Treaties
The European Union treatises are the constitution of the European Union and set out its powers and functions. They are the primary source of law. The Union must only act in accordance with the competences and powers provided for under the European Union Treaties. They are more than an international agreement. They create an independent legal order with its own institutions, laws, and courts. They create rights for citizens of all European Union states.
The initial treaty was the European Coal and Steel Community which came into force in 1952 and applied for a 50 year period. It has accordingly expired. Its institutions became merged with those of the European Economic Community, founded by the Treaty of Rome on 25th March 1957. The treaty became effective on 1st January 1958. At the same time a second parallel treaty, that of the European Atomic Energy community, (Euratom) was concluded and entered force.
The three initial treaties were separate. A merger treaty was entered in 1965 to provide for the merger of the treaties and institutions, but it was postponed. In theory, the treaties and their respective institutions remained and remain separate, though they are in fact administered through the same bodies.
The European Economic Community (EEC) treaty is the most fundamental treaty creating a common market in all goods and services.
The European Union may only legislate in accordance with the procedures in the treaties, subject to the treaties and within the areas of competence provided by them.
Superiority of Treaties
The principle of the superior ranking of the treaties is laid down in the treaties themselves. The provision for modification and amendment of the treaties are themselves provided within the treaty. Broadly, the consent of all states is required. Although in theory, states may revise international treaties between them, community law does not allow modification of the treaties other than in accordance with the treaties themselves.
The European Union treaties did not override existing treaties to which states were parties. However, states were obliged to eliminate incompatibility where it existed. They were also obliged as far as possible to adopt a common approach in the revision of prior treaties.
States may not invoke the provisions of existing treaties to which they are party to override their obligations under the EU treaties generally. Differences of compatibility between pre-entry treaties and post-entry/accession treaties may arise. In theory, the earlier treaty may have priority, and incompatibility may arise in certain areas.
Treaties entered by states after their accession to the EU cannot affect their obligations under the EU treaties themselves. Accordingly, if they are incompatible with community law they will not apply.
States join the EU by an act of accession. They are similar in terms to the treaties and are binding on the EU and the states.
Amendment of Treaties
Treaties may be amended under procedures in an existing treaty. They may also be amended by new treaties. The EU treaties provide the procedure for revising the treaties themselves. A proposal is made by states or the Commission. The Council after consultation with the Commission and the Parliament may deliver an opinion calling for a diplomatic conference of representatives of the state for the purpose of reaching agreement on the amendment. A draft treaty is produced and takes effect if and when ratified.
It is possible for the treaties to be amended in a minor way outside of the above procedure. A simplified procedure allows for changes to community institutions. The Council may revise certain aspects of the treaties by Council decision. It covers relatively narrow institutional changes. The Council must act unanimously on a proposal from the Commission after consulting the European Parliament.
The Lisbon Treaty made new provisions for the amendments of the treaties. The normal or ordinary procedure involves the calling of an inter-governmental council made up of members of the governments, national parliaments, the European Commission and the European Parliament.
National parliaments must now be notified of proposals for amendments. The proposals may either increase or reduce the competence of the EU. If two years after the signature of a treaty, amending the Treaty of Lisbon, four-fifths of the member have ratified but one or more members having difficulty, the matter is referred to the European Council.
There are simplified provisions for the revision of the treaties in certain areas. The European Parliament, a state or the Commission may submit a proposal for revision to the Council. The Council may make the amendment after consulting with the Parliament, Commission and if relevant the ECB. The amendments must be approved by the member states in accordance with their respective constitution. The amendment may not increase the competence of the EU.
There is another simplified procedure which allows for the vetoes (unanimity requirement) in particular areas to be abolished if this is agreed unanimously by the Council.
EU Legislation
The EU institutions make legislation through directives and regulations. They may also make decisions, recommendations, and opinions. Regulations, directives, and decisions are legally binding. Regulations and directives are more general in nature. A decision may be referable to a particular circumstance or matter and does not create general rules.
Whether a piece of legislation is a directive, regulation or decision is a matter of substance. The name is not conclusive. Where the treaties prescribe that a particular legislative method must be used, it must be followed. In the absence of specification, generally, the institutions have a choice to make either a directive or regulation.
