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EC Law - sources of EC Law

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Sources of EC Law - Primary Law and Secondary Law

EU law is made up of three sources (which together form the "acquis communautaire" – the body of EU law) the three sources are, primary legislation, secondary legislation, case law.

 

Primary Law

Primary law is found mainly in the Treaties

Primary legislation includes in particular the Treaties and other agreements having similar status. Primary legislation is agreed by direct negotiation between the governments of Member State.

 

These agreements are laid down in the form of Treaties which are then subject to ratification by the national parliaments. The same procedure applies for any subsequent amendments to the Treaties. The Treaties establishing the European Communities have been revised several times each Treaty contains “Protocols” and are they are amended by succeeding Treaties:

the Single European Act (1987), the Treaty on European Union 'The Maastricht Treaty' (1992), the Treaty of Amsterdam (1997) , the Treaty of Nice (2001).

 

The Treaties also define the role and responsibilities of EU institutions and bodies involved in decision-making processes and the legislative, executive and juridical procedures which characterise Community law and its implementation.

The founding treaties were the Treaty of Paris 1951 and the Treaty of Rome 1957. The Rome Treaty is central to understanding EC Law. The Treaty of Rome (was originally called the EEC treaty) but it was amended in 1992 by the Treaty of Maastricht [The Treaty on European Union ‘TEU’] and its name was changed to the EC Treaty. Also, all the Article numbers were changed, we shall only refer to the new numbers. The EEC became the EC and the term EC Law was born.

When we refer to the EC Treaty, we mean the Treaty of Rome (as amended).

(There are now a dozen basic Treaties and Acts, not to mention protocols, containing a total of nearly eight hundred Articles.)

 

The new legal order

The Treaty of Rome created a "new legal order", which means that the body of law that was now binding on the institutions of member states and its citizens. The new legal order was set out in Costa v ENEL and Van Gend en Loos.


Costa v ENEL [1964] ECJ

"…the EEC Treaty has created its own legal system which…became an integral part of the legal systems of the Member States and which their courts are bound to apply."

"Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves."

"The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the Treaty."


Van Gend en Loos v Netherlands [1963] ECJ

"The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign right, albeit within limited fields."

 

The Three Pillars

The new order is said to be made up of three pillars.

 

Pillar one: The European Communities, meaning co-operation over matters such as the Single Market and free movement across borders of persons, goods, services and capital; the "four freedoms". It includes a common approach to agriculture, the environment, competitiveness and trade policy. Also, it includes co-operation in fiscal and monetary issues, and citizenship

 

Pillar two: Common Foreign and Security Policy.

 

Pillar three: Police co-operation and co-operation in the area of criminal law.

 

This "new legal order" has greatest impact on Pillar One of the Three Pillars. It is within pillar one that the institutions of the EU have right to draw up legal instruments and introduce legislation.

 

The EC Treaty (the Treaty of Rome as amended) can be seen as the basic constitution of the European Union.

 

Secondary Law

In a nutshell, the secondary law we shall be looking at comprises:

Regulations - binding in all the member states

Directives - binding as to result but states may choose method of implementation

Decisions - binding on those to whom they are addressed

Recommendations - not binding

Opinions - not binding

Case Law - binding in all the member states.

 

The secondary sources are laws passed by the 'institutions' under Article 249 EC (remember 'EC' means the Treaty of Rome as amended).

"In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make

[1] regulations and issue [2] directives, take [3] decisions, make [4] recommendations or deliver [5] opinions.

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force."

 

[1] Regulations, Article 249

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States’.

 

General Application

General application means that Regulations apply to all member states often referred to as generally applicable.

 

Directly Applicable

Regulations (and Treaty provisions) are "directly applicable" which means they have the force of law within the all Member States without them having to be enacted by a member state. "Directly applicable" means that the Member States (UK) need do nothing to implement the law, for example a Regulation is automatically the law of the UK.

 

[2] Directives Article 249

"A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."

A Directive is orders a member state to change its domestic law to comply with EU policy.

They are, therefore, not 'directly applicable' and the method of implementation is left to the member state with, usually, a time limit for implementation imposed. Directives are often passed by statutory instrument or an Order in Council. This means as subordinate legislation they are subject to judicial review.

 

[3] Decisions Article 249

"A decision shall be binding in its entirety upon those to whom it is addressed."

Community institutions order that a measure be taken in an individual case. The Community institutions can thus require a Member State or an individual to perform or refrain from an action, or can confer rights or impose obligations on them.

The basic characteristics of a decision can be summed up as follows.

• It is distinguished from the regulation by being of individual application: the persons to whom it is addressed must be named in it and are the only ones bound by it.

• It is distinguished from the directive in that it is binding in its entirety (whereas the directive simply sets out objectives to be attained).

• It is directly applicable to those to whom it is addressed. A decision addressed to a Member State may, incidentally, have the same direct effect in relation to the citizen as a directive. Instances in which decisions are used include, for example, the granting or refusal of State aid (Articles 87 and 88 EC), the annulment of agreements or arrangements contrary to fair competition (Article 81 EC) and the imposition of fines or coercive measures.

 

Regulations, Directives and decisions are published in the Official Journal of the European Communities.

 

[4] Recommendations (not binding and therefore arguably not law)

In recommendations, the party to whom they are addressed is called on, but not placed under any legal obligation, to behave in a particular way. For example, in cases where the adoption or amendment of a legal or administrative provision in a Member State causes a distortion of competition within the Community, the Commission may recommend to the State concerned such measures as are appropriate to avoid this distortion.

 

[5] Opinions (not binding and therefore arguably not law)

Opinions are issued by the Community institutions when giving an assessment of a given situation or development in the Community or individual Member States. In some cases, they prepare the way for subsequent, legally binding acts, or are a prerequisite for the institution of proceedings before the Court of Justice. The real significance of recommendations and opinions is political and moral.

 

In providing for legal acts of this kind, the draftsmen of the Treaties anticipated that, given the prestige of the Community institutions and their broader view and wide knowledge of conditions beyond the narrower national framework, those concerned would voluntarily comply with recommendations addressed to them and would react appropriately to the Community institutions’ assessment of a particular situation.


Recommendations and opinions can have indirect legal effect where they are a preliminary to subsequent mandatory instruments or where the issuing institution has committed itself, thus generating legitimate expectations that must be met.

Case Law

Rulings on EC law by the European Court of Justice (ECJ) are also a source of law. Case-law includes judgments of the European Court of Justice and of the European Court of First Instance, for example, in response to referrals from the Commission, national courts of the Member States or individuals.

For example: Van Gend En Loos [1963] gave individuals the right to rely on provisions of the Treaty of Rome in their national courts, and Article 25 of the Treaty (the law prohibiting changes in customs duties on imports and exports) had a direct effect in the member states.

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