Abstract
Although the scope of this book is confined to an analysis of the Rules of Competition in the Treaty of Rome, and then only substantive law at that, the proper understanding of both the contents and functions of these Rules would seem to require a short discussion of the legal character of the European Economic Community itself, and, in particular, of the method of legislation in the Community and the special feature of the immediately binding legal force of these Rules in the Member States.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
The Treaty establishing the European Coal and Steel Community of April 18, 1951 (concerning the basic industries of coal and steel); (English translation in 261 United Nation Treaty Series,p. 140; 46 A.J.I.L. (1952), Suppl. p. 107).
The Treaty establishing the European Atomic Energy Community of March 25, 1957 (Euratom) (concerning the economic side of the use of atomic energy, including research and protection against the effect of radiation); (English translation in 298 United Nations Treaty Series,p. 169; 51 A.J.I.L. (1957), Suppl. p. 955).
By the Convention relating to Certain Institutions to the European Communities of March 25, 1957 (298 U.N.T.S. 267 (1958), reprinted in the Foreign Office translation of the E.E.C. Treaty, Appendices, p. 149). By Resolution of September 24, 1963 the Council of Ministers requested the Governments of the Member States to comment upon the merger of the Executives of the three Communities (with a view to the ultimate merger of the three Communities). For a recent detailed discussion of the problems relating to such mergers, see H. P. Ipsen and G. Nicolaysen in NJW,1963, p. 2209.
Such treaties have so far been concluded with Greece, 18 African States, and Turkey. Only the Treaties with Greece (Arts. 51, 53, 54, 56) and Turkey (Arts. 12 ff.) provide for the extension of the application of the Rules of Competition to those countries; their application is dependent on a decision of the Council of Association provided for in these Treaties of Association.
Series A, No. 1, at p. 25. See also McNair, The Law of Treaties,1961, Appendix A“ (Treaties and Sovereignty”), pp. 754 ff.;
Ch. de Visscher, Theory and Reality in Public International Law,1957, pp. 257 ff.
The expression “transfer” with its connotation of finality and irrevocability would seem to convey the legal nature of the renunciation of rights belonging to a sovereign State and their vesting them in the Community better than the term “delegate” which implies a mere temporary handing over and the reservation of revocation. (See on the conception of delegation, Wohlfarth a.o., op. cit.,p. 189, and Bebr, “The Relationship between Community Law and the Law of Member States” (Br. Inst. Int. fr Comp. Law, Special Publ. No. 4 (1962)).
See Jellinek, op. cit.,(“werdende Bundesstaaten”),pp. 653 ff., and the same, Ueber Staatsfragmente,1896, pp. 275–279.
The explicit term “supranational” is only used in the E.C.S.C. Treaty with reference to the High Authority (Art. 9(6). According to Ophuels, loc. cit.,p. 1698 n. 3, the omission of the further use of this description in the E.E.C. and Euratom Treaties was not intended to characterise these Treaties differently.
This was a hotly disputed question in regard to Arts. 85 and 86 before the European Court largely clarified the position in its judgment in the Bosch case, see supra,p. 24. In the case of van Gend en Loos v. Nederlandse Belastingsadministratie of February 5, 1963, (1963) 2 C.M.L. Rep., 1963, p. 105, concerning the effect of Art. 12 of the E.E.C, Treaty, the European Court attributed a direct effect to that Article.
See Fleischmann in Handbuch des Deutschen Staatsrechts,I, 1930, p. 371, who holds that the component States (Lander) were even bound to enact statutes in order to comply with Reich law.
This is one of the competencies in respect of which the E.E.C. will have to develop an administrative law of its own.
For further details of this enforcement, see paragraphs 2 and 3 of Art. 192. Whether on the enforcement of a judgment by the European Court (Arts. 187, 192) or of a decision under Art. 192 its compatability with the Member State’s ordre public can be examined is not free from doubt but should have to be answered in the negative (see Schuetze, NJW 1964, p. 2204 ).
Certain other enactments and orders for the implementation of Treaty provisions need not comply with the categories set forth in Art. 189, e.g.,the Rules of Procedure of the Organs of the Community, including those of the European Court of Justice (Art. 188), see Wohlfarth a.o., op. cit.,Art. 189, ns. 18, 19, pp. 521/522.
By a judgment of July 4, 1963 (in Matter 2462) the European Court declared a decision of the Commission invalid on the ground that it had not been sufficiently reasoned as prescribed by the above Article (Recueil,Vol. IX, p. 129; (1963) 2 C.M.L. Rep., p. 347).
Rights and permissions
Copyright information
© 1965 Martinus Nijhoff, The Hague, Netherlands
About this chapter
Cite this chapter
Graupner, R. (1965). The Legal Nature of the European Economic Community. In: The Rules of Competition in the European Economic Community. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9542-3_6
Download citation
DOI: https://doi.org/10.1007/978-94-011-9542-3_6
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-011-8709-1
Online ISBN: 978-94-011-9542-3
eBook Packages: Springer Book Archive