In order to understand the development of the Community and the development of the Union it is necessary to bear in mind several matters: (a) The nature of the Union and the Community. (b) The treaties setting up the Community and then the Union (included here are the founding treaties, the accession treaties, and the amending treaties). (c) The institutions of the Community and latterly the Union. (d) The sources, types and differing effects of Community law. (e) The effect of Community law or EC law on the English legal system. These areas will be considered next. 5.5.3 The nature of the European Community The Treaty of Rome 1957 states the main principle of the Community as the maintenance of economic and social progress, and naturally flowing out of this primary principle are a number of other principles aiming to unite Member States for the purpose of social, economic and legal union. It specifically states it is aiming to lay ‘the foundations of an ever closer union’. Part of the difficulty that can occur in attempting to understand the Community perhaps lies in the fact that it was never a specific place but a way of trading and of relating financially, legally, politically, socially and culturally.

2012 ◽  
pp. 148-148
Keyword(s):  
European Community ◽  
Legal System ◽  
Social Economic ◽  
Social Progress ◽  
Main Principle ◽  
Member States ◽  
Community Law ◽  
Treaty Of Rome ◽  
Ec Law

From a pragmatic point of view there is a need to accept this confusion, and seek to derive the meaning of the phrase from its context. Some legal academics advise forgetting the issue, which is like running away, and does create further confusion. The courts use the phrase synonymously. The EC Treaty, however, remains silent about individual rights in national courts and only uses the term ‘direct applicability’ to refer to the process by which EC law is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. For the purposes of explaining some of the issues surrounding EC law, this text will assume the artificial distinction between direct applicability and direct effect. It will assume therefore that ‘directly applicable’ applies to the process of automatic assimilation into the legal systems of Member States and that ‘direct effect’ refers to individuals deriving rights from Community law enforceable in national courts. Remember, however, that the terms tend to be conflated. These matters will now be set out as a series of tables and diagrams to assist you in the development of understanding.

2012 ◽  
pp. 158-159
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
Point Of View ◽  
Individual Rights ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Running Away ◽  
Ec Law ◽  
Direct Applicability

5.7 Types of Community law (primary and secondary legislation and case law of the European Court of Justice) There are several types of EC law each with different legal consequences. Some of the law that is developed in the Community immediately becomes part of the English legal system, other laws state a goal to be achieved within a timescale of years and the governments of the Member States are free to decide how best to comply with that law. Perhaps the choice of available types of law is one of the most difficult to understand when approaching the area for the first time. This chapter will run through the main issues and will be followed by a series of diagrams to assist your understanding. Characteristics of EC law are as follows. (1) It is of several types: (a) Primary law—articles in treaties. The superior form of law. (b) Secondary legislation: • Regulations: addressed to all Member States. • Directives: addressed to all Member States (which can appear as framework directives giving quite detailed guidance for changes to a large area). • Decisions: addressed to named Member States and/or individuals and organisations. • Recommendations (not legally binding). • Opinion (not legally binding). (c) Secondary law: decisions of the ECJ in individual cases and on matters referred to it as a preliminary reference with regard to interpretation of the Treaty of Rome. The legal authority for this power is found in Article 234 (formerly 177) of the Treaty of Rome. (2) Community law is produced by different partnerships between the institutions: the Council, the Commission, the European Parliament; or by institutions with the authority acting alone: the Council, the Commission, the European Court. The Union website at www.europe.eu.int has guides to the creation of legislation and copies of all legislation and case law for the Union going back to the 1950s. (3) Community law has varying degrees of: • legal effect; and • legal consequences, depending on whether it is primary or secondary law. With regard to secondary legislation, it depends on what type of secondary legislation it is. Some types of secondary legislation request that Member States ensure a goal is achieved within a timescale, leaving it up to the State to determine how the goal should be achieved. These types of legal rules are said to be binding as to ‘outcome’.

