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§ 3. Features of institutsionalno-legal registration of the concept «nadnatsionalnoj the Supreme power»

The concept «nadnatsionalnoj the authorities» has received institutsionalno-legal registration by means of establishment nadnatsionalnyh institutes of the European Communities.

As it has already been noted in the previous paragraph the concept «nadnatsionalnoj the Supreme power» assumed essentially new approach to association of the European states, consisting in establishment in Europe nadnatsionalnoj the organisations, and subsequently - nadnatsionalnoj federations.

Voluntary transfer of a part of sovereign powers of member states to the created organisation became a legal basis of the given concept. For realisation of the transferred powers it was necessary to create special institutes which could make obligatory decisions within the limits of this organisation. With the main task thus was to provide balance of the competence of Communities and the competence of member states. That is, it was necessary to find such "balance" which, on the one hand «has excluded excessive strengthening of the power of institutes of Communities to the detriment of national interests of member states», and with another, has given to institutes of Communities such volume of powers which has allowed them «contrary to resistance of the separate states to provide achievement of problems and the integration purposes».

The decision of this problem has been found in concept frameworks «nadnatsionalnoj the Supreme power» by Z.Monne and approved at creation of the European Communities.

In the course of institutsionalno-legal registration of the concept «nadnatsionalnoj the Supreme power» can allocate 3 stages.

The first stage is connected with working out and Contract acceptance about EOUS.

Originally, the contract draught about EOUS, the developed Z.Monne provided creation only the Higher supervising body allocated all executive and legislative powers. Thus creation uniform nadnatsionalnoj the authorities in the beginning of integration of Z.Monne considered unacceptable. Nadnatsionalnye the bodies allocated with imperious powers, at first operate only separate branches (i.e. are created within the limits of each of founded associations), then - more and more wide spheres of a public life. In process of development of integration and federation establishment, the system of the general national bodies, which [168] is created

Member states transfer a part of the sovereign rights. Further there should be a gradual merge of the state sovereignties and creation of the uniform mechanism of the federal authority within the limits of the European organisation which decisions will possess leadership in relation to

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To the national law of member states.

However by results of negotiations and coordination of positions of the European states the concept «nadnatsionalnoj the Supreme power» has been realised in a little limited kind. The structure of created Communities has to the greatest degree changed institutsionalnaja.

According to the prisoner following the results of negotiations to the Contract about EOUS 1951 in an association basis the system including the Higher supervising body, Ministerial council, the General assembly and Court has been put in pawn quadrilateral institutsionalnaja.

In system of institutes EOUS the key role from the very beginning belonged to the Higher supervising body.

It has been created as the executive centre of the organisation allocated wide nadnatsionalnymi with powers. Independent character of its activity was especially underlined. So, in Contract item 9 about EOUS in which independence of actions of members of the Supreme body and nadnatsionalnom character of their functions is underlined. «At realisation of the powers they do not enquire and do not receive any instructions from any government or other organisation. They abstain from any actions not compatible with nadnatsionalnym by character of their functions» [169 [170] [171] [172]. Besides, to the Supreme body has been accorded to make a right the decisions carrying a binding character for member states (Contract item 14 about EOUS). The higher supervising body could give recommendations or the conclusions.

Recommendations carried a binding character in a part, achievements of objects in view, but gave a choice of methods of achievement of these purposes. In turn, the conclusions had no binding force.

Creation in system of institutes EOUS of the body allocated nadnatsionalnymi with powers, certainly, became break in

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Traditional representations about the international organisations.

However already in the Contract about EOUS the measures limiting independence of the Higher supervising body have been put in pawn. Under the insisting of the Benelux countries which have joined the Contract about EOUS, as a counterbalance to the Supreme body the Ministerial council which on some question, of great importance, should approve decisions of the Higher supervising body has been created. The ministerial council besides the general problem of enforcement of the treaty had for an object to provide a coordination of actions of the Supreme body and the governments of member countries in development of incorporated branches - coal and a steel - and economy as a whole. Council consisted of representatives of member countries: on one from each state. The post of the chairman was occupied serially with one of representatives of member state. Thus, as has fairly noted B.I. topornin, has been in practice allocated by braking "functions" »in relation to activity of the Supreme supervising body, and in a more comprehensive sense - in relation to the tendency nadnatsionalnosti in development of processes of integration» [173 [174].

Thus, the concept «nadnatsionalnoj the Supreme power» in institutsionalnom the plan, which Z.Monne considered as the most important, has been realised only partially: along with nadnatsionalnymi authorities the traditional bodies of interstate cooperation limiting powers nadnatsionalnyh have been created. Arisen from creation of the first European Community - EOUS - the dichotomy of authorities will lead to that all subsequent development of the European Communities, and then and the European Union will be characterised by constant struggle of these two types of bodies for expansion of the powers which will extend subsequently on activity of the European Communities and the Union as a whole.

For maintenance of the parliamentary control the General assembly EOUS consisting of representatives of national parliaments of member countries has been created. However its real powers have been shown to a minimum. So, in the Contract about EOUS only advisory functions and control functions (Contract item 20 about EOUS) have been mentioned. Unique significant means of expression of the will the Assembly had a vote of no confidence to the Supreme body: in case of giving of 2/3 voices of members of Assembly the Supreme body should retire collectively (Contract item 24 about EOUS).

