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THE EU LAW

THE EU LAW

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HISTORY OF THE EUROPEAN UNION

Beginnings: war and peace For centuries, Europe was the scene of frequent and bloody wars. In the period 1870 to 1945, France and Germany fought each other three times, with terrible loss of life. A number of European leaders became convinced that the only way to secure a lasting peace between their countries was to unite them economically and politically. So, in 1950, in a speech inspired by Jean Monnet, the French Foreign Minister Robert Schuman proposed integrating the coal and steel industries of Western Europe. A a result, in 1951, the European Coal and Steel Community (ECSC) was set up, with six members: Belgium, West Germany, Luxembourg, France, Italy and the Netherlands. Its purpose was to pool the steel and coal resources of the member states, thus preventing another European war. The power to take decisions about the coal and steel industry in these countries was placed in the hands of an independent, supranational body called the "High Authority". Jean Monnet was its first President. From three Communities to the EU The ECSC was such a success that, within a few years, these same six countries decided to go further and integrate other sectors of their economies. In 1957 they signed the Treaties of Rome, creating the European Atomic Energy Community (EURATOM) and the European Economic Community (EEC). The member states set about removing trade barriers between them and forming a "common market". The purpose of the EEC was to establish a customs union among the six founding members, based on the "four freedoms": freedom of movement of goods, services, capital and people. Euratom was to pool the non-military nuclear resources of the states. The EEC was by far the most important of the three communities, so much so that it was later renamed simply the European Community. In 1967 the institutions of the three European communities were merged. From this point on, there was a single Commission and a single Council of Ministers as well as the European Parliament. Originally, the members of the European Parliament were chosen by the national parliaments but in 1979 the first direct elections were held, allowing the citizens of the member states to vote for the candidate of their choice. Since then, direct elections have been held every five years. The Treaty of Maastricht (1992) introduced new forms of co-operation between the member state governments - for example on defence, and in the area of "justice and home affairs". By adding this inter-governmental co-operation to the existing "Community" system, the Maastricht Treaty created the European Union (EU). Integration means common policies Economic and political integration between the member states of the European Union means that these countries have to take joint decisions on many matters. So they have developed common policies in a very wide range of fields - from agriculture to culture, from consumer affairs to competition, from the environment and energy to transport and trade. In the early days the focus was on a common commercial policy for coal and steel and a common agricultural policy. Other policies were added as time went by, and as the need arose. Some key policy aims have changed in the light of changing circumstances. For example, the aim of the agricultural policy is no longer to produce as much food as cheaply as possible but to support farming methods that produce healthy, high-quality food and protect the environment. The need for environmental protection is now taken into account across the whole range of EU policies.

The European Union's relations with the rest of the world have also become important. The EU negotiates major trade and aid agreements with other countries and is developing a Common Foreign and Security Policy. The Single Market: banning the barriers It took some time for the Member States to remove all the barriers to trade between them and to turn their "common market" into a genuine single market in which goods, services, people and capital could move around freely. The Single Market was formally completed at the end of 1992, though there is still work to be done in some areas - for example, to create a genuinely single market in financial services. During the 1990s it became increasingly easy for people to move around in Europe, as passport and customs checks were abolished at most of the EU's internal borders. One consequence is greater mobility for EU citizens. Since 1987, for example, more than a million young Europeans have taken study courses abroad, with support from the EU. The Single Currency: the euro In 1992 the EU decided to go for economic and monetary union (EMU), involving the introduction of a single European currency managed by a European Central Bank. The single currency - the euro became a reality on 1 January 2002, when euro notes and coins replaced national currencies in twelve of the 15 countries of the European Union (Belgium, Germany, Greece, Spain, France, Ireland, Italy, Luxembourg, the Netherlands, Austria, Portugal and Finland). The growing family The EU has grown in size with successive waves of accessions. • • • • • • Denmark, Ireland and the United Kingdom joined in 1973 followed by Greece in 1981, Spain and Portugal in 1986 and Austria, Finland and Sweden in 1995. The European Union welcomed ten new countries in 2004: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. Finally, Bulgaria and Romania in 2007.

