1 SOURCES AND SCOPE OF COMMUNITY LAW Michele Colucci E-mail:[email protected] [email protected] Web site: PARMA 8-9 November.

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SOURCES AND SCOPE OF SOURCES AND SCOPE OF COMMUNITY LAWCOMMUNITY LAW

Michele ColucciMichele ColucciE-mail:E-mail:[email protected]@colucci.eu

Web site: Web site: www.colucci.euwww.colucci.euPARMA 8-9 November 2006PARMA 8-9 November 2006

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PRIMARY LEGISLATIONPRIMARY LEGISLATION

TREATIESTREATIES– Created directly by Member StatesCreated directly by Member States– BODY, PROTOCOLS: legal bindingBODY, PROTOCOLS: legal binding– DECLARATIONS: political valueDECLARATIONS: political value

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Secondary Community LawSecondary Community Law(art. 249 EC)(art. 249 EC)

REGULATIONSREGULATIONS

DIRECTIVESDIRECTIVES

DECISIONSDECISIONS

RECOMMENDATIONSRECOMMENDATIONS

OPINIONSOPINIONS

ALL CREATED BY EU INSTITUTIONSALL CREATED BY EU INSTITUTIONS

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REGULATIONSREGULATIONS

GENERAL APPLICATION, BINDING IN GENERAL APPLICATION, BINDING IN THEIR ENTIRETY, DIRECTLY THEIR ENTIRETY, DIRECTLY APPLICABLE IN ALL MEMBER STATESAPPLICABLE IN ALL MEMBER STATESTo ensure the Uniform application of To ensure the Uniform application of Community Law in all MSCommunity Law in all MSTo prevent the application of national law To prevent the application of national law incompatible with their contentincompatible with their contentNational implementing measures also if National implementing measures also if expressely providedexpressely provided

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DIRECTIVES IDIRECTIVES I

BINDING WITH REGARD TO THE BINDING WITH REGARD TO THE RESULTS TO BE ACHIEVEDRESULTS TO BE ACHIEVED

MS HAVE THE CHOICE ON HOW TO MS HAVE THE CHOICE ON HOW TO IMPLEMENTIMPLEMENT

ADDRESSED TO SEVERAL OR ALLMSADDRESSED TO SEVERAL OR ALLMS

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DIRECTIVES IIDIRECTIVES II

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

To ensure the effectiviness of Community To ensure the effectiviness of Community law (art. 10 EC): « Effet utile »law (art. 10 EC): « Effet utile »

To provide legal security and legal clarityTo provide legal security and legal clarity

To establish an actionable legal position To establish an actionable legal position for individualsfor individuals

No blocking effect of DirectivesNo blocking effect of Directives

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DIRECTIVES IIIDIRECTIVES III

DIRECTLY APPLICABLE when:DIRECTLY APPLICABLE when:1.1. The period of transposition has expired andThe period of transposition has expired and

2.2. The provisions of the directive are The provisions of the directive are imperative as to their substanceimperative as to their substance

3.3. The provisions confer rights on individuals.The provisions confer rights on individuals.

Individuals may cite the provisions before all Individuals may cite the provisions before all bodies in whom State power is vestedbodies in whom State power is vested

((Fratelli CostanzoFratelli Costanzo Case - 103/89) Case - 103/89)

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Direct applicabilityDirect applicability

If 1 and 2 are fulfilled:MS have a legal duty If 1 and 2 are fulfilled:MS have a legal duty to comply with the untransposed directiveto comply with the untransposed directive

If 1 and 3 are fulfilled: no direct effect if If 1 and 3 are fulfilled: no direct effect if « horizontal effect » « horizontal effect » – « Faccini Dori case »« Faccini Dori case »

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Compensation Compensation

In case of non transposition or inadequate In case of non transposition or inadequate transposition:transposition:– Rights on individualsRights on individuals– Substance of the rights can be ascertained on the Substance of the rights can be ascertained on the

basis of the directivebasis of the directive– « casual connection » between the breach of the duty « casual connection » between the breach of the duty

of transposition and loss sustained by the individual of transposition and loss sustained by the individual (Francovich case) (Francovich case)

