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Teori ve pratikte supranational Avrupa Topluluk Hukuku (yapısal ve operasyonel bir çalışma)

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  1. Tez No: 12951
  2. Yazar: İRFAN PAÇACI
  3. Danışmanlar: PROF.DR. NAZİF KUYUCUKLU
  4. Tez Türü: Doktora
  5. Konular: Hukuk, Law
  6. Anahtar Kelimeler: Avrupa Topluluğu hukuku, European Community law
  7. Yıl: 1991
  8. Dil: Türkçe
  9. Üniversite: İstanbul Üniversitesi
  10. Enstitü: Sosyal Bilimler Enstitüsü
  11. Ana Bilim Dalı: Belirtilmemiş.
  12. Bilim Dalı: Belirtilmemiş.
  13. Sayfa Sayısı: Belirtilmemiş.

Özet

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Özet (Çeviri)

319 SUMMARY INTRODUCTION The European initiative started after the Second World War. In 1951, six countries (Belgium, France, West Germany, Italy, Luxembourg and The Netherlands) signed the Treaty of Paris which set up the ECSC (European Coal and Steel Community), concerned with the pooling of production and consumption of coal and steel. In 1957 the same six countries signed the Treaty of Rome, establishing the EEC (European Economic Community) better known as the Common Market, and the EURATOM Treaty (European Atomic Energy Community), designed to promote and supervize the development of nuclear and atomic energy. In 1965, common institutions for the three Communities were established, and became effective in 1967. These three Communities have generally been known as the European Communities, and more recently, simply as the European Community. In 1973, the UK, Denmark and Ireland joined the original six countries, and in 1981 Greece also joined, to be followed in 1986 by Spain and Portugal. The European Union would need institutions with sufficent power to give political leadership, capable of taking action where required to ensure equality for all states, but under democratic control. Such a European Union would require strong political commitment in the member states. By the time Tindemans presented his report to the Community leaders in 1976 it was obvious that the necessary political commitment, if it had ever existed, had evaporated.320 Political commitment to integration had declined at a time when the Community was supposed to be moving forward towards a more ambitions phase of integration. Yet the purpose of integration was to help the mixed-economy industrialised democracies of Western Europe, and the political freedom and social equality which they attempt to provide for their citizens, to survive in the modern world. Community law is both international and municipal, public and private, enacted and formulated in precedents. It is sui generis law and must be treated as such. The three European founding Treaties are the primary source of Community law, laying down the principles and rules which are binding on all Community members, since the nature of the Community itself, its existence, and its functioning, demand a consistent application of Community law between the member states. The acts of the Community represent a second source of Community law. Where uniform rules are needed, it can legislate directly, through regulations which are binding in law throuhghout the Community. They are oautomatically incorporated into the national legal systems of member states without specific individual ratification. The Community legal system has often been compared with that of the federal system of the United States. The basic document of the law, the Constitution, was drafted in terms of general intention and the Supreme Court was left to interpret it and to give it pratical meaning. By the process of judicial review, over Congressional measures and over state laws, the law in the United States has become an instrument in fulfilling the original intentions of the Constitution. The European Community is also a political structure which emerged out of a general act of will; it is an independent structure set up by a number of states which at that time were looking for something separate from and superior to the nation state. It too depends heavily on statements of general principle and about broad objectives. The United States Supreme Court plays a partly political role, the upholding of federal aims. A comparable role is also fulfilled by the legal system of the321 European Community, whose law has been described as the 'motor' to enable it to move towards its ultimate aim, the 'ever closer union' referred to in the preamble of the Treaty of Rome. I. THE SOURCES OF COMMUNITY LAW I. Written sources Foremost among the written sources of Community law is the so-called primary legislation of the European Community created directly by the Member States. It comprises the Community law contained in the Treaties establishing the European Communities themselves, including the annexes, schedules and protocols attached to the Treaties and the subsequent additions and amendments thereto. These include : Treaty establishing the European Coal and Steel Community of 18 April 1951 - 'Treaty of Paris'; Treaty establishing the European Economic Community of 25 March 1957 - Treaty of Rome'; Convention on certain Institutions common to the European Communities