1.2.1.     Sources and scope of Community law

LEGAL BASIS

Treaties establishing the Community, as amended and supplemented (primary Community law, * 1.1.1 - 1.1.3); Articles 249 (189), 202 (145), 211 (155) and 308 (235) of the EC Treaty (legal bases for secondary or derived Community law); unwritten Community law, international treaties.

OBJECTIVES

Creation of a Community legal order as a basis for affirming the objectives of the Community.

ACHIEVEMENTS

1.     Primary Community law

* 1.1.1 - 1.1.3

2.     Secondary Community law

The Community's forms of action under Article 249 (189) of the EC Treaty (ECT) are regulations, directives, decisions, recommendations and opinions. These are independent legal instruments in Community law, with no connection to national legal instruments. These legal actions may be undertaken by the competent institutions with legal effect only if they are empowered to do so by a provision of the Treaty (principle of attribution of powers). Individual legal acts (with the exception of recommendations and opinions, which have no binding force) must be based on actual provisions of the Treaty (including what are known as implied powers). If a specific power is not provided by the Treaty, in certain circumstances recourse may be had to the subsidiary rule regarding competence in Article 308 (235) ECT. The list of legal actions in Article 249 (189) ECT is not exhaustive; there are, in addition, various forms of action, such as resolutions, declarations, organisational and internal actions, the designation, structure and legal effects of which stem from the individual provisions of the Treaty or the overall context of law embodied in the Treaty. Furthermore, the legal character of a measure taken by a Community Institution does not depend on its official designation, but on its object and material content. As preliminaries to the adoption of legal acts, white papers, green papers and action programmes are also significant. They are mostly agreed upon by Community Institutions as a way of promoting longer-term objectives (e.g. the White Paper on the Single Market).

a.     The various forms of action under secondary Community law

-     Regulations: They have general application, are binding in their entirety and are directly applicable in all Member States. As ‘Community laws', regulations must be complied with fully by those to whom they are addressed (individuals, Member States, Community Institutions). Regulations apply directly in all the Member States, without requiring a national act to transpose them, on the basis of their publication in the Official Journal of the European Community.

Regulations serve to ensure the uniform application of Community law in all the Member States. At the same time, they prevent the application of national rules the substance of which is incompatible with their own regulatory purpose. National laws, regulations and administrative provisions are permissible only in so far as they are provided for in regulations or are otherwise necessary for their effective implementation. National implementing provisions may not amend or amplify the scope and effectiveness of regulations (Article 5 (10) ECT).

-     Directives: They are binding, as to the result to be achieved, upon each Member State to whom they are addressed. However, the national authorities are left the choice of form and methods to achieve their objectives. Directives may be addressed to individual, several or all Member States.

In order to ensure that the objectives laid down in directives become applicable to individual citizens, an act of transposition by national legislators is required, whereby national law is adapted to the objectives laid down in directives. Individual citizens are given rights and bound by the legal act when the directive is incorporated into national law.

Since the Member States are only bound by the objectives laid down in directives, they have some discretion, in transposing them into national law, in taking account of specific national circumstances. Transposition must be effected within the period laid down in a directive. In transposing directives, the Member States must select the national forms which are best suited to ensure the effectiveness of Community law (Article 10 (5) ECT, ‘effet utile'). Directives must be transposed in the form of binding national legislation which fulfils the requirements of legal security and legal clarity and establishes an actionable legal position for individuals. Legislation which has been adapted to EC directives may not subsequently be amended contrary to the objectives of those directives (blocking effect of directives).

-     Particular developments: direct applicability and compensation

Directives are not directly applicable, in principle. The European Court of Justice, however, has ruled that individual provisions of a directive may, exceptionally, be directly applicable in a Member State without requiring an act of transposition by that Member State beforehand (consistent case-law since ECR 1970, pp. 1213 et seq.) where (1) the period for transposition has expired and the directive has not been transposed or has been transposed inadequately, (2) the provisions of the directive are imperative as to their substance and (3) the provisions of the directive confer rights on individuals. Accordingly, if these requirements are fulfilled, individuals may cite the provisions of the directive against all agencies in whom State power is vested. Such agencies include organisations and establishments which are subordinate to the State or on which the State confers rights that exceed those arising from the law on relations between private persons (Court judgment of 22 June 1989 in Case 103/88 Fratelli Costanzo ECR 1839 at 31). The agencies must then automatically comply with the directly applicable provisions of the directive. But even when the provision concerned does not seek to confer any rights on the individual and merely constitutes objective law, so that only requirements (1) and (2) are fulfilled, the Court's current case-law says the Member State authorities have a legal duty to comply with the untransposed directive (see, most recently, [1995] ECR I-2189, p. 2224). This case-law is mainly justified on the grounds of ‘effet utile’, the penalisation of violations of the Treaty and legal protection. Finally, when requirements (1) to (3) are fulfilled, an individual may not cite the direct effect of an untransposed directive where the direct effect is to the detriment of another private person (the ‘horizontal effect') (case-law, cf Faccini Dori [1994] ECR I-3325 et seq. at point 25).

