Some persistent questions about the EU and EU law

A selection of questions I keep on hearing and that I want to provide some clarity on.

confused woman
PHOTO CREDIT – Flickr

How many EU Treaties are there?

There are only two Treaties in force namely The Treaty on the European Union (TEU) and the Treaty on the Functioning of the EU (TFEU). Both have the same legal value and are to be read together as one redirects to the other in many aspects. The latest versions are known as the Lisbon Treaty.

Consolidated versions of the Treaties (with legal value) available at http://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=OJ:C:2012:326:TOC

What are the so-called Rome, Maastricht, Amsterdam, Nice and Lisbon Treaties then?

These are the names by which the founding and amending Treaties are known, usually linked to the city they were signed in (see visual representation of the evolution of the EU in “Overview”).

The main founding treaties European Economic Community (EEC) and Euratom[1] (plus the ECCS which no longer exists) were signed in Rome in 1957; the Maastricht Treaties of 1992 are important because the Treaty on the EU appears in scene and the EU is born while the EEC Treaty was amended and renamed to ECT (losing the E for ‘Economic’). Amsterdam (1997) and Nice (2001) were just amendments of both TEU and ECT.

Finally, the Lisbon Treaty (2007) redefined the system by renaming the ECT as Treaty on the Functioning of the EU (TFEU) making it easier to understand both TEU and TFEU are vital and interconnected parts of the system.

The Treaties are available at http://eur-lex.europa.eu/collection/eu-law/treaties-overview.html

Which are the EU institutions and what does each of them represent/stand for?

We regularly hear in the media ‘EU institutions’ but not always know what those are or who those represent and what they do.  Leaving aside the proliferation of entities that have appeared in the past decade or so (agencies, executive agencies, centres, observatories, etc.) we can say that the core institutional framework set out in the 60’s remains the same with some changes made by the Lisbon Treaty.

The EU institutions are:

  • European Council (political driving force, groups the heads of government or State);
  • Council of the EU (co-legislator, represents MS’ Governments);
  • European Parliament (co-legislator, represents EU citizens regardless of the MS the parliamentarians come from);
  • European Commission (executive arm of the EU, has only the EU’s interests at heart);
  • Court of Justice of the EU (judiciary, comprises judges from all MS);
  • Court of Auditors (controls the accounts of the EU, comprises representatives of all MS) and
  • European Central Bank (in charge of monetary and economic policy of the Eurozone MS).

Note that the European Council and European Central Bank were elevated to the category of institution by the Lisbon Treaty.

How is the legal system structured?

Like in most legal systems there are different levels of binding norms. In the EU system the levels are: primary, secondary and tertiary law.

Primary law, roughly speaking, are the founding Treaties, their amendments and the protocols attached to them.

Secondary law are the pieces of legislation adopted by the EU institutions in accordance with the competences established by the Treaties. They are known as Regulations, Directives and Decisions. There are other types namely Recommendations and Opinions which are not binding upon MS even though they are also called soft law.

Tertiary law is that emerging from the case-law of the Court of Justice of the EU (CJEU) as well as the principles of EU law either express in the Treaties or formulated by the CJEU through decades of EU judgments.

For more information on secondary law see art 288 TFEU.

What are the main differences between Regulations, Directives and Decisions?

Taking as a starting point that all three types are binding upon their addressees the main differences are the need to implement and the addressees. A Regulation unifies a certain subject matter, it is  applicable to everyone MS, individuals and companies in the EU territory and does not require implementation into national law. Its sole existence and entry into force suffices to generate the obligation to comply with it. A Directive is issued to harmonise a particular area, is addressed to MS which need to implement it into their national systems (i.e. issue national binding laws to comply with the prescribed requirements by the deadline stipulated). A Decision draws elements of both previously mentioned types meaning it could be addressed to MS, individuals, companies or groups of any of them and it will require something specific from someone by either a stipulated deadline or its entry into force. Decisions do not unify nor harmonise.

For more information on EU legal acts see art 288 TFEU.

What does the ‘delegated’ or ‘implementing’, sometimes appearing in the title of a Directive or Regulation, mean?

