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.