According to Court case-law ('Francovich' case, [1991] ECR I-5357 et seq., Faccini Dori op. cit. at point 27 et seq.), an individual citizen may be entitled to claim compensation from a Member State which has not transposed a directive or has done so inadequately where (1) the directive is intended to confer rights on individuals, (2) the substance of the rights can be ascertained on the basis of the directive and (3) there is a causal connection between the breach of the duty to transpose the directive and the loss sustained by the individual. Fault on the part of the Member State is then not required in order to establish liability. If the Member State has powers of discretion in transposing the law, the violation must also, in addition to the three above criteria, qualify as defective or non-existent transposition: it must be substantial and evident ( Brasserie du Pêcheur/Factortame judgment of 5 March 1996, Cases 46/93 and 48/93, ECR I-1029).

-     Decisions: They are binding in their entirety upon those to whom they are addressed. These may be Member States or natural or legal persons. Decisions serve to regulate actual circumstances vis-à-vis specific entities addressed thereby. Like directives, decisions may include an obligation on a Member State to grant individual citizens a more favourable legal position. In this case, as with directives, an act of transposition on the part of the Member State concerned is required as a basis for claims by individuals. Decisions may be directly applicable under the same preconditions as the provisions of directives.

-     Recommendations and opinions: They have no binding force and do not establish any rights or obligations for those to whom they are addressed.

-     Legislative competence, right of initiative and legislative procedure: * 1.3.6, 1.3.8 and 1.4.1

-     Enforcement of legislation: Under primary Community law, the EC has only limited powers of enforcement itself, and EC law is therefore usually enforced by the Member States (obligation under Article 10 (5) ECT).

-     Actual application of the various forms of action: In many cases the Community Treaties lay down the possible form of legal action and leave the Community Institutions no choice thereof (e.g. Article 94 (100) ECT specifies directives). In many other cases, however, no specific type of legal action is stipulated (e.g. Article 71 (75(d)) ECT - ‘any other appropriate provisions') or an alternative is at least permitted (e.g. Articles 40 (49) and 83 (87(1)) ECT - 'directives or ... regulations'). In those cases the choice of form of action is left to the discretion of the Institution concerned. This is intended to allow the competent Institutions to fulfil the tasks set for them in a proper and appropriate manner. In exercising discretion, however, due account must be taken of the principles of proportionality and subsidiarity (* 1.2.2). In 1994 the number of directives applicable was around 1200, and that of regulations around 5500.

3.     Unwritten Community law

4.     International treaties concluded by the EC

5.     Ancillary Community law

This is made up of rules contained in international treaties which have been concluded between the Member States and which further the objectives of the Community (e.g. the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters). The conclusion of such international treaties is partly provided for in Article 293 (220) ECT.

6.     Hierarchy within Community law

Primary Community law is at the pinnacle of the hierarchy of law. The provisions of primary Community law are fundamentally of equal rank. This also applies to unwritten Community law. International treaties concluded by the Community rank below primary and unwritten Community law. These are duly followed by secondary Community law (see Article 7(4), first paragraph, second subparagraph ECT), i.e. to be valid, such legal acts must be compatible with hierarchically superior law. There is no precedence for individual legal acts of secondary Community law, either de jure or according to the enacting institution.

Under the procedures laid down in Article 249 (189) et seq. ECT, Parliament has certain rights to participate in the enactment of Community legislation (* 1.4.1). However, despite the widening of its powers in the Treaty on European Union (* 1.1.2), it continues to have limited influence (negative competence). With the aim of improving the application of Community law in the Member States and of increasing the acceptance of Community law by its citizens, Parliament is seeking to simplify the legislative process, improve the drafting of legislation and secure more effective penalties for those cases where Member States fail to comply with Community law. In addition, Parliament has made proposals to replace the present system of legislation by an improved, more transparent and more manageable system (resolutions on the Maastricht Treaty and on the 1996 Intergovernmental Conference).

16/10/2000