Sources and scope of european law
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SOURCES AND SCOPE OF EUROPEAN LAW. Michele Colucci E-mail: [email protected] Web site: www.colucci.eu European College, Parma Academic year 2010-2011. PRIMARY LEGISLATION. TREATIES Created directly by Member States BODY, PROTOCOLS: legal binding DECLARATIONS: political value.

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Sources and scope of european law

SOURCES AND SCOPE OF EUROPEAN LAW

MicheleColucci

E-mail:[email protected]

Web site: www.colucci.eu

European College, Parma

Academic year 2010-2011


Primary legislation

PRIMARY LEGISLATION

  • TREATIES

    • Created directly by Member States

    • BODY, PROTOCOLS: legal binding

    • DECLARATIONS: political value


Secondary community law artt 288 289 tfeu

SecondaryCommunity Law(artt. 288 – 289 TFEU)

  • REGULATIONS

  • DIRECTIVES

  • DECISIONS

  • RECOMMENDATIONS

  • OPINIONS

    ALL CREATED BY EU INSTITUTIONS


Regulations

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


Directives i

DIRECTIVES I

  • BINDING WITH REGARD TO THE RESULTS TO BE ACHIEVED

  • MS HAVE THE CHOICE ON HOW TO IMPLEMENT

  • ADDRESSED TO SEVERAL OR ALLMS


Directives ii

DIRECTIVES II

  • Discretion in transposition but within the period laid down in the Directive

  • To ensure the effectiviness of Communitylaw : « Effet utile »

  • To providelegalsecurity and legalclarity

  • To establish an actionablelegal position for individuals

  • No blockingeffect of Directives


Directives iii

DIRECTIVES III

  • DIRECTLY APPLICABLE when:

    • The period of transposition has expired and

    • The provisions of the directive are imperative as to their substance

    • 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)


Direct applicability

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 »


Compensation

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)


Decisions

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


Recommendations and opinions declarations communications white papers green papers

Recommendations and OpinionsDeclarations –CommunicationsWhite Papers – Green Papers

  • No binding force

  • Do not establishanyrights or obligations


The international agreements

THE INTERNATIONAL AGREEMENTS

  • AGREEMENTS WITH ALL COUNTRIES AROUND THE WORLD

  • Association Agreements

  • Co-operation Agreements

  • Trade Agreements


General principles of law and legal custom

GENERAL PRINCIPLES OF LAWandLEGAL CUSTOM

  • GPL: principles common to the legal orders of the MS

  • Legal Custom: practice followed and accepted and thus become legally established


The legislative process

THE LEGISLATIVE PROCESS

  • ORDINARY PROCEDURE (art.294 TFEU)

  • EP –Council

    • First reading

    • Second reading

    • Conciliation Committee

    • Publication

      APPROVAL PROCEDURE

      SIMPLIFIED PROCEDURE


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.

PROCEDURE FOR IMPLEMENTING MEASURESThe « Comitology procedure »


Internal market legal basis

Free Movement of:

Goods ,

Persons (workers)

Right of establishment

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

INTERNAL MARKET Legal basis


Competition rules

Legal basis: Articles101 ss.

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 ofsupply;

applying dissimilar conditions to trading partners to place them at competitive disadvantege, etc.).

Prohibits state aid that may distort interstate commerce

Competition Rules


The system of legal protection i

THE SYSTEM OF LEGAL PROTECTION I

  • TREATY INFRINGEMENT PROCEEDINGS(art. 258 TFEU ): Commission v. MS

  • ACTIONS FOR ANNULMENT(art. 263 TFEU): for acts of Council, Commission, EP, ECB.

  • COMPLAINTS FOR FAILURE TO ACT (art. 265 TFEU):againstCouncil,Commission, EP, ECB.

  • ACTIONS FOR DAMAGES (artt. 268 and 340 (2) TFEU): citizens and MS against EC Staff for fault

  • PROVISIONAL LEGAL PROTECTION (art. 278 and 279 TFEU): suspension or interim court order


The system of legal protection ii

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


Conclusions

CONCLUSIONS

ALL ROADS LEAD TO ROME, BUT FIRST … GO THROUGH BRUSSELS!


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