of the 25 March 1957; Treaty establishing a Single Commission of the European Communities (Merger Treaty) of 8 April 1965; Treaty concerning the accession of the Kingdom of Denmark, Ireland, (the Kingdom of Normway) and the United Kingdom of Great Britain and Northern Ireland to the EEC and Euratom of 22 January 1972, including the Act concerning the Conditions of Accession and the Adjustments to the Treaties (Accession Treaty and Act of Accession); Association Agreement with Greece oif 9 July 1961, with Turkey of 12 September 1963, with the African, Caribbean and Pacific States (ACP countries) of 28 February 1975 (First Lome Convention), etc.322 In the Community Treaties the legal acts are listed which the Community instutitutions have at their disposal when carrying out the tasks conferred on them (Art. 189, first paragraph, EEC; Art. 161, first paragraph, Euratom; Art. 14, first paragrafph, ECSC). Although the acts enumerated and described there in are given different names in the EEC and Euratom Treaties on the one hand and in the ECSC Treaty on the other, they may be classified according to their legal affects and 'adresses' as follows : A regulation is described in the second paragraph of Article 189 of the EEC Treaty and the second paragraph of Article 161 of the Euratom Treaty as a legal act which has general application, is binding in its entirety and is directly applicable in all Member States. The second parargraph of Article 14 the ECSC Treaty merely provides that general ECSC decisions are binding in their entirety. A more precise definition has, howover, been given by the Court of Justice, according to which general ECSC decision also are generally and directly applicable in the Member States. General applicability : means that the act is adressed to an indeterminate category of individuals and covers a multitude of unspecified circumstances. Binding effect means that the acts confer rights and impose obligations on those to whom they are addresed. The statement that regulations and general ECSC decisions are binding in their entirety serves to distinguish them from directives and ECSC recommendations, which are binding only as to the result to be achieved. Direct applicability : means that the legal effects occur without any intervention by Member States or their institutions. Regulations and general ECSC decisions therefore apply not only to, but also in, the Member States. Because of their general and abstract caharacter, reglutaions and general ECSC decisions have the same structure, as far as their content is concerned, as national laws. The Court therefore started in Case 8/55 (F£dechar), with regard to general ECSC decisions, that such acts are 'quasi-legislative measures'. In their capacity as general323 legislative acts of the Community, reglutaions and general ECSC decisions are instruments for securing the uniformity of laws. The secondary legislation of the Community is a further written source of Community law. This consists of the created by the Community institutions. It comes into being primarily as a result of the legal acts expressly provided for in the Treaties in so far as they concern binding rules. This is the case with reglutaions, directives, decisions adressed to individuals and States, and recommendations made under the ECSC Treaty. International agreements conculuded by the Community as an entity having international legal personality my be considered the final written source of Community law. The tariff and trade agreements concluded by the Community (see Arts III and 113 of the EEC Treaty) my be singled out in this connection. Whether such international agreements entered into by the Community rank as Community law or as international law in the Community legal system has not yet be settled conclusively. In view of the Council's practice of implementing international agreements by means of secondary Community legal acts - regulations and decisions in particular - it must be assumed that the provisions of international agreements are there by 'transformed' simultaneously into Community law. Such Community acts therefore are comparable to the rules which some of the Member States adopt when incorporating international agreements into their legal system. 2. Unwritten sources The general principles of law are one unwritten source of Community law. The existences and validity of general principles of law as a form of Community law arise primarily from the second paragraph of Article 215 of the EEC Treaty, which refers to the general principles common to the laws of the Member States in the case of non-conractual liability. On the other hand, Article 164 of the EEC Treaty, Article 136 of the Euratom Treaty and Article 31 of the ECSC Treaty enstrust the Court of Justice of the European324 Communities with the task of insuring that 'in the interpretation and application of this Treaty the law is observed'. This wording shows that, in performing its task, the Court is not restricted to written Community law, but also has to insure that unwritten law, andhence the general principles of law are observed. In its judgments, the Court also has applied the general principles of law in cases other than