Eu Law Applicability: Who Falls Under Its Jurisdiction?

EU law applies to the member states of the European Union. The EU is based on the rule of law, which means that every action taken by the EU is founded on treaties that have been approved democratically by its members. The EU has three legislative institutions: the European Commission, which proposes new laws; the European Parliament, which must pass these proposals; and the Council of the European Union, which also has to pass the proposals.

The EU has two main types of law: primary and secondary. Treaties are the starting point for EU law and are known as primary law. The body of law that comes from the principles and objectives of the treaties is known as secondary law and includes regulations, directives, decisions, recommendations, and opinions.

Regulations apply automatically and uniformly to all EU countries as soon as they enter into force, without needing to be transposed into national law. Directives, on the other hand, require EU countries to achieve a certain result but leave them free to choose how to do so. They must be incorporated into national law by a specified deadline. Decisions are binding and relevant to specified bodies, for example, a decision may be issued against a country that is acting in breach of EU law. Recommendations and opinions are not binding, and member states can choose whether to follow the advice they contain.

EU law and its application

The European Union is based on the rule of law, which means that every action taken by the EU is founded on treaties that have been approved democratically by its members. The EU's legal foundations are the Treaty on European Union and the Treaty on the Functioning of the European Union, currently agreed upon by the governments of 27 member states. The EU can pass laws only in those areas where its members have authorised it to do so, via the EU treaties.

The EU has two main types of law – primary and secondary. Treaties are the starting point for EU law and are known as primary law. The body of law that comes from the principles and objectives of the treaties is known as secondary law; and includes regulations, directives, decisions, recommendations and opinions.

Regulations and decisions become binding automatically throughout the EU on their date of application. However, they may require changes in national legislation, and may require implementation by national agencies or regulators. Directives, on the other hand, must be incorporated by EU countries into their national legislation. Each directive contains a deadline by which EU countries must incorporate its provisions into their national legislation and inform the Commission to that effect.

The Commission is responsible for monitoring whether EU laws are applied correctly and on time. In this role, the Commission is referred to as the 'guardian of the treaties'. The Commission will take steps if an EU country does not fully incorporate a directive into its national law by the set deadline or has not applied EU law correctly. If national authorities fail to implement EU laws, the Commission may start formal infringement proceedings against the country in question.

The EU uses three principles to decide in which areas it can make laws:

• Conferral – the EU’s authority is conferred on it by the Treaties. It cannot act beyond this authority.
• Proportionality – the EU should not go beyond what is necessary to achieve the aims of the Treaties.
• Subsidiarity – if national governments can act, then the EU should only act if a better outcome would result from an EU law.

EU law is superior to national law. This means that member states cannot pass national laws that contradict EU laws. It also means that an EU law can overrule a national law, even if that national law was enacted before the EU law came into effect. As well as being superior to national law, some EU law has direct effect on its citizens. This means that citizens can rely on EU law in court even in situations where there is no national law in place. Direct effect only applies to EU laws that are binding, clear, precise and unconditional.

The primacy of EU law

The principle of the primacy of EU law was derived from the interpretation of the European Court of Justice, which ruled that European law has priority over any contravening national law, including the constitution of a member state itself. The majority of national courts have generally recognised and accepted this principle, except for the part where European law outranks a member state's constitution.

The principle of the primacy of EU law ensures that citizens are uniformly protected by an EU law across all EU territories. However, it is important to note that the primacy of EU law only applies where EU countries have ceded sovereignty to the EU in specific fields, such as the single market, environment, and transport. It does not apply in areas such as social policy and taxation.

The supremacy of EU laws is not considered absolute. For example, while EU regulations prevail over national law due to their direct effect, directives do not prevail unless they have been incorporated into national law and are applicable.

How EU law is made

The process of making EU law is complex and involves several institutions. The European Commission is the only organisation in the EU with the power to initiate new laws. However, the laws must be approved by the Council of the European Union (also known as the Council of Ministers) and the European Parliament. The Council of the European Union is the EU's main legislative body and exercises its legislative power in co-decision with the European Parliament.

There are two ways in which laws are passed: the ordinary legislative procedure and the special legislative procedure.

The ordinary legislative procedure, previously known as the co-decision procedure, is the most common way of passing laws in the EU. This procedure aims to give an equal say to both the European Parliament, representing citizens, and the Council of Ministers, representing governments. The proposal is first discussed and amended by the Parliament and the Council through two readings. If an agreement cannot be reached after the two readings, a Conciliation Committee is formed to find a common position. If this still fails, the proposal falls. The ordinary legislative procedure is used for day-to-day policy areas such as employment, immigration, workers' rights, the internal market, culture, agriculture, and fisheries.

