EU primary, secondary and tertiary legislation
in an earlier chapter, we looked at the Treaties - the Treaty establishing the European Community (TEC) and the Treaty on European Union (TEU) and considered the idea that the EU is these Treaties. They found its whole existence, they constitute it and they define what it is and what it can do.
The Treaties can be seen as the EU's primary legislation, therefore. Any other legislation is adopted under powers conferred on institutions in the Treaties. We'll be looking particularly at the TEC.
Measures adopted by the institutions using these powers can therefore be thought of as EU secondary legislation. This includes Regulations and Directives adopted by the European Parliament and Council, som of which we will look at in greater detail later in a later chapter.
Finally, Regulations and Directives may set out broad principles but in turn delegate power to an institution to make more detailed, technical rules - typically, conferring on the Commission power to make and update technical annexes, or detailed rules needed to aid the application of EU law. This is known as tertiary legislation. We won't look at this in any further detail.
Regulations, Directives and Decisions Article 249 TEC sets out the types of measure EC institutions can adopt, and explains their nature:
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 regulations and issue directives, take decisions, make recommendations or deliver 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.
It's clear from this that the institutions can make three types of legally binding measure - legislation, in other words. These are Regulations, Directives and Decisions. Recommendations and opinions are not binding legislation, and we will not consider them further.
Regulations These are an easy kind of legislation to understand: a Regulation is simply a piece of legislation adopted by, for instance, the Council and Parliament, laying down rules throughout the EU. It has,as article 249 sets out, "general application", which means that it applies to, and is binding on, everyone - just like an Act of Parliament in the UK, for instance. Article 249 also explains that a Regulation is "directly applicable" in all member states. This simply means it is automatically law, in and of itself, from the point of view of EU law. As a matter of EU law, member states need take no further action to bring a Regulation into force internally. We look at this concept a little more closely below. Regulations are an important source of EU law, and we will learn about one or two of them later.
Directives These are another key source of EU law, and are a little harder to understand initially. Article 249 says they a Directive is
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.
They are not a simple, generally applicable kind of law like Regulations, or British Acts of Parliament, therefore. They do not automatically become law within member states, even as a matter of EU law. In themselves, Directives do not place legal obligations on people within a member state - they place obligations on member states to change their internal laws to achieve certain results. Each member state must implement a Directive in order to bring its law into line with it, and to pursue its aim. A Directive can therefore in a sense be seen as an order to member states to change their laws, rather than a piece law in itself.
For this reason it is often said that Directives offer member states some flexibility in the way they apply EU law - although in reality, some directives offer much more flexibility than others.
Decisions Decisions are binding on those to whom they are addressed: they are not general laws at all. For example, the Commission often makes Decisions in matters relating to competition - ruling against a particular company, perhaps, and ordering it to pay a fine. In that type of case, the Decision will be addressed to the company, and it may have no legal effects for anyone else. Decisions are clearly suitable means of making executive, regulatory decisions of that kind. It is possible for a Decision to be addressed to all member states, however. For our purposes however Decisions are not as important as Regulations and Directives, and we will not consider them in as much detail.
Regulations v Directives: centralisation, harmonisation and lack of clarity It is worth mentioning at this stage though the kind of things Regulations can do and are especially suited to. Since it is binding throughout the Community without implementation, a Regulation is well suited to setting up a single, Europe-wide system of regulation, say. For instance, under the EU system of pharmaceuticals regulation, some advanced types of drugs are licensed not by national bodies but centrally, by the European Medicines Agency (which is based in London). Regulation 2309/93 was used to legally establish it and set down the single, Europe-wide rules about how it will deal with applications to market drugs.
Directives on the other hand are ideally suited to ensuring that national bodies and rules, rather than being replaced by a single EU system, are operated according to similar principles.
For example in pharmaceuticals regulation, most drugs are in fact still licensed at national level, but Directive 2001/83 sets out a "Community code" of common principles which national agencies must apply when deciding whether to grant authorisation. The Directive leaves open the possibility that national agencies will reach different decisions on the same drug - but drug companies can at least know that each agency will apply the same legal tests, and that the application process will be similar. The national rules have been partially harmonised, in other words, rather than being replaced by the centralised European system that the Regulation has set up to deal with a more limited class of drugs.
A note of warning is appropriate, however: while the difference in approach between this Regulation and Directive are pretty clear, not all Regulations so obviously set up single, centralised European systems; and some Directives seem to approach very near to applying centralised rules, or even do so. Sometimes it is difficult to know why Community insitutions chose to act by means of a Regulation rather than a Directive, or vice versa.
