1 June 2011
1.5 Sources of Law: Treaties Directives and Regulations
1.5.1 Primary Legislation: Treaties of the European Union
The first sources of EU law are the Treaties: the EURATOM Treaty, the Treaty on European Union and the Treaty on the Functioning of the EU (originally called the EEC Treaty and subsequently called the EC Treaty), along with the various annexes and protocols attached to them and the subsequent amending treaties and acts. The Treaties contain the basic provisions on the European Union's objectives, organisation and modus operandi. These are then given life and flesh through legislative and administrative action by the EU Institutions. The Treaties are known as primary legislation. Law made by the Institutions in exercising the powers conferred on them by the Treaties is referred to as secondary legislation.
a) The EEC Treaty of Rome (1957)
The aims of the EEC Treaty of 1957 were to establish a Common Market, progressively to approximate the economic policies of the Member States, to promote harmonious development of economic activities throughout the Community, to increase stability and raise the standard of living, and to promote closer relations between the Member States. Barriers to trade were to be abolished and a common customs tariff was to be set up, undistorted competition was to be ensured, national economic and monetary policies were to be progressively coordinated, and fiscal and social policies gradually harmonised. The Treaty created a separate Council of Ministers and an “executive” authority - the European Commission.
b) The Single European Act (1987) (the SEA)
The SEA represented the first major attempt at revising the EEC Treaty since its original enactment. The SEA was significant in its institutional and substantive reforms. For example, it gave a formal legal basis to European political cooperation. A Court of First Instance (CFI – subsequently renamed the General Court) was provided for to assist the European Court of Justice. The European Parliament was also given a power of veto over the accession of new Member States and over the conclusion of agreements with associate States.
Some saw the SEA as an economic charter, while others saw the social and environmental policy amendments to Community law as a very significant conferral of autonomous Community competence in these fields, and not merely as side-effects of its market integration goals.
c) The Maastricht Treaty on European Union (1993)
After various revisions, the Treaty on European Union (TEU) was eventually agreed and signed by the Member States in Maastricht in February 1992. Although it was initially rejected by the Danish population in a national referendum, several concessions were secured by the Danish Government. The Treaty thus entered into force in November 1993. The EEC Treaty was officially renamed the European Community (EC) Treaty.
d) The Amsterdam Treaty (1999)
The Amsterdam Treaty, which amends the EC Treaty, was declared to be about consolidation rather than extension of Community powers, about improving processes and enhancing effectiveness rather than expanding competence. The promotion of “a high level of protection and improvement of quality of the environment” was listed as an independent goal rather than merely as a side-effect of economic growth. The centrality of environmental protection was further emphasised by the amended Article 6 of the EC Treaty, which integrated environment into the definition and implementation of all the Community policies and activities.
e)The Nice Treaty (2003)
The primary purpose of the Nice Treaty, which entered into force on 1 February 2003, was to reform the institutional structure in order to better regulate the EU pursuant to enlargement. Thus, the Nice Treaty brought about changes to the weighting of votes in the Council of Ministers, adjustments to qualified majority voting requirements and a reduction of legislative areas requiring voting by unanimity (the Treaty allowed qualified-majority voting for decisions on 30 articles of the Treaty that previously required unanimity).
f) The Lisbon Treaty (2009)
The Lisbon Treaty, signed by Member State representatives on 13 December 2007, entered into force on 1 December 2009. The Lisbon Treaty is a compromise version of the so-called Constitutional Treaty, which failed to be ratified after it was rejected by the French and Dutch populations in referenda in 2005. While the Lisbon Treaty omits several contentious provisions of the Constitutional Treaty, it does contain significant changes to the institutional structure of the EU and the legislative procedure used therein. For instance, the Treaty expands the use of qualified majority voting, allowing new kinds of legislation to be passed without a unanimous vote in the Council. In addition, the Treaty stipulates that, between 2014 and 2017, the exceedingly complicated system of weighted Member State voting rights in the Council will be phased-out in favour of a simpler double-majority weighting system for such votes. Furthermore, the Treaty caps the number of seats in the European Parliament at 751. Finally, the Treaty increases the EU’s competences in the area of Justice and Home Affairs (JHA).
5.2 Secondary Legislation
There are different types of secondary EU legislation. Article 288 of the Treaty on the Functioning of the EU (TFEU) is the foundational provision in respect of which the different types of EU legislation exist.
a) Regulations and their Legislative Impact
Regulations are binding upon all Member States and are directly applicable within all such States. The EU passes many regulations, and if each had to be separately incorporated into each national legal system before it could be effective then the EU machinery would grind to a halt. The phrase “directly applicable” obviates this difficulty, making regulations a part of the Member States’ national legal systems automatically without the need for separate national legal measures. Examples of such regulations that will be familiar to Hong Kong traders are the framework anti-dumping Regulation 384/96, and regulations imposing both provisional and definitive anti-dumping duties on imports. Member States’ customs authorities are always bound to impose such duties, even though their domestic law has no implementing measure.
b) Directives and their Legislative Impact
Directives are binding as to the end to be achieved while leaving some choice as to form and method of implementation open to the Member States. As there are variations in the political, administrative, and social arrangements within the Member States, directives are considered a particularly useful framework device, setting out the ends which Member States are to meet in considerable detail. Due to the lack of direct applicability, Member States frequently interpret a directive’s provisions according to their convenience and needs. This often results in a distinct lack of harmonisation EU-wide, the very thing that directives are adopted to avoid. An example of a directive familiar to Hong Kong traders is Directive 2002/96/EC on waste electrical and electronic equipment (WEEE).
The European Court of Justice has held that even if Directives are not implemented, individuals may nonetheless rely on them, at least in actions against the State. The Court has also held that a Member State can be liable in damages for non-implementation of a Directive.
c) Decisions and their Legislative Impact
Decisions are binding in their entirety on those to whom they are addressed. The EU Institutions are free to proceed by way of decision in many areas. The TFEU also stipulates areas in which decisions should be the chosen method of policy-making. The Council may delegate power to the Commission to take decisions which are within the competence of the Council itself.
Examples of Decisions with which Hong Kong sellers are no doubt familiar are Decision 2005/692/EC concerning certain protection measures in relation to avian influenza in several third countries, or 2005/717/EC concerning exemptions granted to restrictions placed on hazardous substances in electrical and electronic equipment.
d) Recommendations and Opinions, and their Legislative Impact
Recommendations and opinions have neither binding force nor direct effect. The Commission is imbued with a general power to formulate recommendations or deliver opinions on matters dealt with in the TFEU, either where it is expressly so provided, or where the Commission believes that it is necessary to do so.
 The European Coal and Steel Community Treaty referred to above expired in 2002, at which point the coal and steel industry within the EU became subject to the rules of the other Treaties. As a result, the ECSC Treaty itself is no longer a source of EU law.
 Hereafter, all references to the TFEU, unless otherwise noted, refer to the consolidated version of the TFEU as published on 30 March 2010.