that refferred to in the Treaty as non-contractual liability in order to close various loopholes. It has had recourse, especially in the field of general administrative law and of fundemental rights, to the general principles of law as a source of Community law. Customary law is another unwritten source of Community law. This consists of law resulting from established practice, and the ensuing conviction that it respresents the law. For example, in Community law the right of the European Parliament to question the Council derives from custom. The general rules of international law may be considered to be only a supplementary source of Community law. Because of their generality they are of significance only in connection with the development of the principles embodied in Community law, and as specific expressions of the general principles of law. The Court of Justice has recourse to them especially when applying the principles of proportionality, good faith and legal certainty. 3. Decisions of the representatives of the governments of the Member States meeting within the Council A futher source consists in the decisions of the representatives of the governments of the Member States meeting within the Council. The Composition of the Council of the assembled representatives of the governments of the Member States is identical with the individuals who also form the Community institution known as the Council. The decisions taken by it are improperly called Council decisions.325 Technically, they are governmental agreements and hence international conventions. Unlike the acts of the Community institutions, they are not taken as a result of the exercise of powers conferred by the Treaties but are based on the Member States capacity to act under international law. Whether in view of their international origin they can be regarded as Community law is still an open question. At all events, there is a close connection with Community law, as the subject-matter and content of such 'Council' decisions relate to Community matters. This is borne out by the fact that such decisions are as a rule published in the Official Journal of the European Communities. II. COMMUNITY LAW AND PROCEDURES Community, law is both international and municipal, public and private, enacted and formulated in precedents. It is sui generis law and must be treated as such. The three European founding Treaties are the primary source of Community law, laying down the principles and rules which are binding on all Community members, since the natuure of the Community itself, its existence, and its functioning, demand a consistent application of Community law between the member states. The acts of Community represent a second source of Community law. Where uniform rules are needed, it can legislate directly, throug regulations which are binding in law throughout the Community. They are automatically incorporated into the national legal systems of member states without specific individual ratification. At the outset it should be noted that Community law, properly made in accordance with the treaties, has priority over any conflicting law of a member states. Where complete uniformity is not essential, the Community can work through the legal systems of the member states. In such cases, the Commission can use directives, which indicate a broad objective and call on the member states to which they are addressed to implement these objectives in harmony, but in their own way. Directives326 require somelegal action, which normally amounts to legislation, by the member states before they become national law. Decisions of the Commission are directed specifically to an individual or an enterprise, and are also binding on them. Recommendations and opinions given by the Council of Ministers or the Commission on matters of general or particular concern do not have binding fore of law, but are useful since they can test the reation to a proposed new Community policy without committing the Commission to that action. Directives and ECSC recommendations are binding as to the result to be achieved upon each Member State and, in the case of ECSC recommendations, on citizens of the Common Market as well. The Member States are obliged to take steps to ensure that the result is achieved. The choice of the form of the measures and methods used in achieving the results required under Community law is left, on the other hand, to the national authorities (Art. 189, third paragraph, EEC: Art. 161, third paragraph, Euratom; Art. 14, third parragraph, ECSC). Directives are also legally binding and are addressed to the member states. They lay down the intended results of legislation, leaving it to the individual member states as to how these aims are to be achieved. However, if they impose an obligation on a member state (e.g. to implement the principle of equal pay for work of equal value) they may possibly be effective even before they are actually implemented in the member state - if that state has not, for example, implemented them properly. These acts are directed exclusively at individual determinable addressees. Addressees may - according to the rules applicable in the EEC - be one or more Member