Direct applicability (and direct effect)
A concept that often confuses students of EU law is that of direct applicability. At the risk of being repetitive, it is important to explain what this means in order to avoid misunderstandings.
The Treaties themselves are directly applicable: this means that they are, technically, law in the member states. They are automatically law, by their very nature. Member states need take no action to implement them.
The same goes for Regulations. They are generally binding rules, and automatically have the status of law in member states without the need for further implementation.
Directives, on the other, as we have seen, are not law in quite the same way - they are orders to member states which must be implemented by member states. They do not automatically reach into member states' legal systems. They are not, therefore, directly applicable.
So far, so simple: and to keep things simple, all you really need to remember is that Treaties and Regulations are directly applicable; Directives aren't. There's no more to it than that.
The confusion arises because of the slightly different concept of direct effect, which we will look at in a later chapter, and which relates not to the status of laws as such but whether they can be enforced by individuals in national courts. The confusion is compounded because the European Court of Justice sometimes, very unhelpfully, uses the term "direct applicability" to refer to both concepts, or either.
The challenge for students of EU law is to understand direct effect when we come to it. If you do, directly applicability will remain very simple, and it will be easy to tell if the ECJ is using that term misleadingly.
Competence and "legal base" We have so far looked at the different types of legislative act or instrument available to Community institutions. In order to undertand their background better, however, it is worth considering what power the institutions have to adopt them.
First, the Community can only do things that are within its competence, as you may remember from the first chapter. It is importnt to realise that, for Community institutions to adopt a Directive say, on any matter, that matter must be within Community competence.
Secondly, the institutions can only adopt a measure such as Directive or Regulation if the Treaty provides a specific legal base on which to do so: in other words, if a Treaty article specifically empowers them to do so.
For instance, the second sentence of article 95(1) TEC says
The Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.
Article 95 is the classic "legal base" giving power to the Council to adopt "harmonizing" measures approximating national laws in order to build the single, internal market. Notice that the Council is required to use the procedure laid down in article 251 - in other words, co-decision with the European Parliament. Measures under article 95 - which may be either Regulations or Directives, since neither is prescribed - are therefore now adopted jointly by the Council and Parliament.
It's also worth noting the words in the first sentence of article 95(1)
... the following provisions shall apply for the achievement of the objectives set out in Article 14
which makes clear that the power is in pursuance of the Community's internal market competence set out in article 14. In fact it's relatively rare for a legal base provision to refer in terms to the competence to which it is linked. It's usually very easy to relate a legal base to the relevant area of competence, however.
Sometimes one Treaty article may not give the Community power to do everything it would to; but another Treaty article gives it the additional power it needs. In these circumstances it is often possible for the legal bases to be combined and for the Community to adopt a measure based on both.
If we are asked, therefore, whether the Community has power to adopt this or that Regulation of Directive, we can answer in two stages. First, in a general sense, it what is proposed within Community competence? Secondly, is there a specific legal base, or combined legal bases, empowering the Community to adopt the measure?
Looking at a Regulation and a Directive It helps to actually look at Regulations and Directives as soon as you can, to get a feel for how they look.
Directive 2009/110, for instance adopted by the Parliament and Council, aims at regulating "electronic money institutions". Its heading makes it clear it was adopted by the institutions on 16 September 2009, and its preamble cites article 47(2) - which covers the self-employed - and article 95 as its legal bases. The preamble aslo makes clear that the Directive was originally proposed by the Commission - you'll remember it normally has the sole right of initiative - and make clear that the co-decision procedure under article 251 was used.
There then follow a series of numbered "recitals" - these explain the reasoning behind the measure, and are required by article 253 TEC:
Regulations, directives and decisions adopted jointly by the European Parliament and the Council, and such acts adopted by the Council or the Commission, shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty.
The recitals are not strictly part of the Directive, but can be used to assist in interpreting it.
There then follows the Directive itself - a series of numberes articles. Note in particular article 22, which requires member states to implement rules satisfying the Directive by 30 April 2011.
On the same day, the Parliament and Council adopted Regulation 924/2009 on cross-border payments.
Note first the difference in the way the measures are numbered - Regulations end with the number of the year, unlike Directives which begin with it.
Note also that the Regulation is based on article 95, and of course that of course the article 252 co-deicison procedure applied.
Finally, notice that article 17 merely states that it shall apply from 1 November 2009; since it is a directly applicable Regulation, it is law in the member states as from then. No further implementation is required.