Right of the European Union

The right of the European Union includes/understands the legal provisions on which is founded the EU and the rules that it enacts. The Community legislation is the Droit European Communities, which are one of the components of the European Union, which includes/understands also procedures of co-operation: foreign politics and of common safety (PESC) and police and legal penal matter co-operation (CPJP). The treaty of Maastricht which created the European Union has famous the European Economic community (the EEC) in European Community (CE). The European Communities today are thus the European Community (CE) and European Atomic Energy Community (EAEC), ECSC having been molten in the EC. The Community legislation (of the European Communities) should not thus be confused with the whole of the right of the EU. The Community legislation is one of the essential components of the European right, i.e. the right of European application in general, which also includes/understands the right of the the Council of Europe, international organization distinct from the EU (the essential component of the right of the Council of Europe being the European Convention of the human rights and decisions of the European Court of the human rights who interprets Convention). The specificity of the Community legislation is to be " a clean legal system, integrated into the legal systems of the Member States " (Court of justice of the European Communities, Costa stop, 1964), i.e. that it applies immediately and confers to the private individuals rights that they can call upon in justice, possibly against a national rule not complying with the community rule.

It is the Court of justice of the European Communities (located at the Luxembourg) which is guarantor of the application of the Community legislation. This source is theoretically subsidiary.

Indeed, the legislative competence of the Community is held in respect by the Principe of subsidiarity, in virtue of which the community acts only if and insofar as the objectives of the action considered cannot be realized adequately by the Member States.

Within this limit, this source projects two kinds of texts, the payments and the Directive S, which are animated by an unequal thrust force.

The treaty establishing a Constitution for Europe and the modifying treaty which replaces it remove the pillars of EU (EC, PESC, CPJP) by conferring on the EU a single legal personality. There will be no more European Community with the coming into effect of the revision of Lisbon (the treaty THIS being famous " treaty on the operation of Union"). The expression of " right communautaire" only one historical and didactic interest will thus keep, but only will keep a relevance in substantive law the expression of " right of UE".

Sources of the Community legislation

One distinguishes the primary education Community legislation (or right originating), composed of various the treated S and the derived right , together of notes taken by the Community institutions in accordance with these treaties. Finally the jurisprudence of the Court of justice plays a big role among the sources of the Community legislation.

Primary education Community legislation

Treated of Paris of April 18th, 1951, instituting ECSC, European Coal and Steel Community. This treaty, concluded for one period from 50 years, expired in 2002 and thus does not produce any more an effect.
the Treaty of Rome -1 of the March 25th 1957 instituting the EEC, European Economic community.
the Treaty of Rome -2 of March 25th, 1957 instituting the EAEC, European Atomic Energy Community (Euratom).

Which it is necessary to add the various treaties which modified and supplemented these treaties founders:

Treaty Merger of the executives
Single act
Treated of Maastricht
Treated of Amsterdam
Treated of Nice

The provisions of these treaties for the majority are gathered in two treaties:

Treated on the European Union (treated EU), created by the treaty of Maastricht.
Treated establishing the European Community (treated EC), which corresponds to the famous treaty of Rome-1 by the treaty of Maastricht.

These two treaties are indicated by their initial. Thus, article 10 IT is article 10 of the treaty establishing the European Community.

Derived Community legislation

The derived Community legislation is composed of the other sources of Community legislation, defined in article 249 EC:

payment S, is equivalent of the national laws at community level: they establish applicable standards directly in each State.
Directive S, with the original legal status: intended in all the States or sometimes for some of them, they define obligatory objectives but leave in theory the free States on the means to be used, within a given time.
Decision S, obligatory for a number limited recipients.
Recommendation S and Opinion, which does not bind the States to which they are addressed. The Court of justice of the European Communities estimates however that a recommendation can be used for interpretation of the national right or Community.

This derived right is, by far, the most abundant right. Most of the right derived comes from the First pillar from the European Union, consequently of the application of the treaty of Maastricht.

