1 SOURCES AND SCOPE OF COMMUNITY LAW Michele Colucci Web site: PARMA 8-9 November 2006

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

3 Secondary Community Law (art. 249 EC) REGULATIONSDIRECTIVESDECISIONSRECOMMENDATIONSOPINIONS ALL CREATED BY EU INSTITUTIONS

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 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 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 provide legal security and legal clarity To establish an actionable legal position for individuals No blocking effect of Directives

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 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 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 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 Recommendations and Opinions No binding force Do not establish any rights or obligations

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

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 THE LEGISLATIVE PROCESS CONSULTATION PROCEDURE CO-OPERATION PROCEDURE (Art. 252 EC) CO-DECISION PROCEDURE (ART. 251 CE)

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18 PROCEDURE FOR IMPLEMENTING MEASURES The « Comitology procedure » Decision 1999/468/EC: Advisory Committee Procedure Management Committee Procedure Legislation Committee Procedure All representatives of Member States.

19 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

20 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

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