EU Legislation

Primary EU legislation consists of treaties, together with their articles and provisions. The main forms of secondary EU legislation are regulations, directives and decisions. In addition, there are non-binding recommendations and opinions, which are merely hortatory or persuasive.

As primary legislation, the collection of EU treaties over the years are effectively the constitutional law of the European Union. They are created by the governments of EU member states, and lay down the basic policies, institutional structure, legislative procedures and essential powers of the union. The treaties that make up this body of primary legislation include: (i) the ECSC Treaty of 1951 (Treaty of Paris); (ii) the EEC Treaty of 1957 (‘Treaty of Rome’ or alternatively ‘Treaty on the Functioning of the European Union’); (iii) the EURATOM Treaty of 1957 (‘Treaty of Rome’); (iv) the Merger Treaty of 1965; (v) the Budgetary Treaty of 1970; (vi) the Acts of Accession of the United Kingdom, Ireland and Denmark (1972); (vii) the Budgetary Treaty of 1975; (viii) the Act of Accession of Greece (1979); (ix) the Acts of Accession of Spain and Portugal (1985); (x) the Single European Act of 1986; (xi) the Treaty of Maastricht of 1992 (‘Treaty on European Union’); (xii) the Acts of Accession of Austria, Sweden and Finland (1994); (xiii) the Treaty of Amsterdam of 1997; (xiv) the Treaty of Nice of 2001; (xv) the Treaty of Accession 2003 (Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, Slovakia); (xvi) the Treaty of Accession 2005 (Bulgaria and Romania); (xvii) the Treaty of Lisbon of 2007. The various annexes and protocols attached to these Treaties are also considered a source of primary legislation.

It was the judgment by the European Court of Justice (ECJ) in Van Gend en Loos (1963) that first established that provisions of the EEC Treaty (Treaty of Rome 1957) created legal rights that could be enforced by both natural and legal persons before the courts of the Community’s member states, now referred to as the principle of ‘direct effect’. This case is an authority for the proposition that articles of the EC treaty are directly effective (as distinct from directly applicable) in their application against a member state. In addition, this case serves to highlight a procedure of enforcement of EU law at the national level, since the decision implied that there were routes other than through the Commission for pursuing action against a member state in the case of treaty noncompliance. This is significant since it allows for a more effective, distributed enforcement mechanism. The ECJ subsequently expanded the principle of direct effect, holding that it is applicable not just to treaty articles but to other forms of EU legislation as well, such as regulations and (in certain instances) directives. Today, Van Gend en Loos is widely regarded as a landmark case in which the ECJ, for the first time, fully recognized the binding nature of EU primary legislation vis-à-vis the member states.

EU Regulations are completed law, which take immediate effect and can be enforced between individuals wherever they create rights and obligations. As such, they are capable of possessing vertical direct effect and may in certain situations also possess horizontal direct effect.

EU Directives are instructions to legislate; they set out the goals that legislation should achieve and then leave it to the member states to implement accordingly. The UK and other member states have at times been less than enthusiastic about implementing directives that go against the political objectives of the government of the day. In such instances, citizens may themselves take action against the state in the ECJ for non-implementation. More commonly, though, these matters come to the attention of the Commission, which then pursues enforcement in the ECJ. Strictly speaking, while directives may have vertical direct effect, they are not supposed to have a horizontal direct effect. However, recent rulings by the ECJ have come very close to recognizing horizontal direct effect in the case of directives.

EU Decisions may also be issued by the various institutions of the EU. These are binding on those to whom they are specifically addressed.

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