Jurisprudence

Jurisprudence includes/understands the stops of the Court of justice of the European Communities and the County court of the European Communities, in particular marked within the framework of recourse formed by the Commission, the national courts of the Member States or private individuals.

This jurisprudence is particularly important because the treaties tackle very vast subjects but without formulating provisions always very precise. It makes it possible to ensure a unified interpretation of the treaties at the European level.

Evolutions of the Treaty of Rome of 2004

The Member States signed a Traité establishing a Constitution for Europe with Rome on October 29th, 2004. Its ratification is outstanding since the rejection of this treaty per referendum in France and in the Netherlands in 2005, but it is not excluded that some of its provisions, in particular institutional, are the subject of a new treaty.

This treaty replaces by a single text treaties EU and EC, as well as the Treaties of Accession of the German States.

It also modifies the sources of the Community legislation derived by taking note of the quasi-legislative nature of some from these sources. The directives become outline law . The payments, that the Court of justice attached according to their contents to the legislative power or the executive power, are divided into two categories: the European laws and the payments .

A clean legal order

The whole of the standards which constitute the Community legislation constitutes an legal order distinct from the national legal orders. It maintains with them the reports/ratios marked by three principles: autonomy without separation, primacy and direct effect.

The autonomy of the Community legislation

According to the formulation of the Court of justice, the Community legislation forms an order clean, distinct from that of the Member States, resulting from an autonomous source. The European standards are integrated into the national legal order but preserve their statute and their authority of Community standards.

The Community standards are valid whatever the local circumstances and even in the presence of legal standards local, even constitutional, contrary. In the same way, the interpretation of these standards must be unified at the European level: the national judge is not free to differently interpret the European standard of the judge of another country.

The principle of primacy on the national rights

The principle of primacy was devoted by the Arrêt Costa against ENEL of the CJCE of July 15th, 1964 (aff. 6/64). The contribution of this stop is paramount. Indeed, the Court will devote a principle not contained in the Community treaties and yet fundamental since it means that the primacy profits to all the Community standards and is exerted against all the national standards.

The Court will deduce this principle from a reasoning resting on three arguments:

immediate applicability (i.e. the fact that the Community legislation is automatically integrated and as such in the internal legal order of the Member States) as well as direct applicability or direct effect (i.e. the fact that the Community legislation creates in the inheritance of the private individuals of the rights which national jurisdictions must safeguard) would be dead letter if a State could from it be withdrawn by adopting an legislative act opposed to the Community texts.
the Community system is based on a principle of division of competences between the EC and the Member States. So that if the States could adopt contrary internal texts with the Community legislation, and make them precede, that would amount denying the divisions of competences which they supremely accepted.
if each State could refuse the application of standards of the Community legislation by the adoption of internal standards, that would put at evil the essential uniformity of application of the Community legislation.

The primacy is thus a “existential condition” (P. Pescatore) of the Community legislation which can exist as a right only to the condition of not being able to be put in failure by the right of the Member States.

Nevertheless, many Member States refuse to adopt the thesis developed by the Court. France, in particular, considers that the Constitution is the standard supreme and thus higher than the Community legislation. The confrontation between national constitutional courts and CJCE knew two stages:

the first in the Seventies in connection with the protection of the basic rights
the second still currently on the question of sovereignty

The direct effect of certain European standards

It is said that an European standard, for example a regulation or a directive, has a “direct effect” when it is directly invocable by a private individual at the time of a litigation. The direct effect is “vertical” when the private individual can use this standard against a State. It is “horizontal” if the private individual can prevail himself about it against another private individual.

If the European standards profit all from the primacy of the Community legislation, they are not very of direct effect. Generally, the Court of justice of the European Communities examines the contents of the act. If a provision is sufficiently precise and unconditional, it can be called upon by the private individuals. The Court of justice states traditionally that it is necessary to consider “the spirit, the saving and the terms” in each provision. Certain elements of this mode depend however on the denomination of the act: regulation, directive, international agreement concluded by the Community.