States, or one more individuals in the Member States. Their content may be expressed either in concrete or in abstract terms. Decisions are binding in their entirety, and in this respect they differ from directives and ECSC recommendations. According to the case-law of the Court, decisions addressed to Member States are directly applicable in the same way as directives.327 Decisions are the usual means whereby the Community institutions deal with individual cases. To this extent they are comparable to administrative measures taken pursuant to national law. The recommendations provided for in the EEC Treaty and the Euratom Treaty (Art. 189, fifth paragraph, EEC; Art. 161, fifth paragraph, Euratom) and the opinions common to all the Treaties (Art. 189, fifth paragraph, Euratom; Art. 14, fourth paragraph, ECSC) differ from other acts in that they are not binding and therefore give rise to no legal obligations on the part of the addressees. The addressees are for the most part Member States. Only in a few cases specified in the Treaties may they also be addressed to individuals or undertakings (see Art. 92(1) of the EEC Treaty and Art. 54, fifth paragraph, of the ECSC Treaty). Recommendations and opinions differ from each other in that recomendations are generally made on the initiative of the Community institution issuing them, whereas opinions are delivered as a result of an outside initiative. The purpose of a recommendation is to suggest that the adressee take a specific course of action without legally obligging him to do so. An opinion either contains a general assessment of certain facts or prepares the ground for subsequent legal proceedings (see Arts 169 and 170 of the EEC Treaty and Arts 141 and 142 of the ECSC Treaty). There are also notices which are not really legislation as such, nor do they have the force of law, but they are generally intended to provide guidance. Up to now they have usually been used to assist companies in the field of competition. There are two procedures : the Consultation Procedure; and, since the Single European Act, the Co-operation Procedure. It should be noted that legislation is generally initiated by the Commission.328“THE EUROPEAN COMMUNITY'S LAW LEGAL SYSTEM”EEC(Article : 189) EAEC (Article : 161) ECSC (Article : 14) General Decisions Recommendations Decisions Opinions Recommendations Decisions Opinions Regulations Directives Recommendations Decisions Opinios Regulations Directives Consultation procedure (For regulations, directives and decisions of the Council of Ministers.) After general drafts and consultation Commission adopts proposal NOTE: At any stage the Commission may amend or withdraw its original proposal, and may be required to consult again the European Parliament and ECOSOC if changes are significant. Council of Ministers who consults European Parliament Economic and Social Committee (ECOSOC) Opinions published in Official Journal Council of Ministers for final decision. If adopted Publication in Official Journal If rejected proposal may be dropped or started.. again *329 Cosultation Procedure The stages as follows : 1. Commission proposal : The Commission prepares and discusses a preliminary draft with government officials of member states and other relevant bodies. It then adopts the proposal which must then be published in the Official Journal. 2. It goes to Council. The Council of Ministers simultaneously seek the opnions of 3. The European Parliament (who may suggest amendments) and ECOSOC. Both opinions are published in the Official Journal. 4. The draft returns to the Commission- who may amend the proposal if appropriate - and may refer the new proposal to the European Parliament and ECOSOC. The Commission then refers the amended proposal again to 5. Council- which refers it to one of its working parties to discuss the text-and comment on it as appropriate. It goes to 6. COREPER (the Committee of permanent Representatives) who prepare it, then send it back to 7. Council who under the traditional consultation procedure either (a) reject it-so that it has to start again if it is to be approved or (b) adopt it- and it is again published in the Official Journal.330 Co-operation procedure {Wit regulations, directive» «nü decisions of the Council of Ministers »Mowed by the Single European Act, 1787, - broadly for m.ittrrs relating to the establishment of the internal market, social and economic cohesion, ami technological research and development.) After general drafts and consultaiiun,Commission adopts proposalCouncil u( Ministers who consults I European Parliament ] Economic and Social Committee (KCOSOC) Council of Ministers, svho adopts a position,at the least, by qualified majority7“ (I) Approves Council ptnition European Parliament % who withm three montht: J u) İ m \ W \ or AmemU Council } ar Reiccu Council of Taket no rHniiion j common pmmun by J common pmition by t aKolııte majority ı atnolute majority \ 7 Council of Ministers adopts proposal Commission, within one month comments, amends, or revises proposal Council may then only act Unanimously Published in Official journal Council of Ministers who, within three months which may be emended with European Parliament approval by one month: | (I) Adopts final proposal by qualified majority (2) Of may un»nimm»!y atlnpt European Patliamrm amendment*, not appruvrJ by CnmmİtMon 0) or May unanimously amend Commotion proposal <<1 or Fails to act to proposal Uptrs, tu be dmpped or must starı again LEGISLATION PUBLISHED INOFFICIAL JOURNAL331 Co-operation Procedure This is a procedure under the Single European Act with a strict time scale which, in fact, adds a stage but does enable majority voting in specified areas. The first stages of drafting are similar right up to the time of final decision, but when the proposal is presented to the Council, the procedure is as follows : 1. If absolute agreement on the proposal is not achieved the Concil can adopt a common position by a qualified majority. 