The great value had Court EOUS creation. The court has been urged to provide lawful interpretation and application of Contract EOUS, legality of certificates of bodies EOUS, and also to resolve disputes between the Supreme body and member states or citizens of the countries-participants of the Contract (Contract item 31 about EOUS). Besides other the Court has been allocated by the right to declare not valid Supreme body decisions, certificates of the General assembly or Ministerial council on causes of infringement of procedural requirements, absence of the competence, breach of contract or any other legislative norms,

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Concerning its applications.

The contract about EOUS combined as essentially new positions (for example, creation nadnatsionalnyh institutes), and traditional international legal (establishment of classical interstate body - Ministerial council), that has directly affected the developed Z.Monne's legal incompleteness of the project of creation nadnatsionalnoj the organisations as first step to association of Europe in federation. Many positions of the Contract remained the declarative, not supported [175] concrete mechanisms. Thus, institutsionalnaja structure EOUS allocated partly nadnatsionalnymi with powers, could not open to the full the potential put in pawn in it as beyond member states real possibility of effective intervention in activity EOUS remained.

Nevertheless, the Contract about EOUS has appeared very important link in the European integration process. Institutsionalnaja model EOUS will be used further and there is a prototype of institutes of other Communities, and then and EU as a whole.

Thus, at the given stage institutsionalno-legal registration of the concept «nadnatsionalnoj the Supreme power» has partial character.

The second stage of formation of system of institutes of Communities is connected with signing of Contracts on establishment of EUROPEAN ECONOMIC COMMUNITY and Euroatom of 1957. By the Roman contracts it is kept quadrilateral institutsionalnaja model, but under partially modified names: Parliamentary assembly, Council, the Commission (analogue of the Higher supervising body EOUS) and Court. Thus the Parliamentary assembly and Court were created as the general institutes for all three Communities.

Any basic differences between Supreme body EOUS and the EUROPEAN ECONOMIC COMMUNITY Commission, Ministerial council of EUROPEAN ECONOMIC COMMUNITY and EUROPEAN ECONOMIC COMMUNITY Council was not. Nevertheless, in comparison with EOUS institutsionalnyj the balance of EUROPEAN ECONOMIC COMMUNITY and Euroatom has been essentially changed. The ministerial council became a unique legislature, and the Commission was allocated with executive functions, and also has received the power to initiate legislation and powers under the control over observance of the obligations by member states (it actually and has caused name change). That is, in system [176 [177] [178]

137 Monne Z.Realnost and a policy. M: «the Moscow school of political researches», 2001. With. 494.

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WITH. 207.

161 Kashkin J.S.Nadnatsionalnost in the right of the European union//the Right and the state: the theory and practice. 2006. № 5. With. 91.

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Institutes there is an expansion of powers of intergovernmental institutes and reduction power nadnatsionalnyh. On the basis of it it is possible to draw a conclusion, that if at creation EOUS (even despite establishment of intergovernmental body - Ministerial council), have more likely prevailed nadnatsionalnye integration tendencies, in system of institutes of EUROPEAN ECONOMIC COMMUNITY and Euroatom "warp" aside nadnatsionalnosti has been corrected, and the new system of institutes provided certain balance between nadnatsionalnymi and intergovernmental institutes.

Thus, it is possible to establish, that at the given stage the concept «nadnatsionalnoj the Supreme power» in the institutsionalno-legal plan is made out in even more limited kind.

The third stage of formation institutsionalnoj systems of Communities is connected with merge of institutes of Communities in uniform organisation-legal system.

Successful functioning of the European Communities in 1950th years has brought on the agenda an attention to the question on necessity of association of three separate systems of the directing bodies arranged rather similarly and already incorporating the general institutes (Court and Assembly).

The question has been solved in 1965 by signing in Bruxelles Contracts on establishment of the uniform Commission and uniform Council of the European communities, more known as «the Contract on merge» [179]. The maintenance of this Contract clearly from its name: instead of two Commissions (EUROPEAN ECONOMIC COMMUNITY and Euroatom) and Supreme body EOUS the Commission of the European Communities was created. In turn instead of Council of minister EOUS and Council of EUROPEAN ECONOMIC COMMUNITY and Euroatom Council uniform Council of the European Communities has been founded. Also according to the Contract there was a merge of three budgets in «the general budget of the European communities». However in this case merge was not full as EOUS has kept the

The operational budget.

After «Contracts on merge» three Communities actually became the uniform integration association operated the general institutes, and accordingly, the same people. Depending on a subject and a kind of a question Council, the Commission, Assembly and Court applied norms of the Contract about EOUS (if a subject - coal and steel sphere), the Contract on Euroatom (if the question concerned atomic engineering spheres) or Contracts on EUROPEAN ECONOMIC COMMUNITY (for all other questions).

At the given stage there is a definitive institutsionalno-legal registration of the concept «nadnatsionalnoj the Supreme power». Besides, there is a definitive legal fastening of existence in institutsionalnoj to system of Communities of two types of institutes - nadnatsionalnyh and traditional intergovernmental, that will cause further permanent struggle of these institutes for expansion of the powers which will extend subsequently on activity of the European Communities and the Union as a whole

Let's consider in more details a legal status and powers of institutes of the European Communities.

The commission of the European Communities. In various foreign and domestic sources the Commission name «the guard of articles of incorporation», "heart", "engine" or "motor" of the European integration. The given institute appreciably distinguishes Communities from other international organisations.