The principle of the direct effect, constantly proposed by the Court of justice, contributed to ensure the effectivity of the Community legislation.

The principle of the direct effect

The Court of justice posed the principle of the direct effect with the Arrêt van Gend in Loos of February 5th, 1963. She affirmed on this occasion that the provisions of treaty EC (then EEC Treaty) were invocables by private individuals in front of their national jurisdictions. Indeed, the treaty instituted according to it a new legal order to which the States definitively transferred their competences in certain fields. The Community acts can thus be addressed directly to the private individuals. She deduces from the role given to the Court of justice by article 177 of the treaty (current article 234 EC) that the Community legislation can be called upon by a private individual in front of the national judge.

The direct effect is recognized for the Community payment, which is by directly applicable definition “in any Member State” (article 249 EC). It is the same of the decisions whose private individuals are recipients. The international agreements concluded by the European Community are also invocables by private individuals, according to the Court of justice, for sufficiently precise and unconditional provisions.

Can the directives have a direct effect?

The situation is more dubious for the Community directives. The position of the Court of justice differs on this point from that from certain national jurisdictions.

The question arises at the conclusion of the period fixed by the directive for the transposition of its provisions in internal rights. Can the private individuals, if the State did not take measurements of transposition of a directive, prevail themselves of the rights that certain provisions of this directive would give them?

A literal reading of article 249 THIS pleasing certain national jurisdictions to consider that the directives cannot have direct effect: the directive “binds any Member State recipient” and would thus create rights and obligations only for the States. It is the position exposed by the Council of French State since the Arrêt Cohn-Bendit of December 22nd, 1978.

However, the private individual can have an interest with the implementation of a Community directive. The Court of justice affirms, it, that the directive can have legal effects for the private individuals, even for States not recipients of the directive. It acts, according to the terms of the Arrêt Van Duyn of December 4th, 1974, to ensure the “useful effect” of the directive, i.e. its implementation effective. Here still it takes again the criterion of “nature, the economy and the terms” of the provisions concerned.

However, the Court of justice does not admit that a vertical direct effect: in accordance with article 249 EC, a directive “binds any Member State” and thus does not produce obligation with load of the private individuals. She thus refused to grant to a private individual the possibility of prevailing herself against a company of a provision of a directive not transposed in the national right.

The contentious recourse

The treaty THIS creates five principal recourse and actions making it possible to ensure the effective application of the Community legislation.

The prejudicial reference

The prejudicial reference makes it possible a national judge to question the Court of justice of the European Communities when a point of Community legislation is posed during the course of a lawsuit. The object of the prejudicial reference is to ensure the unit of application of the Community legislation in the whole of the Member States. It has two principal fields of application:

the interpretation of a Community legal provision, like an article of the treaty THIS or a Community payment.
validity or the non-validity of a Community act: is a directive conforms to the European treaties or the general principles of the Community legislation?

According to article 234 of the treated THIS, this sasine is optional for the jurisdictions which are not last spring (courts dealing with the substance of a case whose decision is likely of call or cassation to the national level). It is on the other hand obligatory for the jurisdictions of last spring such as the Court of appeal or the Conseil State in France.

Certain national jurisdictions of last spring avoid however returning questions to the Court of justice. The Council of French State makes a broad application of the theory of “the clear act” according to which the national judge is not held to return the question to the Court of justice that if there exists a real difficulty of interpretation or validity.

The Court of justice recognizes with the national judge the possibility of not making use of the prejudicial reference if the Community legal provision “does not leave room to any reasonable doubt”.

The objective is to avoid any divergence of jurisprudence between the internal jurisdictions of the Member States. For this reason the Court estimates that the national jurisdictions cannot in no case to declare invalid a Community act, to be able which belongs only to the Court of justice itself. Only the Court of justice, for example at the time of a prejudicial reference or of proceedings for annulment, can declare invalid a Community act.

The answer of the Court is essential not only to the national judge who asked him the question within the framework of the business concerned, but also on the whole of the national jurisdictions of the Member States: all will have to interpret the legal provisions Community in the same direction as the Court of justice.

