Some aspects of studying the european court under the condition of modernization

March 28, 2013, автор tim0

Absattarov M. R.
candidate of science
in jurisprudence

Some aspects of studying the european court under the condition of modernization

First of all, I should like to point out, that international partnership under the condition of modernization is topical problem both in the educational system and onto the spheres of law, economics, politics and etc. It is necessary to pay more attention to the most important problem – the role of the European Court of Justice in development of international partnership between member – states of European Union.

In the new annual address to the people of Kazakhstan ‘Through crises to Renovation and Prosperity’ the president of our state Nursultan Nazarbaev precisely designed the purpose and objects of judicial body of our country. As for decision of these problems has great value an operational experience of international-regional European Court of Justice.

The European Court of Justice is one of the bodies of the European Union, the function of which is aimed to follow the maintenance of the interpretation and application of agreements, as well as the resolution of disputes and preparation of expertise conclusions.

The European Union is the union of independent states which possess some features of federation and simultaneously similar by its characteristics to confederation [1]. Its structure consists of twenty seven states which still are sovereign and independent by strict criteria and, accordingly, keep their own international law-subjectivity, with its population today that makes over 500 million people. Thus the European Union (further – EU) consolidates the countries with quite different legal systems and traditions, however this variety of characteristics did not become an obstacle for their integration modernization; besides, the effective legal ways and mechanisms realized steadily and carefully, and make a choice of many European states in favor of the united Europe as an attractive and productive one.

Thus, it is necessary to note, that the interest to study the experience and legal system of EU, which is definitely distinct from the traditional international system, is caused not only as to a mean of cooperation and interaction of the states on the territory of Europe. The remarkable circumstance is also, that one of the key points of the European Union membership is strict adherence of the countries to the principles of democracy, lawful state and free market economy, thus, providing stability and forward development at a regional level. The same principles are incorporated into the basis of long-term relations of the European Union with other states and are reflected in the Agreements on partnership and cooperation with Kazakhstan, Russia and other CIS states, where EU plays more and more notable role. Along with mentioned above, as the President of

Republic of Kazakhstan N.А Nazarbayev has noted, the multilateral cooperation with the European Union is one of priorities in the foreign policy course of Kazakhstan [2]. On the background of the Kazakhstani initiatives directed on creation of the regional organizations among the post-soviet states, Kazakhstan acts as an active supporter of expansion and deepening of integration processes within the frames of Eurasian Economic Community (further- EurAsEC) and Central Asian Union (further – CAU), formation of United Economic Zone and reforming of the CIS, for which the legal experience of the European Union is of great value. It is also notable, what the subcommittee on justice and the law order was created named as “The Republic of Kazakhstan – the European Union”, which will promote strengthening of judicial authority and legislative development. Kazakhstan intents to activate and develop the Kazakhstani-European dialogue via realization of the program “The Road to Europe”. The program offers establishment of close contacts, including the problems of studying and implementation of positive experience of the European countries in advancement of the legislation, application of the conventional norms of international law and the international agreements.

The above-stated facts once again demonstrate that researches of the experience of functioning of the European Union under the condition of modernization and its legal nature are an important and actual issue. In the given context specific place is taken by one of the basic institutes of the European Union – the Court of EU (the European Court of Justice), providing judicial protection in realization of the European legal statements and being multifunctional body of justice, which is still insufficiently studied in scientific literature. The European Court of Justice represents a specific judicial system developed on the verge of international and internal laws of the states-members of EU, which, in its turn, possess independent sources and principles.
In this regard it is necessary to point out, that it is not possible to consider all aspects of activity of the European Court of Justice under the condition of modernization, which are greatly important in terms of legal maintenance of integration among the states of the European Union, within the single article. Therefore I would like to consider several aspects of the European Court of Justice purpose.

The legal basis of the function and activity of the European Court of Justice is formed of multilateral agreements, signing and validity inclusion of which corresponds to the traditionally accepted categories of the international agreements. Thereupon its initial task as of international regional court consisted of regulation of the eventual disputes between the states of the West European associations providing integration in various sectors of economy and encouraging further political integration. Meanwhile, its jurisdiction on variety of questions is an exclusive one, whereas its decisions for all trial sides are being obligatory.

At the same time, considering legal system of the European Union as being on the edge of both national and international law, and a wide range of powers given to the European Court of Justice by constituent agreements, it is necessary to note that its function and competence are not limited by the regulation of interstate disputes of merely economic and trade character. Actually, transnational judicial body of the Union synthesizes, apart of doctrine-type of international law designs, the main principles of national law and constitutional traditions, as well as judicial system; it also represents to a certain degree a symbiosis of the previous theoretical and practical experience of the state-participants. It is approved in variety of its function and competence which allow to reveal its distinctive features, as well as to highlight it among other international and regional courts.