Legislative measures must state the reasons on which they are based. They may refer to opinions and proposals which are required to be obtained under the treaty. This enables citizens to know the basis of legislation and allows the courts to supervise it. The measure must set out the reasons for enactment. This is commonly done by way of detailed recitals. In principle, a measure of maybe annulled if it does not set out the reasons in accordance with the requirements of the treaty.
A measure must state its legal basis. If there are multiple bases, it should be based on its main or predominant purpose. Where there are several bases of equal importance, it may be based on each.
The basis for legislation in the treaty varies from the specific to the general. One of the most general basis provides that the Council, after consulting the Parliament and acting by qualified majority voting may adopt measures having as their object the improvement of the conditions for the establishment and functioning of the internal market.
Measures must be published formally in the Official Journal. The principal function is to formally notify the public of the measure. The Official Journal is published most days in all official languages. The L Series deals with legislation. Legislation treaties and binding acts must be published.
Measures which are not required to be published must be notified to their individual addressed. Individual measures must be notified to the bodies involved and to the representatives of the states.
A measure becomes effective 20 days after publication in the absence of provision to the contrary.
Measures must be prospective. They may not have retroactive effect. The European Union does not have powers to make criminal laws. However, it may impose criminal sanctions in certain cases. Their imposition must be necessary. The requirements must be consistent with national penal measures.
Direct or Indirect Effect
Regulations are directly effective. They do not need to be translated into national law. They are automatically law in all member states. They are binding in their entirety and directly applicable in all member states. They are general legislative instruments. They objectively determine situations and produce legal effects in an abstract or generalised manner.
Member states may implement the regulation or complement it in some cases. However, they must not interfere with the uniform application of the regulation.
A directive is binding as to the result to be achieved upon each state to which it is addressed. National authorities are left the choice of the form and methods by which to give effect to it. Directives seek to harmonise national legislation. States are obliged to implement directives.
Directives bind states in the first instance. However, they may have effects where they are sufficiently clear, precise and unconditional, creating direct rights at the end of the implementation period. See the separate chapters in this regard. Individuals may take action on the basis of unimplemented directives and directives which are improperly implemented.
Commonly, a directive requires a particular result to be procured. The level of discretion left to states in terms of forms and methods of implementation and enforcement will depend upon the terms of the directive. The required objective must be achieved. States must bring the national law into compliance with it.
In Ireland, directives are generally given effect under the European Communities Act by statutory instrument. The Constitution allows enactment of European laws. This may override Acts of the Oireachtas.
Directives specify a date by which they must be given effect. Generally, a period of up to a number of years is permitted. See the separate chapter on the effects which directives may have if they are not implemented or if they are improperly implemented.
A decision is not a general piece of legislation. It is a measure that is binding on those to whom it is addressed. It is effectively equivalent to high-level administrative action by the European Union. The decision is binding on the addressee in relation to what is prescribed in it.
The European Community may issue recommendations and opinions. They are nonbinding. However, they may be important in certain contexts, particularly when addressed to states. A recommendation may be a means by which the EU institutions recommend action in a particular area where the community has no jurisdiction. They may be very influential.
Directives May have Direct Effect
Directives are indirectly effective. Their effects apply through the medium of the national implementing measures. Directives do not have effect between parties where the national law is clear.
An EU Directive may have immediate direct effect if it is unconditional, sufficiently clear and precise and is overdue for implementation. This principle also applies to Treaty provisions.
European Court of Justice cases have held that a national law is not open to interpretation to make it conform with the directives. The indirect effect of the directive cannot be established through the medium of national law. This approach is controversial. The courts may, however, look to the general principles of European Union law which underlie the directive.
Direct Effect of Treaties
The EU Treaties, although agreements between states create many direct rights for EU citizens. In many cases, it gives rights between the individual and the state or state entities or bodies. Depending on the particular wording, the Treaties may give rights which are effectively enforceable as between private parties.
Provided that the rights are sufficiently clear unconditional and require no further implementation, they may create directly effective rights which can be enforced by private citizens.
The four key freedoms of movement for goods services, capital, and workers are in large measure, directly effective. They were required to be given direct effect by the courts in every EU member state. Moreover, national laws which are inconsistent with the Treaty rights and freedoms are rendered void and must be set aside by judicial decision.
Types of EU Legislation
An EU Regulation has general legal force and application. It is binding in its entirety and directly applicable in member states, [Article 288]. It has the automatic force of law and overrides the inconsistent domestic law. It has direct application and direct effect. It can be invoked by and between private parties (or public parties) and enforced in a domestic court of law.