2012 ◽  
pp. 156-156
Keyword(s):  
Case Law ◽  
Large Area ◽  
Member States ◽  
Legal Rules ◽  
Community Law ◽  
European Court ◽  
Treaty Of Rome ◽  
Ec Law ◽  
First Time ◽  
Legal Consequences

There have been changes to institutions: some have had name changes (such as the ‘Assembly’ to ‘European Parliament’); some have had powers removed or added, and some have been relatively recently created (for example, the Committee of the Regions). It is therefore important to be clear about the construction of the EU, the place of the EC, its areas of legal competency and the extent and limits of EC law, name changes of institutions and treaties, and changes to the numbering of articles in the treaties. This introduction sets out the approach taken, and the terms to be used in this section with the reasons for their use explained. The section will also give a historical and chronological review of the development of the Union and the current place of the Community. This should enable you to read most texts in the area with a reasonably clear map of your own of the interconnections between the EU, the EC, EC law and their effects on the English legal system. For the rest of this section the following abbreviated terms will normally be used: • ‘Union’ when referring to the European Union; • ‘Community’ when referring to the European Community; • ‘Community law’ or ‘EC law’ when referring to European Community law. The relationship between the English legal system, the Union and the Community is complex. But then the very concept of the Union itself is complex. The Union was established in 1992 and currently there are 15 Member States, with 13 more candidate States waiting to join. There are three spheres of activity in the Union customarily referred to as the three ‘pillars’ of the Union. Pillar 1: the three founding Communities established in the 1950s: (a) the European Coal and Steel Community (ECSC); (b) the European Atomic Energy Community (Euratom); (c) European Economic Community (EEC), since 1992 called the European Community, which was set up by the EEC Treaty. Pillar 2: agreed co-operation in the area of foreign affairs and security. Pillar 3: agreed co-operation in the areas of home affairs and justice. It is a Union that is joined together not as a federal system of States, such as the United States of America, nor as a range of States contracting at only the political level. The Union is a supra-national Union of States agreeing to be bound together in part politically, in part co-operatively and socially and in large part through a unique legal order—the acquis communautaire (‘community patrimony’) or ‘Community law’. A legal order that has effect by being incorporated into the legal systems of every Member State, and the English legal system is no exception. The legal order of the Union remains rooted in that part of the Union that is the Community. It is the nature of the legal order that makes the Union unique. For although the Union is established by treaties, it is not just governed by international law and political relationships based on agreement at intergovernmental level. The founding treaties of the Union which date back to the inception of the Communities in the 1950s insist that the law of the Union (which technically remains Community law) becomes part of the legal systems of all of the States who are members of the Union.

2012 ◽  
pp. 144-144
Keyword(s):  
European Community ◽  
Legal System ◽  
Legal Order ◽  
Legal Systems ◽  
Community Law ◽  
The 1950S ◽  
Set Up ◽  
Ec Law ◽  
Name Changes ◽  
The Eu

scholarly journals The Binding Force of Babel: The Enforcement of EC Law Unpublished in the Languages of the New Member States

2007 ◽  
Vol 9 ◽  
pp. 43-80 ◽  
Author(s):  
Michal Bobek
Keyword(s):  
European Union ◽  
Central Bank ◽  
European Central Bank ◽  
The European Union ◽  
Member States ◽  
Community Law ◽  
New Member States ◽  
European Central ◽  
Binding Force ◽  
Ec Law

On 1 may 2004, 10 new Member States joined the European Union. This meant inter alia that, save for the express derogations provided for in the Act of Accession, the entire mass of Community secondary legislation became binding in the new Member States. This principle of the immediate effects of Community law in the new Member States was provided for in Article 2 AA: From the date of Accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before Accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.

