By Barbora Volková
The European Union is based on the rule of law. This means that every action taken by the EU is founded on treaties that have been approved democratically by its members. EU law helps to achieve the objectives of the EU treaties and put EU policies into practice. There are two main types of EU law – primary and secondary.
Primary Law – EU Treaties
EU treaties are binding agreements between EU member countries. They set out EU objectives, rules for EU institutions, how decisions are made and the relationship between the EU and its member countries. Every action taken by the EU is founded on those rules that have been developing for decades as the original treaties were amended and supplemented considerably numerous times. Their special nature is encapsulated within the concept of direct applicability – that means that all provisions became automatically binding to new member countries and all of their citizens.
Treaty of Rome (1957)
The Treaty of Rome created an economic agreement between six European countries (France, Belgium, Italy, Luxembourg, the Netherlands, and West Germany) leading to the formation of the European Economic Community based on the idea of open, tariff-free trade. The creation of a single European economic area based on a common market was the fundamental objective of those countries. This founding treaty also established four institutions still working today – the Commission, Council of Ministers, European Parliament and the European Court of Justice.
The Single European Act (1986)
SEA was the first major attempt to amend the prerogatives established by the Treaty of Rome. The European Community did not make much progress regarding its market ambitions, so it was decided to set a deadline for the creation of a full single market by 1992. The Act also led to a deeper integration by making it easier for the Council to pass laws (by Qualified Majority Voting), strengthening the power of the Parliament and laying the basis for a European foreign policy.
The Treaty of Maastricht (1992)
The Maastricht Treaty laid down the foundation for the European Union and established greater cooperation through economic, social, and legal channels representing the central movement towards deeper European integration and wider EU responsibilities. It significantly advanced the agenda set out under SEA and created a new model based on three “pillars” covering economic relations, foreign affairs and home affairs. It also started the process of the Economic and Monetary Union, which led to the creation of the Euro (which started circulating in 2002). The goal of the treaty was to increase cooperation by establishing common European citizenship and to allow residents to move, live, and work freely between member states.
The Treaty of Amsterdam (1997)
The Amsterdam Treaty pushed forward to more supranationalism with the absorption of the Schengen Convention into the EU law, which created the open European borders we know today. It created a High Representative in charge of EU foreign policy and expanded the number of decisions taken by QMV. For the first time, the Commission became in charge of Justice and Home Affairs and states in favour of more integration became able to cooperate more closely on areas outside the treaties without unanimous agreement. The treaty attracted widespread criticism as it did not solve the biggest problem of reforming the Union towards approaching the enlargement of 10 countries of the former Eastern block.
The Treaty of Nice (2001)
The Nice Treaty was aimed to finish what Amsterdam could not – reforming the institutions in order to accommodate a large wave of new approaching members. Much of the text of the treaty managed the reform of the decision-making of the EU. It extended QMV, gave the power to elect the Commission President to the Parliament and set limits on the number of future Commissioners and MEPs. Those and other reforms were necessary to prepare for enlargement and to stop the EU administration from growing out of control.
The Constitutional Treaty (2004) – never ratified
As an attempt for further integration, EU countries proposed the establishment of an “EU Constitution” which would highlight the primacy of EU rules and laws over those national and also over national constitutions. It would have replaced the existing treaties with a single text. However, it took the efforts of supranationalisation too far. The Treaty establishing a Constitution for Europe was adopted by the European Council, signed by member states and approved by the European Parliament. Nevertheless, the people of France and the Netherlands rejected it in their national referenda, so it has never been put into practice.
Lisbon Treaty (2007)
The Treaty of Lisbon is the latest contribution to EU primary law, which was created in an attempt to replace the rejected Constitution. Despite that, most things introduced by the 2004 document were taken over by the new treaty, but the constitutional aspects that would imply a supranational state were taken away. It has introduced significant changes to the EU establishment by not replacing the existing treaties, but instead amending them. New changes were introduced to the voting system. QMV voting now requires a double majority of 55% of EU members, representing 65% of the EU population. QMV (now even more extended) is also subject to the co-decision procedure giving the Parliament and Council the same power over the final decision, which further extended the powers of the EP. The treaty also created two new posts that were suggested by the Constitution: 1) a permanent President of the European Council and 2) a single High Representative of the Union for Foreign Affairs and Security Policy, representing the EU abroad by a single voice. The Lisbon Treaty replaced the “common market” with the “internal market” based on four freedoms – free movement of people, goods, capital, and service. The EU also gained a legal personality and The Charter of Fundamental Rights was given a full legal status. Lisbon cancelled the pillar structure introduced by Maastricht, with Justice and Home Affairs being subject to QMV. Furthermore, there is a clear definition of the distribution of competences (exclusive and shared) between the EU and MSs as well as the set-out exit clause allowing a withdrawal from the Union.
