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3 Sources of the original right of the European Union.

The System of sources of the European right differs a considerable originality. In the domestic and foreign special literature ' Now international treaties with "the third countries", as a rule, are concluded not by the Union, and the separate European communities entering into first "support" of the given organisation.
For example, the Agreement on partnership and cooperation of Russia and EU of 1994 actually is signed by our country with the European communities and their member states, together taken. There is no unity of opinions in a question on system of sources of the European right. At classification of sources of the European right it is possible to put legal system structure in its basis. This structure includes doktrinalnyj, standard and sociological elements ("layers", levels etc.) . On doktrinalnom legal system level such sources of law, as doctrines and right principles are formed. Within the limits of its standard "layer" - the normative act, and in sphere pravorealizatsii-legal precedent, judiciary practice, the law-making treaty, 27. Such classification of sources is quite applicable and to the European right. However it possesses the certain specificity generated by features of its formation and functioning. There is not one, and some bases for classification of sources of the European right. In particular, L.M.Entin considers thereupon, that the right of communities has the complex nature, to construct system of sources of law by means of one any criterion to which universal value is given, it is rather difficult. It allocates ten criteria of classification of sources of law of EU, Within the limits of each of them some more kinds of sources of law are. As a result of their system includes some tens versions of sources of law. topornin B.N, explains this multidimensionality of system of sources of law of EU to that it is necessary to compare, to plant on groups and to build in a uniform number the legal acts having an unequal origin, actions differing on character, direct or mediated, concerning to exclusive or competing powers of Communities 28. Petroleum products.: Entin L.M.court of the European Communities. Legal forms of maintenance of the West European integration. M, 1987. With. 31. Division of the European right into segments forming it substantially is predetermined by the nature of its sources. The special importance of enactments for creation and functioning of Communities and the Union has formed the basis for their qualification as certificates of the constitutional value. In turn the certificates published on a basis and in development of this "constitution" (regulations, instructions, decisions, and also the precedents created by Court of EU), form the basic sources of the secondary right of EU. It is thought, that such approach is quite applicable and to the given research as now it is dominating, conventional in legal regulation practice. ' the Standard and individual certificates accepted by bodies of EU within the limits of Communities or the third support, in case of their contradiction to constituent instruments can be cancelled the European court under claims of other bodies, member states, and also interested physical and legal bodies. 5, for example, the Uniform European certificate is accompanied by 20 declarations in which number the Declaration on executive powers of the Commission, the Declaration on Court of the European communities, etc.
Together with the Contract on the European Union 10 reports were accepted, also the considerable quantity of reports and declarations has been enclosed to the Amsterdam contract. See: topornin B.N.European the right. M, 1998. With. 280. Thus, whereas within the limits of the European Union the independent legal system was formed, its articles of incorporation represent itself as its basis, basis. Being the higher in hierarchy of sources of law of EU, they generate derivative, or the secondary right and is defined by its criteria 1. Primary sources proceed directly from member states. To them carry, first of all, three articles of incorporation: the Parisian contract on creation EOUS of 1951 and two Roman contracts of 1957 - about EUROPEAN ECONOMIC COMMUNITY and Evratome. Together with them the original right included all the subsequent dogovory, changes making to them and additions. It is the Uniform European certificate of 1986, Dogovory about the European Union 1992 and 1997 of (Maastricht and Amsterdam dogovory). Data dogovory are included into the original right with all appendices, reports, declarations and other documents accompanying them. Original right certificates are also the Contract on merge of 1965 (The contract on creation of uniform Council and the uniform Commission of the European communities). The decision on carrying out of direct elections of 1976 (the Certificate about introduction of general and direct elections of deputies of Meeting), and also dogovory about the introduction of the new states into communities and the European Union. Now in a certain measure quality of constituent instruments was got by the Schengen agreements which have become effective in 1995 which include two documents: Schengen agreement 1985 and Schengen implementatsionnuju should be noticed the convention of 1990, that unlike other constituent instruments, the Schengen agreements