Sources of Law in the European Union

Sources of law in the European Union are usually divided into primary and secondary sources. The most important primary sources are the EU Treaty (TEU), the Treaty on the Functioning of the European Union (TFEU), and the EU Charter of Fundamental Rights. Protocols and declarations attached to the Treaties plus the accession treaties concluded with the new Member States count as primary sources. These are intergovernmental agreements and related documents. Any change in the primary sources is made through a new treaty, which must be ratified by all Member States. The original Treaty of Rome has been amended, inter alia, by the Single European Act in 1987, the Treaty of Maastricht 1992, the Treaty of Amsterdam 1997, the Treaty of Nice 2000, and the Treaty of Lisbon 2009.

Secondary sources are those that are adopted on the basis of primary sources. They derive their validity from primary law and are adopted to implement it. They are designated as secondary because they must have a legal basis in primary law. The significance of this is discussed further in Chapter 4. Secondary law is adopted by the EU institutions, mainly the Council and the EP. It consists of binding instruments, namely directives, regulations and decisions, and non-binding instruments, that is, recommendations and opinions. Article 288 TFEU provides a definition of these instruments:

• • 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. A decision which specifies those to whom it is addressed shall be binding only on them.
• • Recommendations and opinions shall have no binding force.

Regulations are in many respects similar to national laws. They are binding, are generally applicable, and shall be applied directly by national courts and other ^[1]

authorities. They can, under certain circumstances, be invoked by individuals. They need not be incorporated in or transformed into national law, and must be applied directly and in their original form.2⁸ As regards the environment, regulations are often used to implement at national level international environmental conventions to which the EU has acceded. The EU’s main legal act in the field of chemicals, REACH,29 is also a regulation.

A directive is more similar to an international agreement in that it is up to Member States to achieve its intended results through national legislative measures: the content of a directive must be transposed into national law. Member States will decide the form and methods for this. A deadline is always set in the directive for its transposition by Member States into national law. Until then each Member State shall determine whether the contents of the new directive are consistent with that country’s applicable laws or whether it is necessary to make changes in existing laws or introduce new legislation. The transposition is effected through legislative provisions or other binding rules. According to the established practice of the Court of Justice, mere administrative practices that can be freely altered by the administration and are not publicised in a satisfactory manner are not considered to fulfil properly the obligation of the Member State.^{[2] [3] [4] [5] [6] [7]} Natural and legal persons must be able to invoke rights derived from the directive before a national court. For this purpose, the Member State must establish a legal framework in the area in question. This does not necessarily mean that the directive’s provisions will be transposed into a specific law.3¹ However, the national provision through which a directive is transposed must be capable of creating a situation which is sufficiently ‘precise, clear, and transparent’ to enable individuals to ascertain their rights and obligations.32 It is not enough that all provisions of a directive are in practice enforced by the authorities of a Member State even though implementing legislation is missing or incorrect.33

While each Member State is free to distribute legislative powers internally and to implement a directive through measures taken by regional and local authorities, this does not release the Member State from the obligation to ensure that a directive’s provisions are correctly transposed into national law.3⁴

If a directive is not implemented in time or is transposed incorrectly, the Commission may bring infringement proceedings against the Member State concerned. (More on this in Chapter 5.) In the environmental sector, directives are often the most appropriate instrument, because environmental problems often require different sorts of action in different Member States. The Habitat Directive^ is a good example.

Decisions can be addressed to Member States, companies, or individuals and are only binding on those to whom they are addressed. They are used to implement EU legislation in special cases.

One could also speak of a tertiary source of EU law: acts adopted by the Commission to implement secondary law. According to Article 290 TFEU, it is possible to delegate to the Commission, through a legislative act, the power to adopt acts of general application which are not per se legislative acts, but supplement or amend certain non-essential elements of a legislative act. Where uniform conditions for implementing legally binding Union acts are needed, the Commission may, under Article 291, be given implementing powers through such acts. (See further section 1.8.) The EU’s overall legal framework, that is, primary and secondary legislation, recommendations and opinions, general legal principles, Court practice, and international standards to the extent they form part of the Union legal order, is usually referred to jointly as the acquis communautaire.

We are not going to discuss the interpretation principles of EU law here, but note that interpretation is often contextual and strongly purpose-oriented. Of great importance is that all regulations and directives begin with an introductory part, or preamble, in which the background and purpose of the act are explained. Preambles may be extensive and contain reasons for adopting the act. These reasons are used by the Court as an aid to interpretation.

The Union currently has twenty-four official languages. All instruments are drawn up in all these languages and all language versions are formally equivalent. However, English and French dominate as the working language of the EU institutions, with the exception of the Court, whose working language is French. Therefore, other language versions are usually translated from English and French. The Court not infrequently compares various language versions when the meaning of a part of a text in a given case is unclear.

At the end of May 2015, some 11,500 regulations and about 1,840 directives were applicable in the twenty-eight Member States.^{[8] [9]} Finding relevant EU legal acts in the latest version can sometimes be a bit awkward. All current EU legislation is, however, gathered in the EUR-Lex, at .

• [1] For more information about EFTA and the EEA Agreement, see .
• [2] Case 34/73 Variola ECLI:EU:C:1973:101, paras 9—10.
• [3] Council Regulation (EC) No 1907/2006 Concerning the Registration, Evaluation, Authorisationand Restriction of Chemicals (REACH) [2006] OJ L136/6.
• [4] See for instance Case C—83/97 Commission v Germany ECLI:EU:C:1997:606, para 9; Case C-242/94 Commission v Spain ECLI:EU:C:1995:317, para 6; and Case C-381/92 Commission vIreland ECLI:EU:C:1994:22, para 7.
• [5] Case C-131/88 Commission v Germany ECLI:EU:C:1991:87, para 6.
• [6] Case C-417/99 Commission v Spain ECLI:EU:C:2001:445, para 38.
• [7] Case C-131/88 Commission v Germany (n 31), para 8. 34 Ibid, para 71.
• [8] Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L 206/7.
• [9] 36 Report from the Commission—Monitoring the application of Union law, 2014 AnnualReport (9 July, 2015) COM (2015) 329 final. See also (visited 4January 2016).