The Community legal order

Secretariat-General European Commission

Description

Community Treaties, agreements and conventions
Construction of Europe

Sujets

• Delegated legislation
• Treaties of the European Union
• Direct applicability
• International law
• cours de droit
• cours droit
• Droit et juridique

Informations

• Publié par: SECRETARIAT-GENERAL-EUROPEAN-COMMISSION
• Nombre de lectures: 26
• Langue: English
• Poids de l'ouvrage: 4 Mo

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Jean-Victor LOUIS
THE COMMUNITY
LEGAL ORDER
Third, completely revised edition
EUROPEAN COMMISSION
EUROPEAN PERSPECTIVES
* *
*EUROPEAN COMMISSION
The Community
legal order
by Jean-Victor Louis
Professor at the Free University of Brussels (ULB)
President of the Institute for European Studies
Third, completely revised edition
THE EUROPEAN PERSPECTIVES SERIES
BRUSSELS This publication was written by an outside expert and does not necessarily reflect the views of
the European Commission. 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, 1995
ISBN 92-826-6861-4
© ECSC-EC-EAEC, Brussels · Luxembourg, 1993
Printed in Italy Preface
On 7 February 1992, the Treaty on European Union was signed at
Maastricht. The prospects for its ratification were still unclear at the
time this edition was ready to go to press.
When the Danish people voted to reject the Treaty in their referen­
dum on 2 June 1992, there were many who thought it had been dealt
its death blow. However, when the French people approved the
Treaty by a narrow majority, on 20 September 1992, there was a
rebirth of optimism about the prospects for ratification and entry
into force of the Treaty.
The Edinburgh European Council on 12 December 1992 adopted a
decision releasing Denmark from the obligation to take part in the
third stage of economic and monetary union (it was entitled not to
participate by a Protocol to the Treaty) and recording Denmark's
reservations on certain other policies (citizenship, defence policy,
etc.). A second referendum was then held on 18 May 1993, this time
producing a 'yes' vote.
In the meantime, the long drawn-out process of parliamentary
approval was under way in the United Kingdom. After many tense
moments, the Royal Assent was given to the European Communities
(Amendment) Act on 20 July 1993. An action in the High Court to
block the ratification process failed on 30 July.
However, it was in Germany that the suspense lasted longest and
Germany was the last country to deposit its instrument of ratifica­
tion. The Union Treaty had, true enough, been approved by an
overwhelming majority in the Bundestag on 2 December 1992 and
unanimously in the Bundesrat on 18 December. Also constitutional
reforms confirmed Germany's European vocation, though a new
Article 23 set out the limits and conditions to govern its involvement
in the integration process, but actions in the Constitutional Court
debarred ratification for 10 months. Only when the Constitutional
Court gave judgment declaring ratification to be lawful, on 12
October 1993, was the German Government able to deposit its
instrument of ratification; this was duly done the next day.
At a special meeting held in Brussels on 29 October 1993, the
European Council was at last able to declare that the Union Treaty
would enter into force on 1 November, just 10 months after the date
assumed at the time of signing.
The entry into force of the Maastricht Treaty, whose contribution to
the institutional set-up is described in this work, is assuredly to be
welcomed. True, the Treaty has 'major shortcomings', but it also Preface
has undeniably 'positive elements'.' It bears witness to the deter­
mination of the Member States, or at least of 10 of them, to look
beyond the single market towards economic and monetary union
and begin work on political union, and there is definite progress
towards establishing the democratic legitimacy of Community inte­
gration.
The Union Treaty still offers only an incomplete response to the
challenges facing the Community at home and abroad. Indeed, it
already makes provision for a further review in 1996 to enhance the
efficacity and democratic legitimacy of the institutional system. The
next round of enlargements, at any rate, will have to be undertaken
before the institutions and their decision-making procedures have
been strengthened.
There have been major developments not only in the body of
treaties but also in case-law since the last edition of this work. Hence
this new edition, for the reader must be brought up to date; after all,
the Community has been described by Professor Jacqué as resem­
bling a motion picture rather than a still photo.2
Although there have been some changes in paragraph numbering,
by and large the original structure has been preserved.
Jean-Victor Louis
Brussels, January 1994
1 See Resolution A3-0123/92 passed by the European Parliament on 7 April 1992 on a
report by D. Martin and F. Herman.
: 'Cours general de droit communautaire', in Ree. Cours Acad, droit européen /, 1991, p.
237 (hereafter cited as the 'Florence Course'). Contents
INTRODUCTION
Chapter I — SPECIAL CHARACTERISTICS 11
Section 1. The transfer of sovereignty
Section 2. The legislative machinery 25
Section 3. A Community governed by law 50
Section 4. The interpretation of Community law8
Section 5. Flexibility and rigour in amending the
Community's constitution 64
Section 6. International legal personality 72
Chapter II — THE SOURCES OF COMMUNITY LAW 87
Section I. The Treaties as the Constitution of the
Community; the Maastricht Treaty 87
(a) Duration 90
(b) Territorial scope1
(c) The Treaties: A constitutional framework 93
Section 2. Derived law6
(a) Extent of dependence on the Treaties 97
(i) Rule that the institutions have only the powers con­
ferred on them
(ii) Conformity with the general principles of the Treaty 9
(iii) The principle of subsidiarity8
(b) Standard forms of legislation and other acts 100
(i) The Coal and Steel Treaty: Decisions and recommen­
dations of individual or general concern1
(ii) The forms of legislation and other acts listed in
Article 189 of the EEC Treaty 102
(c) 'Innominate'acts 11
(i) Internal measures1
(ii) Sui generis acts
Section 3. International law3
(a) General international law4
(b) International agreements 11
(i) Agreements concluded by Member States 11
(ii)sd by the Community8 Contents
Section 4. The general principles of law and respect of
human rights 119
Chapter III — RELATIONSHIP TO NATIONAL LAW 131
Section 1. Direct effect 131
(a) Provisions having direct effect4
(i) The Treaty4
(ii) Regulations 144
(iii) Decisions addressed to Member States, and directives 146
(iv) International agreements to which the Community is
party 156
(b) The fate of national provisions contrary to directly
effective Community law 161
(c) The limits of direct effect2
(d) Conclusion on direct effect5
Section 2. The supremacy of Community law 166
(a) Constitutions and Community law 171
(b) Community law and subsequent national legislation 185
(c) Conclusion on the supremacy of Community law 196
Section 3. The administration of Community law6
(a) Direct or centralized administration 201
(b) Delegation to the Member States6
CONCLUSION 227
BIBLIOGRAPHY 233
LIST OF SPECIALIST PERIODICALS 239
INDEX 241 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. However, the three Communities were set up to
achieve the same fundamental objectives: the creation of an 'organ­
ized 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
the Community institutions.2
As from 1 July 1967, the executive organs of the three Communities
were merged under the Merger Treaty signed in Brussels on 8 April
1965. The Assembly (European Parliament) and the Court of Jus­
tice had been common to the three Communities from the beginning
under a convention signed in Rome in 1957 together with the EEC
and Euratom Treaties. The threes are thu