Proceedings for annulment

the appeal against inaction

the action in failure

the action of responsibility

Freedoms of circulation of the Community legislation

Free movement of the goods

The Community system set up a principle wanting that the whole of the trade in goods is subjected to freedom of circulation; knowing that this freedom applies “to very produced, appreciable out of money and suitable for form the object of commercial transaction”.

The freedom of circulation of the goods within the European Union is a fundamental freedom envisaged in treaty (art.3 and 14 TCE).

It is guaranteed by two distinct devices: that of articles 23 to 25 which aims at removing the tariff obstacles and that of articles 28 to 30 which is interested in the quantitative limitations of the imports and exports.

Eradication of the tariff obstacles

Articles 23 to 25 éradiquent the tariff obstacles while laying down:

on the one hand, “prohibition, between the Member States, of the customs duties to the import and the export and of all having the same effect taxes”
on the other hand, “the adoption of a Commun Customs Tariff in their relations with third countries”

Articles 23 to 25 of the TCE have vocation to apply so much to the products which are originating in the Member States than to those which are in free circulation in the Member States.

The definition of a product in free circulation is posed with art.24 TCE. Is thus a product in free circulation, a native product of one Nonmember state to the European Union, which meets three conditions:

the formalities of importation were accomplished
the customs duties and having the same effect taxation was perceived by one of the Member States at the time of its entry of the Community territory
it did not have there of rebate total or partial of these rights or taxes

The product put in free circulation thus will be comparable with a product manufactured in the European Community and will also profit thus from free movement of the goods. The goal is thus to prevent that the native products of a third country are taxed with each passage with intracommunity border, which would call into question the object even of a Customs union.

Within the framework of the obstacles of the tariff type, it is necessary to distinguish 2 categories of obstacles:

customs tariffs and equivalent taxes (art.25 TCE)
discriminatory internal taxation (Article 90 TCE)

customs tariffs and equivalent taxes (art.25 TCE)

Under article 25 TCE, all customs tariffs and having the same effect taxes must be éradiqués.

With regard to the customs duties:

Prohibition relates to the rights to the importation but also the export duties which will strike the native products of a Member State but also the products put in free circulation.

With regard to the having the same effect taxes to the customs duties (TEE):

To be estimated equivalent to a customs duty, the tax is meant of any pecuniary load, even tiny, other that a customs tariff itself, imposed by a Member State or a qualified community of this one (Carbonati, 2004) and this, some is its name and its technique. Thus, a TEE will come to strike the national or foreign goods because of the fact that they cross the border, by increasing their final cost price. To note that it does not matter that she does not exert any discriminatory or protective effect. In the same way, no justification social, environmental or cultural (or others besides) can be advanced. It is a total ban of the TEE. The only exception relates to the pecuniary load which would aim to strict “the remuneration of a service, definitely identifiable and actually rendered to the economic operator” (Cadsky, 1975)

discriminatory internal taxation (Article 90 TCE)

Article 90 TCE: “No Member State strikes directly or indirectly the products of the other Member State of internal taxation, of some nature which they are, higher than those which strike directly or indirectly the similar national products. Moreover, no Member State strikes the products of the other Member State of internal taxation likely to protect indirectly from other productions”. The judgment by Article 90 TCE of discriminatory internal taxation comes to supplement the preceding one, in the sense that the same imposition could not belong simultaneously to the two categories. Here, one is within the framework of tax discriminations. Thus, article 90 TCE imposes a double prohibition:

Al 1: prohibition of internal taxation which would result in surtaxing a product imported compared to a similar national product
al.2: prohibition of a surtaxation of a product been essential in order to protect the other national products

The prohibition of the quantitative obstacles

The prohibition of the quantitative restrictions and having the same effect measurements to the quantitative restrictions

Definition

Articles 28 and 29 of the TCE lays down the prohibition of the quantitative restrictions (RQ) and having the same effect measurements to the quantitative restrictions (MEERQ) as well on the importation as on export. These two texts aim thus to the prohibition of the quotas or measurements aiming at quantitatively limiting the import or the export of certain goods.

