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Foster: EU Law Directions

Chapter 4

1. Are you able to outline the range of sources of Community law?

The treaties, protocols, declarations and secondary legislation made under the Treaties, including most notably Regulations, Directives and Decisions. Various International agreements entered into by the Community and Union, the case law of the ECJ, fundamental rights from both the ECHR and generally from member states' constitutions and general principles of law.

2. What forms of Community secondary law exist? Are they all equally binding?

Regulations, Directives and Decisions – see Article 249. They are all equally binding but apply in different circumstances. Regulations are generally binding and thus apply to everyone, directives are usually addressed to the member states and thus obligate them and decisions are usually addressed to specific individuals.

3. How are Community laws transformed into the member state's laws?

Regulations are self executing in that they are automatically binding in the member states without transformation or implementation. Directives leave the choice of form and implementation into national law up to each of the member states.

4. What is the status of protocols and Declarations in the Community legal order?

They have the same binding status as the Treaties themselves. See Art 311.

5. What is the justification for the inclusion of general principles in the Community legal order?

When the EC was established, the Community legal system was to be found only in the Treaties and the limited secondary legislation that existed at the time. However, because the Treaties are largely framework Treaties, they require substantial supplement. Whilst, much of this is provided by the secondary legislation of the Community, both the secondary legislation and the founding and primary treaties' articles may need to be interpreted. There is then much scope for judicial creativity on the part of the Court of Justice. Furthermore, as with all legal systems, codified or written law cannot possibly cater for all economic and social developments that can take place and the judges must at times either adapt existing rules to fit the situation or introduce new rules to settle the matter judiciously. The Court of Justice has determined that the Treaty and secondary legislation must be interpreted and applied according to the scheme of the Treaty as a whole and in the light of the broad principles of the preamble and Articles 2, 3, 10, and 12 of the Treaty to achieve the result required for the Community.

6. What is the legal base of a Community law. Why is it important to know this and why have so many disputes arisen as to the proper legal base?

The legal base is the Treaty Article which empowers the institutions to enact secondary legislation and provides the details of which legislative procedure should be used, which in turn determines the role played by the law making bodies and whether, for example other bodies such as the Committee of the Regions should be consulted. The choice of legal base therefore is fundamental to the relative powers and ability of the institutions to affect the content of Community law and because different legal bases can be argued to apply to some subject matters, it may be that the Council uses one which does not give the EP its full say and the EP will dispute that.

7. Why are there so many law making procedures?

The increase of the decision-making procedures is the product of a number of developments in the EU: the democratic deficit, the various expansions of member states, voting arrangements in the Council for the member states, movement and expansion of the EU into new policy areas, and as a response to the international regulation of pan European or even global problems such as the environment or business regulation.