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1. Features of rules of law of the European Union and their influence on process implementatsii norms of the secondary right of the European Union

As the history of development of the European integration testifies, for a long time occurred and continues to occur ugublenie cooperation between the European Union and member states. Mutual relations between the European Union and member states become complicated problems implementatsii and applications of the right of the European Union in national legal systems of member states.

Implementatsija means application of rules of law of the European Union in the internal law at intermediary implementirujushchego the certificate and, thus, the rule of law of the European Union becomes a part of national legal system. In these relations there is a problem of efficiency of action of the right of the European Union in member states.

Implementatsii rules of law of the European Union in legal systems of member states the norms of certificates accepted by institutes of the European Union which do not come under to direct application in all member states come under. Instructions which, according to article 288 DFES have a binding force for each member state to which they are addressed, only concerning result which is required to be reached concern this category of certificates of the European Union, but leaves in the competence of national competent bodies a choice of the form and ways of achievement. According to same article, the European legislator leaves possibility in process implementatsii to reach demanded result taking into account all features of national legal system.

Into the aforesaid account it is important to notice, that G eneralnyj lawyer Iv the Boat (Yves Bot) in the conclusion concerning business of Slovak Republic and Hungary against Council of the European union has admitted, that distinctions between legislativnymi and nelegislativnymi the certificates, based on such «legal nominalism», are problematic from the point of view of a coordination, and that authors of articles of incorporation have not finished attempt to classify legislativnye certificates. netselostnost and even some obvious inconsistency of the classification made authors of articles of incorporation, it is necessary to understand, as consequence of their desire to recognise behind one actions the act status, and behind others - is not present [59].

In article 288 DFES it is said, that for realisation of powers of the Union its bodies accept regulations, instructions, decisions, recommendations and the conclusions while in following article it is said, that they are accepted „by special legislative procedure ^, and it in spite of the fact that this procedure can differ on the character and degree of participation of Council and Parliament. Utility of such specification consists that, irrespective of the procedure form, is a question of legislative procedure, and acceptance legislativnogo the certificate will be its result.

Necessity of such specification follows from the formulation of paragraph 2 of article 289 DFES according to which special legislative procedure is applied only „in the concrete cases provided

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Articles of incorporation.

According to article 289, paragraph 2 DFES, special legislative procedure is procedure which „in the concrete cases provided in articles of incorporation“, consists in „acceptance of regulations, derektiv or decisions the European parliament with the assistance of Council or Council - with the assistance of the European parliament ^ [60 [61].

In this case the Slovak Republic and the Hungarian Republic have applied about cancellation of the decision of Council which in a root changes regulations positions« Dublin III ». If it is possible to make the decision on which basis key positions of regulations then in concrete cases it is possible to admit decision-making on which basis in concrete cases it is possible to change key positions of the instruction can be changed.

Proceeding from the aforesaid, further in the text of the present dissertation it will be spoken about implimentatsii rules of law of the European Union in national legal system of member states as it is possible to assume, that the subsequent development of the European Union will demand decision-making which will change key positions of instructions for the purpose of fast reaction to arising problems. On the other hand, it is important and from the point of view of the national legislator and the national judiciary, since. After iplementatsii instructions, norms of this secondary certificate get the form of the national act. With a view of independent interpretation of these norms, it is not necessary to forget about their origin, as rules of law of the European Union.

In the first paragraph of chapter 1 of the present work the attention will be devoted disclosing of features of rules of law of the European Union and the problems connected with them which the national legislator of member state faces. The specified problems will be considered in aggregate from the point of view of their occurrence and in following sections of the dissertation their influence on efficiency and action of rules of law of the European Union in national legal systems will be established.

National legal orders of the states, as a rule, are uniform. These legal systems keep the uniformity because they contain articles, laws and legal acts as those which have been developed by the national legislation, they are applied by the national executive authority and interpreted in proceedings by national vessels. Besides, as a rule, in these conditions the scientific employees who are engaged

Jurisprudence, are in limits of one state. All these factors play a considerable role in a legal system coordination.