The commission has been created to represent in the conditions of full independence, the general European interests, therefore it personifies nadnatsionalnoe the beginning in European institutsionalnoj to structure. Together with Court it urged to carry out functions of the guard of the European legality, tracing application and use of legislative norms

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The right of the European union / On red. S.J.Kashkina. M: JUrist, 2009. With. 93.

Communities in member states and, in case of need, can submit the case to Court.

The commission - one of the major institutes of Communities who carries out a daily operational administration affairs of Communities and without which participation any important decision is not made.

The commission quite often compare to the national state government as she plays a main role in an administrative office of Communities, in particular, disposes of credits under the budget, offers bills which become subsequently obligatory decisions, provides realisation of the general the politician (for example, agricultural, etc.), executes the budget and operates programs of Communities.

According to the Contract on Merge the Commission includes 20 members called by commissioners. Commissioners were appointed member states on the basis of a consensus. It meant, that for appointment of a member of the Commission the consent not only corresponding the government, but also the governments of other countries-participants of Communities is necessary. - the Great Britain, France, Germany, Italy, Spain - had five states on two places, and other members - on one. It is necessary to notice, that it is old tradition: in the Contract about EOUS 1951 it has been specified, that into structure of the Higher supervising body (the predecessor of the Commission) should enter at least, one citizen from each member state, but cannot be more than two members having identical citizenship. This principle, having existed 50 years, will be replaced in 2001 by a principle - «one state - one commissioner», that has been caused by joining of 10 new members. The established number of members of the Commission includes also its chairman. The commission and its members are appointed for a period of 5 years.

Members of the Commission do not represent the of the countries and are obliged to be independent (item 157 of the Contract on EUROPEAN ECONOMIC COMMUNITY, Contract item 9 about EOUS and item 126

Contracts on Euroatom). The governments of member states should respect independence of members of the Commission and not influence their activity. Members of the Commission cannot be discharged of work in the Commission at the initiative of member states. However the Commission with its full complement ceases to function in case of removal to it Parliamentary assemblies of a vote of no confidence (item 144 of the Contract on EUROPEAN ECONOMIC COMMUNITY, Contract item 24 about EOUS and item 14 of the Contract on Euroatom). The court also can release a member of the Commission from a post if will come to conclusion, that it mismatches shown to requirements or if it makes serious offence (item 159-160 of the Contract on EUROPEAN ECONOMIC COMMUNITY, item 12 and 12а Contracts about EOUS and item 120, 128 Contracts on Euroatom) [180 [181] [182].

Commission divisions included General secretary, the General managements which system is constructed by a branch principle, legal services, services of statistics and some other specialised services. Besides it the small office (10-15 persons) which ensured functioning submitted to each commissioner.

In item 155 of the Contract on EUROPEAN ECONOMIC COMMUNITY powers of the Commission are established. In particular the Commission:

- Guarantees application of positions of the present Contract and the measures undertaken by institutes for this purpose;

- Takes out recommendations or the conclusions on the questions connected with the present Contract if last specially provides it or if the Commission counts it necessary;

- Has own powers to make of the decision and to participate in working out of the measures undertaken by Council and European

The parliament, in those ways which are provided in the present Contract;

- Carries out powers which Council transfers it for performance of the decisions accepted by it.

These powers as a whole have the general character. Concrete powers of the Commission are established in separate articles of Contracts.

In particular, in Contracts control powers of the Commission are established. So, according to item 150 of the Contract on EUROPEAN ECONOMIC COMMUNITY the Commission provides observance of the Contract and certificates of the institutes aimed at its realisation.

The most important executive powers of the Commission are powers on investigation of offences.

The commission should watch observance and realisation of positions of Contracts and decisions of institutes of the European Communities. In case of default or inadequate execution of obligations of member states under Contracts, the Commission spends business fair investigation, the decision makes and notifies the corresponding government on what actions to it should be undertaken. The commission investigates the admitted infringement both under own initiative, and under complaints of the governments of member states, legal and physical persons (item 89 of the Contract on EUROPEAN ECONOMIC COMMUNITY). In case of default of the Commission decision by member state, last has the right to submit the case to the Court which decision is obligatory for execution.

One more important power of the Commission is execution of the budget of the European Communities (item 205 of the Contract on EUROPEAN ECONOMIC COMMUNITY).

In legislative process the great value has the right of the Commission legislative leadership. As the general principle the granted right in Contracts is not fixed, but in authorising norms practically always there is a formulation «Council, operating on the Commission offer...» (Item 100, 118, 127, etc.). Thus, the Commission in most cases acts as the initiator of legislative process, and this right is exclusive, that is, belongs only to it. However according to item 152 of the Contract on EUROPEAN ECONOMIC COMMUNITY Council can ask to spend the Commission any inspection as which he will consider expedient for achievement of overall aims, and to present it corresponding offers. That is, council has the right to demand from the Commission to show the legislative leadership.

Thus, the Commission actually and legally is the participant both pravotvorcheskoj, and pravoprimenitelnoj activity.

According to item 189 of the Contract on EUROPEAN ECONOMIC COMMUNITY for performance of the problems and according to positions of the Contract the Commission accepts regulations, instructions and decisions, give recommendations and the conclusions. The regulations are intended for general usage. It is obligatory in all parts and comes under to direct application in all member states. The instruction is obligatory for each member state to which it is addressed, concerning expected result, but keeps behind the national authorities freedom of choice of forms and methods of actions. The decision is obligatory in all parts for those to whom it is addressed. Recommendations and the conclusions do not carry a binding character.

