Henry G. Schermers

International institutional law : unity within diversity

Participants rules for international organs policy-making and administrative organs advisory and supervisory organs decision-making process financing legal order interpretation and settlement of disputes supervision and sanctions legal status external relations concluding remarks annex - selected bibliography on individual and international organizations.

Free movement of persons in Europe : legal problems and experiences

Part 1 Report and comments: abolition of border controls Schengen Information System, privacy and legal protection cooperation in the field of criminal law, police and other law enforcement agencies cooperation between fiscal and customs authorities cooperation in the field of aliens law human rights and free movement of persons institutional problems and free movement of persons free movement of various categories of persons. Part 2 Documentation: the Schengen Agreement of 14 June 1985 the Schengen Convention of 19 June 1990 Treaty on European Union Agreement on the European Economic Area.

The Relationship between Community Law and National Law

The Treaties establishing the European Communities have created a new legal order which can neither be explained in terms of general international law nor be described as a particular type of national law. In a series of decisions the Court of Justice has ruled that the legal system set up by the Treaties is autonomous in its own sphere. As a legal order sui generis it should be distinguished from municipal law and from international law. However, this does not mean that there is no need for close contacts between the Community legal order and the legal systems of the Member States. For its proper functioning the Community legal order depends heavily on co-operation of the Member States; the Community legal order is said to be integrated with the municipal legal systems of the Member States. Thus, with regard to the enforcement of Community Law, not only the Court of Justice but also municipal courts are obliged to apply Community Law. Other national authorities are required to ensure the implementation of Community Law by adopting laws, regulations or administrative measures.

Structure and Operation of the Court of Justice

Originally the Court consisted of seven Judges. Since January 1973 this has been increased to nine,1 since January 1981 to ten2 and since March 1981 to eleven.3 The deliberations of the Court must be held with an uneven number of its members.4 If one Judge is unable to attend, the Judge most junior in office must also abstain from taking part in the deliberations of the Court.5 Several issues may be decided by a Chamber of the Court, (see below § 649, 650), but issues which may not be delegated to a Chamber cannot be validly decided by less than seven Judges.6 Until the oral procedure (see below, § 695) an additional Judge can be attracted if the quorum would be lost. He then has to read the prior documents. If after the oral procedure the number falls below the required minimum, the Court will then have to re-open the oral procedure in the presence of a sufficient number of Judges. The Advocate-General may have to deliver a new opinion.7

Other tasks of the Court of Justice

In the field of judicial review (see Chapter Two) there is a general presumption that public authorities are in the right unless the contrary is proven. Community acts are considered to be valid, unless it can be demonstrated on certain specific grounds that they are void. Though in practice the Court of Justice interprets these grounds very widely, the right to institute proceedings is limited. If the applicant cannot demonstrate that a legal rule has been violated, there will be no annulment. The Court has no need to search for legal rules independently. The Court is also limited in its powers of decision. It must annul the act in dispute or it must keep it in force; it cannot normally replace the act by an opinion of its own.

Other Courts applying Community law

As yet, international courts have never applied Community law. It is unlikely that the International Court of Justice will ever do so. The Community Treaties provide that the Member States shall not submit a dispute concerning the interpretation or application of the Community Treaties to any method of settlement other than those provided for in the Treaties themselves.1 This prevents them from bringing Community law before international courts. The chances that other States would do so seem rather remote.

The Community legal order

Each State has its own body of interlocking and complementary legal rules which taken together govern the legal relationships within the country. Within Community law these bodies of legal rules are normally called ‘legal orders’.1 Apart from these national legal orders international organizations have legal orders of their own.2 In comparison with these the legal order of the European Communities is of particular significance not only because of the large number of rules it contains, and the preponderance and the frequent direct effect of these rules for a large group of people, but also due to its homogeneity.3 Most international organizations embody their binding legal rules in treaties or conventions. These obtain force of law only after ratification by the States concerned. As in practice not all States ratify every convention, the binding force of conventions differs as regards territorial application. This precludes one convention being used for completing another. Because of the fact that not all legal rules bind the same States, they cannot form one legal order; each convention constitutes a legal order of its own. In the European Communities the three Treaties and all the rules of secondary Community law taken together form one legal order, equally binding within all Member States. The inherent unity of this legal order is of the greatest importance for its further development.4