have signed not all countries of the Union. Out of the Schengen process the Great Britain and Ireland. The special status was reserved to itself also by Denmark. It is thought, that for this reason to consider the Schengen agreements constituent instruments it is possible only in certain degree. The European Communities and the European Union - the organisations created on a voluntary and mutually advantageous basis, therefore the conclusion all of them articles of incorporation it was carried out according to main principles and norms of international law. All articles of incorporation have been signed and ratified by member states the European Union and connect them in an equal measure. Articles of incorporation define the purposes, principles, organizational structure of Communities and a basis of their law and order. Thus, they have constituted a basis both material, and the law of procedure of communities. Therefore to compare them began not casually with the constitution. Now their recognition as Union "constitution" is the official doctrine authorised by the European court. The corresponding conclusion about it has been made by Court even before formation of the European Union in 1986 - in the decision on business Le Beliefs. The EUROPEAN ECONOMIC COMMUNITY articles of incorporation have been proclaimed by Court in quality of "the basic constitutional charter 1. Now from the same positions articles of incorporation and the most part of the West European jurists, and officials consider ' See: Case 294/83, Parti Ecologist Les Verts v. European Parliament, [1986] ECR 1339. The Most European Union. However to use the term "constitution" with reference to norms of the original right it is possible only figuratively, since. On the origin are the international legal certificates possessing, certainly, specificity. D.Lasok and J. A bridge see their specificity not so much that on their basis are created nadnatsionalnye institutes, how many that, unlike typical international treaties in this case the state-participants cannot provide without participation of institutes of EU them 29. Speaking about constituent instruments, in our opinion, it is necessary to mention an order of entering into them of changes as it is one of the basic characteristics of juridical acts. The order of modification of constituent instruments is uniform after creation of the European Union and is regulated in item 48 of the Contract on the European Union. After entering of offers on change of Contracts by executive powers of member states (government) and the Union (Commission), Council, having considered them, accepts the conclusion about necessity of convocation of conference of representatives of the governments of member states if it agree with the brought offers. Coming into force of the approved changes is connected from them by ratification by all member states according to their constitutional processes. As to procedure carrying out summarily it is possible in the cases provided in the text constituent 30. It is a question, first of all, about strengthening and addition containing in ch. 2 Contracts on EU Citizenship of the Union of the list of fundamental laws of citizens of the Union (item 22), and also item 42 of the Contract, allowing to translate all or some objects in Frameworks of the third support of the Union (cooperation of polices and courts of justice in criminally-legal sphere) in the competence of the European Community. In both cases all conditions considered above procedure, except one remain: the Council decision is represented to the state conference. In some cases the right to make the amendment to the Contract on EU allocates Council (without ratification of member states), but it basically concerns changes of numerical structure of bodies of EU, for example, increase in quantity of members of the European court under the offer of the last (item 221 of the Contract on EU). As to limits of revision of articles of incorporation the Contract on the European Union of material limits of the revision does not contain, therefore its any position can be theoretically changed, though the European court in the decision of the conclusion Communities of the Contract on the European economic space with the countries EAST has referred on absolute bases of Community (the very foundations of the Community))) 1. ' See: Opinion I/91, [199l] ECR6079. 2, participants of the Report on integration mentioned above the Schengen agreements have reserved the rights of the Great Britain and Ireland not to participate in the given agreements, and also have reserved separate withdrawals for Denmark; Contract Positions about 127 It is thought, it is necessary to pay attention to a question on reservations. Constituent instruments do not contain the positions, resolving to member states to do reservations, but at the same time there is no also their express prohibition. It gives the basis to assume, that proceeding from item 19 of the Viennese Convention on the right of international treaties of 1969, existence of possibility of reservations if only they are not incompatible with objects and the purposes of articles of incorporation. In reservation practice to articles of incorporation do not become. Instead of them in necessary cases the fastening mechanism directly in the text of corresponding articles of incorporation or in appendices to it of special positions about separate withdrawals