BY MIR QAIS KHAN JAMALI
EC law is one of the basic sources of law for the Union until a constitutional treaty is finally established. Before jumping on to the elements of EC law , we shall consider how the legal system is intended to work. Like the civil law systems, the community legal system is a deductive system, therefore the approch adopted to the application of law is from general to particular. This means starting with general principles of the treaty and becoming increasingly particularthrough more articles and secondary legislation, and where useful then also by case law.
ELEMENTS OF COMMUNITY LAW:
Community law consists of three main components institutional law, procedural law and substantive law.
Sometimes known as constitutional law of the community it concerns the regulation of the main institutions and other bodies of the community , the sources of community law and the concepts of community law for e.g direct effects. It also concerns the realationship of institutions among themsleves , the relationship of the community with the memeber states and its external relations with other countries and international organisations. The institutions are the bodies who deal with the legislature and budgetary processes. Due to treaty amendments there is conflict between the jurisdiction and powers of the institutions , thats where the court of justice plays an important role in solving disputes by the use of case law.
Also known as the administrative law of the community it largely involves the judicial review or control of the community. It deals with various actions that can be taken by the institutions, memeber states and natural and legal persons under rules provided by the EC treaty. Such actions are mainly concerned with the enforcement of rights against the community institutions, the member states, and individuals. Administrative law deals with a range of remedies; indirect actions and direct actions. It is mainly concerned with the details of actions vefore the courts , all of which must be based on a particular provision of the treaty or common law developed by the court of justice.
It involes the lagal rules which are established to carry out the broad policy areas of law agreed under the traties and can be distinguished from the law relating to the institutions and the procedural law of the communities. Substantive law is largely secondary law and its effects are limited to the state lavel. It is also labelled as economic or private law , varieing from state to state. An increasing amont of substantive law arises from the community treaties and subsequent intergovernmental agreements, these have further increased by the SEA and the TEU , Amsterdam and Nice treaties.
THE SOURCES OF COMMUNITY LAW:
The term used for the whole body of the souces of EC law is known as ‘acquis communautaire’ it is the law built up over years and decades its estimated law text is about 80,000 pages. The primary source of community law is The treaties and then come the secondary sources of law.
* THE TREATIES;
The most natable form of such law is derived from the EC treaty also known as the treaty of Rome. The other two founding treaties of EC law are the European Coal and Steel Treaty (ECSC), which is not in force right now and the other is the European Atomic Energy Treaty (EURATOM). These traeties have been supplemented by a number of treaties agreed by the member states which include the Merger Treaty and various acts of the accession to the Community. Apart from these founding treaties the most important souces are the Single European Act , the treaty on European Union (the Maastricht Treaty), the Treaty of Amsterdam and the Treaty of Nice.
All other traties are drawn up in the languages of all community memeber states and are equallt authentic. Any differences that arsise due to the language translations are overcome by the Court of Justice applying the telelogical interpretation of the spirit of the provision rather than the words itself. The nature of the treaties is pioneered by the direct applicability of the treaties, which means that on accession of the a member state to the community/ union , all of the provisions of the Treaties automatically become part of the general binding law of the memeber state , which then is applicable to the state abd also to the citizens of that member state. The early case of Ven Gend & Loos (26/62) is confirmation of the deeper impact of the direct applicability of Community Law because the Court of Justice made it clear that community law is also the legal concern of the individuals along with the state in itself.
The treaties provide basic outline provisions without much detail , the detailed part is left to the secondary legislation and or to the Court of Justice who will rule on what was intended by a particular provison. for e.g the EC Treaty broadly provides for the free movement of workers in the communities it didnot define or did any secondary legislation on what was meant by the category of workers? It was therefore upto the Court of Justice to define what was meant by the worker category and who falls into that category and who doesnt.
There are Protocols attached to the treaties Article 311 EC declares protocols to be an integral part of the treaties. It is generally understood in international law that protocols are a lesser form but no less binding version of an international tTreaty agreement. They are used for interpretation of Treaty articles and to provide agreed regulation on more technical matters.
To every Treaty there are a list of declearations attached which can be by all memeber states or even just one of the states which makes a unilateral declearation on a particular matter. These declearations shall be noted as they can change the prception of the treaty application but unlike protocols it doesnt enjoy the binding power therefore declearations are very uncertain in EC law.
After the primary sources there is secondary legislation. The acts of secondary legislation consists of Regulations, Directives and Decisions. All secondary legislation is published in the Official Journal (OJ). They are published in two main partes , the L series (legislation) contains the binding legislative acts, the C series ( information and notices) contains a wide range of documents which are not binding as such for e.g notices , press releases , job advertisements etc.
Regulations are defined in Article 249; ‘A Regulation shall have general application. it shall be binding in its entirety and directly applicable in all member states’. Directives are the general provisions of legislations applicable to the entire community , member states , institutions and individuals , rather than to specific individuals or groups. Direactives are the detailed law intended to be the same in all memeber states. Regulations are under the umbrella of Direct Apllicability. It was held in Commission v Italy (29/72) that member states cannot subjevt the regulation to any self created measures of implementation and only the measures of implementation provided by the treaty shall be applies unless the state has to do it for improvement of the implementation.
Directives are also defined in Article 249; ‘ 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 choce of forms of methods’. directives are binding , they can be targeted to a few selected memeber states but generally they are for all memeber states. They set out the aims to be achieved , the form and method to be used for achieving those aims are left to the discretion of the national authorities of the member state , but there is time limit given for the achivement of those aims.
249 EC; ‘ A Decision shall be binding in its entirety upon those to whome it is addresses;. These are the specific acts of law which are binding and enforecable and can be to member states or individuals both.
– RECCOMMENDATIONS AND OPINIONS;
Under article 249 they have no binding force as established in the case 322/88 Grimaldi , despite this they should be taken into consideration when interpreting national law in light of the Community Law.
– PROCEDURAL REQUIREMENTS;
Article 253 states that the binding acts of institutions should state the reasons on which they are based, failur of institutions to follow this can lead to judicial review and possible annulement of the measure under Article 230. It was held in France v Commission c-325/91 that there is a need to state the base of the treaty otherwise its void.
INTERNATONAL AGREEMENTS AND CONVENTIONS;
There are provisions in the treaty which empower the council and the commission to conduct external relations, the agreements of which are binding on both the community and the memeber statesand therefore form another form of EC Law.
THE COURT OF JUSTICE CONTRIBUTION:
As the treaties are largely of basic provisions they require substantial secondary legislation for it to be understood and given effect without confusions , and moreover the secondary legislation may need to be interpreted. This brings in a wide scope of involement of the Court of Justice, judges must at times adapt existing rules to fit the situation or introduce new rules to settle the matter judiciously. The court of Justice has determined that the treaty and secondary legislation must be interpreted and applied in light of the scheme of the treaty as a whole and to the scheme of principles of the preamble and Articles 2.3.10 and 12 of the treaty to achieve the result. The Court of Justice has moved to a much wider approachby developement of the most fundamental doctrines and principles of community law. These include direct effect , superamacy, state liability and developement of the genereal principles, fundamental rights and procedural rules. Community law creates by the Court is very influential in some instances it has been directly influentialin bringing about treaty changes. Article 244 of EC Treaty provides that judgements shall be enforecable.
Article 220 is a general guideline set by the treaty for the functioning of the court of justice and the court of first instance. Article 220 has been employed to justify the introduction of many different principles of law most natably human rights.
Done as an essay. words approx (1335)