Confused with the European Union laws? Check our guide and fear no more!

On this blog, you’ll find numerous references to the European Union (EU) laws, in particular to regulations and directives. The European legal system may be confusing. Hopefully, after reading this guide, you’ll find it easier to understand the differences between the various EU instruments.

I. PRIMARY LEGISLATION

EU legislation is divided into primary and secondary. Primary legislation is composed of the EU treaties containing ground rules for all EU actions: EU objectives, rules for EU institutions, rules on decision-making and the relationship between the EU and its member countries (“Member States”).

EU treaties constitute binding agreements between the Member States of the Union that have been approved voluntarily and democratically by all EU members. You can find a chronological overview of the treaties here https://eur-lex.europa.eu/collection/eu-law/treaties/treaties-overview.html .

Every action taken by the EU must be founded on treaties. Consequently, if a policy area is not indicated in a treaty, the Commission cannot propose a law in that area.

II. SECONDARY LEGISLATION

EU secondary legislation is adopted by the EU institutions.  The Member States surrender, to the extent provided in the treaties, some national jurisdiction powers to the European Union. These powers are exercised by the Commission, Council and European Parliament.

The five EU legal instruments specifically provided in Article 288 of the Treaty on the Functioning of the European Union (TFUE) are regulations, directives, decisions, recommendations and opinions.

A. Binding legal instruments

The first three instruments provided in Article 288 of the TFUE have a binding character.

(i) Regulations

According to Article 288 of the TFUE, “a regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States”. Therefore, when a regulation enters into force, all EU residents may immediately raise claims (as well as should follow their obligations) based on that regulation. There is no need for any additional national laws to make the regulation enforceable in the relevant Member State. Of course, to avoid chaos, all Member States need to adapt their old laws to be consistent with the new regulation. However, any such changes are not necessary for the regulation to become part of national legal order.

(ii) Directives

Article 288 of the TFUE states that “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”. Accordingly, once adopted at the EU level, a directive must be then incorporated (transposed) by the EU Member States into their national laws. Therefore, in contrast to regulations, directives are not “directly applicable” until they get transposed. The directives are directed to the Member States which should implement them within the established timeframe. Member States may be liable to pay compensation to individuals who suffered a loss because the Member State failed to transpose an EU directive into national law. Furthermore, when a country fails to transpose a directive, the Commission may initiateinfringement proceedings before the Court of Justice of the EU.

(iii) Decisions

Article 288 of the TFUE indicates that “a decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them”. Decisions are not generally binding. They address a specific issue and are binding only to their addressees.

B. Non-binding legal instruments

Article 288 of the Treaty on the Functioning of the European Union also provides for non-binding legal instruments: recommendations and opinions.

(iv) Recommendations

Recommendations are addressed to specific parties and allow the EU institutions to communicate their views on certain issues and to suggest a line of action, without placing such parties under any legal obligation.

(v) Opinions

Opinions are issued by the main EU institutions (Commission, Council, Parliament), the Committee of the Regions and the European Economic and Social Committee. Opinions are usually issued towards the Member States or when addressing a very specific situation.

III. SENTENCES OF THE COURT OF JUSTICE OF THE EUROPEAN UNION (CJEU)

The CJEU is the chief judicial authority of the European Union. The EU is not a common law system and, therefore, the judges of the Court do not make law. However, their sentences are often a valuable source of direction to follow when interpreting the EU laws. That’s why you will find many references to those sentences on this blog.

The cases brought before CJEU may concern, in particular, the following matters:

interpreting the EU law (preliminary rulings) – the EU laws are sometimes (often) unclear and national courts in different countries might interpret them differently. To avoid incorrect interpretations and divergencies between the interpretations in the various Member States, a national court that has doubts may ask the CJEU for clarification. It is possible to use the same mechanism to determine whether a national law is compatible with EU law.

enforcing the EU law (infringement proceedings) – if a Member State fails to comply with an EU law, European Commission or another EU country may initiate infringement proceedings.

annulling EU legal acts (actions for annulment) – these are cases that ensure conformity of EU legislative acts, regulatory acts and individual acts with the superior rules of the EU. Applicants are divided into three categories:

Privileged applicants: Member States, Parliament,
Commission and Council. They may bring an action for annulment purely in the
interests of legality, without proving any particular interest.

Semi-privileged applicants: the
European Committee of the Regions, the European Central Bank and the European
Court of Auditors. They may bring an action for annulment only to protect their
prerogatives.

Non-privileged applicants: all natural and
legal persons, including regional or local governments. They may bring an
action for annulment only if they prove that the contested act infringes upon
their interests.

ensuring the EU takes action (actions for failure to act) – according to Article 265 of the TFUE “(1) should the European Parliament, the European Council, the Council, the Commission or the European Central Bank, in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established. This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act. (2) The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months. (3) Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion”