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

scholarly journals The European Court of Justice: What are the Limits of its Exclusive Jurisdiction?

2009 ◽  
Vol 16 (3) ◽  
pp. 291-314 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
International Courts ◽  
Community Law ◽  
Exclusive Jurisdiction ◽  
Court Of Justice ◽  
European Court ◽  
Academic Discussion

The article explores the limits of the ECJ's exclusive jurisdiction by addressing two main issues: firstly, whether there are exceptions to that exclusivity, such as the application of the CILFIT case law or the exclusion of Community law from the dispute. Secondly, it asks whether other international courts must respect the ECJ's jurisdiction over a case. The article commences by briefly discussing the ECJ's exclusive jurisdiction as it was established in Opinion 1/91 and the Mox Plant-Case and draws conclusions from this case law. It then addresses the above-mentioned points and comes to the conclusion that there are generally no exceptions to the ECJ's exclusive jurisdiction and that the only option open to Member States is to exclude Community law from a dispute (and even that option is subject to limitations). Furthermore, after exploring several routes advanced in the academic discussion, the article comes to the conclusion that other courts must respect the ECJ's jurisdiction and as a consequence declare the case inadmissible.

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

Primacy of Union Law

2004 ◽  
Vol 1 (1) ◽  
pp. 104-107 ◽  
Author(s):  
Jan Herman Reestman
Keyword(s):  
Case Law ◽  
Member States ◽  
Community Law ◽  
Court Of Justice ◽  
Higher Rank ◽  
Ec Law ◽  
Domestic Law ◽  
Traffic Rules

One of the legal cornerstones of ‘formal federalism’ is the capacity of any rule of EC Law to override any rule, including those of constitutional rank, of the Member States. The primacy doctrine has been introduced by the Court of Justice in Costa v. ENEL (1964). It can be read in two ways. In the first place it may be held to imply the supremacy of Community law, i.e., the idea that Community law has a higher rank than even the national constitutions and is hierarchically superior to it, as the Court itself sometimes has expressed it (Simmenthal, 1978). This may be called the existential reading. Alternatively, there is a more modest interpretation implying mere practical priority or precedence, as in traffic rules. For this practical interpretation there are equally arguments to be found in the Court's case-law: the aims of the EC-treaty cannot be accomplished if domestic law were to prevail over Community law.

MOX Plant Dispute – Court of Justice of the European Communities

2006 ◽  
Vol 2 (3) ◽  
pp. 456-469 ◽  
Author(s):  
Nikolaos Lavranos
Keyword(s):  
European Union ◽  
Union Member ◽  
Case Law ◽  
European Court Of Justice ◽  
Member States ◽  
Community Law ◽  
Court Of Justice ◽  
Legal Literature ◽  
European Court ◽  
European Union Member States

It is uncommon for a provision of the EC Treaty to remain all but unnoticed for fifty years by both legal literature and the case-law of the European Court of Justice. However, that is what happened to Article 292 EC, which states that ‘Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein.’ This provision can be taken to mean that if a dispute arises between European Union member states involving Community law, they shall bring the dispute exclusively before the European Court of Justice.

Foreign Affairs Federalism in the European Union

2019 ◽  
pp. 331-351
Author(s):  
Robert Schütze
Keyword(s):  
European Union ◽  
International Law ◽  
Legal Order ◽  
Foreign Affairs ◽  
The European Union ◽  
Member States ◽  
European Court ◽  
Treaty Of Rome ◽  
Formed Part ◽  
Mixed Agreements

The European Union was born as an international organization. The 1957 Treaty of Rome formed part of international law, although the European Court of Justice was eager to emphasize that the Union constitutes “a new legal order” of international law. With time, this new legal order has indeed evolved into a true “federation of States.” Yet how would the foreign affairs powers of this new supranational entity be divided? Would the European Union gradually replace the member states, or would it preserve their distinct and diverse foreign affairs voices? In the past sixty years, the Union has indeed significantly sharpened its foreign affairs powers. While still based on the idea that it has no plenary power, the Union’s external competences have expanded dramatically, and today it is hard to identify a nucleus of exclusive foreign affairs powers reserved for the member states. And in contrast to a classic international law perspective, the Union’s member states only enjoy limited treaty-making powers under European law. Their foreign affairs powers are limited by the exclusive powers of the Union, and they may be preempted through European legislation. There are, however, moments when both the Union and its states enjoy overlapping foreign affairs powers. For these situations, the Union legal order has devised a number of cooperative mechanisms to safeguard a degree of “unity” in the external actions of the Union. Mixed agreements constitute an international mechanism that brings the Union and the member states to the same negotiating table. The second constitutional device is internal to the Union legal order: the duty of cooperation.

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.