2. It then refers the proposal to the European Parliament (for second reading). The appropriate committee's opinions or recommendations are submitted to the full Parlimament who can 3. Either (a) within three months approve the position taken-in which case it is sent straight back to the Council which approves the legislation; or (b) if the Parliament takes no position within three month of the Council's referral, then the Council adopts the legislation on its own terms; or (c) the Parliament may propose amendments by an absolute majority of its members. The proposal is then referred back to the Council, within one month, together with the Commission's views and possible amendments. Within three months, the Council must either approve it by a qualified majority or amend it unanimously. It is important to note that even if the Parliament's amendments are rejected by the Commission they can be re-instated by unanimous decision of the Council. 4. If the European Parliament has rejected the Council position by an absolute majority, then the Council, within three months, can only adopt the legislation on second reading if they are unanimous. A one month extension for the Council may be agreed, but if tit still fails to reach a decision the proposal lapses. If adopted, it is published in the official Journal.332 III. THE RELATIONSHIP BETWEEN COMMUNITY LAW AND NATIONAL LAW The statement made in the introduction that Community law is an independent legal system, distinct from the legal systems of the Member States, raises the question of the relationship between Community law and national law. This relationship is charactized, on the one hand, by an interplay between Community law and national law and, on the other hand, by a conflict between Community law and national law. An interplay between the legal systems takes place first of all where Community law refers to the legal systems of the Member States to complete one of its own requirements. This is the case, for example, in Articles 48 and 52 of the EEC Treaty, whereby freedom of movement and the right of establishment are granted only to nationals of the Member States, the criterion of nationality being determined by the law of the relevant Member States. In some cases Community law makes use of the legal institutions provided for by national law to supplement its own rules. This is particularly evident in the case of the rules on the enforcement of judgements of the Court of Justice. Under Article 187 of the EEC Treaty, the judgements of the Court of Justice are enforceable under the conditions laid down in Article 192, for its part, refers expressly to the legal systems of Member States and provides that enforcement is to be governed by the rules of civil procedure in force in the State in the territory of which it is carried out. Finally, attention should be drawn to those cases in which, in order to give form to its own general provisions, Community law refers to all the legal systems of the Member States. A conflict arises between Community law and national law where a provision of Community law creates direct rights and obligations for citizens of the Common Market, i.e. directly applicable in the Member States, and is inconsistent in its substance with a rule of national law. A conflict between Community law and national law can be resolved333 only if one of the legal systems withdraws so that the other may apply, Written Community law contains this set of circumstances. In none of the Community Treaties is there a provision to be found which states, for example, that Community law ranks above national law, or that it is interior to national law. This follows from the fundamental principle of Community law : the ability of the Communities to function. The Member States have provided the Community with legislative powers to enable it to perform its task. The Community would be unable to perform those tasks if the acts adopted by it were not binding per se. If the Member Sates had the power to annual Community measures at any time by means of conflicting national measures, the continued existence of Community law, and hence of the Community itself, would be called into question. A basic precondition for the existence and functioning of the Community is therefore the uniform and consistent epplication of Community law in all Member States. Community law, however, has this effect only if it takes precedence over