Croatia and Turkey began membership negotiations in 2005. To ensure that the enlarged EU can continue functioning efficiently, it needs a more streamlined system for taking decisions. That is why the Treaty of Nice lays down new rules governing the size of the EU institutions and the way they work. It came into force on 1 February 2003. It will be replaced by the new EU Constitution - if all EU countries approve this.

THE EUROPEAN UNION KEY INSTITUTIONS
THE EUROPEAN PARLIAMENT The European Parliament (EP) is elected by the citizens of the European Union to represent their interests. Its origins go back to the 1950s and the founding treaties, and since 1979 its members have been directly elected by the people they represent. Elections are held every five years, and every EU citizen who is registered as a voter is entitled to vote. Parliament thus expresses the democratic will of the Union's citizens (more than 455 million people), and it represents their interests in discussions with the other EU institutions. The present Parliament, elected in June 2004, has 732 members from all 25 EU countries

Members of the European Parliament (MEPs) do not sit in national blocks, but in seven Europe-wide political groups. Between them, they represent all views on European integration, from the strongly profederalist to the openly Eurosceptic. The European Parliament has three places of work: Brussels (Belgium), Luxembourg and Strasbourg (France). Luxembourg is home to the administrative offices (the ‘General Secretariat’). Meetings of the whole Parliament, known as ‘plenary sessions’, take place in Strasbourg and sometimes in Brussels. Committee meetings are also held in Brussels. Parliament has three main roles:

• • •

Passing European laws – jointly with the Council in many policy areas. The fact that the EP is directly elected by the citizens helps guarantee the democratic legitimacy of European law. Parliament exercises democratic supervision over the other EU institutions, and in particular the Commission. It has the power to approve or reject the nomination of commissioners, and it has the right to censure the Commission as a whole. The power of the purse. Parliament shares with the Council authority over the EU budget and can therefore influence EU spending. At the end of the procedure, it adopts or rejects the budget in its entirety.

1. Passing European laws The most common procedure for adopting EU legislation is ‘codecision‘. This procedure places the European Parliament and the Council on an equal footing and it applies to legislation in a wide range of fields. In some fields (for example agriculture, economic policy, visas and immigration), the Council alone legislates, but it has to consult Parliament. In addition, Parliament’s assent is required for certain important decisions, such as allowing new countries to join the EU. Parliament also provides impetus for new legislation by examining the Commission’s annual work programme, considering what new laws would be appropriate and asking the Commission to put forward proposals. 2. Democratic supervision Parliament exercises democratic supervision over the other European institutions. It does so in several ways. When a new Commission takes office, its members are nominated by the EU member state governments but they cannot be appointed without Parliament’s approval. Throughout its term of office, the Commission remains politically accountable to Parliament. More generally, Parliament exercises control by regularly examining reports sent to it by the Commission (the annual general report, reports on the implementation of the budget, etc.). Moreover, MEPs regularly ask the Commission questions which the commissioners are legally required to answer. Parliament also monitors the work of the Council: MEPs regularly ask the Council questions, and the President of the Council attends the EP’s plenary sessions and takes part in important debates. Parliament can examine petitions from citizens and set up committees of inquiry. 3. The power of the purse The EU’s annual budget is decided jointly by Parliament and the Council. Parliament debates it in two successive readings, and the budget does not come into force until it has been signed by the President of Parliament.

Parliament's Committee on Budgetary Control monitors how the budget is spent, and each year Parliament decides whether to approve the Commission’s handling of the budget for the previous financial year. THE COUNCIL OF THE EUROPEAN UNION The Council is the EU's main decision-making body. Like the European Parliament, the Council was set up by the founding treaties in the 1950s. It represents the member states, and its meetings are attended by one minister from each of the EU’s national governments. Which ministers attend which meeting depends on what subjects are on the agenda. If, for example, the Council is to discuss environmental issues, the meeting will be attended by the Environment Minister from each EU country and it will be known as the ‘Environment Council’. The Council has six key responsibilities:

• • • • • •

To pass European laws – jointly with the European Parliament in many policy areas. To co-ordinate the broad economic policies of the member states. To conclude international agreements between the EU and other countries or international organisations. To approve the EU’s budget, jointly with the European Parliament. To develop the EU’s Common Foreign and Security Policy (CFSP), based on guidelines set by the European Council. To co-ordinate co-operation between the national courts and police forces in criminal matters.