Indirect taxes and national remedies

1999 ◽  
Vol 58 (1) ◽  
pp. 1-48
Author(s):  
Angela Ward
Keyword(s):  
Attorney General ◽  
Case Law ◽  
European Court Of Justice ◽  
Special Edition ◽  
Community Law ◽  
Court Of Justice ◽  
Council Directive ◽  
European Court ◽  
National Rule ◽  
Indirect Taxes

IN Case C-188/95 Fantask A/S and Others v. Industriministeriet (Erhvervsministeriet) [1997] E.C.R. I-6783 the European Court of Justice provided further guidance on the interpretation of Council Directive 69/335 EEC of 17 July 1969 concerning indirect taxes on the raising of capital (O.J. English Special Edition 1969 (II), p. 412), as most recently amended by Council Directive 85/303/EEC of 10 June 1985 (O.J. 1985 L 156, p. 23), and elaborated its case law concerning Member State remedies and procedural rules. More particularly, it was held that a national rule which would have allowed Danish authorities to escape the duty to refund charges levied in breach of the Directive on the ground of “excusable error” rendered Community law impossible in practice or excessively difficult to enforce (Case 199/82 Amministrazione delle Finanze dello Stato v. San Giorgio [1983] E.C.R. 3595), while a five-year time limit for bringing proceedings under Danish law was upheld as a reasonable limitation period (cf. Case C-208/90 Emmott v. Minister for Social Welfare and the Attorney General [1991] EC.R. I-4269).

scholarly journals The Limits of Agencification in the European Union

2014 ◽  
Vol 15 (7) ◽  
pp. 1223-1255 ◽  
Author(s):  
Miroslava Scholten ◽  
Marloes van Rijsbergen
Keyword(s):  
European Union ◽  
Case Law ◽  
Lisbon Treaty ◽  
Democratic Legitimacy ◽  
The European Union ◽  
Member States ◽  
The Road ◽  
European Court ◽  
On The Road ◽  
The Eu

Although not explicitly regulated by the EU treaties, EU agencies not only exist but also have increased in number and power. In addition, while EU agencies may exercise very similar functions to those of the Commission, Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) do not list agencies among the possible authors of non-legislative acts. The existing situation raises the questions of the extent to which the ongoing agencification in the EU is legitimate and what its limits are. This article addresses these questions in the light of the old and new Treaties and case law, including the just releasedESMA-shortsellingcase. It shows that while the Lisbon Treaty made a few steps forward on the road of legitimizing EU agencies and delegating important powers to them, the scope of powers that EU agencies can have remains unclear. In this respect, the European Court of Justice's lenient approach in theESMA-shortsellingcase is unfortunate because it neither clarifies the issue nor pushes the Union Legislator and the Member States to address it. Consequently, in the absence of clear limits, further agencification is likely to persist at the risk of increasing the democratic legitimacy deficit and remaining accountability gaps.

The European Court of Justice, More than a Teleological Court

1999 ◽  
Vol 2 ◽  
pp. 373-398 ◽  
Author(s):  
Albertina Albors Llorens
Keyword(s):  
European Court Of Justice ◽  
Common Denominator ◽  
Community Law ◽  
Court Of Justice ◽  
European Court ◽  
Legal Texts ◽  
The Media ◽  
The Common ◽  
Ec Law

The judgments of the Community judicature are often subject to intense scrutiny by the media and by academic writers. The European Court of Justice, in particular, is regularly accused of being by and large an “activist” court, namely a court that construes EC law in the light of the objective the judges are trying to pursue. In particular, it is argued that the European Court uses the teleological method of interpretation to enhance the effectiveness of Community law at the expense of the written legal texts. Several studies have been published on the supposed “activist” role of the European Court and as many (or more) have been written in defence of the Court. The common denominator of all these works is that they are selective.

scholarly journals The European Court of Justice and the Policy Process

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
European Union ◽  
Member State ◽  
Case Law ◽  
European Court Of Justice ◽  
The European Union ◽  
Member States ◽  
Administrative Practices ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

The European Court of Justice is one of the most important actors in the process of European integration. Political science still struggles to understand its significance, with recent scholarship emphasizing how closely rulings reflect member states’ preferences. In this book, I argue that the implications of the supremacy and direct effect of the EU law have still been overlooked. As it constitutionalizes an intergovernmental treaty, the European Union has a detailed set of policies inscribed into its constitution that are extensively shaped by the Court’s case law. If rulings have constitutional status, their impact is considerable, even if the Court only occasionally diverts from member states’ preferences. By focusing on the four freedoms of goods, services, persons, and capital, as well as citizenship rights, the book analyses how the Court’s development of case law has ascribed a broad meaning to these freedoms. The constitutional status of this case law constrains policymaking at the European and member-state levels. Different case studies show how major pieces of EU legislation cannot move beyond case law but have to codify its principles. Judicialization is important in the EU. It also directly constrains member-state policies. Court rulings oriented towards individual disputes are difficult to translate into general policies, and into administrative practices. Policy options are thereby withdrawn from majoritarian decision-making. As the Court cannot be overruled, short of a Treaty change, its case law casts a long shadow over policymaking in the European Union and its member states, undermining the legitimacy of this political order.

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