The Community legal order
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Community Treaties, agreements and conventions
Construction of Europe

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Jean­Victor LOUIS
THE COMMUNITY LEGAL
ORDER
Second, completely revised edition
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COMMISSION OF THE EUROPEAN COMMUNITIES
EUROPEAN PERSPECTIVES
COMMISSION OF THE EUROPEAN COMMUNITIES
The Community legal
order
by Jean-Victor LOUIS
Professor at the Free University of Brussels (ULB)
President of the Institute for European Studies
Second, completely revised edition
THE EUROPEAN PERSPECTIVES SERIES
BRUSSELS NOTICE
This publication was written by an outside expert and does not necessarily reflect the views of the
Commission of the European Communities. It is hoped that it will make a useful contribution to public
debate on the Community legal order.
Cataloguing data appear at the end of this publication
Luxembourg: Office for Official Publications of the European Communities, 1990
ISBN 92-826-1665-7
Catalogue number : CB-56-89-392-EN-C
© ECSC-EEC-EAEC, Brussels · Luxembourg, 1990
Printed in Belgium Foreword
The new edition of this work incorporates developments in the
case-law of the European Court of Justice and national courts and
changes in the configuration of the European Community following
enlargement. It devotes more space to the discussion of issues that have
come to the fore in recent years, especially in the current institutional
debate. Reference is made to the solutions put forward by the European
Parliament in its draft Treaty where these are helpful. The Single Euro­
pean Act, which was signed in Luxembourg and The Hague on 17 and
28 February 1986 respectively and came into force on 1 July 1987, is
discussed where its provisions involve developments in the Community
legal system. It was also necessary to reflect the fact that since the first
edition of the 'Community legal order ' the European Perspectives series
has grown by several volumes which on many points supplement the
discussion here. This work is therefore referred to frequently in the text
and readers are encouraged to consult it. Finally, more references to the
literature on the legal issues discussed have been inserted to assist those
for whom this book is a research tool. The paragraph numbering of the
first edition has been retained for the same reason.
Jean-Victor LOUIS Contents
INTRODUCTION 7
CHAPTER I — SPECIAL CHARACTERISTICS 11
Section 1. The transfer of sovereignty 1 2. The legislative machinery 22
Section 3. A Community governed by law 44 4. The interpretation of Community law 50
Section 5. Flexibility and rigour in amending the Community's Constitu­
tion 56
Section 6. International legal personality 63
CHAPTER II — THE SOURCES OF COMMUNITY LAW 7
Section 1. The Treaties as the Constitution of the Community Ti
(a) Duration 74
(b) Territorial scope
(c) The Treaties : A constitutional framework 7
Section 2. Derived law9
(a) Extent of dependence on the Treaties
(i) Rule that the institutions have only the powers conferred on
them 7
(ii) Conformity with the general principles of the Treaty 80
(b) Standard forms of legislation and other acts 8
(i) The Coal and Steel Treaty: Decisions and recommendations
of individual or general concern1
(ii) The forms of legislation and other acts listed in Article 189 of
the EEC Treaty 82
(c) 'Innominate' acts9
(i) Internal measures 90
(ii) Sui generis acts
Section 3. International law1
(a) General international law
(b) International agreements2
(i) Agreements concluded by Member States 9
(ii)sd by the Community6
Section 4. The general principles of law and respect of human rights 97
CHAPTER III — RELATIONSHIP TO NATIONAL LAW 107
Section 1. Direct effect 10
(a) Provisions having direct effect 110
(i) The Treaty
(ii) Regulations9
(iii) Decisions addressed to Member States, and directives 12
(iv) International agreements to which the Community is party7
(b) The fate of national provisions contrary to directly effective
Community law 131
(c) The limits of direct effect2
(d) Conclusion on direct effect4 Contents
Section 2. The supremacy of Community law 135
(a) Constitutions and Community law9
(b) Community law and subsequent national legislation 14
(c) Conclusion on the supremacy of Community law 157
Section 3. The administration of Community law
(a) Direct or centralized administration 161
(b) Delegation to the Member States5
CONCLUSION 179
Bibliography 187
List of specialist periodicals 191
Index3 Introduction
1. The declaration made by the French Foreign Minister,
Robert Schuman, on 9 May 1950 marked a watershed in the post-war
European unification movement. With this historic initiative the n Community as an organization can be said to have
begun.
