The choice for practical monism in relation to EU law by France, Germany and the United Kingdom

Thèmes abordés

EU law, France, Germany and the United Kingdom

Résumé du document

“The EU Member States may be divided into those whose legal order is monist and those whose legal order is dualist.” In monist States, once an international agreement has been agreed to, its entering into force in the international legal order entails its entering into force in the national legal order.In dualist States however, this entering into force at the national level requires a specific legal instrument. In the concrete, the instrument may reproduce the exact content of the international agreement or explicitly requires the observance of the agreement's provisions.

In his thesis on the effects of WTO's agreements in EU's and Member States' legal orders, Frédéric Schmied insists on distinguishing between the theoretical and the practical approaches to monism and dualism. The theoretical approach relates to the interaction between international and national legal orders while the practical one is concerned with the way national legal orders apply international rules. So theoretically, monism involves “the absence of separation between the [legal] orders which results in the automatic inflow of external norms into internal order.” Conversely, dualism requires the “mediation” of an internal constitutional or statutory provision.

Extraits

[...] : Droit : Nancy : 2011. ISBN 978-2-916606-675. Ibid 3 Ibid 4 Ibid 5 SCHMIED, Frédéric. Les effets des accords de l'OMC dans l'ordre juridique de l'Union européenne et de ses États membres. L'invocabilité au service de l'influence de l'Union sur la mondialisation du droit. ClermontFerrand : Fondation Varenne Collection des Thèses. Th. [...]

[...] This article explicitly provides for the participation of France in the European Union. The constitutional Council has deduced from both the article 55 and the article 881 its jurisdiction over controlling the accordance of an implementing legal provision with the directive that it is supposed to implement Although France was monist before the introduction of EU primary law, it has reinforced its monistic position in relation to the distinct legal order of the European Union. EU law has also compelled Germany and the United Kingdom to adapt their constitutional setting to a monistic attitude towards the EU legal system. [...]

[...] L'invocabilité au service de l'influence de l'Union sur la mondialisation du droit. ClermontFerrand : Fondation Varenne Collection des Thèses. Th. doct. : Droit : Nancy : 2011. ISBN 978-2-916606-675. The adoption of the Treaty of Maastricht in 1992 prompted the introduction of the article 88- 1 in the French Constitution. [...]

[...] ISBN 978-2-916606-675. Ibid international rules have a direct effect, whereas in the dualist ones, judges may only apply those rules after them having been mediated. EU Member States have chosen a practical monism in relation to EU law Each Member States has defined its position regarding EU law with recourse to its own Constitution. This is clear for France and Germany whose Constitution is written and had included provisions regarding external sources of law even before the introduction of EU law. [...]

[...] Mai Translation published by Germany's Federal Ministry for Justice and Consumer Protection accessed 02 Juy 2014. Artikel 24 I GG The Federal Statute enabling Germany to be part of the then European Communities was based on the article 24 of the Basic Law.14 This article does not only enable the transfer of sovereign powers to an international organisation, it also gives ground to the validity of acts taken by the international organisation in accordance with the sovereign powers that have been transferred to it On that ground, the direct effect and the primacy of EU law construed by the CJEU have been guaranteed in Germany's legal order with exception to the Basic Law that remains supreme in Germany In 1992, the Treaty of Maastricht prompted in Germany the same reaction as in France. [...]