European Law

European Law: Concept, Legal Sources, Development and Significance

Definition and Distinction of European Law

The Concept of European law encompasses all law that is binding on the Member States of the European Union (EU) and its institutions. A distinction is made between the law of the European Union (Union law) and the so-called European international law (in particular the law of the Council of Europe). In the narrower and now prevailing sense, European law refers to Union law, that is, the law enacted by the organs of the EU as well as the founding treaties and their amendments. This constitutes an independent and supranational legal system that stands above national legal systems, but below international law.

Union law substantially influences the national legal orders of the Member States and harmonizes both substantive and procedural law in an increasing number of legal areas.

Historical Development of European Law

The development of European law is closely linked to the European integration movement after the Second World War. Important milestones were:

• 1951: Treaty establishing the European Coal and Steel Community (ECSC, Montanunion).
• 1957: Treaties of Rome – establishment of the European Economic Community (EEC) and Euratom.
• 1986: Single European Act.
• 1992: Treaty of Maastricht – establishment of the European Union.
• 1997: Treaty of Amsterdam.
• 2001: Treaty of Nice.
• 2007: Treaty of Lisbon – the current foundational treaty.

With gradual integration, Union law has been further developed, codified, and intensified in its effects.

Legal Sources of European Law

European law is characterized by a tiered system of legal sources. Specifically, it distinguishes:

Primary law

Das Primary law forms the basis of Union law and includes, in particular:

• Treaty on European Union (TEU)
• Treaty on the Functioning of the European Union (TFEU)
• Charter of Fundamental Rights of the European Union
• Protocols and annexes to the treaties
• Accession treaties as well as further amending treaties

Secondary law

On the basis of primary law, the EU institutions issue Secondary lawsecondary law. This includes:

• Regulations: Have general application, are binding in all their parts, and are directly applicable in the Member States.
• Directives: Are binding as to the result to be achieved but leave the choice of form and methods of implementation to the Member States (obligation to transpose).
• Decisions: Are binding in all their parts, but only for those to whom they are addressed.
• Recommendations and opinions: Are not legally binding and have only an advisory or indicative character.

Tertiary law and autonomous legal acts

In addition to secondary law, there are other binding rules, such as decisions by institutions or judicial measures which do not fall explicitly within the above categories.

International agreements

The EU may conclude its own international agreements with third countries or international organizations, which become part of European law.

Institutions and Lawmaking in European Law

The central institutions of European law are:

• European Council: Strategic decisions and impetus for further development.
• Council of the European Union (Council of Ministers): Legislates together with the European Parliament.
• European Parliament: Legislative and supervisory functions.
• European Commission: Right of initiative and monitoring the application of European law.
• Court of Justice of the European Union (CJEU): Safeguard of the unity and legality of European law.

Legislation is enacted via a differentiated procedure (ordinary legislative procedure, special legislative procedures) as determined in the treaties.

Application and Enforcement of European Law

European law is characterized by the following principles:

Primacy of Union law

Union law takes precedence over the national law of the Member States in the event of a conflict (principle of primacy). This has been established above all by the case law of the CJEU (notably the judgment ‘Costa/ENEL’, Case 6/64).

Direct Applicability and Effect

A significant part of European law is directly applicable. This is particularly true for regulations and for specific provisions of directives when they are sufficiently precise and unconditional. Citizens, companies, and other legal entities can therefore rely directly on European law (direct effect).

State Liability and Legal Protection

According to the case law of the CJEU, Member States can be held liable for breaches of directly applicable Union law (CJEU, Francovich). Individuals can assert rights under Union law before national courts. The CJEU is also responsible for interpretation and legal uniformity (preliminary ruling procedure under Art. 267 TFEU).

Areas of European Law

European law permeates numerous areas of law and has an impact there. Key areas include:

Internal Market and Fundamental Freedoms

The creation of the European internal market is central. Protection and enforcement of the four fundamental freedoms:

• Free movement of goods
• Free movement of persons
• Freedom to provide services
• Free movement of capital and payments

Competition Law

European law contains extensive rules on antitrust law, merger control, and the prohibition of state aid in favor of individual companies.

Common Policy Areas

Other fields include:

• Common Agricultural Policy (CAP)
• Environmental law
• Consumer protection
• Energy policy
• Social policy
• Foreign and security policy (CFSP)

Police and judicial cooperation in criminal and civil matters

This includes cooperation in criminal and civil matters and the development of common minimum standards.

Relationship with national and international law

European law is designed as an autonomous legal order. The primacy over national law secures the full effectiveness of EU rules. Regarding its relationship with international law, there is interaction: the EU itself is capable of entering into international agreements, is bound by international treaties, and sets its own standards in the field of fundamental rights.

Significance and Current Developments

European law is a dynamic area of law that is continuously evolving. It shapes not only the Member States but also affects third countries through international agreements and the so-called ‘European Neighbourhood Policy’. Challenges include, among others, the tension between integration and sovereignty, handling standards of legal protection, fundamental rights, and adaptations to economic, social, and global developments.

