European Law

by | Mar 18, 2022 | English, European Law

First, what does the term “European law” refer to? Is it a set of European regulation? Does it refer solely to “laws” created by the European Union?

*une version française de cet article est disponible au lien suivant : www.aftranslationservices.com/droit-europeen

Check out my article on international and regional bodies > here < to have a quick overview of the European institutions.

Definition of European Law

European law can actually refer to different things:

  • The law of the European Union (also called EU law or Community law);
  • The law derived from the European Convention on Human Rights (of the Council of Europe);
  • The standards and laws common to European States;
  • The laws of a European State.

And, theoretically, it could refer to all that at the same time.

Please note this article will only go through the first two points.

EU law

The EU law is composed of three components: primary law, secondary law and the CJEU case law.

1. Primary law

Primary law is derived from the EU’s founding treaties, amending treaties, accession treaties, protocols annexed to those treaties, supplementary agreements amending specific sections of the founding treaties, and from the Charter of Fundamental Rights. You can find the list of all such instruments on the EU website.

I am listing below some of the most important instruments, such as the founding treaties:

  • The 1951 Treaty of Paris -which creates the European Coal and Steel Community;
  • The 1957 Treaty of Rome -which creates the European Defence Community and European Atomic Energy Community (EurAtom);
  • The 1992 Maastricht Treaty -which creates the European Union and integrates communities them as pillars.

And a few amending treaties:

  • The 1986 Single Act -which revises the Rome Treaty and introduces a political cooperation area;
  • The 1997 Amsterdam Treaty -which expands the scope of the first pillar as well as the powers of the Court.

These instruments provide for substantive rules as well as for the institutional set up of the European Union.

2. Secondary law

Secondary law englobes acts adopted by EU organs.

  • Some acts are binding: regulations (binding legislative act); directives (legislative act setting a goal that all EU countries must achieve and that will be reached through national laws); decisions (from the European Commission, for example; it is binding for to recipient only);
  • Others a non-binding: recommendation; opinions.

3. Case-law of the Court of Justice of the European Union (CJEU)

Judicial decisions are, in principle, only applicable and binding for the parties to the different. Exception: when a key principle arises in the decision and is underlined by the Court as being applicable to all.

Application of EU law:

EU law is part of international law but differs to it in the sense that it is an integration law and is therefore directly applicable in the EU member States. This is what we call the direct effect of EU law, which has been enshrined by the CJEU in 1963 judgment Van Gend en Loos v Netherlands Inland Revenue Administration.

Extracts from the EU webpage on the direct effect of EU law:

There are two aspects to direct effect: a vertical aspect and a horizontal aspect.

  • Vertical direct effect is of consequence in relations between individuals and the country. This means that individuals can invoke a provision of EU law in relation to the state.
  • Horizontal direct effect is of consequence in relations between individuals. This means that an individual can invoke a provision of EU law in relation to another individual.
  • According to the type of act concerned, the Court has accepted either a full direct effect (i.e., a horizontal direct effect and a vertical direct effect) or a partial direct effect (confined to a vertical direct effect).

Direct effect and primary legislation

  • As far as primary legislation is concerned, the Court established the principle of direct effect in the Van Gend en Loos judgment. However, it laid down the condition that the obligations must be precise, clear and unconditional and that they must not call for additional measures, either national or European.
  • In the Becker judgment, the Court rejected direct effect where the countries have a margin of discretion, however minimal, regarding the implementation of the provision in question. In Kaefer and Procacci v French State, the Court affirmed that the provision in question was unconditional because it left no discretion to the Member States and therefore had direct effect.

Direct effect and secondary legislation

The principle of direct effect also relates to acts from secondary legislation, that is acts adopted by the EU institutions, such as regulations, directives and decisions, which are derived from the principles and objectives set out in the treaties. However, the application of direct effect depends on the type of act.

  • Regulations. Regulations always have direct effect. Indeed, Article 288 of the Treaty on the Functioning of the European Union specifies that regulations are directly applicable in Member States. The Court clarified in its Politi v Ministero delle finanze judgment that this is a complete direct effect.
  • Directives. Directives are acts addressed to Member States which must be transposed into national law. However, in certain cases, the Court recognises the direct effect of directives in order to protect the rights of individuals. Therefore, the Court laid down in its Van Duyn v Home Office judgment that a directive has direct effect when its provisions are unconditional and sufficiently clear and precise and when the EU Member State has not transposed the directive by the deadline. However, it can only have direct vertical effect; Member States are obliged to implement directives but directives may not be cited by a Member State against an individual (see Ratti judgment).
  • Decisions. Decisions may have direct effect when they refer to a Member State as the addressee. The Court therefore recognises only a direct vertical effect (Hansa Fleisch v Landrat des Kreises Schleswig-Flensburg judgment).
  • International agreements. In its Demirel v Stadt Schwäbisch Gmünd judgment, the Court recognised the direct effect of certain agreements in accordance with the same criteria identified in the Van Gend en Loos case.
  • Opinions and recommendations. Opinions and recommendations do not have legal binding force. Consequently, they do not have direct effect.

Law derived from the ECHR

The second part of European law is the law derived from the 1950 European Convention of Human Rights (ECHR). The ECHR is not linked to the EU but to the Council of Europe (see the difference here).

The ECHR lists human rights that States must respect and guarantee. The European Court of Human Rights ensures that and hold violators accountable through judgments; it also fills gaps within given rights and clarifies rights and duties. You can find the Court’s case law by theme and ECHR article here.

As you noticed, the part on the ECHR is way shorter than on the EU; the thing is, EU law is mostly what we refer to when speaking of European law, and is also more diverse (as it includes different types of acts and the court’s case law).

Please find below articles used in creating this post, as well as interesting resources to learn more!

To go further:

Read the recent article from the European Council (European Union) on How the Maastricht Treaty changed Europe.

To see things differently, check out this interesting article on common law and the ECHR and whether both are needed, from the University of Cambridge’s Centre for Public Law.

An older article on European Union Law, the European Convention, and Human Rights.

Resources:

European Commission:

– Directorate-General for Communication, Borchardt, K., The ABC of EU law, Publications Office, 2018, https://data.europa.eu/doi/10.2775/725090

– types of EU law https://ec.europa.eu/info/law/law-making-process/types-eu-law_en

European Union, types of legislations https://european-union.europa.eu/institutions-law-budget/law/types-legislation_en

EUR-Lex, access to the EU law https://eur-lex.europa.eu/homepage.html

Summary of EU legislations (by topic) https://eur-lex.europa.eu/browse/summaries.html?locale=en