from the general legal regime for some member states is used. Nevertheless, the parliament has openly expressed in favour of rupture with system of articles of incorporation and replacements with their uniform Constitution which we have considered above. Operating "constitution" of the European Union still keeps the form of articles of incorporation. Action of articles of incorporation in space as a whole is settled by special articles Parisian (item 79) and the Roman contracts (Contract item 198 about Evratome and st, 299 Contracts on EUROPEAN ECONOMIC COMMUNITY). Their positions are similar, but are not identical. The contract about EOUS under the general rule operates in the European territories member states. The contract about Evratome along with the European territories extends as well on the non-European territories which are under their (member states) with jurisdiction. Unlike the above-stated contracts. The contract on the European Community defines territory of the action by transfer of member states Communities (item 299). It allows to extend its norms and the positions published by bodies of Community, both to territory of all countries-participants, and on areas of sea and air space. To this general rule there is one addition: Action of articles of incorporation extends also on the European territories for which external relations member state bears responsibility (item 299). Concerning a number of territories which overseas departments France concern, the Azores and Madiera (independent territories of Portugal), Canary Islands (Spain), and also the Aland islands (Finland), articles of incorporation possess the limited action (items. 2, 5 items 299). Here operate or separate positions of articles of incorporation and EU normative acts, or they operate everything, but with a number of the reservations considering specific features of given territories. Special instructions in this case are established by the special report or decisions of Council European The European Community provide possibility of separate member states not to participate in the third stage of the economic and currency union (i.e. not to enter uniform currency "euro"). The Union. Articles of incorporation do not operate concerning dependencies of member states, except for a special part of the Contract on EUROPEAN ECONOMIC COMMUNITY - Association with the overseas countries and territories (item 299 item 3) though under the Council decision separate elements of a legal regime of the general market can be extended and to these territories. It is necessary to notice, that there is a number of territories of member states on which action of articles of incorporation (item 299 item 6) completely does not extend. These territories are Faeroes (Denmark), Channel Islands and isle of Man (Great Britain) 31. As the European Union is based on the European communities, action of its articles of incorporation in space submits to the above-stated positions. It is necessary to notice, that to the same territory extend the force normative acts and other decisions accepted by bodies of the European Union. Dogovory about establishment of the European communities and the European Union are concluded for unlimited term (item 51 of the Contract on EU, item 312 of the Contract on EUROPEAN ECONOMIC COMMUNITY, Contract item 208 about Evratome). The exception constitutes the Contract about EOUS which have been concluded for fifty years. The preschedule termination or stay of action of articles of incorporation as it is represented, is possible according to the Viennese convention on the right of international treaties of 1969 though in the text of contracts such possibility is not provided, as well as unilateral denouncement. Nevertheless, the people of any state, the interested person more to remain as a part of the European Union, can leave it and cannot be kept in structure of the Union by force. Now the probability of it is very small, since the exit from the Union can entail heavy consequences for a national economy in view of close integration, though in 1985 Greenland on the basis of national interrogation left the European communities while the Kingdom Denmark has kept the membership. From the point of view of action on a circle of persons of norm of articles of incorporation extend to all member states, bodies and officials of the Union. Thus as subjects of the rights and duties in corresponding legal relations, according to the contract, their any bodies, officials, establishments and the enterprises, and also local governments act both the states as a whole, and. Thus, articles of incorporation are obligatory for all public formations in EU member states. As to physical and legal bodies, that, according to the decision on business Headlights Hent en Lu 1962 in which the court has established for the first time a principle of direct action of the right of Communities, norms of the Contract on EUROPEAN ECONOMIC COMMUNITY are capable to allocate directly individuals with the rights and to assign to them of a duty which are coming under to protection in national vessels. Similar ability articles of incorporation of other communities possess. Unique restriction consists that corresponding duties should "be accurately defined", or as this condition in the subsequent decrees is stated to carry accurate and unconditional 1. The Highest authority solving a question on presence at concrete article or articles of the Contract on EUROPEAN ECONOMIC COMMUNITY of direct action, the European court where national courts if necessary direct pre-judicial inquiries is. As to the Contract on the European Union its positions are limited to an establishment of the mutual rights and duties of member states and Union bodies, therefore, in itself, with the rights and duties physical and legal bodies do not allocate. ' See: Case 13/68, Luttuke, [1968] ECR453. 