The Law Of The European Union. Nowadays A Creation Of The Ecj

1718 words - 7 pages

The law of the European Union. Nowadays a creation of the ECJBrought into existence by the postwar wish to establish a European economical integration, nowadays European legal system has attained characteristics, unforeseen at the time the Treaties were drafted. Most of these tendencies occurred in the first pillar where the ECJ was endowed by the drafters with a broad scope of prerogatives. Taking an advantage of that competence with a creative approach, slightly based on the actual Treaties provisions, the ECJ heralded the supremacy of EU law and other general principles of law, which were combined with the doctrines of direct, indirect effect and state liability. Thus, through ECJ's ...view middle of the document...

The postulating of this doctrine was sustained by developing on a little Treaty basis other general principles which form part of the evolving relationship between the ECJ and the national courts. What made MSs more willing to accept the Supremacy doctrine was the proclamation of their duty of cooperation under Article 10 as a general principle of EC law (Hilmar Killinghusen v Amt fur Land und Wasserwirtshaft Kiel [1998]). Most remarkable was the declaration of human rights as an inherent part of Community law. No matter that in Stauder v Ulm [1969] the ECJ used Treaty provisions (Articles 220,230 and 215) to enhance its arguments, these articles were formulated in an abstract and general fashion. Nevertheless the court was so persuasive in delivering this human-rights basis that it exceeded the scope of the Treaties in three main aspects. First, MSs became more willing to acknowledge the supremacy of EC law, which was essential for the functioning of direct and indirect effects and state liability. Secondly, the referrals to sources of international law signed by the MSs, such as the European Convention on Human Rights and Fundamental Freedoms, helped the interaction and coordination between Community and national law. Thirdly, this human-rights friendly approach inspired the drafting of the EU Charter of Fundamental Rights, which though not yet a binding source of law, appears to be a persuasive one (R v SOS ex parte BAT). The foundation for the Community legal order was further outlined by the recognition in the court's jurisprudence of other general principles such as proportionality (Watson & Belmann [1975]), legal certainty and non-retroactivity of criminal legislation (R-v- Kent Kirk [1984]).ECJ's inclination towards exceeding the drafters' intentions was outlined even more brightly in the proclamation of direct and indirect effects. In particular, ECJ intimated that EU law not only created rights and obligations for the MSs in the sphere of economics, but endowed individuals with rights enforceable before their national courts (Van Gend en Loos [1963], Defrenne-v- Sabena [1976], Commission v Italy, Franz Grad v Finanzamt Traunstein [1970] and Foster v British Gas Plc [1991]). ECJ went further by requiring national courts to apply and interpret national law in accordance with EC law (Von Colson and Kamann v Land Nordrhein- Westfalen [1984]; Marleasing SA v La Comercial Internacionale de Alimentacion SA [1990]). Compliance with EC law and its enforcement as superior legal order was further enhanced by allowing individuals to claim damages against their defaulting MS (Francovich and Bonifaci v Italy [1991]; Brasserie du Pecheur v Germany and Factortame v UK [1996]). Thus in the light of supremacy of EC law, the principles of direct effect, sympathetic interpretation and state's liability became prerequisites for unification and harmonization of MSs' national law in terms of matters from the first pillar. Therefore the ECJ can be regarded...

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