However the states do not exist in isolation and incur the international obligations which as a result implementatsii are stated in interstate legal acts. Thus, in addition there is a situation when the rule of law developed out of the state, gets the form of the interstate legal act, is applied by the interstate executive authority and in interstate судаx. Legal practice in relation to the right of the European Union develops and abroad, and repeatedly national legislator, the judge or the scientific employee find ready decisions in other legal systems. Thus, the coordination of national legal system can be partially broken. Uniformity of interstate legal system is considerably broken by the right of the European Union. At this stage it is necessary to notice, that the national legislation, executive and the judicial authority perceive rules of law of the European Union as legal loan, consequences of it in the national legislation will be considered in the second chapter of the present dissertation. In following paragraphs we will consider, that leads to such infringement.

First of all it is necessary to remind, that legal acts of the European Union are functionally directed, that leads to process of destruction of the national legislation. In these conditions the private law in national legal systems exists in different layers (the European and national origin) which are mutually crossed. It is obvious, first of all, in case of inadequate implementatsii and at non-observance of the terms allocated for implementatsii of the instruction when direct action of this legal act becomes more active, despite the fact that what it has or has no expression in national legal system. Besides, the functional orientation of norms of the European right is shown and as follows: the national legal system contains general rules, that is norms of the secondary right which provide rules on concrete themes, for example, duties of disclosing of the information, the rights to objection and some kinds of unlawful conduct. It means, that affairs which are regularly settled by civil law general rules, have also own European rules. Nevertheless, the instruction only establishes rules for contract protection, but does not establish any rules for the conclusion of contracts. This state of affairs can be considered as infringement of complete legal system. Considering still that fact, that the national legislator does not wish to give the powers, it is possible to tell, that two legislators regulate business on the same theme [62].

However instructions operate in the limited areas of private law, that as a result promotes that they are fragmentary. Thus it is necessary to repeat a phrase which has stated in work Oliver Remien (Oliver Remien): « Bruxelles stacks a brick here and there within the limits of a national building of private law »[63]. Harmonisation within the limits of national legal systems in member states passes in such a manner that a question how the provided results of the instruction which should be hardened in national usages [64] will take root into a life, is on the discretion of member states. The European Union from the member states does not demand how harmonisation should be carried out, but demands exact results which should be reached action of national legal system. The problem consists and that while European and the national law merge not completely, i.e. the legislator, the judge, the scientific employee and the other participants involved in jurisprudence, should learn how to cope with norms of a various sort at various levels. These norms are completely incorporated in the national legislation, and often happens, that they are not perceived any more as norms of the European right. It is problematic, because national courts are still obliged to interpret these fragments differently, than certificates of a national origin, namely in the light of formulations and the purposes of the legal act of the European Union and in the light of the law and order of the European Union as that.

Also it is absolutely not clear, why some themes are a part of rules of law, and others are not present. Thus, instructions mention only concrete kinds of contracts and only regulate some rules or some aspects of these contracts, i.e. The European right mentions only fragmentary questions. As an example it is possible to result the Instruction 2005/56/ЕС the European parliament and Council from October, 26th, 2005 about transboundary merges of societies to limited liability. Why some themes are so important, that they should be regulated at level of the right of the European Union and why others remain not mentioned on level of the right of the European Union - all it depends on the home market purposes. If the purpose of the European Union consists in solving problems which are capable to prevent home market functioning, the European legislator should regulate much more questions which remain while neuregulirovanymi the right of the European Union [65]. For example, the Slovak Republic 2016 was from July, 1st, till December, 31st the state - the chairman of Council of the European Union. In the program the Slovak Republic approved, that the uniform market is considered the greatest achievement of the European Union. Therefore one of problems of Slovak presidency is the further development of consolidating projects,

Such, as the power union or the digital uniform market [66]. The regulation reasons only certain areas can be found in more clear and sensible arguments. On the one hand, the most important consists that within the limits of European legislativnyh procedures the large quantity of lobbyists from representatives is involved

Telecommunication corporation to lobbyists of national interests. These shadow propagandists by some estimations influence 75 % of the European legislation [67]. On the other hand, there is also other explanation. Legislativnye actions of the European commission are realised G eneralnymi by managements of the European commission, and those give to some questions of more attention, and another - have less [68].

For today the European norms of the secondary right are as a matter of fact not adjusted [69]. One of problematicheskih aspects which excites practising lawyers, national legislators in the national law and others, consists that there are no general definitions and legal concepts. This state of affairs can lead to irregular application of instructions in national legal systems and to introduction in national legal systems of such designs which are strangers for national legal systems (in national legal system are perceived as legal loans).