2, the Greek, Danish, Irish, Spanish, Italian, German, Dutch, Portuguese, Finnish, French and Swedish languages. Languages, on which authentic texts of contracts on the European communities and the Union are constituted (except the Contract about EOUS, constituted in French), official languages of member states, i.e. for today only 12 are. All of them (except Irish) are Union official languages on which its normative acts and other decisions are published. The government of Italy, being the keeper of articles of incorporation, gives out the certificated copy of contracts to the governments of other states participating in them. The exception constitutes the Contract about EOUS as which depositary the government of France acts. Thus, owing to the legal nature enactments occupy the higher step in hierarchy of sources of the European right. If to recognise that certificates of the "primary" right are formed "from the outside" in this group followed include and EU international agreements. However their "external" character at times is conditional enough, as it is a question of the agreements concluded on behalf of Communities not only with the third countries or the international organisations, but also between member states concerning integration. In particular, they can consist, when for the decision of the questions closely connected with activity of EU, Community bodies do not possess the necessary competence. These agreements come under to application as EU Court, and national vessels of member states. Such normotvorchestvo it is limited by frameworks which are caused by the purposes and the problems of Communities fixed in articles of incorporation. In this context the position of Court of EU according to which the specified agreements cannot change the prevailing law of Communities is logical. D. Lasok and J, the Bridge have come to conclusion, that those and others occupy in system of sources of law of EU intermediate position between articles of incorporation and certificates "secondary" 1. Considering an illegibility of criteria of classification, it is necessary to recognise an admissibility of such approach, as well as possibility of reference of such agreements to sources of the "primary" right. Agreements such follow from the international legal personality of Communities fixed in articles of incorporation, and also from the competence on their conclusion. As a matter of fact, these powers are delegated ! See: Lasok D, Bridge J.W. Op. cit. P. 122-125. The state-participants, each of which participates in their realisation by means of the activity in Council, and also uses of possibility of a reference to the court of EU at breach of contract. Such dogovory, being interstate, are realised also within the limits of national laws and orders and can generate the rights and duties for subjects of interstate relations. It is necessary to pay attention on dogovory about joining. Their constituent character consists that the states entering communities and the Union, recognise principles, the organisation, institutes and all law and order, established by basic contracts. Any changes in legal nature of communities and the European union dogovory about joining do not bring and cannot bring, but only expand sphere of action of the integration right, increasing number of member states. Besides, the introduction into structure of members of the new state leads to certain changes in formation of institutes of the Union, distribution of places in Council, the Commission, Court and other bodies that influences quantity of the weighed voices in Council and definition of quorum for decision-making by special majority. These certificates are of great importance also because each state entering the Union takes up not only all obligations following from articles of incorporation, but equally extends to the territory action of regulatory legal acts of the European communities which have been developed, accepted and installed not from the moment of the introduction, and from the moment of formation of communities, i.e. before occurrence of the given state in structure of the European Union. And this circumstance is especially important since it is frequent in separate national states principles or doctrines which on the character would be capable to prevent automatic introduction in action of the regulatory legal acts accepted outside the limits of this state nadnatsionalnymi by bodies and the more so, during the period previous the introduction of these states in the Union operate. So, in the Great Britain where direct action of international legal certificates without certificates implementatsii does not admit, acceptance of the special European certificate of the 1972 which have confirmed a recognition of direct action of norms of the European right, including accepted to the introduction into communities, and also leadership of norms of the European right in relation to norms of the national law was required. As to a validity