It is necessary to notice, that crisis of "an empty armchair» 1960th years and the Luxembourg compromise which has followed them have essentially weakened the Commission role, appreciably having deprived of its trust and having forced to lower activity level. The aspiration to avoid conflicts to member states became the main element of its strategy. As has noted D.Kumbs, by the end of 1960th years «the Commission represented not nadnatsionalnuju, and traditional international bureaucracy» [183]. Within 1970th years the role and authority of the Commission continued to fall. Only from the middle of 1980th years the role and Commission influence have started to increase. In many respects it is connected with necessity of creation of the uniform market and a key role of the Commission for this process, and also person Jacque Delora, become in 1985 its chairman.

Council of the European Communities. The Ministerial council status has been defined directly in articles of incorporation. Created in EOUS as a counterbalance nadnatsionalnomu to the Supreme body, in EUROPEAN ECONOMIC COMMUNITY (and Euroatom) Council became the main legislature of Communities and the centre of acceptance of the basic political decisions.

Council has been urged to provide the coordination of national member states with performance of the problems facing to Communities. Functionally it co-ordinated the general economic policy of member countries and presided at the budget (along with Parliamentary assembly), it also posessed a solving word in legislative process, including under the most important certificates which on the value were equated to the legislative.

In article 7 of the Contract about merge it was specified, that Council is formed of representatives of member states in such a manner that each government delegates to its structure of one of the members. Thus members of the government should operate not irrespective of the governments, and on the contrary, as their direct representatives. For this reason council became that institute in which frameworks of the government directly participate in decision-making process.

Unlike other institutes of Communities Council does not include the constants selected for certain term of members. Depending on what ministers took part in session, the general and special (sector) Council was allocated. The special Council, which agenda included the questions, entering certain sphere of the competence of communities (trade, the industry, agriculture etc.), consisted of ministers, [184] responsible in the states for this sphere. The general Council, consisted, as a rule, of Ministers for Foreign Affairs, and prosecuted the general for all Communities subjects and questions of political character (the General council differently named Ministerial council of foreign affairs).

Presidency in Council unlike the Commission - a prerogative not the concrete physical person, and the state as a whole. Each member state of Communities serially, in alphabetic order, holds a post of the Chairman of Council within six months.

Article 4 of the Contract about merge had been provided formation at Council of Committee of resident representatives as its working body. For its designation the abbreviation "Koreper", occurring from French Coreper - reduced name Comite des representants permanents is often used. Koreper included the representative from each state in the ambassadorship. The organisation and an order of its functioning were regulated by internal regulations of Council. Chairman Koreper the resident representative of member state which are carrying out presidency in Council was appointed.

Koreper became the basic intermediary between Council and the Commission on the one hand, and Communities and the national governments - with another. Into duties of members Koreper entered also protection of national interests of the states in Communities, and upholding of positions of Communities in the face of the national governments. Thus, balancing between the all-European interests and national patriotism, Koreper became one of leading mechanisms institutsionalnoj systems of Communities. Under the aegis of Koreper operated more than ten the standing committees preparing the decisions in separate spheres. [185 [186]

Functions Korepera were defined by internal regulations of Council and reduced, mainly, to consideration and the statement of projects of decisions of Council.

Powers of Council are defined in item 145 of the Contract on EUROPEAN ECONOMIC COMMUNITY. In particular, it was specified, that for achievement of the purposes defined in the present Contract, and according to its positions Council:

- Provides coordination of the general economic policy of member states;

- Possesses the decision-making right. Thus Council remains till now the main institute publishing certificates of the secondary right, the Contracts listed in item 189 on EUROPEAN ECONOMIC COMMUNITY: regulations, instructions, decisions, recommendations and opinions.

Besides legislative powers Council possesses powers in budgetary sphere though operates not independently, and in cooperation with the Commission and Parliament (item 203 of the Contract on EUROPEAN ECONOMIC COMMUNITY). By the established rule Council discusses the budget statement prepared by the Commission, approves it and directs to Parliament.

Powers of Council in sphere of external relations are rather considerable. In conformity from item 228 of the Contract on EUROPEAN ECONOMIC COMMUNITY Council is allocated with powers on the conclusion on behalf of EU of agreements with other states and the international organisations. Thus negotiations about preparation of contracts and agreements are led by the Commission.

In article 148 of the Contract about EUROPEAN ECONOMIC COMMUNITY the method of adoption of decisions by Council [187 [188] was defined. In particular, point 1 of given article said, that «Council makes of the decision the majority vote of its members if the present contract does not provide other». Actually the simple majority made only insignificant decisions. The most part of decisions was accepted by Council or unanimously, or special majority of voices. However the prisoner in 1966 the Luxembourg compromise about which it will be in more details told in the following paragraph, has assigned to member states possibility to have right the veto at presence at them serious objections under separate offers which should be accepted by special majority. It, has led to that the countries-participants began to abuse the veto power, resorting to it even when their vital interests were not mentioned, that in turn, has considerably complicated acceptance process решений191. Similar expansion of powers of member states has considerably complicated process of acceptance of legal acts in Communities, that for the long period has slowed down development of the European integration. However such order remained up to 1986 when, as a result of signing of the Uniform European certificate, the circle of the questions solved in Council unanimously, was sharply reduced.