The key element in evolution of the created European legal system, as any national legal system, depends significantly on the organization of effective and adequate judicial control and availability of judicial protection which in general is capable to guarantee the maintenance of the given rights, to keep the established balance of transnational institutes’ interests, member-states and private (legal and physical) individuals, and to prevent or eliminate violations. The given principle is initially set into a basis of functioning of the European Court of Justice, which allows both to emphasize economic and political context of development of the European integration associations, and to give the chance to qualify them as legal community.

Besides, for the first period of its activity the great influence of the national right of the European countries is traced, and that was quite natural. Lately, as a result of its key role in interpretation of constituent contracts statements and other regulatory legal acts of the bodies of EU and its own gained practice, the European Court of Justice has shown direct influence on the decisions of interstate legal order of the European Union countries. Thereby it is possible to ascertain that EU Court, aimed to provide a uniform interpretation and application of norms of the European legislation, has transformed the European law into the effective tool of the European integration.
It is also remarkable that during the resolution of disputes, the EU Court always considers existing realities and integration level, adapting to some extent the legislation to the conditions of step-by-step transfer of a part of the sovereign rights of member-states to the benefits of transnational regional organization. Meanwhile it demonstrates pragmatism, and innovations, fulfilling and concretizing the contents of norms of the European laws, revealing their potential mission. That, undoubtedly, confirms its important contribution to formation of the European law and order as international law component.

Active participation of judicial instance in European process of norms and standards creation is expressed in the following. Undertaking decisions, the European Court of Justice simultaneously reveals full extent and sense of the European establishments. This, in its turn, has allowed within the first two decades period, when the European formation has been partially paralyzed due to the absence of additional regulatory legal acts, to fulfill the consequences of the necessary legislative measures delay at EU level and to the easy realization of European integration process. Thus, despite of editions deficits on regulatory legal acts by the EU bodies, the European Court of Justice, following lawful state principles where the judicial instance never refuses justice implementation, had to meet lacks of constituent agreements, certificates of the secondary right and inactivity of other institutes in regulatory sphere by its decisions. In such conditions the European judiciary practice gains a high importance and urgency both in legal maintenance of integration and in the decision of range problems in the given occasion.

1960-s are marked by known decisions confirming the supremacy of the European law before national one in practice, as well as the principle of direct applicability and direct affect of the European right norms onto the territories of member-states, including the independent character of the European law and order towards international and national. Due to this judiciary practice, not only states, as it is traditionally accepted in international law, but private (legal and physical) individuals have the right to address the European Court of Justice with the request for appropriate application of the European directives and regulations. We can claim that in large extent due to the Court of the European Union, since 1980-s the European domestic market started to be realized within its real frames. Condemning state monopoly of the EU countries in some sectors of economy, the European Court of Justice regularly expressed its position in favor of free competition in EU scales.

Judiciary practice has an important role and in the question of a uniform labor market regulation, and, accordingly, a uniform social policy. During 1970-1980 periods the European Court of Justice gave an interpretation of the European norms in favor of free mobility of labor power, elimination of national barriers, restrictions or any forms of discrimination. Having strengthened the rights of workers migrating within the EU, the European court of Justice has significantly contributed to progress of Europe and to some extent has preliminary paved the ground for introducing of European citizenship that was officially recognized by the Maastricht Agreement.

Besides, the expansion of function and competence of the European Court of Justice, combining the signs of international, constitutional and administrative jurisdiction is observed. In theory and practice we observe the appearance of more and more new phenomenon – European transnational judicial instance, which by the nature and properties is distinct from those international or regional legal institutions known before. This phenomenon has its own bases, organizational forms of work and functioning methods. However, the European Court of Justice cannot yet to be considered as the Supreme Court of Community, since its functions and competence have no general features, i.e. they do not apply on civil or criminal relations. In this case the European Union uses a subsidiary principle, providing some core competences still belonging to the member-states [3].

It is quite obvious that the European Court of Justice has been recognized possessing the quality of the main link in the mechanism of the institutional equilibrium and balance of EU guarantor, and, accordingly, promoted strengthening of its institutional system. Thus, the European Court of Justice in its decisions, even before implementing the necessary changes into constitutive agreements, had recognized the capacity of an exclusive claimant by European Parliament. Along with it, the European jurisdiction provides an important place to the national courts which it considers as European ones, as they should apply the European norms inside their countries in the case of collisions in-between the European and national laws. It is necessary to emphasize importance of such a form of cooperation between national judicial bodies and EU Court, as prejudicial procedure which minimizes the risk of “crushing” of the European laws on its application.
Finally, The European Court of Justice more and more is included into a rank of the constitutional court. In practice the interpretation of some articles of constitutive agreements and other additional contracts included into the EU frames, as for example, the agreement on budgetary potentials of the European Parliament inevitably generated the questions concerning the specification and division of competences between the European institutions and the European Union states. By this, the European Court of Justice has been compelled to consider and accept its final decision on the addressed questions of institutional balance and the balance between the EU bodies, thereby to play a role comparable with the body of the constitutional judiciary.

