The challenges of EU law

To attempt to live in the future rather than the present is often criticized. It is said that as one tries to predict their next steps, they become overwhelmed with their own expectations which ultimately makes living in the present less enjoyable. For lawyers, however, the ability to anticipate is an indispensable personality trait. On the one hand, they must foresee legislation, economic and even social changes that could impact their activity in order to provide their clients with an outstanding insight into their own issues. On the other hand, sometimes, this ability to anticipate is used with a rather selfish aim if you will, namely so that they ready themselves with regard to the challenges lawyers face in their career.

Nonetheless, the question that comes to mind is: what should a lawyer prepare for? For European law “supremacy”, to start with. Given the political and economic domination of the European Union on the global scene, as well as the distinctive characteristics of the European law, lawyers must be well-educated to plead and use European law concepts, and there are countless arguments to support this thesis.

Nowadays, there are hardly any purely domestic law bodies which are not influenced by the legal acts of the Union. Becoming members of the organization, the states have determined to constitute a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields.[1] The Treaty of Lisbon establishes for the first time the areas of Union competence, distinguishing between exclusive competence which enables only the Union to legislate and adopt legally binding acts, a competence shared with the Member States which allows both to enact laws in that area and a supporting competence which empowers the Union to carry out actions to support, coordinate or supplement the actions of the Member States. It is important to know if one may be able to invoke the lack of competence of the state or, on the contrary, the violation of the application of the principle of subsidiarity in order to get the upper hand in court.

Moreover, The Treaty of the Functioning of the European Union outlines the legal acts of the Union which lawyers are required to exercise significantly in their work nowadays. Regulations and decisions, specifically, have direct applicability (they come into force without any action on the part of Member States; contrastingly, regarding directives, Member States must implement national legislation, before a prescribed deadline, in order to give effect to them) and direct effect (they create individual rights which national courts must protect). One of the most well-known regulations is the one on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR) which dominates data protection and cybersecurity litigations.

In addition to that, The treaty of the functioning of the European Union allows national courts – and even obliges them if the issue concerns a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law –  to request the Court of Justice of the European Union to rule on the interpretation of the Treaties and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union, if they consider that a decision on the question is necessary to enable them to give judgment. Preliminary rulings are legally binding not only for the inquiring court, but also for the courts of all State Members. As a result, one might use the answer offered by the Court of Justice of the European Union to a German court to validate that a consumer’s right to ask for online purchased goods to be brought into conformity or replaced does not include the seller’s obligation to pay the cost of transporting those goods.[2]

Last, but not least, although the Treaties do not state that European law has priority over national law, this has been established by the case law of the Court of Justice of the European Union and originates from the interpretation of the Treaties.[3] This implies that European law should prevail if it conflicts with national law and ensures that European rules are applied uniformly throughout the Union. Therefore, before browsing through pages of legislation and doctrine to prove a domestic legal act is inadequate, one should check whether any European legal act can be invoked to remove the national rules from applying to the case.

Nevertheless, I consider that lawyers’ future is to only be limited by self-imagination and ambition. No challenge whether it is a solid one, particularly the up and coming importance of European law or a less probable one, such as the fear of being replaced by artificial intelligence shall pose a threat.

 

[1] Case C-26/62 (Van Gend en Loos).

[2] Case C‑52/18.

[3] Case C-6/64 (Costa Enel).

 

Claudia Șuță

Student practicant

 

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