Topic 2 Division of EU law (treaties, regulations, directives, guidelines etc.) & Primacy of EU law over the domestic laws of the member states

  • There are two main streams of human rights policy and action within the European Union.
  • One is to protect the fundamental human rights for EU citizens, and the other is to promote human rights worldwide.
  • The European Union is based on a strong commitment to promoting and protecting human rights, democracy and the rule of law worldwide.
  • Human rights are at the heart of EU relations with other countries and regions.
  • EU policy includes:
  1. promoting the rights of women, children, minorities and displaced persons
  2. opposing the death penalty, torture, human trafficking and discrimination
  3. defending civil, political, economic, social and cultural rights
  4. defending human rights through active partnership with partner countries, international and regional organisations, and groups and associations at all levels of society
  5. inclusion of human rights clauses in all agreements on trade or cooperation with non-EU countries

 

The European Union (EU) being  a supranational political and economic union (*), bases its decisions on law and specifically on treaties that have been approved voluntarily and democratically by all EU member countries.

A treaty is a binding agreement between EU member countries. With treaties the EU sets out objectives, rules for EU institutions and establishes how decision shall be made, and establishes the relationship between the EU and its member countries.

Treaties are considered the “primary law”. They are directly applicable in the Member States. After that a treaty is signed and ratified is immediately applicable and doesn’t need an act of reception or implementation. Treaties are moreover effective both against a member state (vertical direct effect), and both against another individual (horizontal direct effect).

(*) A supranational union is a type of international organization that is empowered to directly exercise some of the powers and functions otherwise reserved to states

The aims set out in the EU treaties are achieved by several types of legal act: regulations, directives, recommendations (secondary law).   Some of them are binding and some not. 

Directives are legislative acts that set out a goal that all EU countries must achieve. The directives leave  to the individual countries to devise their own laws on how to reach these goals.

Directives are not directly effective, as they cannot be used in court until they have been enacted by national legislation. If a state fails to implement a directive within the time given by the EU then an individual can take the state to court for non-implementation.

Regulations. Regulations are binding legislative acts that directly applicable in the member states with no need of implementation after the notice period allotted for rejection/reservation lapses.

Decisions: is an act that is binding in its entirety. It is adopted by the EU institutions in accordance with the treaties.

A decision can be addressed to all the Member States or only to some of them and is directly applicable.

Decisions  are considered  legislative acts when they are adopted by the European Parliament and the Council of the European Union; the Parliament with the participation of the Council or the Council with the participation of the Parliament. Decisions are non-legislative acts when they are not adopted in accordance with legislative procedure. For example, by the European Council, the Council or the European Commission.

The wording of a Directive should be sufficiently clear, unconditional and precise.

Recommendations: a recommendation is a non-legal binding act.  Though without legal force, they do have a political weight; in fact, they represent an instrument of indirect action aiming at preparation of legislation in Member States

Division of EU law (treaties, regulations, directives, guidelines) & Primacy of EU law over the domestic law of the member States
  • The European law prevails on the national law of the Member State.
  • This principle of primacy (also ‘precedence’ or ‘supremacy’) is based on the idea that if a conflict arises between EU law and national law in a Member State, EU law will prevail.
  • The reason must be found in the necessity to create a common ground between all the Member States: if not, EU legislation and EU policies would become unworkable.
  • As the Member States transferred certain powers to the EU, they limited their sovereign rights, thus in order for EU norms to be effective they must prevail on any provision of national law, including constitutions.
  • The principle of the primacy of EU law has developed over time by means of jurisprudence of the Court of Justice of the European Union. We remember the case  Costa v ENEL (Case 6/64).
  • The primacy of EU law must be applied to all national acts, whether they were adopted before or after the EU act in question. In case of conflict, the national law, tare not automatically annulled or invalidated, however, national authorities and courts cannot apply those provisions until there is a conflict with the Eu laws.
  • The principle of primacy guarantees uniformity of protection across all EU territories.