In the activity of some national and international jurisdictions the duality of competences is observed at times, expressed in considering arising disputes by discussion of them in accordance with the standard rules of legal proceedings and simultaneous allocation of the advisory functions, which are not included into the traditionally accepted rules of legal proceedings. For example, the Constitutional Council of France, together with Kazakhstani, which are being special quasi-judicial bodies of the constitutional control, have the right to consider by «file system» the questions of constitutionality of any law, international contract or administrative act. The State Council of France (the supreme judicial body on administrative affairs) carries out similar functions both in legislative, and in administrative spheres: it is being addresses certain some bills, it also publishes facultatively or compulsorily the conclusion on individual verdicts accepted by the government. Besides, such transnational body as the International Court of the United Nations is also enforced by the general consultative powers.

According to constitutive contracts (articles 220 of the Agreement on EU and 136 of the Agreement on Euroatom) which represent the basic legal foundation for functioning and powers of the European Court of Justice, the European jurisdiction provides maintenance of the EU laws by the uniformed interpretation and application of the given agreements.

All the powers and functions of the European Court of Justice are provided in respect of balance of the institutional EU structure preservation, established by constitutive agreements, and accordingly, demanding a strict following the legal establishments developed for it. At the heart of activity and functioning of the European court of Justice there is a main postulate, – that is the creation of not only economic and political, but also a lawful community.

In connection to this, it necessary to note that in the activity and functioning of the European Court of Justice various problems arise, – that are contradictions.
First of all, it is expediently to eliminate the existing contradiction between the Statute and Procession order of the EU Court. Thus, the Statute provides unequivocally that legal case procedure consists of two stages, – that is, written and oral ones. Simultaneously the Procession order admits in some cases the possibility not to start the oral legal proceedings. Therefore, aiming to eliminate the contradiction mentioned, it is necessary to bring a similar specification to the Statute of the Court of Justice.

Along with the above-stated, the decision of the European Court of Justice is empowered by a binding force of the executive document; however, it does not mean that there is a possibility to automatically use the compulsory execution. In reality, only private individuals may be forced to execute the decision. Compulsory execution is regulated according to the norms of the civil-procedural code, operating on the territory of member-state where it takes place. Concerning the case where the party lost the process is the institute or the European Union state-participant, the possibility to resort to a compulsory execution of the decision is not established. Despite the given to the European Court of Justice right to impose the obligation to pay the penalty on the state-infringer, in case of failure of one its decision, the overdue or untimely execution by the state of decisions leads to the establishment of justice and satisfaction of claim becomes rather symbolical. Thereupon, it is necessary to establish a strict mechanism of execution by the state-participants of the decisions.

Whereas the law creation and law application activities of the European Court of Justice represents one of the key factors of the forward development and maintenance of the European integration, I believe that while teaching the course of the «European law»it would be rational to pay a great attention to the EU Court and its judiciary practice. In my opinion, judiciary practice studying allows considering more widely and comprehensively the nuances and specifics of the evolution of legal and institutional European Union system, as within the law application activity of the European Court of Justice the basic legal problems of integration are revealed and specified, as well as the subsequent doctrine of the development of the European associations.

If the European Court of Justice can be defined as the constitutional one, then the inevitably of the problem between the rights of the union and a constitutional law of member-states appears. The concrete definition of the European formation is expressed in the gradual expansion of competences of the European Community onto the spheres where the general and joint actions have not been brightly expressed and directly provided, as it was within the realization of united domestic market.

The similar concretization of the European formation enters into a context, which provides gradual and additional transfer of a part of the national competences to the transnational institutes, i.e. a certain centralization of the European Union bodies’ powers. It causes a certain concern in some national courts [4], and in particular, constitutional ones, which prefer to preserve the possibility to challenge the principle of supremacy of the European law in the case of centralist tendencies. In the rest cases the principles of the constituent agreements concerning powers specify that they should be carried out according to the principle of subsidiarity. In these conditions the European Court of Justice is to consider even frequently the disputes on distribution of competences between the European Community and the state-participants. However, the complexity of the issue is whether the judicial instance is competent to carry out the control, which is more based each time on a political, economic and social estimation of the complex situation evaluation. The similar situation is possible if the European integration will fall beyond the limits of purely economic character; in this case the European Court of Justice will be urged to carry out the jurisdiction powers in the sphere of fundamental human rights.

