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SOURCES AND SCOPE OF EUROPEAN LAW

SOURCES AND SCOPE OF EUROPEAN LAW. Michele Colucci E-mail: info@colucci.eu Web site: www.colucci.eu LESSIUS -ANTWERP 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

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  1. SOURCES AND SCOPE OF EUROPEAN LAW Michele Colucci E-mail:info@colucci.eu Web site: www.colucci.eu LESSIUS -ANTWERP Academic year 2010-2011

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

  3. SecondaryCommunity Law(artt. 288 – 289 TFEU) • REGULATIONS • DIRECTIVES • DECISIONS • RECOMMENDATIONS • OPINIONS 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 Communitylaw : « Effet utile » • To providelegalsecurity and legalclarity • To establish an actionablelegal position for individuals • No blockingeffect of Directives

  7. 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)

  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 OpinionsDeclarations –CommunicationsWhite Papers – Green Papers • No binding force • Do not establishanyrights or obligations

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

  13. 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

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

  15. 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 »

  16. Free Movement of: Goods (articles 28 – 29 TFEU) Persons (workers articles 45 – 48 TFEU) Right of establishment (49 -55 TFEU) Services (articles 56 -62 TFEU) Capital (articles 63-66 TFEU) 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

  17. 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

  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):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

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

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