1. Legislation Much EU legislation is adopted jointly by the Council and Parliament . As a rule, the Council only acts on a proposal from the Commission, and the Commission normally has responsibility for ensuring that EU legislation, once adopted, is correctly applied. 2. Co-ordinating the policies of member states The EU countries have decided that they want an overall economic policy based on close co-ordination between their national economic policies. This co-ordination is carried out by the economics and finance ministers. They also want to create more jobs and to improve their education, health and social protection systems. Although each EU country is responsible for its own policy in these areas, they can agree on common goals and learn from each other’s experience of what works best. This process is called the ‘open method of coordination’, and it takes place within the Council. 3. Concluding international agreements Each year the Council ‘concludes’ (i.e. officially signs) a number of agreements between the European Union and non-EU countries, as well as with international organisations. These agreements may cover broad areas such as trade, co-operation and development or they may deal with specific subjects such as textiles, fisheries, science and technology, transport etc. 4. Approving the EU budget The EU’s annual budget is decided jointly by the Council and the European Parliament. 5. Common Foreign and Security Policy The member states of the EU are working to develop a Common Foreign and Security Policy (CFSP). But foreign policy, security and defence are matters over which the individual national governments retain independent control. They have not pooled their national sovereignty in these areas, so Parliament and the

European Commission play only a limited role here. However, the EU countries have much to gain by working together on these issues. To enable it to respond more effectively to international crises, the European Union has created a ‘Rapid Reaction Force’. This is not a European army: the personnel remain members of their national armed forces and under national command, and their role is limited to carrying out humanitarian, rescue, peacekeeping and other crisis management tasks. 6. Freedom, security and justice EU citizens are free to live and work in whichever EU country they choose, so they should have equal access to civil justice everywhere in the European Union. Freedom of movement within the EU is of great benefit to law-abiding citizens, but it is also exploited by international criminals and terrorists. To tackle cross-border crime requires cross-border co-operation between the national courts, police forces, customs officers and immigration services of all EU countries. They have to ensure, for example: that the EU’s external borders are effectively policed; that customs officers and police exchange information on the movements of suspected drugs traffickers or people smugglers; that asylum seekers are assessed and treated in the same way throughout the EU. THE EUROPEAN COMMISSION The Commission is independent of national governments. Its job is to represent and uphold the interests of the EU as a whole. It drafts proposals for new European laws, which it presents to the European Parliament and the Council. It is also called the EU’s executive arm – in other words, it is responsible for implementing the decisions of Parliament and the Council Like the Parliament and Council, the European Commission was set up in the 1950s under the EU’s founding treaties. The ‘seat’ of the Commission is in Brussels (Belgium), but it also has offices in Luxembourg, representations in all EU countries and delegations in many capital cities around the world. The European Commission has four main roles:

• • • •

to propose legislation to Parliament and the Council; to manage and implement EU policies and the budget; to enforce European law (jointly with the Court of Justice);

to represent the European Union on the international stage, for example by negotiating agreements between the EU and other countries.

1. Proposing new legislation The Commission has the ‘right of initiative’. In other words, the Commission alone is responsible for drawing up proposals for new European legislation, which it presents to Parliament and the Council. Before making any proposals, the Commission must be aware of new situations and problems developing in Europe and it must consider whether EU legislation is the best way to deal with them. The Commission will propose action at EU level only if it considers that a problem cannot be solved more efficiently by national, regional or local action. This principle of dealing with things at the lowest possible level is called the ‘subsidiarity principle’. 2. Implementing EU policies and the budget As the European Union's executive body, the Commission is responsible for managing and implementing the EU budget. Most of the actual spending is done by national and local authorities, but the Commission is responsible for supervising it – under the watchful eye of the Court of Auditors. Both institutions aim to ensure good financial management.