A decision is an individual determination which is directly binding in the parties to whom it is addressed. It is directly applicable to those addressees, is not generally applicable in the same manner as a Regulation. It may, however, have significant practical implications.
A Directives is binding as to the results to be achieved upon each member state to which it is addressed. They leave to the national authorities, the choice of form and method as to how it is to be given effect in national law.
The bulk of EU legislation is comprised in directives or regulation. Directives predominate. The use of Regulations has increased significantly in the last 30 years. In some cases, Regulations have replaced Directives.
Where a member state has not adopted the implementing measures required by the Directive in the prescribed period, it may not rely as against individuals on its own failure to perform the obligations which the Directive requires. Where the national implementing measure is inconsistent with the requirements of the Directive ( as interpreted by the court) then they must yield to it and must be interpreted as so modified.
Supremacy of EU Law
Both Regulations which are directly applicable and Directives, which may in principle override inconsistent domestic regulations are supreme over national law. European Union law requires courts in member states to give precedence to European Union law, even the extent of overriding inconsistent domestic law.
The supremacy of European Union law is a central pillar. It is necessary to enforce consistent law throughout the Europe Union in the areas to which it applies.
European legislation takes precedence over any conflicting provision of national legislation. It does not invalidate the national legislation. The courts are to diapply the national legislation which remains, but is inapplicable.
The EU’s own view of the supremacy of EU law is controversial. It is argued that the UK Parliament confers supremacy on EU Law, only by European Communities Act 1972 and Parliament’s decisions to recognise all law which flowed from it. This view accords with the legal and political reality that States may withdraw from the European Union,
Field of EU Law
The European Union law-making power is supreme, only within the particular areas of European Union competence granted by the EU Treaties. Many national courts, including the German Constitutional Court, has reserved the right to claims the right for national courts to disapply European Union rules that are outside its powers. There may be questions of interpretations as the extent of the competence and powers of the European Union.
Generally, major legislative measures are subject to approval by the Council, comprising the representatives of state governments and by the European Parliament. Legislation outside the powers of the European Union can be itself invalidated by the European Union Courts.
Where the European Union has exhaustively legislated in a field, it may pre-empt and exclude national legislation entirely in that area. This has happened in many areas where common standards are provided for. In these cases, national standards are no longer applicable.
Where there are consistent national laws with higher national standards, they may be applied where the EU law is not expressly or impliedly exclusive. Questions of interpretation can arise as to whether supplementary consistent both national laws can continue to co-exist with EU law in that field. If for example, the European Union laws interpreted as providing for EU wide harmonised rule in the interests of EU trade, then further national standards are unlikely to be permissible.
The supremacy of European Union Law means that in principle, all European Union Law prevails over all national law. The principle of direct effect requires national courts to apply European Union Law and disapply inconsistent national law.
The courts of some states have contested the absolute supremacy of European Union law. They have based the supremacy of EU law ( and the consequent subordination of national law) on the states’ accession to the body of European Union Legislation. The European Union is not a federation. Its powers do not derive centrally.
International Agreements and Conventions
The European Union has the competence to enter international agreements which are binding on itself and on states in certain important areas which are within its competence under the treaties, including international trade. International agreements entered by the EU must conform with the treaty. They may, however, overrule regulations and directives. It will depend on the terms of the agreement as to whether it has or has not direct effect.
The treaty allows for conventions between member states in certain areas including for protection from discrimination, elimination of double taxation, recognition of companies and legal businesses, recognition of judgments and arbitration awards. Some of the areas have been transferred to the European Union proper and this method of law making has reduced in importance.
Conventions have been concluded in areas which are outside the jurisdiction of the European Union at the relevant time. Sometimes the Court of Justice has given jurisdiction by interpretation of the treaties. The Council and Commission are given some involvement in drafting, but the agreements are entered outside of the European Union institutions as such.
There are a number of important Conventions amongst states including
- the original Brussels Convention on recognition of judgments, later incorporated as a Regulation
- Recognition of companies and legal persons.
- Convention on insolvency proceedings.
- Convention on the Community Patent.
- Convention on law applicable to contractual obligations (later incorporated as a Regulation).
Pillar 2 and 3 measures are in the nature of international conventions between states. They may use provisions of the treaty as their basis and may be implemented through European institutions. The Court of Justice may be given jurisdiction in relation to them.
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