Inner Divisions of EU Law
EU law consists of different layers that in turn interact with national law. We distinguish primary law and secondary law. Primary law consists of Treaties and general principles of law.
Treaties are created by the EU Member States. The founding Member States founded the EEC by concluding an agreement under international law. They then concluded other international law agreements with states that wished to join the EEC. They also concluded international law agreements that changed the EEC Treaty, such as the Treaty of Maastricht. The latest of these is the Treaty of Lisbon.
It only became effective after it had been ratified by every single one of the 27 Member States of the EU in accordance with their constitutional requirements. Thus, primary EU law shares one important characteristic with “ordinary” international law. Its effects are determined by the national constitutions and their provisions on how international treaties become effective.
There is another source of primary law, consisting of the general principles of EU law. These are assumed to be always there. In practice, they are “found” by the Court of Justice of the European Union. Article 19 TEU refers to “the law” outside the Treaty, in other words: general principles of law. The Court applies two methods: (i) Functional interpretation. All Treaties are interpreted with a special view to the aims and functions of the European Union. Everything is read with further European Integration in mind. This principle led the TEU to derive the principles of supremacy of EU law and of direct effect of EU law: these are not specified in Treaties. (ii) Comparative method of EU law. Here, the Court considers any common legal principles. One obvious source of guidance are international agreements outside the European Union. As they have been ratified by most Member States, they are also sources of general principles of EU Law. However, not all principles can be derived from international agreements, as these are often very vague. The second source is then comparison of the laws of the Member States. The Court reserves the right, however, to judge which of the legal principles found while comparing Member States’ law suit best to the overarching aim of integration.
The Treaty on the Functioning of the European Union provides for three kinds of secondary law: regulations, directives and decisions. It also provides for non-binding instruments such as recommendations. Within EU equality law, the instruments used most frequently are directives and recommendations. Creating secondary law is much more straightforward than creating primary law – on first sight: EU institutions adopt the relevant instruments in line with the Treaty provisions. However, the different legislative procedures that still exist alongside each other do make the matter quite complex. The Council needs to act unanimously, and the European Parliament needs to give its consent.
There is a hierarchical relationship between primary and secondary EU law. Primary law is superior, and if secondary law is not in line with primary law it can be invalidated by the ECJ.
Treaties are created by the EU Member States. The founding Member States founded the EEC by concluding an agreement under international law. They then concluded other international law agreements with states that wished to join the EEC. They also concluded international law agreements that changed the EEC Treaty, such as the Treaty of Maastricht. The latest of these is the Treaty of Lisbon.
It only became effective after it had been ratified by every single one of the 27 Member States of the EU in accordance with their constitutional requirements. Thus, primary EU law shares one important characteristic with “ordinary” international law. Its effects are determined by the national constitutions and their provisions on how international treaties become effective.
There is another source of primary law, consisting of the general principles of EU law. These are assumed to be always there. In practice, they are “found” by the Court of Justice of the European Union. Article 19 TEU refers to “the law” outside the Treaty, in other words: general principles of law. The Court applies two methods: (i) Functional interpretation. All Treaties are interpreted with a special view to the aims and functions of the European Union. Everything is read with further European Integration in mind. This principle led the TEU to derive the principles of supremacy of EU law and of direct effect of EU law: these are not specified in Treaties. (ii) Comparative method of EU law. Here, the Court considers any common legal principles. One obvious source of guidance are international agreements outside the European Union. As they have been ratified by most Member States, they are also sources of general principles of EU Law. However, not all principles can be derived from international agreements, as these are often very vague. The second source is then comparison of the laws of the Member States. The Court reserves the right, however, to judge which of the legal principles found while comparing Member States’ law suit best to the overarching aim of integration.
The Treaty on the Functioning of the European Union provides for three kinds of secondary law: regulations, directives and decisions. It also provides for non-binding instruments such as recommendations. Within EU equality law, the instruments used most frequently are directives and recommendations. Creating secondary law is much more straightforward than creating primary law – on first sight: EU institutions adopt the relevant instruments in line with the Treaty provisions. However, the different legislative procedures that still exist alongside each other do make the matter quite complex. The Council needs to act unanimously, and the European Parliament needs to give its consent.
There is a hierarchical relationship between primary and secondary EU law. Primary law is superior, and if secondary law is not in line with primary law it can be invalidated by the ECJ.