To What Extent Does the European Community Represent a New Legal Order - Essay Example

To what extent does the EC represent a “new legal order”? To properly evaluate the constitutional legalorder of the EU, it is essential to first define the conception of European law. The Constitutional Treaty affirms the conversion of the two European Communities into a unitary governing structure that is the European Union. Currently, there are primarily two methodologies defining the law of European Communities (EC). One of these is characterized by those creators who regard EC law an autonomous legal order that varies both from international law and from legal orders of Member States though demonstrating some of the characteristics found in both legal orders being considered. The other method is symbolized by internationalist lawyers who are of the belief that the community law should be considered as international law or basically as its component. The EC has its own institutional mechanism established on the principle of the institutional balance. Rules adopted within the Community presume that decisions are made by a voting majority and not exclusively by general agreement. The EC also has its own system of legal resources and an explicit hierarchy of standards. Legal powers are available for not only Member States and Community institutions but for individuals as well. Specific methods are used for the interpretation of the founding treaties. The first option describing the legal nature of the European Community relates to the ‘supra-nationality’ of EC law. The second applies to the identification of the EC law as the ‘law of integration’ (Simon, 1999, p. 5). Nevertheless, “European Communities remain within other international organizations. The reason for this is the conventional form of the founding treaties of European Communities as well as international requirements associated with their change. International institutions occupy the central place in the institutional European Communities system. Moreover, the procedure of the amendment of the founding treaties results in requirements of international kind” (Simon, 1999, p. 6). In the internationalists’ judgment, the decentralization of law is the very characteristic of international law. They emphasize the ECJ’s usage of the interpretative methods summarized in the Vienna Convention while and, at the same time, interpreting the law of the treaties. “This is about the real understanding and even more real comprehension of the change which took place between the rise of Treaties of Rome and the present condition of the European integration” (Simon, 1999, p. 7). The actual progress of the European integration law is undisputed. “The development of the three Communities into a unitary governing structure and the evolution of its law into a unitary legal order should be reflected in a uniform act such as the European Constitutional Treaty” (Von Bogdandy, 2000). Tendencies of this progress lead to the agreement of its autonomy. It is possible only by demonstrating the existence of ‘the law of the internal composition in one piece’ in which diverse elements of law are linked according to their own reasoning’s (Simon, 1999, p. 9). Founding treaties are the proper law of the EC distinguishing this system of laws from others. This system can be defined by the integrity in which elements are not connected with each other accidentally but they form a special ‘order’ in the way they are linked with each other using specific connectors. “It is important to understand that we must not take into account only one element and analyze it, while at the same time not taking into consideration its environment” (Combacau, 1986, p. 85). According to ‘Kelsen logic,’ “unity and autonomy of the legal order results from the fact that all of the legal rules which form a particular system may be referred to the basic norm. This basic norm makes it legally valid and very compact” (Kelsen, 1926). It is apparent that the acknowledgment of the subsistence of some elementary norm does not mean that the particular system is not in relation with other legal systems (Simon, 1999, p. 8). Considering all that has been discussed, whatever the extent of the autonomy of the community legal order is going to be, the legal order itself will never be “waterproof in its international environment” (Simon, 1999, p. 9). This is a noteworthy inference because the using of some principles from the international laws is, on occasion, seen as encroaching upon the autonomy of the community laws. For this reason, “the theory of the autonomy leads to accepting the ‘hermetic nature’ of the community legal system in relation to ideas derived from the international law” (Simon, 1999, p. 10). In addition, the autonomy of the community law is not a sign that the system is not self-sufficient. “Advocates of the EU Constitution contend that Member States would retain primacy of authority because they have conferred powers on the EU. Classical-type Federal States have developed by smaller units coming together and transferring powers to a superior, e.g. Germany, the USA, Canada, Australia” (“What the EU Constitution Does”, n.d.). European integration creates legal rights for individuals, in relation to both the Member States and EC institutions. The Court of Justice, beginning with its decision in van Gend en Loos, has increasingly built upon the opinion that national courts must uphold the rights that citizens have under EC law (Soderman, 2001). National courts are expected to safeguard these rights through the appliance of provisions of EC law. The Court of Justice has encouraged a decentralised course of action for the enforcement of EC law, in accord within the reasoning of the Treaty system. National, not EC courts, are responsible for enforcing the rights of individual citizens in cases involving Member States. The role of the Court of Justice is to make certain, by the issuance of preliminary decisions, that the national courts all employ the equivalent laws. The Treaties of Maastricht, Amsterdam, Nice, Paris or Rome do not include anything similar to the phrase ‘a new legal order.’ Nevertheless, the presumption of the ‘the new legal order’ in the EC has been confirmed by ECJ case law. By studying the ECJ’s stance on community law regarding national autonomy leads one to a conclusion of ‘an autonomy gaining process’ within the EC composition. “In 1963, the ECJ upheld in 26/62 Van Gend & Loos v. Nederlandese Administratie der Belastingen that the EC constitutes a new specific legal order of international law for the benefit of which Member States limited a portion of their sovereign rights, and the subjects of which comprise not only Member States and community institutions but also their nationals” (Simon, 1999, pp. 13-14). When examining Kelsen’s doctrine of law and his traditional characterization of legal order, community law either comprises the new legal order or is incorporated within the international legal order. Consequently, from the theoretical viewpoint, the clarification implemented by Van Gend & Loos v. Nederlandese seems to some as irrelevant. “Perhaps the ruling [Loos v. Nederlandese] resulted from the compromise worked out at any secret session. On the other hand, perhaps it illustrates the jurisdiction strategy aiming at the gradual extension of community law” (Simon, 1999, p. 14). The reasoning behind the concept of national autonomy in EC laws involves the necessary progression of the common market progress towards the single market and with it, a completion of an economic union between Member States. The accomplishment of this purpose was possible due to the initiation of mutual regulations. The European Central Bank (ECB) has been thought of as an EC institution ranked just below the ECJ, even though the EC Treaty did not provided it with such a position. The Constitutional Treaty institutes no alterations with mention to the responsibility of the ECB as a component of the institutional stability within the EU. The consistency of laws applied in the EC economic zone has become essential. The lack of collective regulations applied in a consistent approach would expose the individual markets to inequitable competition. Without question, this would cause a disintegration of many economic communities because of the re-arrangement of current market alignments. Consequently the fiscal measurement of the European construction itself necessitates the superior placement of community law in the domestic legal order. In addition, the identifiable makeup of community law is best showcased by the requiring of parity and cohesion among the Member States. These features “impose an obligation of the direct, uniform, integrated and effective application of the European integration law over the whole territory of the European Union under threat of being ‘excavated’ down to the foundations of the community legal order” (Simon, 1999, p. 19). Laws governing the Member States’ responsibility fulfill obligations is established under the ECJ case law. One of the methods of displaying the specific nature of community law is through an investigation of the ‘constitutionalisation’ procedure. This procedure encompasses the continuing recognition of the constitutional element of the European construction. In the 1972 Commission v. Italy case (Thai, 2002), the ECJ ruled that the conveyance of rights and powers results in significant restriction of the autonomous rights of the Member States. It is not possible for national laws to invoke any provisions that override this restriction. The ECJ broadened this ruling in Parti Écologiste ‘Les Verts’ v. Parliament (Weatherill, 2003). “The European construction may be described to a substantial extent with the application of vocabulary characteristic for constitutional law. It is confirmed by attempts to distinguish constitutional authorities the principle of institutional balance” (Simon, 1999, p. 23). The expansion of community law has directed European construction to the point to which orchestrating the treaties within the Community and the European Union in a legal order seems to be preferred and even necessary. “Community law is continuously adapted to the changing social and economic conditions of the united Europe” (lenaerts & Desomer, 2002). According to the first president of the EC, Walter Hallstein, “by creating the Community; the Member States have subjected themselves to the new legal system in question” (Hallstein, 1965). By verifying the unconditional supremacy of community law, the ECJ ‘forced’ onto Member States what they themselves had already accepted. It has been concluded by most that the legal order is necessary to attain the uniform implementation of community law. “The ECJ’s ruling in the 26/62 Van Gend & Loos v. Nederlandese Administratie der Belastingen case undoubtedly provide the manifestation of law making, although that is a consequence of prior arrangements among the Member States creating the European Community” (Simon, 1999, p. 16). The EC legal order is of an autonomous nature that has proven to be an effective system that provides court protection against the infringements of European laws that have forced integration. The role of the ECJ, as the jurisdictional power behind the EC, is to ensure these court protections and ensures that the laws involving the integration of European law maintains its consistency and communal nature in all situations and towards all of its citizens. In order to accomplish this objective, the ECJ has been given the authority to try cases involving Member States as well as individuals. References Combacau, Jean. (1986). “Le droit international, bric-à-bras au système?”  31 Archives de philosophie du droit. Vol. 31. Hallstein, Walter. (18 July, 1965). “Speech before the European Pariliament on the Report of F. Dehousse.”  The European Parliament. Kelsen, Hans. (1926). “Les rapports de système entre le droit interne et le droit international public.” Recueil des Cours de lAcadémie de Droit International. Vol. Lenaerts, Koen & Desomer, Marlies. (2002). “Bricks for a Constitutional Treaty of the European Union: Values, Objectives and Means.” European Law Review. Vol. 27, pp. 377-407. Majkowska, Sylvia. (1 November, 2005). “Comment on Timo Tohidipur.” German Law Journal. N. 11. Retrieved 14 July, 2006 from Simon, Denys. (1999). “Les Fondements de l’autonomie du droit communautaire.” Science Conference General Report: International and Community Law Present Perspectives. Soderman, Jacob. (10-12 June, 2001). “The citizen, the Rule of Law and Openness.” European Law Conference. Session 8. Stockholm. Thai, Luu Quoc. (Spring 2002). “The Relationship Between EC Law and National Law.” EC Law. Lund University. Retrieved 14 July, 2006 from < http://www.jur.lu.se/Internet/english/essay/Masterth.nsf/0/F98CBC0F6B229CDCC1256BC900318639/$File/xsmall.pdf?OpenElement> Von Bogdandy, Armin. (2000). “A Bird’s Eye View on the Science of European Law: Structures, Debates and Development Prospects of Basic Research on the Law of the European Union in a German Perspective.” European Law Journal. Vol. 6, I. 3. Blackwell Publishing. Weatherill, Stephen. (5 October, 2003). “Memorandum by Stephen Weatherill, Jacques Delors Professor of EC Law.” The United Kingdom Parliament. Retrieved 14 July, 2006 from < http://www.publications.parliament.uk/pa/ld200304/ldselect/ldeucom/47/47we21.htm> “What the EU Constitution Does.” (n.d.). Dublin, Ireland: National Platform EU Research and Information Centre. Retrieved 14 July, 2006 from < http://www.poptel.org.uk/against-eurofederalism/D87rvw14.htm> Read More