Scope and Sources of Community Law

Lecture aims To introduce the structure of the EC Treaty To briefly examine the scope of the EC Treaty To examine some of the important Treaty provisions To understand the different types of legal instruments provided for by the EC Treaty To introduce decisions of the ECJ as an important source of Community law

EC Treaty Consolidated text of EC Treaty –Treaty of Rome 1957 as amended by SEA 1986 TEU 1992 Treaty of Amsterdam 1997 Nice Treaty lex/lex/en/treaties/dat/12002E/htm/12002E.htmlhttp://europa.eu.int/eur- lex/lex/en/treaties/dat/12002E/htm/12002E.html

EC Treaty Framework Treaty (traité cadre) Sets out broad principles and aims to be achieved (defines the competencies of the Community) Confers law making powers on the institutions

EC Treaty Primary source of Community law (cf. Community legislation which is secondary) Confers a number of legally enforceable rights on EC nationals –Citizenship (Arts 17 & 18) –Right not to be discriminated against on grounds of nationality in areas falling within scope of the Treaty (Art 12) –Right to equal pay for equal work regardless of gender (Art 141) –Fundamental freedoms (workers- Art 39)

EC Treaty Part I PrinciplesArts 1-16 Part II Citizenship of the Union Arts Part III Community Policies 20 Titles (i.e. Free Movement of Goods in Title 1 and Free Movement of Persons, Services and Capital in Title 3) Part V Institutions of the Community

EC Treaty-Part One Articles 2 & 3 set out Community aims and tasks Article 5 seeks to draw a distinction between the competence of the Community and the competence of the Member States, according to the principle of subsidiarity Article 10-Obligation on Member States Article 12-principle of non-discrimination on grounds of nationality in relation to anything within the scope of the Treaty

Article 2 EC Treaty The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.

Article 3 EC Treaty For the purposes set out in Article 2, the activities of the Community shall include, as provided by this Treaty and in accordance with the timetable set therein; –(a) the prohibition as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and all other measures having equivalent effect; –(b) a common commercial policy; –(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital; –(d)... –(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development; –(t) a contribution to the strengthening of consumer protection; –(u) measures in the spheres of energy, civil protection and tourism…

Article 5 EC Treaty The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty

Article 7 EC Treaty The tasks entrusted to the Community shall be carried out by the following institutions: - a EUROPEAN PARLIAMENT, - a COUNCIL, - a COMMISSION, - a COURT OF JUSTICE, - a COURT OF AUDITORS. Each institution shall act within the limits of the powers conferred upon it by this Treaty

Article 10 EC Treaty Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.

Community legislation Framework Treaty Specific articles of the Treaty require/permit the institutions to enact legislation to further specific aims This is referred to as a legal base The legal base also defines the procedure that should be used to enact such legislation

LEGAL BASE Article 40 “the Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, issue directives or make regulations, setting out measures required to bring about freedom of movement for workers, as defined in Article 39….”

Legal Base Article 94 –The Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the common market.

Residual Power-Article 308 If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

Secondary Legislation Article 249 EC Treaty –In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make Regulations, issue Directives, take Decisions, make Recommendations or deliver Opinions

ARTICLE 249 Defines –types of secondary legislation –characteristics of legislation Does not prescribe which type should be used The legal base will often prescribe the type of measure to be adopted

General features Article 253 EC All measures must state the reasons on which they are based and must also refer to any proposals or opinions leading up to the adoption of the measure –Essential procedural requirement –Preamble

General features Article 254 –Most Regulations/Directives/Decisions must be published in Official Journal of European Communities Part L (Legislation) –Acts published will enter into force on date specified or (in absence of such date) 20 days after publication

Regulations Article 249 A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States

Regulations-general application Applicable to objectively determined situations and involves legal consequences for categories of persons viewed in a general and abstract manner- –Case 6/68 Zuckerfabrik Watenstedt v Council

Regulations-directly applicable no need for implementation-Case 39/72 Commission v Italy Case 34/73 Variola SpA v Amministrazione Italiana delle Finanze “ the direct application of a Regulation means that its entry into force and its application in favour of those subject to it are independent of any measure of reception into national law” –Exceptions to this rule where the regulation expressly requires national implementing legislation (see for example Case 128/78 Commission v UK (Tacograph case)

Regulations In the UK, the European Communities Act 1972 (as amended) provides for the direct applicability of regulations

Directives A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice and form of methods

Directives Directives (cf. regulations) are NOT directly applicable Hence Member States are under an obligation (by Articles 249 EC and Article 10 EC) to pass national implementing legislation

Implementation of directives Must be implemented in a legally binding manner with sufficient precision and clarity to satisfy requirements of legal certainty Case C-236/91 Commission v Ireland maintaining an administrative practice, which albeit is consistent with the directive, does not amount to satisfactory legal implementation. (See also Case 102/79 Commission v Belgium ) Case 91/79 Commission v Italy

Implementation of directives Time limit –often for legal implementation and also practical application –Failure to meet deadline constitutes a breach of the Treaty and may give rise to an infringement action against the Member State

Implementation of directives No obligation to implement before expiry of the deadline. However see: Case C-129/96 Inter-Environnement Wallonie- Member States must refrain from adopting measures which are likely to seriously compromise the result prescribed by a directive

Regulation or directive? Regulations Law is exactly the same in all Member States Less flexibility but ensures uniformity Directives Achieve harmonisation/approximation of Community aim but leaves some discretion to Member States as to how to achieve the aims laid down Subsidiarity Allow for regional different systems of administration

Directives-some problems Failure to implement Delayed implementation Inadequate/incorrect implementation All constitute a breach of the Treaty (breach of Articles 249 and 10 EC Treaty)

Citations Council Regulation 1612/68/EEC Regulation 139/2004/EC (Merger Control Regulation) Council Directive 64/221/EEC Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society- [OJ 2001 L 167/10]

Decisions Article 249 –A decision shall be binding in its entirety upon those to whom it is addressed. Article 254 –Notification requirements and publication in Official Journal if co-decision procedure used (Article 251 procedure)

Recommendations and opinions Do not have any binding force May have persuasive authority National courts should take them into account when interpreting Community measures (Case C-322/88 Grimaldi)

Decisions of the ECJ Major source of Community law Court has established principles of Community law direct effect supremacy state liability

Case Law ECJ not bound by doctrine of precedent but usually follows own decisions ECJ can reconsider previous case law-Cases C267 & 268/91 Keck and Mithouard ECJ judgments binding on English Courts- S3(1) European Communities Act 1972

CASES Case 26/62 Van Gend en Loos v Nederlands Administratie der Belastingen [1963] ECR 1 [1963] CMLR 105

Cases post 92 Case C-273/97 Sidar v The Army Board [1999] ECR I-7403 Case T-41/96 Bayer AG v Commission [2000] ECR II-3383

Conclusion Treaty is primary source of Community Law Treaty confers law making powers on institutions- institutions entrusted to fulfil the tasks laid down in Article 2 Treaty provides the legal basis for further legislation (and prescribes law making procedure) Article 249 defines the types of instruments and their characteristic features Decisions of the ECJ are a major source of Community law (both decisions and principles )