Abstract
Nugent has described how scholars of European integration have explored ways in which the overall nature of the integration process might be theorised.1 He has emphasized neofunctionalism, intergovernmentalism and interdependency. There might not be any “grand theory” to explain the main features of the European integration process as a whole, but the various theories are worth combining in order to develop a broad understanding of the factors underlying European integration. The history of the EC shows that both the national governments or Heads of State and the supranational institutes of the EC can have an effect on the integration process. For example, the European Council may have a considerable role in drafting the Treaties and other primary norms, whereas the secondary legislation is mostly drafted by the supranational institutions. In Nugent’s analysis of European integration, the role of the ECJ might be slightly undermined among other supranational institutions, because it is hardly mentioned at all. Nugent’s emphasis is on the legislation, but one ought to take into account the legal decision-making as well. In the following chapters, the case law of the ECJ is employed as a legal source of EC law and as a legal instrument of the European integration process in addition to the primary and secondary norms.
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References
See Monnet 1962, pp. 203–211 or Ellis-Tridimas, pp. 18–19. Monnet argued that the politi-cal union of Europe must be built step by step like its economic integration and that this process may lead to a European Federation.
For example, one might refer to other Trade Agreements such as APEC (founded in 1989), ASEAN (founded in 1967), CEFTA (founded in 1992 ), EFTA (founded in 1959), MERCOSUR (founded in 1995) or NAFTA (founded in 1994) in addition to EEC (or EC) in this context.
See Tuori 1992, pp. 451–457.
See Weiler 1991, pp. 2410–2411. Weiler has described the differing views of political scien-tists and lawyers as follows: “If we were to ask a lawyer during the Foundational Period to compare the evolution of the European Community with the American experience, the lawyer would have said that the Community was becoming `more and more like a federal (or at least pre-federal) state”’. By contrast, if we were to ask a political scientist at the same point in time to compare the European system with, say, the American system, the political scientist would have given a diametrically opposed answer: “they are growing less and less alike”.
See 26/62 Van Gend en Loos (1963) ECR 1, at p. 12.
See the “Section 28”, which is in fact Section 2a in the Scottish Local Government Act 1986 inserted by Section 28 of the Local Government Act 1988.
See Scottish Parliament Official Report, Vol. 4, No. 10, 10. Feb. 2000, p. 5. The growing number of unwanted teenage pregnancies had led to the need to increase sex education at schools. The guidance for schools in England and Wales had been drawn up, because there was much uncertainty about what sex and relationship education was and how it should be taught. One might think that the difficulties in drafting legislation on issues concerning sexuality would reflect the differences in citizens’ moral and ethical attitudes.
See, e.g. Joutsen 2000, p. 267. Joutsen has translated the concept of Rechtstaat by using expression such as “constitutionally governed state, constitutional state, state ruled by law or state subject to rule of law”.
See Tuori 1992, pp. 457–463, and p. 460 in particular.
See, e.g. Dworkin 1978, pp. 83–84.
See Wilhelmsson 1997a, pp. 357–359 and Wilhelmsson 1999b, pp. 438–439.
See Husa 1999, pp. 155–157 or Tuori 1998, pp. 1007–1010.
See Bengoetxea 1994, pp. 68–70. His argument holds that a priori EC law will be best understood as a legal order but not as a legal system in a formal sense.
See Wilhelmsson 1999b, p. 439.
See the cases 26/62 Van Gend en Loos (1963) ECR 1, esp. p. 12 and 6/64 Costa v. ENEL (1964) ECR 585, esp. p$1594 and for examples from the Finnish literature the dissertations by Joutsamo 1979, pp. 211–228 or Ojanen 1998, pp. 71–96.
See 29/69 Stauder IT City of Ulm (1969) ECR 419.
See 148/78 Ratti (1979) ECR 1679. The ECJ held that it would be inequitable to allow a Member State which has failed to implement a directive within a prescribed period to profit from its own failure at the expense of a citizen on whom the directive was intended to confer rights.
See the Hag II-case C-10/89 HAG (1990) ECR I-3711.
For cultural explanations about the etymology of the principle of subsidiarity see Wilke-Wallace, pp. 12–13 or Klami 1997, p. 46. According to Klami’s summary, the idea of subsidiarity may be traced back to the Aristotelian and Thomist tradition that stressed the role of the self-sufficiency of small societies, even individuals. The Catholic Church embraced this philosophy, and Pope Pius XI declared in an encyclical letter in 1931 that larger and higher associations should refrain from arrogating functions that may be effi-ciently performed by smaller and lower societies.