– Violation must be substantial and evidentViolation must be substantial and evident– (Brasserie du Pêcheur/ Factortame, case 46/93)(Brasserie du Pêcheur/ Factortame, case 46/93)

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DECISIONSDECISIONS

Binding in their entirety to the Binding in their entirety to the addressee(s)addressee(s)

Regulate circumstances vis-à-vis specific Regulate circumstances vis-à-vis specific entities addressed therebyentities addressed thereby

If contain obligations on MS, then it is If contain obligations on MS, then it is necessary to have a transposition actnecessary to have a transposition act

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Recommendations and OpinionsRecommendations and Opinions

No binding forceNo binding force

Do not establish any rights or obligationsDo not establish any rights or obligations

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THE EC INTERNATIONAL THE EC INTERNATIONAL AGREEMENTSAGREEMENTS

AGREEMENTS WITH ALL COUNTRIES AGREEMENTS WITH ALL COUNTRIES AROUND THE WORLDAROUND THE WORLD

Association AgreementsAssociation Agreements

Co-operation AgreementsCo-operation Agreements

Trade AgreementsTrade Agreements

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GENERAL PRINCIPLES OF LAWGENERAL PRINCIPLES OF LAWandand

LEGAL CUSTOMLEGAL CUSTOM

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

Legal Custom: practice followed and Legal Custom: practice followed and accepted and thus become legally accepted and thus become legally establishedestablished

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THE LEGISLATIVE PROCESSTHE LEGISLATIVE PROCESS

CONSULTATION PROCEDURECONSULTATION PROCEDURE

CO-OPERATION PROCEDURE (Art. 252 CO-OPERATION PROCEDURE (Art. 252 EC)EC)

CO-DECISION PROCEDURE (ART. 251 CO-DECISION PROCEDURE (ART. 251 CE)CE)

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1616

1717

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PROCEDURE FOR PROCEDURE FOR IMPLEMENTING MEASURESIMPLEMENTING MEASURESThe « Comitology procedure »The « Comitology procedure »

Decision 1999/468/EC:Decision 1999/468/EC:

Advisory Committee ProcedureAdvisory Committee Procedure

Management Committee ProcedureManagement Committee Procedure

Legislation Committee ProcedureLegislation Committee Procedure

All representatives of Member States.All representatives of Member States.

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THE SYSTEM OF LEGAL THE SYSTEM OF LEGAL PROTECTION IPROTECTION I

TREATY INFRINGEMENT PROCEEDINGSTREATY INFRINGEMENT PROCEEDINGS (art. (art. 226 EC ): Commission v. MS226 EC ): Commission v. MS

ACTIONS FOR ANNULMENTACTIONS FOR ANNULMENT (art. 230 EC): for (art. 230 EC): for acts of Council, Commission, EP, ECB.acts of Council, Commission, EP, ECB.

COMPLAINTS FOR FAILURE TO ACT COMPLAINTS FOR FAILURE TO ACT ((art. 232 art. 232 EC):against Council,Commission, EP, ECB.EC):against Council,Commission, EP, ECB.

ACTIONS FOR DAMAGESACTIONS FOR DAMAGES (artt. 235 and 288 (artt. 235 and 288 EC): citizens and MS against EC Staff for faultEC): citizens and MS against EC Staff for fault

PROVISIONAL LEGAL PROTECTIONPROVISIONAL LEGAL PROTECTION (art. 242 (art. 242 and 243 EC): suspension or interim court orderand 243 EC): suspension or interim court order

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THE SYSTEM OF LEGAL THE SYSTEM OF LEGAL PROTECTION IIPROTECTION II

PRELIMINARY RULINGSPRELIMINARY RULINGS– Subject matterSubject matter: interpretation of community : interpretation of community

actsacts– Capacity to proceedCapacity to proceed: « All Courts of the MS »: « All Courts of the MS »– Obligation to refer Obligation to refer when there is no judicial when there is no judicial

remedyremedy– Effect:Effect: Directly binding Directly binding

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CONCLUSIONSCONCLUSIONS

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