Besides other, Council activity has been complicated by problems of structural character. In process of expansion of fields of activity of Communities arose more and more new specialised councils therefore «Council began to test considerable overloads that has led still bolshemu to its crushing». Function of coordination of all activity of specialised councils, Korepera and the committees subordinated to it has been assigned on the state-chairman and the General Secretary subordinated to it. However change of the state - of the chairman occurring everyone half a year did not provide necessary continuity. As a result, already to the beginning of 1970th years Council has shown inability adequately to solve many problems facing to it. To avoid a collapse in work [189]

Council, the part of its administrative and technical powers has been transferred Koreperu, and a part - the Commissions. But even it it has appeared insufficiently that «to untie hands» to Council at decision-making. Therefore leaders of member states have gone on radical measures - creation of the higher political institute, capable to make strategic decisions and to play a key role in business of political cooperation - European

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Council.

European парламент194. According to the Contract about EOUS, and then both to the Contract on EUROPEAN ECONOMIC COMMUNITY and Euroatom the European parliament reflected as the consultative assembly of advisory character consisting of representatives of national parliaments of member states.

Originally the EuroParliament structure included 142 deputies, the elite from deputies of national parliaments (the double mandate). Parliament Legislative powers were limited to the right to give to consultation on a narrow circle of bills. Control powers - the right by means of removal of a vote of no confidence to send the Commission in resignation - was as a matter of fact useless as during this period the Commission possessed insignificant executive powers, and legislative functions remained behind Council, which Parliament could not affect.

The Roman contract provided one obligatory session of EuroParliament in a year - for zaslushivanija the Commission annual report. It is lawful to tell, that the Parliament did not play a considerable role in activity of Communities [190 [191] [192]. However the fact of existence of the European parliament broke all existing traditions. Parliaments as was considered, can

To be only in the states, being their discriminating line. The international organisations, for example, the United Nations, have no parliaments. Their assemblies or similar bodies consist of appointed representatives while the European parliament since 1979 began to be selected direct general election.

In connection with considerable limitation of functions, the EuroParliament from the first session which have taken place in 1958 has begun struggle for expansion of the powers. As has fairly noted I.I.crest, the EuroParliament history is a history of attempts of its members to expand the

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institutsionalnuju the power.

But, despite limitation of the powers, Parliament from the very beginning of the work has created the branched out system of branch committees, carefully traced all offers and Commission initiatives, has started to accept numerous resolutions on various spheres and points of order.

The EuroParliament possesses as well functions of the political control - Council and the Commission have been obliged to give to EuroParliament reports following the results of the activity, and also the total annual report on activity of Communities. Besides, the Parliament possesses the right to found the comission of inquiry when he considers, that the right of Communities has been broken, and also to accept petitions from citizens, legal bodies and to appoint the ombudsman who could accept complaints from physical and legal bodies and to spend corresponding investigations.

It is necessary to notice, that a role of EuroParliament and its power, especially in legislative and budgetary spheres, have the distinct tendency to increase. Change of procedure of its formation became the key moment in this process. [193]

In the mid-seventies years the decision on formations of Parliament on the basis of direct general election that became a turning-point in EuroParliament history was accepted. First, henceforth eurodeputies, having got rid of the double mandate, could be engaged in exclusively European affairs. Secondly, legitimacy of Parliament that has allowed it to take of more active political position has considerably increased and to combat for expansion of the powers. However direct elections had some negative consequences: in EuroParliament casual persons and minor politicians that has led to destruction of communications between EuroParliament and national parliaments were selected.

The European parliament is unicameral. All activity of Parliament and its bodies supervises over a Bureau, including the chairman, its assistants and kvestorov. There is also an expanded Bureau - the same officials plus heads of political groups. The bureau develops the agenda of its plenary sessions. Work on Parliament service is carried out by Secretary. It also lets out the official publication of Communities - the Official bulletin of the European Communities (fr. «Journal official des Communautes europeennes») both other newsletters and a reference media.

The basic work of Parliament is carried out within the limits of standing committees and the comission of inquiry which considers special questions, such as, racism, a narcotism, etc.

The organisation of work of EuroParliament is based on classical parliamentary traditions. By rules of procedure the Parliament should hold one plenary session in a year, but in practice it is divided on 11 [194] [195]

"Partial" week sessions with a monthly interval.

As a whole, the real role of EuroParliament is defined mainly by that, how much actively he participates in a life of Communities and as uses invested it with powers. Certainly, in system of institutes of Communities it was not the central body, but as a result of consecutive struggle for expansion of the powers, it gradually joins to process of acceptance of many important decisions.

The European court is one of the major bodies institutsionalnoj systems of Communities. The big interest to it is caused by that fact, that among the existing international organisations there were no yet courts of justice the similar competence and the organisation.

The contract about EOUS had been provided 1951 creation of the special court of justice which should provide appropriate application and Contract interpretation.

As a whole Court EOUS has been simulated like French Conseil d'Etat which is the higher French court which is responsible for revision of decisions of the government and supervision of observance by the government

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Limits of the powers.

At EUROPEAN ECONOMIC COMMUNITY and Euroatom creation the Court EOUS operational experience has been considered. It was initially planned, that each Community will have the own court of justice. However the given idea soon has shown the impracticality and, finally, has been decided to create for all three Communities uniform Court.