of contracts on the introduction it is completely equated to a validity of articles of incorporation. The order of modification and additions in dogovory about the introduction also coincides with the corresponding order established concerning articles of incorporation. In practice of activity of institutes and other bodies of communities cases of acceptance of legal acts by which the positions established by articles of incorporation develop definitely, supplemented and specified are known. However hardly probably to rank them as the original right since they do not enter new positions and do not change an essence already operating. The Concept the original right covers also some other sources concerning the so-called unwritten law. It, first of all, the conventional principles and norms of international law, in particular what protect fundamental laws and freedom of the person. Originally dogovory about creation of communities foggy enough spoke about the general principles of the right. The subsequent enactments have brought the big clearness in understanding of that the general principles of the right represent, anyway, with reference to the right European 1. Not absolutely clear there is a question on a place of the general principles of the right in hierarchy of sources of law of the European Union. However, considering ' it is necessary to notice that circumstance, that the concept of the general principles of the right reveals in enactments which not only clear up understanding of the general principles of the right, but specify and in some concrete legal acts in which these principles are formulated. See, for example: item F of the Contract on EU. Practice of Court of EU and national judiciary practice, it is possible to come to conclusion, that the validity of regulatory legal acts of Communities is to a great extent defined by, whether there correspond these certificates under the maintenance not only articles of incorporation, but also the general principles of the right. And presence of such discrepancy in case of commencing a suit about cancellation in EU Court will form the indisputable basis for cancellation of the corresponding regulatory legal acts accepted by institutes of the European Union. EU Court in the decisions repeatedly specified that he leans against the conventional principles of the right, for example such as a principle nediskriminatsii, proportionality, etc. Sometimes the court addresses to the national law, and there is enough, that the given principle has been accepted by legal systems of the majority of member states or reflected tendencies of their development. It is characteristic, that what principle bases were, it is applied by Court as a principle of the right of Communities, instead of the national law. Unwritten principles of the right are considered as the higher rules of law of Communities - one of the main criteria of legality within the limits of the European Union. Classification of principles can be various and, naturally, to list all these principles it is not obviously possible. Besides, the maintenance of principles of the right of EU is treated in the literature ambiguously. We will stop on some of them. The principle of proportionality assuming Is of interest, that any duty or an interdiction imposed by bodies of public authority on citizens, should not fall outside the limits the necessary purposes of accepted measures. If the law or other legal act establishes the obligations obviously mismatching the purpose of its acceptance it should be cancelled. Obvious discrepancy of the purposes of the legal act to the provided means of their achievement also is the basis for cancellation by Court of corresponding positions of the legal act or all document. This principle is written down in EU Articles of incorporation: Any actions of Community should not go further that is necessary for achievement of the purposes of the present contract (item 3 b). The equality Principle is understood as inadmissibility of discrimination physical or legal bodies depending on various social and legal factors, first of all accessories to citizenship of the certain state. The given principle is fixed in various articles of the Contract about EU, For example, item 119 establishes a principle of equality of men and women in a payment, item 48 guarantees equality of workers of all EU countries irrespective of a place of work within the general market, item 7 forbids any discrimination for national identity reasons. Important value has a principle 1, fixed in some positions of the Maastricht contract (a preamble, item 3, etc.). According to the given principle, EU and its institutes should show activity there where member state not in condition successfully independently to solve problems of the people, and also there where actions at level of Communities are capable to bring the best result than when the problem dares at level of the separate states. The principle subsidiarnosti is to a certain extent similar to institute of delegation of a part of legislative powers of the subject of federation existing in a number of federative states to federal parliament. The fact of its inclusion in number of the general principles of the right of EU testifies to deepening vzaimointegratsii the rights of Communities and member states. It is possible to allocate remedial principles - the right to be heard, providing, that to the person which interests are essentially mentioned as a result of the decision made by authority, possibility to make this point of view should be given ' It is necessary to note, what not all researchers of the European right include the granted principle in number of the general principles of the right of EU. See, for example: Entin M. L. Court of the European communities. Legal forms of maintenance of the West European integration. M, 1987. With. 60-76; Borhardt K.