LAW OF THE EUROPEAN COMMUNITIES AND MUNICIPAL LAW
| Published date | 01 September 1971 |
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb02344.x |
| Date | 01 September 1971 |
THE
MODERN
LAW
REVIEW
Volume
34
September
1971
No.
5
LAW
OF
THE EUROPEAN COMMUNITIES
AND MUNICIPAL LAW
I.
NATURE
OF
COMMUNITY
LAW
BEFORE
examining the relationship of Community law
to
the munici-
pal law of member states, its legal nature should first be examined.
This may perhaps be best demonstrated in a pragmatic manner in
the light of the objectives, powers
and
institutions of the Com-
munity.
Community
objectives
The long-term, and certainly rather distant, objective of the
EEC
Treaty is a gradual development and establishment of
a
common
market envisaged as an economic union which would ultimately
integrate the national markets of the member States.' This gigantic
task
is
to be attained, according
to
the Treaty, by a gradual
establishment of a free movement
of
goods, persons, services and
capital across the national boundaries of the member States.2
To
assure
a
free movement of goods, customs duties and quantitative
restrictions and measures having their equivalent effect are to be
abolished and a common customs tariff and a common commercial
policy towards third States established.
A
mere elimination of
these trade barriers could not ensure this freedom of movement
unless
it
was accompanied by free competition in inter-State trade
and by harmonising the relevant legislation of the member States
which may hamper
it.4
A
common agricultural
ti
and transport
policy complete these basic principles.
1
EEC
Treaty,
art.
2.
2
EEC
Treaty, art.
3;
For
a
critical analysis
of
the objectives
of
the
EEC
Treaty eee Dabin,
Au-deld de l'union douanidre, l'union dcommique,"
in
Znstitut #Etudes Juridiques Europbennes de
la
Facultk
de
Droit de l'llniver-
sit4
de Lidge,
de
l'llnion Douanikre
d
I'Vnion Economique
96 (1970).
3
As
of
July
1,
,1968,
cu5toms duties
in
the intrwCommunity trade were abolished
and
a
Common Customs Tariff established,
EEC Commission, Second General
Report on the Activities
of
the
Communities
1968,
at
pp.
S23
(1969).
4
EEC
Treaty, art.
3
(f),
(h).
5
Common market organisations
for
various
agricultural products were established,
EEG Commission, First General Report on the Activities
of
the
Communities
1967,
at
pp.
131-145
(19G8).
481
VOL.
34
17
482
THE MODERN LAW REVIEW
vor,.
34
The realisation of these aims alone, conceived as factors
odE
integration, could hardly release effects powerful enough as to bring
about an economic union. The structure of national economies may
well withstand such as integrating impact. The Treaty requires,
therefore, among its fundamental principles, a co-ordination
ad
economic policy
of
the member-Stata6 Significantly enough, as to
the aims in the fiscal, monetary and social field, which are no less
relevant for a progressive integration, the Treaty remains rather
reserved and general.
Community
powers
A
mere traditional co-operation among the member States coul~d
have hardly achieved this wide range of aims which are instrumentail
in establishing and developing a customs union and leadine
ultimately to an economic union. Independent Community powers;,
however limited, have, therefore, become indispensable. Within
the limits set by the Treaty, the Community has its own, specific
powers which reach out into the traditional competence of the State:.
Depending
on
the respective field of application, the Community
powers differ, of course, in their scope and intensity. Whereas the,y
are extensive, to the point of being exclusive, in the field of customs
duties, quantitative restrictions, agriculture, competition
or
State
aids,
to
cite only few examples, they are modest and inconspicuous
in the field of economic
or
monetary policy.' In the first instance,
the Community powers are particularly powerful as they may reach1
,
in the form of a regulation, directly into the national legal orders
of the member States. In the second instance, they are hardly
more than an obligation of the member States to co-ordinate their
policies
in
the respective fields. The nature of the Community
objectives and of the subject matter
to
be regulated explain why
the Community law,
i.e.
the Treaty and Community acts, are
applicable to the member States as well as to individuals.
The
EEC
Treaty provides for three different forms of binding
acts, the force and content
of
which widely differ.8 In this sense
there is a certain gradation of powers as expressed by the different
Community acts.
A
regulation is the most powerful act typical
oE
the Community legal order,
It
is binding in every respect and
directly applicable throughout the
entire
Community without any
intervention whatsoever on the part of the member States.
It
may
impose obligations
or
confer rights on member States and individuals
alike. By its content a regulation is
a
veritable Community law.
Compared with a regulation, a directive is less powerful,
as
it
binds
only the member State addressed and that only as to the objectives
6
EEC
Treaty, art.
3
(g).
7
See Resolution
of
the
Council
of
March
22,
1971,
concerning
n
gradual realisas-
tion
of
an economic and monetary union,
14
Journal
Oficial
dEs
Co?nmunautds
Europdennes
(J.O.),
C
28/1.
8
EEC
Treaty,
art.
189.
To continue reading
Request your trial