Examples of it can be found in party definitions from which the consumer concludes transactions. In this case there is no definiteness in how the instruction defines the specified party of the transaction. This approach of the European consumer can be partially justified that within the limits of this concept it is necessary to combine a various sort of economic agents: from manufacturers and creditors to suppliers. Sometimes it is possible, though and it is difficult, to justify the use of various concepts of early instructions.

For example, in the Instruction 85/577/EEC from December, 20th, 1985 about protection of consumers in connection with contracts in which relation negotiations are spent out of commercial establishments, the concept "seller" designating the physical person or the legal body which at transaction fulfilment about which there is a speech, represents itself as the professional or commercial person is used. The instruction 97/7/EC the European Parliament and Council from May, 20th, 1997 about protection of consumers in connection with the contracts concluded on distance, uses concept "supplier" with following definition: any physical person or the legal body, which (...) At transaction fulfilment about which there is a speech, represents itself as the professional or commercial person. The instruction of the Council of Europe № 93/13/ЕЕС from April, 5th, 1993 about unfair conditions in consumer contracts means by concept "seller" any physical or the legal body who in the contracts covered by this instruction, operates with a view of which concern its professional work, to business or a trade, being in state or a private property [70].

However it is necessary to remind, that it is not necessary to forget very important fact which is connected with the inconsistency reasons. In national legal systems of member states there are many concepts which differ from each other the maintenance. Each concept should be interpreted according to a national context and judiciary practice. On the other hand, concepts of instructions and of the European legal order as that should be interpreted in the independent image and as a result such interpretation we should receive uniform European value [71].

Independent European interpretation is very important [72] because in practice in instructions the legal language and kontsepty which they at all do not explain is often used. Independent European interpretation also is display of autonomy of the law and order of the European Union in relation to member states and uniform interpretation of the right of the European Union. If question interpretation is put before Court of the European Union that can occupy a lot of time it is quite probable, that the Court of the European Union will interpret the term, first of all, in the light of the instruction. Besides, specified uncertainty affirms also judiciary practice. The court of the European Union denied, that term definition in one this instruction means the same in other instruction [73]. Thus, the specified heterogeneity plays the important role in preservation of uniform application of rules of law of the European Union in member states and is display of autonomy of the law and order of the European Union in member states.

The requirement of independent European interpretation is reflected in level of the national legislation of member state, as the interpretation requirement according to the right of the European Union. In practice it means, that in many cases during interpretation of the rule of law of a national origin the maintenance of the rule of law of the European Union is considered, i.e. to norm of a national origin value which corresponds to value of the rule of law of the European Union will be attributed. It is possible to tell, that independent interpretation of the right of the European Union, fixed in judiciary practice of Court of the European Union and the interpretation requirement according to the right of the European Union are two parties of one coin which should keep integrity of the law and order of the European Union and at the same time destroy a coordination of the national legislation. The specified aspects of autonomy of the right of the European Union concern a principle loyal sotrudniichestva which will be considered in other heads of the present dissertational research.

Let's stop on a problem mnogojazychnosti in judiciary practice which as already it has been noted above, plays the important role in independent interpretation of rules of law of the European Union and preservation of autonomy of the law and order as that. Considering that fact, that the European legislator accepts legal acts which are expressly or by implication applied in member states, and that in member states different languages as official are used, it is important, that all language versions of this or that legal document represented the authentic text (which in case of doubts comes under to interpretation by Court of the European Union). In these conditions there are divergences between the terminology used in legal system of the European Union, and terminology in national legislations as it is marked above. This problem can be solved also by means of independent interpretation of the right of the European Union and necessity of uniformity for its application. Such approach excludes, that in case of doubt the position text only in one of the version separately will be considered, therefore it is necessary, that it was interpreted and applied in the light of versions in other official languages.