-D. The alphabet of the right of modern community. M, 1994. With. 45. 135 known; a confidentiality principle according to which institutes and bodies of community in the course of realisation of the powers have not the right to open to by-standers the information mentioning a private life of citizens, a trade secret of businessmen without the consent of the last. Thus, the general principles of the right - the independent source of law. Since Hartli believes, that EU Court refers to the general principles of the right for masking open judicial 1. And, if the rule of law is deduced from enough general principle to generate a consensus the judgement gets a firm legal basis., proceeding from it, EU Court has developed the concept, that rules of law of the right of communities can be deduced not only from Contracts and legal acts, but also from the general principles of the right. But it would be wrong to believe, that Court, in case of the offer it of new rules of law, always directly refers to the general principles. Sometimes it simply fixes norm without any reference to its source. However if the official source is necessary for such norms, it can be always found or by means of written law extensive interpretation, or referring to the general principles. Speaking about the European right as a whole, and about system of its sources in particular, it is necessary to pay attention to its dynamism, incompleteness of process of formation. Confirming to it the preliminary project of the Constitutional contract on October, 28th, 2002 has been presented. The purpose of the specified project was to define structure of the future Constitutional contract only. Further given "skeleton" was filled with the concrete maintenance in the form of the legal rules which text has been developed in a year. As the European right represents synthesis international legal and is state-rules of law, that, naturally, ' See: Hartli Since the Decree. soch. With. 166. It leaves a certain mark on its maintenance. Though in its basis doctrines and principles, and dogovory lay not, the aspiration to analogy to the romano-German legal system has led to necessity of working out of the Constitution of EU with which acceptance the European right has got strukturnost and integral enough kind. It is necessary to notice, that sources of the original right of EU in bolshej degrees are focused on internal resource maintenance of sources of law and serve as basis from which make a start at acceptance of concrete practical decisions. Therefore primary sources of law have high level obobshchennosti and abstraktnosti, allowing, on the one hand, to allocate the main thing, abstracting from particulars, and with another-always to find in them the basis for application in wide enough range of concrete situations. Therefore the primary goal of sources of the original right is maintenance of strategic directions of development, reliability and quality of functioning of legal system of EU, i.e. primary sources provide stability of functioning of legal system of EU and intensity of its development in legal aspect.
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A source: Rassmazina, Alina Zoriktuevna. Sources of law of the European Union / the Dissertation / Moscow. 2005

More on topic 3 Sources of the original right of the European Union.:

  1. 1. The Original right of the European Union about migration
  2. Sources of the insurance right of the European Union
  3. application by the European court under human rights of the Charter of EU about fundamental laws, decrees of EU and other sources of law of the European union.
  4. 4. Sources of the secondary right of the European Union
  5. 1. 2. 2. Financially-legal aspects of influence of autonomy of the right of the European Union on implementatsiju rules of law of the European Union
  6. 4. Sources of legal regulation of activity on rendering of services by lawyers in European the Union
  7. 1. Autonomy of the right of the European Union and a principle of loyal cooperation in the right of the European Union and their influence on national legal system of Slovak Republic
  8. 1. Features of rules of law of the European Union and their influence on process implementatsii norms of the secondary right of the European Union
  9. 2. 1. Remedial aspects of autonomy of the right of the European Union and implementatsija rules of law of the European Union
  10. 2. Autonomy of the right of the European Union and a principle of loyal cooperation in the right of the European Union
  11. a role of the European Union in maintenance of protection of Baltic sea from pollution from land sources
  12. practice of Court of the European Union on affairs in maintenance sphere energoeffektivnosti and uses of renewed energy sources
  13. 2. The Delegated legislative power in system of sources of the secondary right of the European union
  14. CHAPTER 1. Lawyer activity in the right of the European Union: concept and legal regulation sources