The Commission also has to manage the policies adopted by Parliament and the Council, such as the Common Agricultural Policy. Another example is competition policy, where the Commission has the power to authorise or prohibit mergers between companies. The Commission also has to make sure that EU countries do not subsidise their industries in such a way as to distort competition. 3. Enforcing European law The Commission acts as ‘guardian of the Treaties’. This means that the Commission, together with the Court of Justice, is responsible for making sure EU law is properly applied in all the member states. It launches a process called the ‘infringement procedure’. This involves sending the government an official letter, saying why the Commission considers this country is infringing EU law and setting it a deadline for sending the Commission a detailed reply. If this procedure fails to put things right, the Commission must then refer the matter to the Court of Justice, which has the power to impose penalties. The Court’s judgments are binding on the member states and the EU institutions. 4. Representing the EU on the international stage The European Commission is an important mouthpiece for the European Union on the international stage. It enables the member states to speak ‘with one voice’ in international forums such as the World Trade Organization. The Commission also has the responsibility of negotiating international agreements on behalf of the EU. THE COURT OF JUSTICE The Court of Justice of the European Communities (often referred to simply as ‘the Court’) was set up under the ECSC Treaty in 1952. It is based in Luxembourg. Its job is to make sure that EU legislation is interpreted and applied in the same way in all EU countries, so that the law is equal for everyone. It ensures, for example, that national courts do not give different rulings on the same issue. The Court also makes sure that EU member states and institutions do what the law requires. The Court has the power to settle legal disputes between EU member states, EU institutions, businesses and individuals. The Court is composed of one judge per member state, so that all 25 of the EU’s national legal systems are represented. For the sake of efficiency, however, the Court rarely sits as the full court. It usually sits as a ‘Grand Chamber’ of just 13 judges or in chambers of five or three judges. The Court is assisted by eight ‘advocates-general’. Their role is to present reasoned opinions on the cases brought before the Court. They must do so publicly and impartially. The judges and advocates-general are people whose impartiality is beyond doubt. They have the qualifications or competence needed for appointment to the highest judicial positions in their home countries. They are appointed to the Court of Justice by joint agreement between the governments of the EU member states. Each is appointed for a term of six years, which may be renewed. To help the Court of Justice cope with the large number of cases brought before it, and to offer citizens better legal protection, the ‘Court of First Instance’ was created in 1989. This Court (which is attached to the Court of Justice) is responsible for giving rulings on certain kinds of case, particularly actions brought by private individuals, companies and some organisations, and cases relating to competition law. The Court of Justice and the Court of First Instance each have a President, chosen by their fellow-judges to serve for a renewable term of three years. The Court gives rulings on cases brought before it. The four most common types of case are: • • • references for a preliminary ruling; actions for failure to fulfil an obligation; actions for annulment;

actions for failure to act.

1. The preliminary ruling procedure The national courts in each EU country are responsible for ensuring that EU law is properly applied in that country. But there is a risk that courts in different countries might interpret EU law in different ways. To prevent this happening, there is a ‘preliminary ruling procedure’. This means that if a national court is in any doubt about the interpretation or validity of an EU law it may, and sometimes must, ask the Court of Justice for advice. This advice is given in the form of a ‘preliminary ruling‘. 2. Proceedings for failure to fulfil an obligation The Commission can start these proceedings if it has reason to believe that a member state is failing to fulfill its obligations under EU law. These proceedings may also be started by another EU country. In either case, the Court investigates the allegations and gives its judgment. The accused member state, if it is indeed found to be at fault, must set things right at once. If the Court finds that the member state has not complied with its judgment, it may impose a fine on that country. 3. Actions for annulment If any of the member states, the Council, the Commission or Parliament believes that a particular EU law is illegal they may ask the Court to annul it. These ‘actions for annulment’ can also be used by private individuals who want the Court to cancel a particular law because it directly and adversely affects them as individuals. If the Court finds that the law in question was not correctly adopted or is not correctly based on the Treaties, it may declare the law null and void. 4. Actions for failure to act The Treaty requires the European Parliament, the Council and the Commission to make certain decisions under certain circumstances. If they fail to do so, the member states, the other Community institutions and sometimes even individuals or companies can lodge a complaint with the Court so as to have this failure to act officially recorded.

