European Union Law/Introduction
The European Union is unique among international organisations in having a complex and highly developed system of internal law which has direct effect within the legal systems of its member states. The EU is not a federal government, nor is it an intergovernmental organisation. It involves reciprocal agreement within its fields of activity, as if countries have agreed to work together to agree.
There are three types of Union law:
- primary legislation: the treaties
- secondary legislation: regulations, directives, decisions, recommendations and opinions made by the Union's institutions in accordance with the treaties
- decisions of the European Court of Justice and the General Court (formerly Court of First Instance)
The whole body of EU law is together called the acquis communautaire, broken into 31 chapters for purposes of accession negotiations.
Primary legislation: the treaties
The primary legislation, or treaties, are effectively the constitutional law of the European Union. They lay down the basic policies of the Union, establish its institutional structure, legislative procedures, and the powers of the Union. The treaties that make up the primary legislation include:
- the ECSC Treaty of 1951 (Treaty of Paris)
- the EEC Treaty of 1957 (Treaty of Rome)
- the EURATOM Treaty of 1957 (Treaty of Rome)
- the Merger Treaty of 1965
- the Acts of Accession of the United Kingdom, Ireland and Denmark (1972)
- the Budgetary Treaty of 1970
- the Budgetary Treaty of 1975
- the Act of Accession of Greece (1979)
- the Acts of Accession of Spain and Portugal (1985)
- the Single European Act of 1986
- the Treaty of Maastricht of 1992 (Treaty of European Union)
- the Acts of Accession of Austria, Sweden and Finland (1994)
- the Treaty of Amsterdam of 1997
- the Treaty of Nice of 2001
- the Treaty of Accession 2003 of 2003
- the Treaty of Accession 2005 of 2005
The various annexes and protocols attached to these treaties are also considered a source of primary legislation.
The heads of state and government of the member states of European Union signed a constitution in 2004, but it subsequently failed to be ratified by the member states.
- Treaties and evolution of the structures of the European Union
Secondary legislation includes regulations, directives, decisions, recommendations and opinions.
Secondary legislation also includes interinstitutional agreements, which are agreements made between European Union institutions clarifying their respective powers, especially in budgetary matters. Parliament, Commission and Council are capable of entering into such agreements.
The classification of legislative acts varies among the First, Second and Third Pillars.
In the case of the first pillar: Secondary legislation is classified based on to whom it is directed, and how it is to be implemented. Regulations and directives bind everyone, while decisions only affect the parties to whom they are addressed (which can be individuals, corporations, or member states). Regulations have direct effect, i.e. they are binding in and of themselves as part of national law, while directives require implementation by national legislation to be effective. However, states that fail or refuse to implement directives as part of national law can be fined by the European Court of Justice.
Directives and regulations can comprise of a mixture of maximum harmonisation and minimum harmonisation clauses, and can be enforced on either a home state regulation|home state or a host state basis.
All EU legislation must be based on a specific treaty article, which is referred to as the "legal basis" of the legislation.
The European Convention's Working Group on Simplification, identified in total 15 legal instruments of the European Union. These, divided in the three pillars of the European Union are the following:
Community Pillar Common Foreign and Security Policy Police and Judicial Co-operation in Criminal Matters
Principles and general guidelines
Common: Recommendations, Opinions
If the planned European Constitution is ratified, these acts will be reduced to only six: EU laws, EU framework laws, decisions, regulations, recommendations and opinions.
There are three main legislative procedures in the European Union, with the main difference between them being how the European Parliament interacts with the Council of the European Union.
- Codecision procedure
- Assent procedure
- Consultation procedure
History and development
Initially, the Consultation procedure was the primary interplay of the institutions. Under it, Council must wait (unless it initiates an emergency procedure) for the EP’s opinion before adopting the legislation. This possibility for delay was in the early days the EP’s only weapon.
The role of the European Parliament in this institutional triangle has been gradually strengthened. Major landmarks in this gradual strengthening process have been
- the transferral of budget responsibilities during the early 70s,
- the first direct elections in 1979,
- the introduction of the w:Cooperation procedure with the w:Single European Act (1986/87) and
- the codecision procedure with the w:Maastricht Treaty (1993/93), whose scope was expanded considerably by the w:Treaty of Amsterdam (1997/99) and the w:Treaty of Nice (2001).
The development of law of the European Community has been largely moulded by the European Court of Justice (ECJ). In the landmark case of Van Gend en Loos in 1963, the ECJ ruled that the European Community, through the express will of member states in the treaty, "constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights albeit within limited fields."
The ECJ often interprets Articles 308 and 95 EC very broadly. This is why its judicial activism has been named as the major contributing factor to the emergence of the phenomenon of ‘competence creep’. Still it is argued that "the greatest expansion of Community competence has been through successive treaty revision. It has been the Member States themselves that have been willing to accord new competences to the EC”.
The distinction between European Community (EC) law and European Union law is that based on the treaty structure of the European Union. The European Community constitutes one of the 'three pillars' of the European Union and concerns the social and economic foundations of the single market. The second and the third pillars were created by the Treaty of the European Union (the Maastricht Treaty) and involve Common Security and Defence Policy and Internal Security. Decision making under the second and third pillars is not subject to majority voting at present. The Maastricht Treaty created the Justice and Home Affairs pillar as the third pillar. Subsequently, the Treaty of Amsterdam transferred the areas of illegal immigration, visas, asylum, and judicial co-operation to the European Community (the first pillar). Now Police and Judicial Co-operation in Criminal Matters is the third pillar. Justice and Home Affairs now refers both to the fields that have been transferred to the EC and the third pillar.
Several principles such as w:subsidiarity, proportionality, the w:principle of conferral, and the w:precautionary principle have become prominent in the development of European Union law. Scholars such as Catherine Barnard argue that the Four Freedoms form the w:substantive law of the EU: free movement of goods, services, capital, and labour within the internal market of the EU.
It has been ruled several times by the European Court of Justice that EU law is superior to state laws, and even state constitutions. In some cases this is "hard-coded" into the constitutions themselves. For example, the Irish Constitution contains a clause, which specifies as follows:
No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State
Which effectively exempts EU law, or EU law requirements from being compliant with the constitution (although they generally are, anyway).
- P Craig, G Burca (eds), EU Law: Text, Cases and Materials (4th edn Oxford University Press, Oxford 2008, p.107)