The concept of MEERQ was defined by the stop CJCE, July 11th, 1974, Dassonville (aff.8/74): It is a commercial regulation of a Member State likely to block directly or indirectly, currently or potentially the intracommunity trade.

Field of application

It arises from articles 28 and 29 TCE which the RQ and MEERQ are prohibited as well with the importation as with export. Nevertheless, that is also worth for the products which are only in transit on the territory of a Member State. That arises explicitly from art.30 TCE (which relates to the justification and thus the legality of certain restrictions). The Court also affirmed it implicitly, in the stop CJCE, December 9th, 1997, Commission against France, then explicitly in the stop CJCE, June 12th, 2003, Schmidberger against République of Austria.

Moreover, also the question arose of knowing if there could be RQ or MEERQ in the event of inaction of the Member State. Indeed, one easily visualizes the idea of a positive action of a State setting up for example a quota of goods authorized at the importation. Nevertheless, an abstention can have the same effect. Such was the case in the Commission business against France since the obstacle was not the fact of the State but private individuals. The French State, by not taking sanctions in their connection, put at evil free movement of goods. The Court thus considered that the abstentions can also constitute a MEERQ. That thus does not come out directly from article 28 but from its reading combined with article 10 TCE which obliges the Member States to take all measures general or particular suitable to ensure the execution of the obligations rising from the treaty and to abstain from all measures likely to put in danger the realization of the goals of the treaty. To note that in this field, a payment of 1998 intervened: one passed from the term of MEERQ to that of “obstacles to freedom of circulation”. Moreover it provides that the inaction can constitute an obstacle and that the simple transit is concerned with the concept of obstacle.

the stop Keck and Mithouard or distinction of the MEERQ

In the stop Blackcurrant of Dijon, the concept of MEERQ had been explicitly widened because it was of a measurement indistinctly applicable and a measurement touching to the manufacture of the product and not purely commercial

From where: can be a MEERQ, a measurement directly or indirectly applicable, currently or potentially applicable, indistinctly or not indistinctly applicable and finally, any type of measurement (commercial, of manufacture,…).

The consequence of this widening will be that the economic operators will try to break all not-liberal measurements. What will involve a multiplication of the dispute. Indeed, the not-liberal regulations inevitably have an impact on the volume of the sales on all the territory and thus a fortiori on the volume of the sales of the imports and can thus by là-même constitute a MEERQ. In parallel, the jurisprudence of the CJCE will be confused, applying a kind of rule of the minimis however prohibited in this matter.

The system thus will be modified, concerning the MEERQ, by the stop CJCE, November 24th, 1993, Keck and Mithouard. The Court makes a distinction between:

a regulation concerning the product itself (measurement of marketing). : measure concerning “their denomination, their form, their dimensions, their weight, their composition, their presentation, their labelling, their conditioning,…”

In this case, will apply prohibitions envisaged to articles 28 and 29 TCE.

a regulation concerning the methods of sale:

The Court here will operate a reversal by judging that “is not ready to block directly or indirectly, currently or potentially the trade between the Member States,… the application to products coming from other Member States of national provisions which limit or prohibit certain methods of sale,

provided that they apply to all the operators concerned carrying on their activity to the territory main road,
and provided that they affect same manner, in right as in fact, the marketing of the national products and those coming from other Member States.

It is here about all that is publicity, presentation of the products, margins, price, time of retractation for the consumer, contractual clauses,…

For the methods of sale thus, in theory, one will not seek even any more if it is a MEERQ or not.

The justification of the obstacles

To establish an infringement with the treaty, it is not enough that there is a restriction of concerning principle articles 28 and following ascribable on the Member State. Such a restriction can be justified on the basis of article 30 THIS or in accordance with the jurisprudential line “Blackcurrant of Dijon”.

article 30 TCE

Under article 30 EC, articles 28 and 29 do not make obstacles “with prohibitions or restrictions of import, export, of transit, justified by reasons of public morality, law and order, public safety, protection of health and life of the people and animals or of safeguarding of the plants, protection of the national treasures having a value artistic, historical or archaeological or of protection of the industrial property and commercial”. That is worth, provided that they constitute “neither an arbitrary means of discrimination nor a restriction disguised in the trade between the Member States”.