In articles of incorporation Court appointment is defined only by the general image: to provide uniformity of the right of the European Communities at interpretation and application of contracts (item 164 of the Contract on EUROPEAN ECONOMIC COMMUNITY). However this abstract formulation contains rather capacious filling. According to [196]

M.L.Entina, Court of Communities represents «a conglomerate of the most various elements. He sends the functions similar to functions international, federal, constitutional and the administrative courts» [197 [198] [199].

It is necessary to notice, that unlike other bodies of Communities - Council, the Commission and Parliament which are qualified by researchers as political institutes, Court of Communities - strictly functional specialised institute of not political character. Moreover, any political activity to associate justices is strictly forbidden. In the work the Court is guided exclusively by instructions of articles of incorporation, standard legal acts of Communities, and also the Court Charter. The Court charter contains a detailed regulation of its internal structure, an operating procedure, the form and legal proceedings principles. As the Court is based on three Communities, each of them had a charter - the Charter

ЛА1

(The Court EOUS charter, the Charter of Court of EUROPEAN ECONOMIC COMMUNITY and the Charter of Court of Euroatom). Positions of these documents are practically identical.

According to articles of incorporation associate justices are appointed the governments of member states for a period of 6 years (item 167 of the Contract on EUROPEAN ECONOMIC COMMUNITY). The main requirement to the judge - high professional qualification and independence. The quantitative composition of the court is equal to number of member states of Communities. The given rule has not been registered in constituent instruments. However in practice there was a custom: from each member state on one

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судье2

The composition of the court includes also general lawyers (Contract item 166 about

EU). The similar post exists in the judiciary of France, Belgium and the Netherlands. Most likely, from judiciaries of the given countries this juristic institution also is borrowed. The status of the general lawyer is rather interesting. It has no anything the general with the status, for example, the Russian lawyer. Its main appointment in Court of Communities - to spend preliminary own independent legal investigation and to present, after its termination, personal motivirovannoe the conclusion (item 166 of the Contract on EUROPEAN ECONOMIC COMMUNITY). Thus in discussion of business in Court general lawyers do not accept participation. But, despite a various role of judges and general lawyers in litigation, the order of their appointment is practically identical.

The composition of the court is updated each three years, however judges can be re-elected for new term (item 167 of the Contract on EUROPEAN ECONOMIC COMMUNITY). The judge or the lawyer can be deprived the post only in the event that under the unanimous decision of judges and general lawyers, it more mismatches shown requirements or does not carry out obligations, their following its official position.

The court considers cases on plenary sessions or in one of the chambers, consisting of 3-5 judges. Plenary sessions are spent in cases when it is a question of the affairs initiated by member state or institute of Communities, also, as well as about affairs of pre-judicial character. Other categories were put by Court, as a rule, directs on consideration to one of the chambers.

Decrees carry a binding character for all member states, institutes, and also the private persons who are in territory of these states. The right of appeal is not provided. Execution of decrees concerning physical and legal bodies is carried out by the corresponding member state, within the limits of the national legislation.

In case of default by the decision state (or its bodies, including judicial), the Court under the Commission offer has the right to inflict on this state of the sanction in the form of penalties. However the states usually aspire to provide the decree performance, even taken out against themselves, that provides higher ispolnjaemost its decisions in comparison with

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Certificates of other institutes.

The court of Communities is allocated as a whole rather by the large powers allowing it effectively to carry out judicial protection of the law and order of Communities.

First, the Court of Communities is body of the constitutional control. It considers and resolves all affairs connected with interpretation and application of articles of incorporation of Communities. Into direct jurisdiction of Court enters: removal of judgements on the merits of the disputes connected with claims about default of obligations, following from contracts; affairs about damage compensation; the affairs connected with the control over legality of regulatory legal acts accepted by institutes. Besides, the Court in a pre-judicial (preliminary) order (indirect jurisdiction) takes out the conclusions by inquiries of national vessels concerning legality or interpretation of this or that standard legal act of Communities. Here it is necessary to notice, that claims against member states for default of the contractual obligations by them can be initiated by the Commission or other member states (item 169-170 of the Contract on EUROPEAN ECONOMIC COMMUNITY). Thus the right of the Commission to excitation of claims against member states for default or inadequate execution of the contractual obligations is considered one of fixed assets of control of realisation of positions of Contracts.

Secondly, the Court represents itself as the arbitrator resolving individual disputes between all participants of legal relations in Communities. Decrees are obligatory for execution, the right of appeal is not provided.

Thirdly, the Court is not only pravoprimenitelnym, but also [200]

pravotvorcheskim body of Communities as the judicial precedent in the European Communities is of great importance for development of integration and formation of its legal basis. It is possible to tell with confidence, that the modern right of Communities, and then and the Union is the right substantially deduced by Court of the European Communities.

Thus, the extensive powers of Court allowing it to carry out function of body of the constitutional justice, pravotvorcheskoj instances, and also its right and a duty to consider cases in which the party is not only the states and institutes of Communities, but also physical and legal bodies, confirm nadnatsitsonalnyj character of this body.