Concerning the judicial control over the legality of the acts accepted by the bodies of the European Community, it is possible to point that it gradually complicates due the integrated approach to the procedure of acceptance of acts, as well as the expansion of powers and participation of European Parliament in this sphere. The influence of the last factor is already noticeable, if to consider the right given to the Parliament to represent itself as the claimant.

The pressure on the European Court of Justice has been partially removed after the creation of the Tribunal of the first instance inside it, which in turn also has faced constant growth of the number of arriving legal cases, concerning different areas of integration. To the constantly growing quantity of legal cases the problems of expansion of the structure of the European Union are to be added, that probably will affect quantitative growth of arriving affairs too. On the other hand, the circumstance that in the European Court of Justice there are representatives of various legal systems of the state-participants, is an important element of its legitimacy on the transnational level.

At the same time strengthening of the constitutional role of the European Court of Justice risks facing the complexities: whether it can continue to play a further role of the guarantor of legal community. First, it is connected with exclusion from its competence of the questions not concerning Community,- that are measures concerning the cooperation in the sphere of judicial bodies, internal affairs and migration. These measures directly adjoin to the problem of personal liberties of the citizens, and seem to be paradoxical if they are not a subject of the uniformed judicial control in all territory of the European Community.

Recently the decisions of the European Court of Justice became of a great influence on public opinion formation, thereby forming in the consciousness of people not just an idea of the united Europe, but a lawful Europe as well. In the spheres constitutional and administrative law of the state-participants and the European Union there are tendencies of not only following to the general legal standards, but also the interaction between European and national courts in area of jurisdictional control [5]. However the European Court of Justice has to reconsider its positions concerning the application of general principles of the European law in those spheres, which are not listed in the Community’s competence.

One of factors and the problems promoting avoidance of the conflict is the “Europeanization” of the national law [6]. However there is also a necessity for a more certain constitutional basis of regulation of the European integration process. In any case the arising problems and complexities are not unsolvable. But also in the conditions of the amplifying political integration, the European Court of the Justice that earlier demonstrate its boldness and at times innovation in solution of certain disputes, now begins to be careful and discrete in comparison with previous times.

Certainly, the European Court of Justice and its international legal status are exposed, and should be exposed to the changes; but it remains as the main guarantor of judicial protection of the European rights and its uniformed application in all territory of the European Union. Possibly, after a while, considering the deepening of integration processes, its functions and powers will appear in wider aspect. The indispensable condition of success in this direction remains, as earlier, the sequence and gradualism of the developments of integration processes combined with care and the evolutionary approach to the development of the European Union. Much depends on whether a choice of the spheres of “Europeanization” of the law system will reflect the essential needs of the integration, and whether the additional real (not imaginary) common positions in this point will be found or emerge. Therefore the European Court of Justice in the international law context took and will take a special place both in the deepening of integration between the states-participants of the European Union and their problems, and in observance of the European rules of laws and their development.

The European Court of Justice reflects the variety of national legal traditions, systems of justice, scientific schools and represents to a certain degree the symbiosis of the gained experience in member-states of the Community. It is possible to ascertain with confidence, that the European Court of the Justice, called to provide a uniformed interpretation and application of the European legislation, has undertaken the appreciable efforts directed on maintenance of the efficiency of the law of EU and has transformed EU legislation into the effective tool of the European integration.

Thus we can conclude that the function and activity of the European Court of Justice and its decision have helped to resolve plurality of concrete problems under the condition of modernization, despite the lack of the issuing of the regulatory legal acts by the EU bodies. Accordingly, it is necessary to notice that specificity of the functions of the European Court of the Justice, directed on legality maintenance at the EU level, essentially distinguishes it from exclusively international legal institution, and the EU Court is a guarantor of the forward development of the legal part of the uniformed European space under the condition of modernization. The given aspect, in my opinion, deserves a steadfast attention, as it represents a highly approved experience which can be considered in the deepening process of integration within the frames of EurAsEC or CAC, as well as in the perfection of the judicial authority of Kazakhstan.

The literature:
1. Delperee F. Le federalisme en Europe. – Paris: PUF, 2006. – P. 79.
2. Назарбаев Н. А. Новый Казахстан в новом мире. – Алматы: Казахский национальный политехнический университет им. К. Сатпаева, 2007. – с. 54.
3. See: Auby J.-В. et Dutheil de la Rochere J. Droit administratif europeen. – Bruxelles: Bruylant, 2007. – P. 1019-1027.
4. Donnat F. Contentieux communautaire de l’annulation. – Paris, 2008. – P. 145-146.
5. Perrot R. Institutions judiciaires. – Paris, 2007. – P.492.
6. Rideau J. Droit institutionnel de l’Union et des Communautes Europeennes. – Paris: 2006.-P. 843.

Pedagogy

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