The European Court of Auditors The Court of Auditors was set up in 1975. It is based in Luxembourg. The Court’s job is to check that EU funds, which come from the taxpayers, are properly collected and that they are spent legally, economically and for the intended purpose. Its aim is to ensure that the taxpayers get maximum value for their money, and it has the right to audit any person or organisation handling EU funds. The Court has one member from each EU country, appointed by the Council for a renewable term of six years. The members elect one of their number as President for a renewable term of three years. Vítor Manuel da Silva Caldeira, from Portugal, was elected President in January 2008. The Court’s main role is to check that the EU budget is correctly implemented – in other words, that EU income and expenditure is legal and above board and to ensure sound financial management. So its work helps guarantee that the EU system operates efficiently and openly. To carry out its tasks, the Court investigates the paperwork of any person or organisation handling EU income or expenditure. It frequently carries out on-the-spot checks. Its findings are written up in reports which bring any problems to the attention of the Commission and EU member state governments. To do its job effectively, the Court of Auditors must remain completely independent of the other institutions but at the same time stay in constant touch with them. One of its key functions is to help the European Parliament and the Council by presenting them every year with an audit report on the previous financial year. Parliament examines the Court’s report in detail before deciding whether or not to approve the Commission’s handling of the budget. If

satisfied, the Court of Auditors also sends the Council and Parliament a statement of assurance that European taxpayers' money has been properly used. Finally, the Court of Auditors gives its opinion on proposals for EU financial legislation and for EU action to fight fraud.

THE EUROPEAN UNION LEGISLATION
Originally, the European Community (EC) dealt mainly with economic and trade matters. The European Commission and the European Court of Justice, both independent from the EC governments, had a lot of power within the system. The European Parliament, which was directly elected by the citizens of the EC member states, also had some power. The Governments controlled the remainder of the power, but since the mid-1980s had increasingly been doing so through majority votes. This system was called the Community method, or supranationalism, since international institutions not directly controlled by the governments wielded a lot of power, and members could have decisions they disagreed with imposed upon them through majority votes. It was desired to add competencies in foreign policy, military and criminal matters to the European Community. However, many member states considered that these areas were too sensitive to be managed by the mechanisms of the European Community, and that the power of governments in relation to these areas had to be stronger than the powers of governments in the European Community. That is, an intergovernmental, as opposed to supranational, system would have to be used. Other member states feared that this might threaten the power of the independent supranational institutions (the European Commission, European Court of Justice and European Parliament) in relation to the economic matters then dealt with by the European Community. The three pillar structure was then developed to isolate the traditional Community responsibilities in the area of the economy (the Community Pillar) from the new competencies in the areas of foreign policy and military matters (the CFSP pillar) and criminal matters (the JHA pillar). The distinction between European Community (EC) law and European Union law is that based on the treaty structure of the European Union. The European Community constitutes one of the 'three pillars' of the European Union and concerns the social and economic foundations of the single market. The second and the third pillars were created by the Treaty of the European Union (the Maastricht Treaty) and involve Common Security and Defence Policy and Internal Security. Decision making under the second and third pillars is not subject to majority voting at present. The Maastricht Treaty created the Justice and Home Affairs pillar as the third pillar. Subsequently, the Treaty of Amsterdam transferred the areas of illegal immigration, visas, asylum, and judicial co-operation to the European Community (the first pillar). Now Police and Judicial Cooperation in Criminal Matters is the third pillar. Justice and Home Affairs now refers both to the fields that have been transferred to the EC and the third pillar. Acquis communautaire The whole body of EU law is together called the acquis communautaire, broken into 31 chapters for purposes of accession negotiations. Legislative procedures There are three main legislative procedures in the European Union, with the main difference between them being how the European Parliament interacts with the Council of the European Union: 1) Codecision procedure; 2) Assent procedure; 3) Consultation procedure. PRIMARY LEGISLATION The treaties constitute the European Union’s ‘primary legislation’, which is comparable to constitutional law at national level. The treaties themselves are the subject of direct negotiations between the governments of the Member States, after which they have to be ratified in accordance with the procedures applying at national level (in principle by the national parliaments or by referendum). Treaty establishing the European Coal and Steel Community

