its population
President of the Parliament represent the institution within and outside of EU
Parliament with the Council of EU adopts legislation proposed by the EU Commission
Decides on- international agreements, enlargments, supervision of the Commission- power to dismiss
the Commissioners through a vote of censure, control and approval of the EU budget with Councilbudgetary powers
Council of the European Union- members are government ministers from each EU Member State
They meet in 10 different configurations, depending on the subject matter on the agenda- when
economic and financial issues are discussed, ministers of economy and finance work within the socalled Ecofin Council
The government of each member state is represented, every 6 months a different EU country holds
the presidency of the Council
Besides legislative function-power to conclude agreements between the EU and other countries and
international organisations, adopt the annual EU budget jointly with the European Parliament
THE EXECUTIVE BODY OF THE EU
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European Commission- legislative initiative- proposing EU policies & legislation- independent of
national governments, and represents the interests of the EU as a whole
27 commissioners and the Commission President- organised in the so-called Directorates-General;
each is responsible for a specific policy area- the candidates for commissioners are nominated by EU
Member States- The Parliament votes on the approval of the nominees, after each nominee had
addressed the Parliament and answered their questions
in charge of allocating EU funding, drawing up annual budgets for approval by the Parliament and the
Council, supervising the expenditure of EU institutions together with the Court of Auditors, ensures
the proper application of EU law in Member States together with the Court of Justice of the EU
THE JUDICIAL BRANCH OF THE EU
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The Court of Justice of the European Union (CJEU)
It is divided into two bodies- 2 courts: the Court of Justice and the General Court
The Court of Justice is composed of 27 judges, one judge from each member state, and 11 Advocates
General who deliver reasoned opinions on cases to assist the Court in making its decisions- deals with
cases referred by national courts in a procedure called reference for preliminary rulling, and certain
actions for annulment and appeals
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The General Court consists of 27 judges who deals with the issues of competition law, state aid, trade,
agriculture, and trademarks, rules on actions for annulment brought by individuals, companies and, in
some cases, EU governments
CONTROLLING EU FINANCES
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not a court in the narrow sense of the word- an auditing institution with expertise in economics,
accountancy, and financial management- 27 members, one from each EU Member State, plus a larger
staff with audit, administration and translation tasks.
The Court audits EU revenue and expenditure and ensures that EU funds have been raised and spent
correctly, It drafts annual reports for the Parliament and the Council of the EU
PART TWO- NATIONAL COURTS AND THE COURT OF JUSTICE OF EU
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The reference for a preliminary ruling is a procedure exercised before the Court of Justice of the European
Union
This procedure enables national courts to question the Court of Justice on the interpretation or validity of
European law
The reference for a preliminary ruling therefore offers a means to guarantee legal certainty by the
uniform application of EU law
question presented on the application of European law.
Any national court to which a dispute in which the application of a rule of European law raises questions
(original case) has been submitted can decide to refer to the Court of Justice to resolve these questions.
There are two types of reference for a preliminary ruling:
1. a reference for a ruling on the interpretation of the European instrument (primary law and secondary
law)- the national judge requests the Court of Justice to clarify a point of interpretation of European law in
order to be able to apply it correctly
2. a reference for a preliminary ruling on the validity of a European instrument of secondary law: the
national judge requests the Court of Justice to check the validity of an act of European law.
national courts which act as a final resort, against whose decisions there is no judicial remedy, are obliged
to make a reference to the Court of Justice for a preliminary ruling
national courts which do not rule in final resort are not obliged to exercise the reference for a preliminary
ruling, even if one of the parties requests it.
In any case, all national courts must immediately refer a matter to the Court of Justice in cases of doubt
regarding the interpretation of a European provision