This is conceptually easier than it would seem. Both terms mean that the act, although binding by nature, has not been adopted by the co-legislators (i.e. Council and Parliament) but has been issued by the Commission instead in exercise of the powers delegated to it by a legislative act e.g. Directive or Regulation mentioning those institutions in the title. For instance, a mother Directive (as I like calling legislative acts) would delegate powers to the Commission to adopt non-legislative acts that are needed to complement or implement parts of a Directive/Regulation. The acts issued then will be the daughters of that Directive (to continue with the metaphor) and could be also Directives, Regulations or Decisions. Please note that daughter Directives/Regulations can be also adopted by the co-legislators and they will mention in the title that they ‘amend’ the mother Directive. In this case both mother and daughters will be legislative acts. Remember, the key element is the ‘Commission’ appearing in the title or the words delegated/implementing as this means is a non-legislative act.

For more information on delegated and implementing acts see arts 290 and 291 TFEU.

Does EU law (Treaties, legislation, cases) prevail over national legislation?

Yes, according to the Treaties and CJEU case-law and the reason is easy to understand. One of the objectives of the EEC was to create a system independent from the MS’ legal systems and influence, therefore, a transference of powers (or sovereignty) took place from the MS to the new institutional framework (this was done by the signature and entry into force of the Treaties and their amendments). That meant that the EU legal system would act as an umbrella that would govern many aspects of the MS’ legal systems namely those were competence/sovereignty had been transferred to the – now – EU.

Since there is no legal way for a MS to ‘recall’ powers transferred (they either comply with EU law or leave the EU – option created by the Lisbon Treaty) it is only a logical conclusion that if you join a club and you are part of the Board of Directors that sets the club’s rules you cannot go against the rules that you helped establish. In all aspects were competences have not been transferred to the EU MS remain free to legislate as they see fit.

In other words, MS accepted to subject their legal systems to the Treaties and the law emerging in their context (this covers legislation and case-law). This is known as supremacy[2] of EU law over national law and stems from the interpretation of the Treaties made by the CJEU in Costa v ENEL, which still today is good law.

For competences of the EU and MS see arts 2-6 TFEU; for context on supremacy of EU law see art 4(3) TEU and Costa v ENEL judgment (C-6/64).

What is the difference between entry into force, applicability and transposition deadline in EU law?

All three concepts are key to understanding how the system works. As in all legal systems the entry into force is a truly important date for EU legislation as it marks the commencement of the obligation to do something. Nothing can be applicable if it is not yet in force, however, in the past years we have seen divergent entry into force and applicability dates even in Regulations (for these the mentioned dates used to be synonyms).

The general rule: a piece of EU legislation will enter into force on the day it establishes or the 20th day after its publication in the Official Journal of the EU. Now, the specific rules.

For Regulations: entry into force can equal application date or the latter can be delayed in time. In this case we have a piece of legislation in force that is not – fully or totally – applicable! This is used nowadays for major Regulations that need some work at EU or MS level e.g. creation and recruitment of personnel for a new entity and/or setting up of processes that take some time. The entry into force marks the commencement of the obligation to comply with the Regulation requirements, whichever those are.

For Directives: entry into force also means the commencement of an obligation, to transpose/ implement the Directive into national law. Therefore, there is no applicability per se because is the national implementing legislation what will be applicable once adopted (on or before the transposition period elapses). Now, the transposition period is the amount of time that MS have to adopt national implementing measure/s to achieve the Directive’s objectives. It ranges from 12 to 24 months (in exceptional cases it can be 36 months). If a MS does not adopt legislation by the transposition deadline it will most likely be subjected to an infringement procedure by the EU Commission.

For Decisions: you need to read carefully the last articles as any combination of the above is possible owing to their hybrid nature.

Finally, EU Treaties enter into force and become applicable after ratification by all MS. Specifically, the first day of the month following which the last instrument of ratification is deposited with the authority designated in the Treaty. E.g. the Lisbon Treaty last ratification was in November 2009 and it entered in force on 1 December 2009.

[1] Also known as Euratom Treaty  it established the European Atomic Energy Community (Euratom). While Euratom is a separate legal entity from the EU, it is governed by the EU’s institutions.

[2] This clashes a priori with the UK notion of Parliamentary supremacy and that is one of the reasons why it is still so difficult to accept for UK legal professionals. But as said, the EU system has its own rules and you need to know which those are regardless of your liking them or not. The supremacy of EU law principle – and other – are the foundations of EU law and will be explained in another note.

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