On the other hand, the special legislative procedure is used for areas considered to be of significant national interest, where supremacy rests with government representatives in the Council of Ministers. This procedure includes the consultation and assent procedures. Under the consultation procedure, the Council is required to consult the Parliament for an opinion but is not obliged to follow it. It is used for areas like foreign policy and competition laws. The assent procedure, on the other hand, is used to approve key decisions such as the accession of new member states and the approval of Commissioners.

Once a law is passed, the Court of Justice ensures that it is interpreted and applied uniformly across all member states, resolving any differences between European and national laws.

There are two main types of EU legislation: regulations and directives. Regulations are binding and must be implemented uniformly in all member states without the need for national legislation. Directives are also binding but allow member states flexibility in how they are implemented, usually within a specified time frame.

The process of making EU law involves negotiations and agreements between member states, reflecting the democratic ideals of the EU.

The role of the European Commission

The European Commission is the main executive body of the European Union. It is the EU's politically independent executive arm and is responsible for drawing up proposals for new European legislation. It also implements the decisions of the European Parliament and the Council of the EU.

The Commission is the sole EU institution that can table laws for adoption by the Parliament and the Council. It is responsible for proposing and enforcing legislation, as well as implementing policies and the EU budget. The Commission is made up of a team or 'College' of Commissioners, with one representative from each EU country.

The Commission's role in law is to propose and implement laws that align with the objectives of the EU treaties. It encourages input from businesses and citizens in the law-making process and ensures that laws are correctly implemented, evaluated, and updated when necessary. The Commission supports the implementation of EU law by providing online information, organising expert group meetings, and drafting implementation strategies and guidance documents.

The Commission is also responsible for monitoring whether EU laws are applied correctly and on time by all EU countries. In this role, the Commission is referred to as the 'guardian of the treaties'. If an EU country does not fully incorporate a directive into its national law by the set deadline or applies EU law incorrectly, the Commission can take steps to address the issue. These steps may include launching a formal infringement procedure against the country in question.

The Commission plays a crucial role in ensuring the proper application, implementation, and enforcement of EU law for the benefit of all citizens, consumers, and businesses. It works towards ensuring that people and businesses can optimally benefit from the commonly agreed rules throughout the EU.

Types of EU law

There are two main categories of EU law: primary and secondary.

Primary EU Law

Every action taken by the European Union is founded on treaties concluded between member states. These treaties set out the EU’s objectives and the normative basis for its functioning, including the rules governing the functioning of its institutions, the decision-making process and the relationship between the EU and its members. Treaties are the starting point for EU law and are known as primary law.

Primary law includes:

• Founding treaties (e.g. Treaty of Paris, Treaty of Rome, Treaty of Maastricht)
• Amending treaties (e.g. Single European Act, Treaty of Amsterdam, Treaty of Nice, Treaty of Lisbon)
• Accession treaties (e.g. with Portugal and Spain in 1985)
• Protocols to the above treaties
• Additional agreements amending certain sections of founding treaties (e.g. the Merger Treaty of 1965)
• Charter of Fundamental Rights of the European Union
• General principles laid down by the Court of Justice of the European Union

Secondary EU Law

Secondary legislation is made by the EU institutions. The five EU legal instruments specifically provided for in the Treaties are: Regulations, Directives, Decisions, Recommendations and Opinions.

The binding legal instruments that make up the secondary legislation of the EU are Regulations, Directives and Decisions.

• Regulations are laws that apply to all member states. They become part of national law and can be enforced through the national courts of each member state from the time they come into force. A regulation is a normative binding act. It is directly binding on all Member States unless otherwise provided for in exceptional circumstances.
• Directives are laws that set goals for member states to implement. Member states can introduce laws that transpose directives into national law. Directives normally have deadlines for countries to adopt them into national law. A directive is not a generally binding act in relation to an individual. It is binding on the Member States as to the result to be achieved, but the state decides on the methods of implementation.
• Decisions are only relevant to specified bodies. For example, the EU Commission might issue a decision that a member state is acting in breach of EU law. The decision has a direct effect on the country, company or organisation that the decision is issued against. A decision is binding only on the Member State, legal entity or individual to whom it is addressed. It is not necessary to implement it in national law.

The non-binding legal instruments are Recommendations and Opinions.

• Recommendations call upon the party to whom they are addressed to behave in a particular way without placing them under any legal obligation.
• Opinions issued by the EU institutions give assessments of situations or developments in the Union or in the individual Member States. They may also prepare the way for subsequent, legally binding acts, or be a prerequisite for the institution of proceedings before the Court of Justice.

The three other main forms of actions that shape the EU legal order without having legally binding effect are Resolutions, Declarations and Action programmes.

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