See Wilhelmsson 1999b, p. 450.
ibid., p. 439 or 449 and Tuori 1999, p. 414. I wonder, if Wilhelmsson has had Tuori’s levels of law in mind, when he has maintained that there are no legal culture in the background of EC law.
See Wilhelmsson 1999b, p. 439.
See Wilhelmsson 1999b, pp. 339–440.
See C-106/89 Marleasing (1990) ECR I-4135, esp. p.1–4159, para. 8.
See 26/62 Van Gend en Loos (1963) ECR 1, esp. p. 13 and 6/64 Costa v. ENEL (1964) ECR 585, esp. pp. 593–594.
See Wilhelmsson 1999b, pp. 440–441.
See Wilhelmsson’s reference to the case C-49/89 Corsica Ferries France (1989) ECR 4441, esp. p. 4456, para. 8.
See Raitio 1998a, pp. 17–41, in which I have illustrated the importance of sources of law-doctrine by using the protection of Communities’ financial interests as an example.
See Raitio 2000a, pp. 312, 317–320 or Raitio 2000b, pp. 444 445, in which I have criticised the Finnish Supreme Court in the context of the so-called Engel-case (KKO 1997: 105, D:S-96/2410; E:11.6.1997; T:2287; A:27.6.1997).
See Wilhelmsson 1999b, esp. p. 444, in which he has stated: “The system is the tool by which possible jack-in-the-box effects are limited in national law. Even though in some part of national law there might be many possible systematisations and even though the system does not determine the solutions, the system does in a way set the agenda and thereby makes it possible to foresee at least the questions. The system can at least show in which boxes the jacks are possibly hiding.”
ibid., pp. 437 or 442–443 and see the judgments of the cases C-415/93 Bosman (1995) ECR I-4921 or C-267/91 and C-268/91 Keck and Mithouard (1993) ECR I-6097.
See Jarvis, pp. 90–92, 231–294 or Joutsamo-Aalto-Kaila-Maunu 2000, pp. 438–444.
See 13/68 Salgoil (1968) ECR 453, esp. p.463 or 46/76 Bauhuis (1977) ECR
See Jarvis, pp. 9–14 and the cases in footnotes 23–25 such as, e.g. Geniteau, Cour de Cassation, ch.crim., 17 June 1992, Bull.Cass.Crim. 1992, No. 244, p.670; (1993) 1 CMLR 243.
See Joutsamo 1997a, pp. 304–305.
See Wilhelmsson 1997b, p. 310.
See Unger 1976, p. 193 and Wilhelmsson 1999b, pp. 446–447.
See also Tuori’s criticism in Tuori 1999, pp. 414–415. If one locates the foundations of the unity of a nation state in the deeper level conceptual and normative structures, the phen-omena interpreted as the fragmentation of the state do not by themselves constitute a threat to the unity of legal order. A stable legal order can be able to maintain ist coherence in the face of polycentrism of legal sources.
See Tuori 1983, p. 76, Tuori 1997b, pp. 432–436, Tuori 1999, pp. 403–412 or Tuori 2000b, pp. 163–216.
See Wilhelmsson 1999b, pp. 451.
ibid., pp. 448–449 and a basically concurrent opinion in Tuori 1999, p. 412. In Wilhelmsson’s text, the term `legal culture’ refers to how law and institutions are understood in a certain society of actors. The `legal culture’ is here characterised by five factors: history, predominant mode of legal thought, especially distinctive institutions, legal sources and ideology.
ibid. and Joutsamo 1997a, p. 307.
See Wilhelmsson 1999b, p. 448 and Ojanen 1998, pp. 16–59. Ojanen has employed Tuori’s levels of law in his dissertation in order to describe the structures of EC law.
See Aarnio 1989, pp. 151–305.
See Wilhelmsson 1997b, p. 310.
See Tuori 1999, pp. 412–414 or Wilhelmsson 1999a, pp. 430–434.
See Wilhelmsson 1999b, p. 452.
See Tuori 1999, p. 413. Based on Tuori’s criticism, one should try to reconstruct “a new conceptual structure which could achieve the systematization of EC law and a corresponding increase in legal security and predictability”.
See MacCormick-Summers 1991, pp. 461–544 compared to Ojanen 1998, pp. 30–41.
See Tuori 1999, p. 414.
On the term `rule of law’ see Mackenzie Stuart 1977, pp. 1–56 and on the term `legal certainty’ Schermers-Waelbroeck, pp. 52–69.
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Raitio, J. (2003). Conclusions: Remarks about Theories of Integration, European Community and EC Law. In: The Principle of Legal Certainty in EC Law. Law and Philosophy Library, vol 64. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0353-6_3
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