Conclusion about that blanks and a fragmentariness are present and at institutsionalno-legal registration of the concept «nadnatsionalnoj the Supreme power». They have caused the basic features of system of institutes of Communities which consist in the following:

1) the system of institutes of Communities in many respects reminds system of authorities of a federative state, but keeps thus, variety of differences. Thus there is no clear split of legislative and executive powers between institutes of Communities;

2) existence in institutsionalnoj to system of Communities of two types of institutes - nadnatsionalnyh and traditional intergovernmental. Thus powers of intergovernmental bodies had constraining character in relation to nadnatsionalnym to institutes and even, somewhat limited their powers. Presence of two types of institutes have caused existence of two opposite beginnings in institutsionalnoj to system - nadnatsionalnogo and intergovernmental in this connection, all subsequent development institutsionalnoj system and Communities will be characterised as a whole permanent these institutes for expansion of the powers which will extend subsequently on activity

The European Communities as a whole [201].

3) presence at institutes interconnected, vzaimodopolnjaemyh and, at the same time, vzaimosderzhivajushchih powers, that appreciably complicated their realisation.

Blanks and fragmentariness have entailed certain legal effects in institutsionalno-legal registration of the concept «nadnatsionalnoj the Supreme power». They will consist, mainly, in the limited character and insufficient detailed elaboration of powers nadnatsionalnyh institutes of the European Communities. Thereupon it is necessary to note activity of Court of Communities on interpretation of articles of incorporation.

Throughout the activity the Court of Communities steadily spent a line on expansion kompetentsy Communities, creating new rules of law besides what are provided in articles of incorporation, i.e. such norms which acceptance was not included into intentions of member states at signing of articles of incorporation.

Expansion kompetentsy Communities and its institutes, mainly, was promoted by working out by Court of Communities of the concept of meant powers and the concept of foreign policy support.

The concept of meant powers is formed by Court from the very beginning of the activity. So, in the first business № 1-54 French v. High Authority of the European Coaland Steel Community Court EOUS has established, that «in case of acceptance of the measures necessary for realisation of item 60 of the Contract about EOUS the Higher supervising body is obliged to consider all purposes provided by item 2, 3 both 4 and such as the fixed prices, it is desirable, at probably low level, and prevention of the conclusion of the forbidden contracts. For achievement of two last purposes the Higher supervising body

205

Court EOUS should not be limited to the measures provided by item 61 and 65 ».v this decision has actually established, that powers of the Higher supervising body are not limited only to what are directly provided in the Contract about EOUS; for definition of limits of powers of EU it is necessary to consider the purposes, problems and fields of activity EOUS, established in the Contract about EOUS.

The given position of Court has found acknowledgement in the subsequent decisions. For example, in business № 8/55 Federation Charbonniere v. High Authority the Court has specified, that «the Higher supervising body possesses independence in definition of the measures necessary for achievement of the purposes established in the Contract» [202 [203].

In business № 22-70 Commission of the European Communities v Council of the European Communities EU Court has specified that «according to item 5 of the Contract of member state all necessary measures, on the one hand, are obliged to take for the meeting commitment, following from the Contract or the growing out measures accepted by institutes of EU, and, on the other hand, to abstain from actions which can threaten achievements of the purposes of the Contract» [204 [205].

Developing the position EU Court in business № 30/59 De Gezamenlijke Steenkolenmijnenin Limburg v High Authority of the European Coal and Steel Community has established, that «within the limits of a special field of activity, that is, that, as to realisation of overall aims within the limits of the General market institutes are allocated by the exclusive competence». Thus in business № 270/80 Polydor Limited and RSO Records Inc. v Harlequin Records Shops Limited and Simons

Records Limited EU Court has directly specified, that limits of the exclusive competence should will be defined taking into account the purposes and the problems of Community established in item 2 and 3 Contracts on EUROPEAN ECONOMIC COMMUNITY [206 [207]. In an another matter № 242/87 Commission of the European Communities v Council of the European Communities the Court has noticed, that «development of the general policy should be carried out at observance of overall aims of Communities».

In incorporated affairs № 281, 283, 284, 285 and 287/85 Federal Republic of Germany and others v Commission of the European Communities EU Court it has been established, that if Contract positions put a certain problem before the Commission, this position should be considered as meaning granting of the Commission «powers, sufficient for performance of this problem» [208 [209] [210] [211].

Leaning against the concept of meant powers EU Court had been actually developed division of powers on obvious and meant. Thus in business № C-295/90 European Parliament v Council of the European Communities EU Court has specified, that meant powers cannot exist without obvious, and as the proof of their interrelation objective factors should act. As an example it is possible to result EU decree on affairs № 281, 283, 284, 285 and 287/85 Federal Republic of Germany and others v Commission of the European Communities according to which on the basis of item 118 of the Contract on EUROPEAN ECONOMIC COMMUNITY the Community possesses powers on acceptance of necessary measures in sphere of a migratory policy concerning the third countries. In other decision on incorporated affairs № C-90/90 and C-91/90 Jean Neu and others v Secretaire d'Etat a l'Agricultureet a la Viticulture Cуд has established, that the Community can settle the rights of students and other financially dependent persons to residing in territory of EU within the limits of the meant competence resulting from item 12 of the Contract on EUROPEAN ECONOMIC COMMUNITY [212].

Summing up considered cases it is possible to draw a conclusion that EU Court, giving extensive interpretation of powers of institutes of EU and the European Communities as a whole and fixing them over what have been provided by articles of incorporation, uses a teleologic method, that is fastening of powers by means of an establishment of the purposes, problems and spheres and directions of activity of the European Communities [213 [214] [215].

