Transcript SOURCES AND SCOPE OF COMMUNITY LAW

SOURCES AND SCOPE OF
COMMUNITY LAW
Michele Colucci
E-mail:[email protected]
Web site: www.colucci.eu
PARMA 24-25 November 2007
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PRIMARY LEGISLATION
TREATIES
– Created directly by Member States
– BODY, PROTOCOLS: legal binding
– DECLARATIONS: political value
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Secondary Community Law
(art. 249 EC)
REGULATIONS
DIRECTIVES
DECISIONS
RECOMMENDATIONS
OPINIONS
ALL CREATED BY EU INSTITUTIONS
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REGULATIONS
GENERAL APPLICATION, BINDING IN
THEIR ENTIRETY, DIRECTLY
APPLICABLE IN ALL MEMBER STATES
To ensure the Uniform application of
Community Law in all MS
To prevent the application of national law
incompatible with their content
National implementing measures also if
expressely provided
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DIRECTIVES I
BINDING WITH REGARD TO THE
RESULTS TO BE ACHIEVED
MS HAVE THE CHOICE ON HOW TO
IMPLEMENT
ADDRESSED TO SEVERAL OR ALLMS
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DIRECTIVES II
Discretion in transposition but within the
period laid down in the Directive
To ensure the effectiviness of Community
law (art. 10 EC): « Effet utile »
To provide legal security and legal clarity
To establish an actionable legal position
for individuals
No blocking effect of Directives
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DIRECTIVES III
DIRECTLY APPLICABLE when:
1. The period of transposition has expired and
2. The provisions of the directive are
imperative as to their substance
3. The provisions confer rights on individuals.
Individuals may cite the provisions before all
bodies in whom State power is vested
(Fratelli Costanzo Case - 103/89)
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Direct applicability
If 1 and 2 are fulfilled:MS have a legal duty
to comply with the untransposed directive
If 1 and 3 are fulfilled: no direct effect if
« horizontal effect »
– « Faccini Dori case »
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Compensation
In case of non transposition or inadequate
transposition:
– Rights on individuals
– Substance of the rights can be ascertained on the
basis of the directive
– « casual connection » between the breach of the duty
of transposition and loss sustained by the individual
(Francovich case)
– Violation must be substantial and evident
– (Brasserie du Pêcheur/ Factortame, case 46/93)
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DECISIONS
Binding in their entirety to the
addressee(s)
Regulate circumstances vis-à-vis specific
entities addressed thereby
If contain obligations on MS, then it is
necessary to have a transposition act
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Recommendations and Opinions
No binding force
Do not establish any rights or obligations
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THE EC INTERNATIONAL
AGREEMENTS
AGREEMENTS WITH ALL COUNTRIES
AROUND THE WORLD
Association Agreements
Co-operation Agreements
Trade Agreements
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GENERAL PRINCIPLES OF LAW
and
LEGAL CUSTOM
GPL: principles common to the legal
orders of the MS
Legal Custom: practice followed and
accepted and thus become legally
established
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THE LEGISLATIVE PROCESS
CONSULTATION PROCEDURE
CO-OPERATION PROCEDURE (Art. 252
EC)
CO-DECISION PROCEDURE (ART. 251
CE)
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PROCEDURE FOR
IMPLEMENTING MEASURES
The « Comitology procedure »
Decision 1999/468/EC (amended):
Advisory Committee Procedure
Management Committee Procedure
Legislation Committee Procedure
All representatives of Member States.
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INTERNAL MARKET
Legal basis
Free Movement of:
–
–
–
–
–
Goods (articles 23-31),
Persons (workers) (articles 39-42)
Right of establishment (articles 43-48)
Services (articles 49 -55)
Capital (articles 56-60)
Objective: to ensure the free flow of goods, capital,
people, and services within the Internal Market, and to
remove any barriers thereto
Principles: mutual recognition and ban of discrimination
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Competition Rules
Legal basis: Articles 81-89 EC, 94-97 EC
Objective: to ensure undistorted competition within the
IM
Prohibits all practices that may distort interstate
commerce :
– price-fixing;
– limiting or controling production, markets, technical
developments, or investments;
– sharing markets or sources of supply;
– applying dissimilar conditions to trading partners to place them
at competitive disadvantege, etc.).
Prohibits state aid that may distort interstate commerce
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CONSUMER PROTECTION
Legal basis: Articles 153, 94-97 EC
Objective: to protect the health, safety and
economic interests of consumers, to promote
their right to information, education and to
organise themselves; consumer protection
requiremens must be taken into account in all
Community policies.
Community bodies: lawmaking (Commission,
Council, Parliament: COD, QMV, ECOSOC),
oversight and enforcement (Commission).
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PUBLIC HEALTH 1
Legal basis: Article 152 of the EC Treaty
Objectives: a high level of health protection in
all EU policies, to improve public health,
preventing diseases, obviating sources of
danger to healt, to reduce drugs-related health
damage, reearch into causes.
Disease prevention and controll, regulation of
tobacco, regulation of drugs, blood transfer and
human organs, food safety, policy co-ordination
and conserted action,research, education and
information.
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PUBLIC HEALTH 2
Lawmaking bodies: (Commission, Council,
Parliament: COD, QMV, ECOSOC, CoR)
Oversight and enforcement (Commission),
Information exchange and co-ordination
(European Monitoring Centre for Drugs and
Drug Addiction, European Food Safety Authority,
European Agency for the Evaluation of Medicinal
Products, European Centre of Disease
Prevention and Control, European Food and
Veterinary Office).
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THE SYSTEM OF LEGAL
PROTECTION I
TREATY INFRINGEMENT PROCEEDINGS (art.
226 EC ): Commission v. MS
ACTIONS FOR ANNULMENT (art. 230 EC): for
acts of Council, Commission, EP, ECB.
COMPLAINTS FOR FAILURE TO ACT (art. 232
EC):against Council,Commission, EP, ECB.
ACTIONS FOR DAMAGES (artt. 235 and 288
EC): citizens and MS against EC Staff for fault
PROVISIONAL LEGAL PROTECTION (art. 242
and 243 EC): suspension or interim court order
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THE SYSTEM OF LEGAL
PROTECTION II
PRELIMINARY RULINGS
– Subject matter: interpretation of community
acts
– Capacity to proceed: « All Courts of the MS »
– Obligation to refer when there is no judicial
remedy
– Effect: Directly binding
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CONCLUSIONS
ALL ROADS LEAD TO
ROME, BUT FIRST … GO
THROUGH BRUSSELS!
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