Schuman's strategy was pragmatic. 'A united Europe will not arise
overnight, or in one grand design,' he said, 'it will be built on
practical achievements, creating at first de facto interdependence.'
This approach won the argument with the constitutionalists, who
wanted immediately to set up a political organization of the federal
type in Europe.
It was not long before the European Coal and Steel Community
(ECSC) was established by the Treaty of Paris of 18 April 1951,
followed by the European Economic Community (EEC) and the
European Atomic Energy Community (also called Euratom) by the
Treaties of Rome of 25 March 1957.
2. Since the entry into force of the Rome Treaties on 1 January 1958,
three distinct Communities based on separate constitutions have
existed. But the three Communities were set up to achieve the same
fundamental objectives: the creation of an Organized Europe', 'an
ever closer union among the peoples of Europe' and a 'common
effort' contributing to 'the prosperity of their peoples'.
To achieve these basic objectives they also relied on the same means :
gradual economic integration, with real power transferred to central
institutions.
As from 1 July 1967 the executive organs of the three Communities,
the Council and the Commission, were merged in a single Council and
Commission under the merger Treaty signed in Brussels on
8 April 1965. The Assembly (European Parliament) and the Court of
Justice had been common to the three Communities from the begin­
ning under a convention signed in Rome in 1957 together with the
EEC and Euratom Treaties. The threes are thus function­
ally the same organization.'
It is true that the EEC Treaty, which is designed to bring about the
general integration of the Member States' economies and not that of
specific sectors, as is the case with the two others, expressly provides
that its provisions 'shall not affect the provisions of the Treaty
establishing the Coal and Steel Community' and 'shall not derogate
from those of the Treaty establishing the European Atomic Energy
1 See J. Groux and P. Manin, 'The European Communities in the international order'.
EC Commission (European Perspectives series), Brussels · Luxembourg, 1984, p. 9,
note 1. Introduction
Community' (Article 232). It is also true that there are differences
between the three Treaties both as regards the powers of the institu­
tions and the provision for judicial review, for example.
These differences reflect the intentions of the authors of the Treaties
and the historical context in which they were drawn up.1
Nevertheless, because of the underlying basic unity of the three
Communities, it is essential to interpret each of the Treaties in the
light of the other two.2 Furthermore, action by the EEC in certain
fields governed by common policies, such as transport, foreign trade
or energy, may nullify the restrictions placed on the powers of the
institutions of the Coal and Steel and Euratom Communities. For
example, the provision in the first paragraph of Article 71 of the
ECSC Treaty for jurisdiction over overseas trade in coal and steel to
remain with the Member States was only meaningful in the context of
the limited scope of that Treaty. It was based on the need for
responsibility for all sectors of foreign trade to lie with one authority.
The question is whether this justification for leaving all foreign trade
jurisdiction with the Member States while the Community institutions
only had responsibility for coal and steel has still held good since
1970, when exclusive jurisdiction for foreign trade under the
EEC Treaty (Article 113) passed to the Community. It is anomalous
to have to single out two products, coal and steel, in negotiations with
non­EC countries and follow different procedures for them.3
Finally, the twin pillars of the Community legal system, the direct
effect and the primacy of Community law, support the whole edifice
whichever the Treaty from which a particular rule may come.
3. In 1978 the European Parliament passed a resolution, on a report
of its Political Affairs Committee, calling for the adoption of a single
designation for the European Community.4 The preamble of the
resolution refers to the 'interd

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