Secondary Law
Secondary legislation is a collective term used to describe all the various types of law that European institutions can make. They include regulations, directives, and decisions that are binding. Those legislative acts are adopted following one of the legislative procedures set out in the EU treaties (ordinary procedure – Council and EP share decision-making powers, and special procedure – Council enjoys unanimous voting). Another group represents “soft” non-binding legislation such as recommendations, opinions, white and green papers. Non-legislative acts do not follow the two mentioned procedures and can be adopted by EU institutions according to special rules.
Regulations
Regulations have equal direct implications for all EU countries and are directly applicable across the whole EU as any piece of local legislation. In contrast to directives, these kinds of legislative acts are more inflexible. They come into effect as soon as they get ratified by the European Parliament and immediately overrule national laws.
Example: General Food Law Regulation – lays down general principles, requirements and procedures that ensure the high quality and safety of food, covering all stages of food production and distribution.
Directives
Directives require member states to accomplish a particular set of goals within an exact timeframe, but without explicitly setting out the ways how to achieve those goals. They outline rules that must be met, but it is up to each state to choose the best way how to ensure their compliance through national law. With directives, member states get more freedom in terms of implementation compared to more strict regulations. Also, directives can be applied to only a single EU member or a selected group of countries.
Example: Driving Licences Directive – ensures mutual recognition of driving licences among Member States. This means no additional paperwork for free car movement within the EU.
Decisions
Decisions are related to specific cases and directed to individuals or several member states, companies or private individuals. They are binding upon those to whom they are directed. Decisions addressed to one or several specific individuals/companies/member states have a direct effect. Since the emergence of the Lisbon Treaty, a decision may no longer specify to whom it is addressed. For example, the EU can issue a decision for amending treaty provisions.
Examples: A decision by the Council that allowed Croatia to adopt the euro (being aimed at one country only), a fine of the Commission imposed on a company for abusing its dominant market position.
Recommendations
Recommendations, as suggested by their name, express opinions and therefore propose a specific course of action without imposing legal obligations. In case of non-compliance, there are no legal consequences for the addressee (member states, other institutions, citizens). They can be issued by the Commission, EP, Council, or the European Central Bank. Recommendations allow those institutions to make their views known without imposing strict legal obligations. Despite that, they can potentially have political weight and can be a type of soft law forming part of the EU acquis and serve as a guide on the interpretation or content of EU law.
Example: Recommendation on the temporary restriction of non-essential travel into the EU as a response to the evolution of the COVID-19 pandemic (February 2022).
Opinions
Opinions are statements that can be issued by all main EU institutions (including the Committee of the Regions and the European Economic and Social Committee. Similarly to recommendations, they do not impose any legal obligations. Opinions can represent an evaluation along with possible actions that can be taken with regard to a certain issue and they are usually given to member countries or when addressing a very specific situation.
Example: Commission opinion on Montenegro´s application for membership of the European Union (2010).
The Green and White Papers
Additionally, it is relevant to address two other types of official documents related to EU legislation. A Green Paper is a document published by the Commission in order to motivate discussion on given topics at the European level and possible future emergence of policies in this area. Therefore, this paper can give rise to legislative developments and serve as a basis for later legislative proposals. The Commission outlines the state of affairs within a policy area and recommends possible future policies. This debate tends to be more general and rather explorative.
A White Paper is a document containing proposals for community action in a specific area also initiating a debate on new policies. They tend to be more detailed and usually serve as a basis for one or more legislative proposals. These documents provide stakeholders and other parties with the opportunity to exert influence in the policymaking process, as the Commission takes all commentaries into account when drafting legislative proposals in the policy area of the paper.
Examples: A Green Paper on urban mobility, A White Paper on the Future of Europe.
Fundamental Principles of EU Law
Principle of Conferral
Under this principle, the EU is a union of its member states and can only exercise those competences that have been transferred to it by the member states. Therefore, the EU has no competence to act in policy areas where such power has not been conferred to it by the Treaties. The exercise of EU´s competences is further governed by the principles of subsidiarity and proportionality.
Principle of Subsidiarity
This principle aims to ensure that decisions are taken at the closest possible level to the EU citizens and that constant checks are made to verify that action at the Union level is justified in light of the possibilities available at the national, regional or local level. In other worlds, subsidiarity regulates the exercise of powers by the EU. The EU should act if the objectives of the proposed action cannot be sufficiently achieved by the member states or if the EU actions would be more effective than those taken at the national, regional or local level.
Principle of Proportionality
Closely linked to the principle of subsidiarity, also the principle of proportionality regulates the exercise of the powers conferred to the EU by member states. It is required that the measures conducted by the Union must be suitable to achieve the desired end and must be necessary to achieve the desired outcome. In other words, the EU actions shall not exceed what is necessary to achieve the objectives of the treaties.
Photo Credit: Towfiqu Barbhuiya
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