2.13 EU Law

"Europe's power is easy to miss. Like an "invisible hand", it operates through the shell of traditional political structures. The British House of Commons, British law courts, and British civil servants are still here, but they have all become agents of the European Union implementing European law. This is no accident. By creating common standards that are implemented through national institutions, Europe can take over countries without necessarily becoming a target for hostility."

Mark Leonard, "Europe's transformative power", Centre for European Reform (CER) Bulletin, Issue 40, Feb/March 2005.

(I) Introduction

The EU currently comprises three pillars, as set up under the Maastricht Treaty:

• European Community domain (1st pillar), which has a comprehensive supranational legal system comprising legal structures, legislative procedures and legal instruments.
• Common Foreign & Security Policy (2nd pillar), which operates by intergovernmental agreement.
• Police & Judicial Cooperation in Criminal Matters (3rd pillar), which operates by intergovernmental agreement.

Even though the EU currently has no formal constitution, its essential structure revolves round two "documents":

• The Treaty of Rome (1957), as amended by the Single European Act (1986), the Maastricht Treaty (1992), the Treaty of Amsterdam (1997) and the Treaty of Nice (2001).
• The intergovernmental segments of the Maastricht Treaty, as amended by the Treaty of Amsterdam and the Treaty of Nice.

The European Community has "legal personality" and has a comprehensive legal system comprising legal structures, legislative procedures and legal instruments. Article 281 of the Treaty of Rome said: "The [European] Community shall have legal personality". This provision means that the Community has rights and obligations under international law, including most notably those contained in international agreements.

The 3-pillared European Union, comprising the European Community and two pillars run along intergovernmental lines, does not. For the second and third pillars, instead of legal instruments, the Council of Ministers, for example, adopts "common positions" and takes "joint actions". These will not be discussed further in this Fact Sheet.

"EU law" (EU legislation) is, therefore, effectively synonymous with "Community law", the law of the first pillar.

(II) EU law

There are three basic sources of EU law. They are:

• The Treaties: including annexes, protocols and amendments to the Treaties - primary legislation. The Treaties of Accession are included.
• Legislation: secondary, or derived, legislation which is based on the Treaties. It can take the following forms:
• Regulations: which are directly applicable and binding in all EU member states without the need for enabling national legislation. Regulations are the main instruments of CAP and the CFP.
• Directives: are binding, but have to be first enacted nationally before obtaining legal force. See below for further information.
• Decisions: which are binding in all their aspects for those to whom they are addressed. Thus Decisions do not require national implementing legislation. A Decision may be addressed to any or all member states, to enterprises or to individuals.
• Recommendations and Opinions: which are not binding. Some authorities classify them as "legal instruments", others do not.
• Case law: as embodied in the rulings ("judicial interpretation") of the Court of Justice and the Court of First Instance, for example, in response to referrals from the Commission, national courts of the member states or individuals.

These types of legislation comprise the acquis communautaire.

Both Regulations and Directives are initiated by the Commission and adopted by the Council of Ministers, in most cases after having received an opinion from the European Parliament and, when appropriate, from the Economic and Social Committee and the Committee of the Regions.

(III) Directives

Directives are binding, but have to be first enacted nationally before obtaining legal force. They provide a legislative outline, but allow each member state to decide the details of the legislation in its implementing law. They stipulate a defined period of time for national implementation. Directives are of 4 kinds:

• Maximum: member states cannot introduce stricter legislation in the area covered by this kind of directive.
• Minimum: the directive sets only minimum standards and allows member states to apply tougher rules if they wish.
• Horizontal: apply to a range of products or services (eg EC Food Labelling Directive, 1979).
• Vertical: apply to a narrow area only (eg EC Jam Directive).

RL, February 2007.