References, Legal Texts, and Further Links

• Treaty on European Union (TEU) [official text]
• Treaty on the Functioning of the European Union (TFEU) [official text]
• Charter of Fundamental Rights of the European Union [official text]
• Court of Justice of the European Union (CJEU): Case law on European law

Summary

European law forms the legal basis of the European integration process. It stands for an autonomous, supranational legal order which, through a comprehensive system of primary and secondary law, enforceable fundamental rights, and its own institutions, shapes the cooperation and unification of the Member States and is continuously developed. The significance of European law for national legal orders is considerable and continues to increase with the progress of European integration.

Frequently Asked Questions

What role does the primacy of Union law over national law play?

The primacy of Union law is one of the basic principles of European law and means that the law of the European Union is always applied before the national law of the Member States in the event of a conflict. This primacy is essential to ensure the uniform and effective application of Union law in all Member States. The European Court of Justice (CJEU) first recognized the primacy in the Costa/ENEL case (1964) and has reaffirmed it ever since. The primacy applies to all national legal norms—whether laws, ordinances, or even constitutional law. There are no exceptions; even national constitutional courts are—in principle—obliged to give Union law precedence in the event of a conflict. However, in practice, there are occasionally tensions, especially in relation to national constitutional courts, some of which consider core areas of the national constitution to be inviolable (e.g., German ‘identity control’ under Art. 79(3) GG). Nonetheless, the principle of primacy remains a cornerstone of the European legal order.

How is the relationship between primary law and secondary law regulated in Union law?

Union law distinguishes between primary law and secondary law. Primary law includes the fundamental treaties of the European Union, notably the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), as well as supplementary protocols and the Charter of Fundamental Rights. Secondary law is enacted by the Union institutions within the competences allocated by primary law. This includes regulations, directives, decisions, recommendations, and opinions. Secondary law must be compatible with primary law; it may not contradict it. In case of conflict, primary law always prevails, and secondary law may be declared invalid. The final control of the compatibility of secondary legislation with primary law lies with the CJEU, either via the action for annulment (Art. 263 TFEU) or via preliminary rulings (Art. 267 TFEU).

What is the significance of the direct effect of EU law for individuals?

Direct effect is a central principle of EU law and means that certain provisions of Union law can create individual rights which individuals can assert before national courts, without the need for further implementation into national law. The prerequisite is that the provision in question is sufficiently clear, precise, and unconditional. This principle was established by the landmark decision of the CJEU in the case Van Gend & Loos (1963). Direct effect primarily applies to binding legal acts such as regulations and directly applicable treaty provisions. For directives, generally only ‘vertical direct effect’ exists, i.e., individuals can invoke a directive against the State, but not against other private parties, if the directive has not been implemented on time or not implemented in full.

How does the preliminary ruling procedure under Art. 267 TFEU work?

The preliminary ruling procedure serves to ensure the uniform interpretation and application of Union law in all Member States. Under Art. 267 TFEU, national courts may and final-instance courts must refer questions to the CJEU on the interpretation of EU law or the validity of Union acts, if those questions are decisive for the proceedings before them. The CJEU does not rule on the national dispute itself but gives a binding interpretation or ruling on the validity of the relevant Union act. Once the preliminary ruling is received, the national court resumes proceedings and decides within the framework of national law, taking into account the interpretation provided by the CJEU. This instrument is of central importance for legal harmonization in the internal market and is frequently used by courts, especially in commercial law areas.

What legal remedies are available against actions of EU institutions?

Various types of actions are available to challenge acts of EU institutions and review their legality. The most important is the action for annulment under Art. 263 TFEU. The right to bring an action is vested in the Member States, the European Parliament, the Council, and the Commission, as well as in certain situations natural and legal persons, provided they are directly and individually affected. The objective of the action for annulment is a declaration that a Union act is void. Another remedy is the action for failure to act (Art. 265 TFEU), which applies when EU institutions fail to act where legally required. In addition, actions for damages (Art. 268, 340 TFEU) exist for claims arising from unlawful conduct of the institutions, and infringement proceedings (Art. 258 ff. TFEU) against Member States that have violated EU law. These instruments ensure effective judicial review and legal enforcement at the Union level.

How are rights and obligations arising from EU regulations, directives, and decisions made effective in national law?

EU regulations are directly applicable in all Member States and do not require transposition into national law; they have immediate legal effect. Directives, on the other hand, oblige Member States in terms of the objective to be achieved, but leave the choice of form and methods of implementation to each State; only if implementation fails or is incomplete can direct effect arise. Decisions apply to the named addressees and are binding in their content, but are not necessarily generally applicable. The manner in which these legal acts take effect therefore differs significantly, which is particularly important for legal subjects and courts in the application of European law. Compliance and implementation are overseen by the monitoring activity of the Commission and, where appropriate, by the CJEU.