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1 SOURCES AND SCOPE OF EUROPEAN LAW Michele Colucci Web site: European College, Parma.

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Presentation on theme: "1 SOURCES AND SCOPE OF EUROPEAN LAW Michele Colucci Web site: European College, Parma."— Presentation transcript:

1 1 SOURCES AND SCOPE OF EUROPEAN LAW Michele Colucci Web site: European College, Parma Academic year

2 2 PRIMARY LEGISLATION TREATIES –Created directly by Member States –BODY, PROTOCOLS: legal binding –DECLARATIONS: political value

3 3 Secondary Community Law (artt. 288 – 289 TFEU) REGULATIONSDIRECTIVESDECISIONSRECOMMENDATIONSOPINIONS ALL CREATED BY EU INSTITUTIONS

4 4 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

5 5 DIRECTIVES I BINDING WITH REGARD TO THE RESULTS TO BE ACHIEVED MS HAVE THE CHOICE ON HOW TO IMPLEMENT ADDRESSED TO SEVERAL OR ALLMS

6 6 DIRECTIVES II Discretion in transposition but within the period laid down in the Directive To ensure the effectiviness of Community law : « Effet utile » To provide legal security and legal clarity To provide legal security and legal clarity To establish an actionable legal position for individuals No blocking effect of Directives

7 7 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)

8 8 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 »

9 9 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)

10 10 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

11 11 Recommendations and Opinions Declarations –Communications White Papers – Green Papers No binding force Do not establish any rights or obligations

12 12 THE INTERNATIONAL AGREEMENTS AGREEMENTS WITH ALL COUNTRIES AROUND THE WORLD Association Agreements Co-operation Agreements Trade Agreements

13 13 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

14 14 THE LEGISLATIVE PROCESS ORDINARY PROCEDURE (art.294 TFEU) EP –Council EP –Council –First reading –Second reading –Conciliation Committee –Publication APPROVAL PROCEDURE SIMPLIFIED PROCEDURE

15 15 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.

16 16 INTERNAL MARKET Legal basis Free Movement of: – –Goods, – –Persons (workers) – –Right of establishment – –Services (articles ) – –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

17 17 Competition Rules Legal basis: Articles 101 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 of supply; – – applying dissimilar conditions to trading partners to place them at competitive disadvantege, etc.). Prohibits state aid that may distort interstate commerce

18 18 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):against Council,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

19 19 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

20 20 CONCLUSIONS ALL ROADS LEAD TO ROME, BUT FIRST … GO THROUGH BRUSSELS!


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