national law. A legal consequence of this precedence is the fact that any provision of national law which conflicts with Community law is invalid. This principle is confirmed in various provisions of the Community Treaties, in particular the second paragraph of Article 189 of the EEC Treaty, the second paragraph of Article 161 of the Euratom Treaty and the second paragraph of Article 14 of the ECSC Treaty, whereby regulations and general decisions have general application. They have this quality, however, only if they can not be encroached upon by (partial) national law. The same result ensues from the obligation of national courts to refer questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty, Article 150 of the Euratom Treaty and Article 41 of the ECSC Treaty. The Court of Justice has itself acknowledged the primary of Community law. In its landmark judgement of 15 July 1964 in Costa v. EN EL, it held that :334 ”The integration into the laws of each Member States of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure can not therefore be inconsistent with that legal system. The executive force of Community law can not vary from one State to another in difference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty set out in Article 5 (2) and giving rise to the discrimination prohibited by Article 7. The obligations undertaken under the Treaty establishing the Community would not be unconditional, but merely contingent, if they could be called in question by subsequent legislative acts of the signatories...“ The Court in its subsequent judgements has consistently confirmed the precedence of Community law. It has, in fact, developed it further in one respect. While in Costa v. ENEL it had to consider only the question of the precedence of Community law over subsequent national (ordinary) law, in Case 1 1/70 (Internationale Handellschaft) and Case 4/73 (Nold) it confirmed the principle of primarcy also in respect of the relationship between Community law and national constitutional law. National courts have in principle concurred with this view of the Court. In The Netherlands, no difficulties can arise anyway, since the precedence of Treaty law over national statutes is expressly provided for in the Dutch constitution (Arts 66 and 67). In the other Member States, the principle of the precedence of Community law over ordinary national laws has been acknowledged in the same way by the national courts. The constitutional courts of the Federal Republic of Germany and Italy, however, make an exception to this principle where Community law conflict in such cases should be resolved in favour of the fundemental rights.335 IV. HARMONISATION OF LAWS The evulation of Community law in its pursuit of the Treaty objectives also has the effect of harmonising the laws of the member states, principally in the economic field but also in wider areas. The national courts are responsible for aligning national case law with Community law and with each other's laws and indeed, in certain areas, for example those concerned with customs duties, the movement of workers, the mutual recognition of qualifications, taxation and export aids, the Treaty of. Rome contains clear directions. In the field of competition, the Commission has special powers in curbing restrictions in trade between member states so as to promote the proper functioning of a Comunity-wide market. Provision is also being made for the recognition of European patents, for Community laws to protect the environment and for a European Company Statute. The legal character of the Community is apparent in all-its institutions, which are all concerned with influencing, shaping and controlling the legislative output of the Community. Under the founding Treties, for example, the Commission was made the Community ”watchdog" with the job of seeing that the Treaties are observed. It is also the institution which both originates and administers the Community laws. The existence of the Court as arbiter on questions of interpretation of Community law has strengthened the Community as a political system. Defiance of its rulings by member states has been exceptional. Where the Commission may not feel able to challenge a member state directly on a matter which raises sensitive political issues, it can refer breaches of Community law to the European Court. The Court can also pioneer political advance in the way in which it interprets the Community Treaties to foster the cohesiveness of the Community.33.6 The Commission has long felt that harmonization of the company laws of member states is an important part of its abolition of obstacles to the free movement of goods and services, and to the completion of the Internal Market. Under the banner of the Treaty of Rome, therefore, there İs a long history of discussions of this complicated subject. It concerned the harmonization of safeguards with a view to making companies equivalent throughout the Community. Thus, it provided that those contracting with a company should be protected, against defects in its incorporaiton, limitations on its capacity, o any internal restrictions on its directors.

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