A series of decrees of EU is connected with a problem of definition of a legal ground of acceptance by institutes of EU of legal acts, that is norms of articles of incorporation in which power of institute of EU on legal act acceptance is fixed. In the decisions EU Court, proceeding from the concept of meant powers, carries out extensive interpretation of those or other legal grounds. So, for example, in business № C-300/89 Commission of the European Communities v Council of the European Communities the Court has established, that if the purpose and the maintenance of the accepted certificate is covered in full by one legal ground, and another only partially and thus cannot provide performance of the procedural requirements established to each legal ground such legal act can be accepted only on a basis obshche a legal ground. Actually, the given decision gives to institutes of EU much more

Possibilities for acceptance of legal acts.

In the decision on business № 45/86 Commission of the European Communities v Council of the European Communities the Court has enacted, that absence of exact instructions on Contract article unessentially is infringement of the established procedural requirement if the legal ground of the accepted legal act can be established on its other components. However such reference is obligatory, if in case of its absence the Court will not have an unequivocal understanding concerning a legal ground of the accepted certificate [216]. Thus, EU Court has established, that the legal ground is necessary for a substantiation of presence of the corresponding competence at institute of EU, accepted the legal act.

In business № C-331/88 The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others the Court has specified that accepted by institutes of Communities certificates should start with the rational and objective bases [217]. Whether Thus within the limits of judicial check of this or that disputable certificate of institute of EU the Court should be limited only to definition the accepted certificate is disputable on a cause of error or abusings powers, and whether obviously institute which has accepted the legal act, has exceeded the powers [218]. That is, EU Court uses a legal ground including for definition of abusings and excesses of power of institutes of EU.

Thus, expansion and fastening of powers of institutes of EU occurs not only by use by Court of EU of a teleologic method, that is interpretation taking into account the purposes, problems and spheres and directions of activity of the European Communities, but also by extensive interpretation of legal grounds of acceptance by institutes of certificates of Communities.

Concepts of foreign policy support or parallelism it has been developed by EU Court in 60th years. So in known business № 6/64 Flaminio Costa v E.N.E.L. The court has established, that «member states have limited in strictly certain areas sovereign the rights and by that have created the body of laws, obliging as the persons who are under their jurisdiction, and them» [219 [220].na the given position the concept of foreign policy support actually is based.

In sign business № 22/70 Commission of the European Communities v Council of the European Communities the Court has enacted, that as soon as EU on purpose implementatsii the general policy establishes general rules, member states lose the right to conclude the international agreements mentioning or changing these rules. Thus as the requirement for such agreements, certainly arises, powers in their opinion automatically depart to EU. Such conclusion has been based volume, that «for definition of powers of Community on the international treaty conclusion it is necessary to consider the Contract as a whole, and not just its separate positions» [221 [222].vposledstvii this conclusion have been confirmed within the limits of the general commercial policy, and also in the conclusions № 1/76 on demand about creation of Fund for vessels of internal swimming [223] and № 1/94 on demand about conventions the SQUANDERER [224].

In incorporated affairs № 3-4 and 6-76 Cornelis Kramer and others EU Court has specified, that according to item 120 of the Contract on EUROPEAN ECONOMIC COMMUNITY in the international relations the Community can assign to itself international

Obligations for achievement of the purposes specified regarding first Contract. Thus such competence can arise directly from positions of the Contract on EUROPEAN ECONOMIC COMMUNITY, and also can be meant, proceeding from other positions of the Contract on EUROPEAN ECONOMIC COMMUNITY, the certificate of joining or EU of legal acts accepted by institutes within the limits of such positions [225 [226] [227]. Thus, the concept of foreign policy support or parallelism «allows Community... To conclude international agreements if they are as though continuation of internal powers of Community».

Summing up to the short analysis of decrees of EU, it is possible to draw a conclusion that the Court of Communities, applying the concept of meant powers and the concept of foreign policy support, has established, that for execution of the purposes and the problems put by the European Communities, powers of institutes of Communities can be expanded in that measure in which it is necessary for their realisation. Thus meant powers result from the powers given by Contracts if not it is enough of the last for realisation of the purposes and problems of Communities. As a result there is an appreciable expansion of sphere of action of the right of Communities and powers of institutes of Communities without their preliminary fastening in articles of incorporation.

Finishing consideration of system of institutes of the Communities, developed in 50-60th years of the XX-th century, it is necessary to note, the system of institutes of the European Communities in a consequence was used at creation of system of institutes of the European Union, and in a little changed kind continues to operate and today.

On the basis of the spent analysis in it is possible to formulate following conclusions.

First, institutsionalno-legal registration of the concept «nadnatsionalnoj the Supreme power» has the fragmentary character expressed in limitation and insufficient detailed elaboration of powers nadnatsionalnyh of institutes of the European Communities.

Secondly, legal fastening and expansion of powers nadnatsionalnyh institutes of the European Communities was promoted by practice of Court of the European Communities which has established, that powers of the European Communities and their institutes result from all legal system of the European Communities and is not limited to articles of incorporation, thereby, actually having fixed powers nadnatsionalnyh institutes over what are provided by Contracts.

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A source: BIDA DARYA ALEKSANDROVNA. CONCEPTUAL BASES And LEGAL REGISTRATION of the EUROPEAN INTEGRATION (experience of France: second half XX - the beginning of XXI centuries) the Dissertation on competition of a scientific degree of the master of laws. Moscow - 2016. 2016

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  2. §2. Institutsionalno-legal features of the international legal status of the European regional courts of justice
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