The Treaty establishing the European Coal and Steel Community (ECSC Treaty) is the oldest of the European Community’s three founding treaties. It was signed in Paris on 23 July 1952 and expired on 23 July 2002, as it had been concluded for a period of 50 years. The purpose of the treaty was to set up a common market in coal and steel, and this formula was meant to be gradually extended to other areas of the economy. The coal and steel sectors now come under the ordinary regime of the EC Treaty. Treaty establishing the European Atomic Energy Community (Euratom) The Treaty establishing the European Atomic Energy Community (Euratom Treaty) was signed in Rome on 25 March 1957 and came into force on 1 January 1958 at the same time as the EEC Treaty The aim of the Euratom Treaty was to coordinate the research programmes already undertaken or planned by the Member States for the peaceful use of nuclear energy. This treaty has now in a sense been absorbed into the EC Treaty. Treaty establishing the European Community (EC Treaty) The main purpose of the Treaty establishing the European Community (EC Treaty) was to bring about the gradual integration of the States of Europe and to establish a common market founded on the four freedoms of movement (for goods, services, people and capital) . Treaty on European Union (EU Treaty) The Treaty on European Union (EU Treaty) pursues two main objectives: the creation of a monetary union by laying down the principles and arrangements for the introduction of the euro and the creation of an economic and political union. This is the treaty that originated the concept of a three-pillar structure, the first pillar consisting of the European Community and the other two of the common foreign and security policy and police and judicial cooperation in criminal matters. The original EU Treaty (the Treaty of Maastricht) came into force on 1 November 1993 and has been amended successively by the Treaty of Amsterdam, which came into force in 1999, and the Treaty of Nice, which came into force on 1 February 2003. Accession Treaties The European Union has been enlarged six times: the six founder members (Belgium, Germany, France, Italy, Luxembourg and the Netherlands) were joined in 1973 by Denmark, Ireland and the United Kingdom, in 1981 by Greece, in 1986 by Spain and Portugal, in 1995 by Austria, Finland and Sweden and in 2004 by the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovakia and Slovenia as well as Romania and Bulgaria in 2007. The Accession Treaties contain the terms laid down for the new countries’ accession to the European Union and the necessary adjustments to the treaties on which the Union is founded. Treaty establishing a Constitution for Europe This deserves special mention: approved by the Heads of State or Government on 18 June 2004 and signed on 29 October 2004, the treaty has yet to be ratified by all the Member States of the European Union before it enters into force. Other treaties and protocols The Single European Act was signed on 28 February 1986 and came into force on 1 July 1987. Its purpose was the completion, by 31 December 1992 at the latest, of the Single European Market, i.e. an area within

which there were to be no restrictions on the movement of persons, capital, goods and services. Ad hoc procedures were introduced into the EC Treaty to achieve this. The Treaty of Amsterdam was signed on 2 October 1997 and came into force on 1 May 1999. The Treaty of Nice was signed on 26 February 2001 and came into force on 1 February 2003. International agreements International agreements are the second source of EU law, allowing the European Union to develop its economic, social and political relations with the rest of the world. These are always agreements concluded between subjects of international law (Member States or organisations) for the purpose of establishing cooperation at international level. The former comprise two main types of agreement:
• •

international agreements with third countries or international organisations, agreements and conventions between the Member States. SECONDARY LEGISLATION

The ‘secondary legislation’ is the third major source of Community law after the treaties (primary legislation) and international agreements. It can be defined as the totality of the legislative instruments adopted by the European institutions pursuant to the provisions of the treaties. Secondary legislation comprises the binding legal instruments (regulations, directives and decisions) and non-binding instruments (resolutions, opinions) provided for in the EC Treaty. Regulations Adopted by the Council in conjunction with the European Parliament or by the Commission alone, a regulation is a general measure that is binding in all its parts. Unlike directives, which are addressed to the Member States, and decisions, which are for specified recipients, regulations are addressed to everyone. A regulation is directly applicable, which means that it creates law which takes immediate effect in all the Member States in the same way as a national instrument, without any further action on the part of the national authorities. Directives Adopted by the Council in conjunction with the European Parliament or by the Commission alone, a directive is addressed to the Member States. Its main purpose is to align national legislation. A directive is binding on the Member States as to the result to be achieved but leaves them the choice of the form and method they adopt to realise the Community objectives within the framework of their internal legal order. If a directive has not been transposed into national legislation in a Member State, if it has been transposed incompletely or if there is a delay in transposing it, citizens can directly invoke the directive in question before the national courts. Decisions

Adopted either by the Council, by the Council in conjunction with the European Parliament or by the Commission, a decision is the instrument by which the Community institutions give a ruling on a particular matter. By means of a decision, the institutions can require a Member State or a citizen of the Union to take or refrain from taking a particular action, or confer rights or impose obligations on a Member State or a citizen.

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