Other types of secondary legislation immediately place legal obligations directly into the legal system of all Member States. These are binding in their entirety and said to be directly applicable. Still other types place legal obligations directly upon certain named States, individuals and organisations. (4) The treaties, regulations and directives enacted by the Union do not directly state that they give individuals rights that they can enforce in their national courts. These legal rules are addressed in the first place to the Union and the Member State. Yet under the founding treaties Member States are expected to enforce the rights, liabilities and powers that are a consequence of membership in national courts. The ECJ has developed the concept of direct effect which describes EC primary or secondary law that give individuals rights that are enforceable in their national courts. Set criteria have to be present. Direct effect is easier to prove in relation to regulations than it is in relation to articles and directives. The criteria demand that: • the rule does not require any action from the State (and directives do); and • that the right to be enforced is clear and precise and can be activated without recourse to the State (which is not the automatic case in relation to articles in a treaty concluded at State level or a directive issued to the State demanding certain outcomes within a timescale). However, articles and directives considered on a case by case basis by the European and national courts have been held to give individuals rights. The case of Van Gend en Loos discussed later in this chapter deals with direct applicability and direct effect of articles. (5) A major difficulty is caused by the lack of uniformity of terms in relation to ‘directly applicable’ and ‘direct effect’. ‘Directly applicable’ is the phrase used in Article 249 (formerly 189) of the EC Treaty to refer to the process by which Community law of certain types is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. ‘Direct effect’, which is not a phrase occurring in any of the treaties, is the phrase consistently used in the ECJ in two senses to refer to: • the process by which individuals acquire rights they can enforce in national courts (against other individuals—horizontal direct effect, and against the State itself—vertical direct effect); and • the process by which EC law is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. This is confusing, especially as some Community law that is created by Article 249 (formerly 177) of the EC Treaty is not said in the Treaty to be directly applicable in the sense of immediately and automatically becoming part of the legal system of Member States. Yet the ECJ has held that such law can, if certain criteria are present, have direct effect. In fact, they have gone one step further and constructed the concept of indirect effect. It is indirect precisely because the law is not directly applicable but somehow an individual can enforce it in a national court.

2012 ◽  
pp. 157-157
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
National Court ◽  
State Level ◽  
The State ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Legal Obligations ◽  
The Right

The Union is the direct successor to the three communities that were set up in the 1950s by six European States. Just as over time the references to the three Communities became one reference to the ‘European Community’, now the supranational organisation that is referred to has grown since 1992 and the general name by which it is known is no longer the European Community, but the European Union. Clearly the Union is a much larger entity than the Community, as can be seen from the list of the three areas covered by the Union set out above. But the idea of a large Union had always been within the documents setting up the European Community. The Community remains intact—but as one of three spheres of activity. However, concentrated within the Community are the lawmaking powers of the Union. The Union was established by the Treaty of Maastricht 1992 and the Treaty of Amsterdam 1997 (both formally called the Treaty on European Union (TEU)). The same institutions that had served the three Communities were enlarged to serve the Union. The Treaty of Nice in 2000 made further steps towards altering aspects of the institutions of the Union to be ready for enlargement of the number of Member States who were to become part of the Union from 2004. In coming years, the nature of the Union will become increasingly streamlined as it grows in size. The Treaty of Nice reached major agreement on the simplification of the voting procedures for the enactment of secondary legislation, and declared adherence to the Union’s proposed Charter on Fundamental Rights. The terms of reference for the next inter-governmental conference on the Union will consider the simplification of the founding treaties into one new treaty. There are therefore more changes ahead that will affect law students! For all public intents and purposes, there is now only the Union. The official website http://europa.eu.int only refers to European Union and within its legal pages speaks of European Union law. However, it remains true to say that to use that term is technically incorrect. The Union has no law making powers outside those conferred by the founding treaties of the Community, so the appropriate phrase is Community law or European Community law (EC law), not Union law. The next section will deal with the basic consideration of the historical development of the European Community and European Community law. It will lay out the treaties of importance and note the different types of law, and the mechanisms for Community law having an effect within the legal systems of Member States. The legal systems of the Member States are often referred to by the term ‘domestic law’, a metaphoric use of ‘domestic’ linking it to ‘home’. The courts in Member States tend to be referred to by two phrases: ‘domestic courts’, or ‘national courts’. As already noted, whilst much smaller than the ever-growing Union, the Community contains the law making powers of the Union, and therefore it determines its legislative competency. The next section will also attempt to draw attention to areas where name changes have lead to confusion. Despite the wholesale use of the term ‘European Union’ it is useful to deal with name changes incrementally by going back to the creation of the Community and tracing its development into the Union. Those matters chosen for discussion are those most likely to be problematic and necessary to properly understand from the perspective of legal method.

2012 ◽  
pp. 145-145
Keyword(s):  
European Union ◽  
European Community ◽  
Legal Systems ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Set Up ◽  
Name Changes ◽  
Law Making ◽  
European Community Law
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