This problem is closely connected with efficiency of legal application in judiciary practice of national vessels of gosudarst-members. In case of an ambiguity the national judge should compare legal texts of different language versions for the purpose of performance of the requirement of interpretation of rules of law of the national legislation according to the right of the European Union, and, thus, to norm of a national origin value which corresponds to value of the rule of law of the European Union will be attributed. This process difficult as the national judge should break a language barrier or inability correctly to define an actual and legal context of business. In a case neopredelennostej the national court on the basis of article 267 DFES can/should address in Court of the European Union for interpretation of the disputable rule of law of the European Union. Nevertheless, only the national court can define the maintenance of pre-judicial inquiry. Besides, in case of inadequate implementatsii it is possible to address to the text of the legal act, however doubtfully, how much effectively in that case it will turn out to protect the interests in court if the court struggles with problems of legal and actual qualification of business in proceeding.

In the third chapter of the present dissertational research the attention of ability of national vessels of Slovak Republic effectively will be paid to co-operate with Court of the European Union that it is possible to characterise as a consequence implementatsii which influence efficiency of application of rules of law of the European Union in Slovak Republic.

Despite legal consequences of this problem, the European Union often underlines an imperative need of increase of the general qualification of national judges in sphere of foreign languages because this qualification can strongly vary that is reflected in level of knowledge of national judges in matters of law of the European Union, and knowledge of the right of the European Union at judges of national vessels sometimes

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Are very limited.

As an example when language versions in judiciary practice differ, we will result business v. E.N.E.L., where in the English version the word-combination independent source of law, in the French version - d ' une source autonome le droit, in German - autonomen rechtsquelle, in the Dutch version - autonome bron voortvloeit is used, the same is found and in the Italian version - una fonte autonoma il diritto. Concepts "independent" and "independent" do not coincide under the maintenance and can mislead the reader. The conflict of language versions can be resolved, having considered, in what context the specified concepts are used. With the help primenenenija independent European interpretation and contextual interpretation it is possible to come to conclusion, that correct concept of this context is "independent".

Similar disagreements can be found and in legal acts of the European Union. nesoglasovanost the law and order of the European Union consists not only that as that can be found different concepts, but also of how they are translated on all official [74] languages of the European Union in different instructions and legal acts. As an example we will result article 1 of the Instruction of the Council of Europe № 93/13/ЕЕС from April, 5th, 1993 about unfair conditions in consumer contracts. In this article two parties concluding among themselves the transactions are specified. The second concept is "consumer". The first concept should mean the party which concludes transactions with the consumer. For a designation of this party in the German version concept Gewerbetreibende73, the French version - un professionnel, the English version - seller or supplier, in the Slovak version - predajca or dodavatel (a literal translation from English) and in the Czech version - prodavajicm zbozi or poskytovatelem sluzeb (the seller of the goods or the service provider) is used. However to instruction frameworks get not only the legal relations, concerning sales of the goods and granting of services. According to point () Instruction articles 2 under the seller or the supplier any is meant physical or the legal body who in the transactions covered by this instruction, operates with a view of, connected with its enterprise activity or a trade which is in state or in private собственности74. This example shows that fact, that without independent European interpretation it is not obviously possible to reach in different member states identical results.

For today each of member states uses own device of concepts, the institutes, concerning subjects of economic activities, and in these conditions to work with clear and accurate concepts it would be very heavy. Ukazanoe property of the right of the European Union at work with rules of law of the European Union should be [75 [76] is actually considered. Legal institutions have identical names as national legal institutions, but because of a various context of the European and national legal institutions sometimes application and interpretation of such norms can lead to various results. Therefore has been developed Common Frame of Reference (as a matter of fact, it is conceived in quality of not obliging document [77]) which should provide partially definition of legal terms in the field of private law. Projects of this character create soil for creation of the general European Civil code. If the European Civil code has been accepted, he could solve some problems connected with various kinds of concepts which for today exist in national legal systems. However the general European code can bring with itself the problems, concerning a legal context and judiciary practice in certain member states. In this respect the question consists only in, whether there is a desire to keep autonomy of national legal systems in relation to the law and order of the European Union. If in the European Union it is not obviously possible to reach arrangements among all member states, it will be necessary to find possibility how effectively to work in the specified various environment of legal concepts.

