Legislation Of The European Union (Part 1)

There are two principal forms of Community legislation.

First, there is the «primary legislation» created directly by the Member States. It comprises the Community law contained in the treaties establishing and developing the European Communities. Examples are the Treaty of Rome, the Merger Treaty, the Single European Act, the Accession Treaties making provisions for the accession to the Community of new Member States. In addition to the main text of a treaty there may be additional annexes and protocols, which have the same legal force as their parent treaty. The treaties lay down the basic aims of the Community, establish the institutions and their powers, formulate the policies of the Community.

Secondly, there is the «secondary legislation» of the Community, the legal rules created by the Community institutions under the authority of the treaties.

Community secondary legislation can only be enacted if there is a treaty provision authorising this. The Treaty does not confer general powers but enacts individual powers to act. Furthermore, the Single European Act and the Treaty of Union greatly extend the areas of competence reserved for Community legislative action. Whether there is authority to enact secondary legislation, therefore, depends on the existence of a provision of a treaty. Any question as to whether the Community has authority to act at all and to the exclusion of the Member States, as to which institution has authority to act on behalf of the Community and as to whether that institution has acted in accordance with the correct procedures laid down may be referred to the Court of Justice.

The principal secondary legislative measures are regulations and directives.

In many cases, it is possible for secondary legislation to be drafted in such a way that its content can be translated directly and automatically into the domestic legal systems of each and every one of the Member States in order that Community law is identical in each Member State. The measure used here is the regulation. A regulation is legislation created for each Member State by the Community and it replaces any existing and conflicting rule created by the domestic legal system of a Member State. That is the exact words of a regulation automatically become part of the law of each Member State in a uniform manner and at the same time with no further action being required by the Member State. Member States do not need to ratify a regulation. Regulations adopted by the Council must be published in the Official Journal of the European Communities by the Council's Secretary-General. The Official Journal is published in each of the official languages of the Community.

On other occasions, it may be that the content of secondary legislation cannot be translated directly into the legal systems of the Member States in a uniform manner because different Member States may have different legislative and administrative mechanisms in their own systems for dealing with the relevant subject matter (e.g. statute, delegated legislation or Royal or Presidential Decree). The measure used here is the directive. A directive is actually addressed, usually through its final article, to a Member State or to some or all Member States. A directive is binding upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods. A directive, being addressed to Member States rather than directly applicable in Member States, is an instruction to each Member State to bring its legal system into exact conformity with the objectives specified in the directive (and within a specified time limit). It will usually impose this obligation by stating that «Member States shall take the measures necessary to» achieve the purpose(s) intended and conveyed therein. Although not expressly stated, the obvious implication is that the purposes of a directive must be achieved in their entirety. The specified time limit may be months or years and this permits each Member State to proceed at its own speed to repeal existing domestic laws, regulations and administrative practices and to enact new domestic laws, regulations and administrative practices. If a Member State fails to fulfil the instruction, the omission may be rectified by the Commission bringing an action before the Court of Justice or by an individual in the national courts of the Member State under the principle of «direct effect». The principle of direct effect only has the result of imposing an obligation on the Member State (or one of its organs) and not on private organisations or individuals.

As an example of national implementing measures to give effect to the White Paper of the Commission on the completion of the internal market, one may take Council Directive 89/108 of 21 December 1988 on the approximation of the laws of the Member States relating to quick frozen foodstuffs for human consumption (OJ L40, 11 February 1989). This was, for example, implemented in the United Kingdom by the Quick-Frozen Foodstuffs Regulations 1990 (SI 1990 No 261-) and the Quick-Frozen Foodstuffs Regulations (Northern Ireland) 1990 (Statutory Rules of Northern Ireland No 4--), published by HMSO.