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SOURCES AND SCOPE OF COMMUNITY LAW

SOURCES AND SCOPE OF COMMUNITY LAW. Michele Colucci E-mail: info@colucci.eu Web site: www.colucci.eu PARMA 24-25 November 2007. PRIMARY LEGISLATION. TREATIES Created directly by Member States BODY, PROTOCOLS: legal binding DECLARATIONS: political value.

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SOURCES AND SCOPE OF COMMUNITY LAW

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  1. SOURCES AND SCOPE OF COMMUNITY LAW Michele Colucci E-mail:info@colucci.eu Web site: www.colucci.eu PARMA 24-25 November 2007

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

  3. Secondary Community Law(art. 249 EC) • 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 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

  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 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 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 • CONSULTATION PROCEDURE • CO-OPERATION PROCEDURE (Art. 252 EC) • CO-DECISION PROCEDURE (ART. 251 CE)

  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 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 INTERNAL MARKET Legal basis

  17. 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 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. CONSUMER PROTECTION • Legal basis: Articles 153, 94-97 EC • Objective: to protect the health, safety and economic interestsof consumers, to promote their right to information, education and to organise themselves; consumer protection requiremensmust be taken into account in all Community policies. • Community bodies: lawmaking (Commission, Council, Parliament: COD, QMV, ECOSOC), oversight and enforcement (Commission).

  19. PUBLIC HEALTH 1 • Legal basis: Article 152 of the EC Treaty • Objectives: a high level of health protection in all EU policies, toimprove public health, preventing diseases, obviating sources ofdanger to healt, to reduce drugs-related health damage, reearchinto 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.

  20. 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).

  21. 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

  22. 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

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

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