Following problem aspect of the right of the European Union is procedure of acceptance of forms of expression of the right of the European Union. This problem was discussed in the beginning of the present paragraph in connection with possibility of deleting of borders between instructions and decisions in certain situations. The specified problem also has other plane. It is a question mainly that rules of law European

The union (and actually their forms of expression), accepted in nelegislativnoj to procedure, will be not correctly qualified in the national legislation of Slovak Republic that can play a key role in implimentatsii rules of law of the European Union, that is in achievement of the purpose provided by the given legal act.

Legal acts of the European Union cannot be perceived only from the material and formal points of view as it usually becomes in national legal systems, at least, in the Central European space. About it speak also articles of incorporation. In points 2 and 3 articles 289 DFES are said, that in the special cases provided by articles of incorporation, acceptance of regulations, the instruction or the decision the European parliament with the assistance of Council of the European Union or acceptance of these certificates by Council of the European Union with the assistance of the European parliament is special legislative procedure. The legal acts accepted within the limits of legislative procedure, are acts. It is confirmed also with general lawyer Kokott in one of the the conclusion: regulations and decisions, along with instructions, are included into that number of kinds of certificates which can be accepted by legislative action. Far not all technical regulations, instructions and decisions are accepted in such legislative order. nezakonodatelnye the instruction or the decision [78] can take the form also of regulations. On the basis of the previous text it is possible to come to conclusion, that some member states have not receded yet from perception of legal acts of the European Union through legislative process, and look at them through performance any similar material and requisitions which are observed in national legal systems.

One more reason of an inefficiency of the European norms of the secondary right consists that almost all legislative leadership of the European Union aspire to the minimum harmonisation. G armonizatsija laws is an elimination of problematic discrepancies between national laws. In home market sphere some types of harmonisation are used. However with a view of discussion of the given problem the minimum harmonisation which creates additional difficulties in member states is important only. It takes place, when rules of the European Union establish the minimum standards for all European Union, but member states keep freedom to establish more rigid rules [79]. In such situation the law and order of the European Union the national legal system - other group that breaks soglasovanost national legal system regulates one group of questions, and. As an example it is possible to result the law on the European company [80] which regulates some questions according to article 1 point 1, concerning the status of the European company with legal address on territories of Slovak Republic, and some legal relations connected with an establishment, change, dissolution and management of the European companies which are not regulated in Regulations of Council of the European Union 2157/2001 about the Statute of the European company from October, 8th, 2001

The minimum harmonisation can promote destruction of unity of national legal system. Destruction of national legal system does not follow from the minimum harmonisation as that, but follows from its repeated realisation in practice. The Slovak legislator quite often at realisation of the minimum harmonisation is inspired by foreign legal systems. On the substance of the harmonisation it is excluded, that practice of application of the right of one state was used as interpretation model in national court of other state. It is excluded, because, quite probably, that concrete practice of application of the right of the foreign state is beyond harmonisation as if to return to definition of the minimum harmonisation which has been given above, it becomes clear, that member states reserve freedom to establish more rigid rules. Unique auxiliary means which should be supposed at realisation of correct minimum harmonisation, is judiciary practice of Court of the European Union [81].

At first sight can seem, that the problem is connected with aforementioned inconsistency of norms of the secondary right of the European Union and their functional orientation. However in this place

The attention is given to other aspects of this problem. In chapter 2 of the present dissertational research we will pass to questions and the problems following from the minimum harmonisation and application of strangers for our legal system of legal loans. It concerns, first of all, attempts of the national legislator to apply legal loans from national legal systems of other member states for the purpose of achievement of action of norms of the secondary right in the national legal system. Secondly, this aspect concerns problems of application with the legislative and judicial authorities of methods for efficiency avoidance implementatsi. The given problem aspect of cooperation of the national authorities with the European Union consists that in practice in cases when they make of the decision on the business concerning the right of the European Union, the conflict between rules of law of the European Union and national legal systems is often observed, and they apply means of interpretation of the law in force with a view of achievement of the results which have been not provided in the right of the European Union. Therefore, it is possible to tell, that legislative, executive and the judicial authority offer resistance to rules of law of the European Union as they consider their another's or difficult for application in national legal system.

It seems, that the answer to a question how to struggle with these problems, it is simple, and the decision is only the way of refusal of the minimum harmonisation and realisation of harmonisation by so-called full harmonisation. It is a situation when the rules regulating this or that sphere, in national legal system completely replace norms of a national origin, and member state (on the will) loses the right to create the new legislation in corresponding sphere [82].