Jurisprudence specified the conditions of applicability and application of this article. Thus, this article can be applied only:

if it is noted that measurement constitutes a RQ or a MEERQ
measurement must be necessary to achieve the goals pursued by the Treaty
it should not exist of harmonization in the field in question (because in this case, it is the special text which applies and not the general treaty).

It can thus be a question here as well of an indistinctly applicable measurement, as a measurement which aims only the imports or exports. Moreover, the justification will be accepted if measurement is suited, necessary and proportioned; the burden of proof falling on the State author of measurement.

the stop “Blackcurrant of Dijon”

The stop CJCE, February 20th, 1979, Rewe-Zentral (known as “Blackcurrant of Dijon”), will introduce a new justification with the obstacles perpetrated by indistinctly applicable measurements. They are the imperative requirements. Thus, since an obstacle is necessary to satisfy imperative requirements, such as the effectiveness of fiscal controls, the honesty of the commercial transactions or the defense of the consumer, it will be accepted. Nevertheless, measurement in question must answer the double condition of need and proportionality.

the preliminary system of the safeguard clauses

If a country realizes that the same product arrives in enormous quantity, which could involve an economic destabilization then a procedure is envisaged within the Community to allow restrictions.

Synthesis of the system of the MEERQ

Intended measures with the imports

Article 28: possible MEERQ
possible justification by the means of impossible art.30 TCE
justification by the means of the imperative requirements because it is not a question of indistinctly applicable measurements.

indistinctly applicable Measurements

methods of sale: not control but nevertheless principle of non-discrimination taken into account (cf should not prevent or obstruct more the mattered products that national.)
condition related to the product:

art.28 : possible MEERQ
possible justification by the means of possible art.30 TCE
justification by the means of the imperative requirements (only if no directive of harmonization intervened)

Freedom of movement of the people

This freedom has three shutters. It concerns:

on the one hand employed persons (Article 39 to 42 TCE)
on the other hand freedom of establishment (Article 43 to 48 TCE)
finally, performances of service (Article 49 to 55 TCE)

Freedom of movement of the capital

The text founder of freedom of movement of the capital is directive 88/361.

Importance of the Community legislation

primary education Community legislation

the French Constitution had to be revised with four recoveries since 1992:

in 1992, at the time of the ratification of the Treated of Maastricht,
in 1993 for the Agreements of Schengen,
in 1999 for the Treated of Amsterdam,
in 2003 with regard to the warrant for arrest.

derived Community legislation

Each year, the Council adopts more than 600 payments and more than one hundred of Directive S, on proposal of the European commission.

In France, according to the report/ratio of Bernard Carayon, the Delegation with the European Union of the National Assembly submitted 231 texts to the deliberation of the Député S during the parliamentary year 2004 - 2005. In the majority of the cases, the law has the aim of applying a Community provision, either under a formal transposition, or because the matter is of Compétence Community.

It is estimated that the proportion of the Community legislation in the legislative production is from approximately 60 to 70% of the new texts. It is envisaged to measure this proportion.

Source: '' Report/ratio With equal footings '' of Bernard Carayon July 2006

See too

Principle of subsidiarity of the Community legislation
Decision-making process in the European Union
Article 88 of the French Constitution
the characteristic of the control of conventionnality and the control of constitutionality of the treaties in the article Constitutional council (France)

External bonds

the original text of 1957.
White paper on the European governorship (preliminary works), report/ratio on the application of the Community legislation by the Member States and on the control of this one by the commission, container of the recommendations in order to improve them from the point of view of the democratic governorship European July 25th 2001
the text (consolidated) of the Treaty establishing the European Community (TCE).

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