However it is necessary to mean, that voluntary transition in national legal system from minimum to full harmonisation bears with itself risks which, first of all, concern independent interpretation of rules of law of the European Union and trebovpanija interpretation of norms of a national origin according to the right of the European Union, that basically is reflected in the constitutional level. This phenomenon can be perceived as inadequate implementatsii from the point of view of its consequences in national legal system. In the western legal science it sometimes name spill over. To this problem it will be devoted 2 head of the present dissertation.

On the basis of the analysis spent in given section, it is possible to come to conclusion that properties of rules of law of the European Union complicate work with them in the environment of national legal system. Most important of complexities which for today faces Slovak legislative, executive and the judicial authority, is existence of various language versions of diplomas, certificates and judiciary practice (this environment unsatisfactory level of possession by foreign languages - official languages of member states is observed). Should be in this respect noticed, that the given problem is not legal aspect, but decisively influences efficiency of application of rules of law of the European Union. This problem can be eliminated increase of language formation in the judiciary, in legislative process and in sphere of application of the right.

The following important problem is the minimum harmonisation which undermines a coordination of national legal system. It is still underlined by that rules of law of the European Union are functionally focused, focused set themes, and sometimes legislative, executive and the judicial authority has certain problems with independent interpretation of the "European" concepts and the requirement of interpretation of norms of a national origin according to the right of the European Union. All other aforementioned problems and that fact are inherently connected with this circumstance, that rules of law of the European Union are developed out of national legal system that leads some national legislators to that they applied legal loans from other legal orders of member states for the sake of realisation of the minimum harmonisation or, on the contrary, offered resistance to some rules of law of the European Union.

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A source: Ondrejchik Mihal. IMPLEMENTATION OF THE RIGHTS OF THE EUROPEAN UNION TO THE NATIONAL LEGISLATION OF THE SLOVAK REPUBLIC. DISSERTATION on competition of a scientific degree of the candidate of legal sciences. Moscow - 2018. 2018

More on topic 1. Features of rules of law of the European Union and their influence on process implementatsii norms of the secondary right of the European Union:

  1. 1. 2. 2. Financially-legal aspects of influence of autonomy of the right of the European Union on implementatsiju rules of law of the European Union
  2. 2. Application of legal loans in process implementatsii rules of law of the European Union in national legal system of Slovak Republic
  3. Chapter 1. AUTONOMY of the RIGHT of the EUROPEAN UNION And the PRINCIPLE of LOYAL COOPERATION In the RIGHT of the EUROPEAN UNION In the CONTEXT of PROBLEM IMPLEMENTATSII of ITS NORMS In NATIONAL LEGAL SYSTEMS of MEMBER STATES
  4. 2. 1. Remedial aspects of autonomy of the right of the European Union and implementatsija rules of law of the European Union
  5. 1. Pre-judicial inquiry as an efficiency indicator implementatsii rules of law of the European Union in the national legislation of Slovak Republic
  6. Chapter 3. CONSEQUENCES IMPLEMENTATSII: EFFICIENCY of INTERPRETATION And APPLICATION of RULES OF LAW of the EUROPEAN UNION In SLOVAK REPUBLIC
  7. 1. Autonomy of the right of the European Union and a principle of loyal cooperation in the right of the European Union and their influence on national legal system of Slovak Republic
  8. § 1.1. The Legal status of the European police organisation in soyootvetstvii with articles of incorporation and certificates secondary prayova the European communities and the European Union
  9. § 2.3. The Rules of law of the European Union directed on maintenance of stability of the European financial markets
  10. §4. Sources of the secondary right of the European Union
  11. 2. Autonomy of the right of the European Union and a principle of loyal cooperation in the right of the European Union
  12. § 2. Migration in the European Union in the light of principles and norms of international law
  13. §1. Features pravotvorcheskogo process in the European Union.
  14. the Chapter III Experience of realisation of rules of law of the European Union regulating migration
  15. features of realisation of jurisdiction of Court of the European Union within the limits of the European community on an atomic energy
  16. the Chapter I. Legal regulation of migration by norms of international law in the European Union
  17. application by the European court under human rights of the Charter of EU about fundamental laws, decrees of EU and other sources of law of the European union.