The Sources of European Community Law

EC law is made up of a number of different sources. We can divide them into three main groups:

- primary sources;

- secondary sources;

- tertiary sources.

Primary sources. The Treaties are the most significant source of EC law and the primary source of law. The original founding Treaties – the European Coal and Steel Community (ECSC), the European Atomic Energy Community Treaty (EURATOM) and the European Community (EC) Treaty – are all primary law and all subsequent law must fulfill the objectives of those founding Treaties. As the Community expanded and the Union was created, a number of related Treaties have been introduced. These all have the force of Community law and create enforceable rights and obligations. They include:

- the various Accession Treaties expanding the original Community territorially;

- the Merger Treaties 1965;

- the Single European Act 1986 (which put in place the processes to eventually achieve the Common Market);

- the Treaty on European Union 1992 (which created the Union and its three-pillar structure);

- the Amsterdam Treaty 1997 (which rationalized the existing structure and re-numbered the original EC Treaty);

- the Treaty of Nice 2000 (which focused on institutional reform).

Secondary sources. “Secondary legislation” is merely a collective term that is used to describe all of the various types of law that the institutions can make. The legislation is clearly of major importance since it is the way that EC law is expanded and developed out of the broad principles contained in the Treaties themselves. Nevertheless, it is also important to remember that legislation is still subordinate to the primary law in the Treaties and must only be used for the furtherance of the objectives of the Treaties. As a result, the legislation cannot amend, repeal or alter the scope of the Treaties. In this way the institutions may only act in legislation:

- in order to carry out the tasks assigned to them by the Treaties;

- in strict accordance with the provisions of the Treaties for the fulfillment of the objectives of the Treaties;

- and only within the strict limits of the powers that are actually conferred upon them in the Treaties, and specifically those identified in Article 249 of the EC Treaty.

There are different types of secondary legislation, such as:

- regulations: automatically become law in Member States. They are generally applicable, binding in their entirety, and directly applicable.

- directives: binding as to the effect to be achieved. Member States have as implementing period within which they must be incorporated into national law by their chosen means.

- decisions: addressed to a specific party, whether a company, individual or Member State. They are then binding in their entirety on the party to whom they are addressed.

- recommendations and opinions: have no legal force but are persuasive.

Tertiary sources. The European Court of Justice (ECJ) has played a vital role in the development of EC law.

The case law of the ECJ is in fact a major source of EC law and has been a key element in the development of EC law in two ways:

- it has defined the principles that apply in all of the main areas of substantive law, e.g. the “Four Freedoms”, discrimination law, competition law;

- it has ensured that the objectives of the Treaties are achieved in the Member States by developing the principles of supremacy and direct effect.

General principles of law. The Unionis found on principles of liberty, democracy and the rules of law as well as respect for human rights and fundamental freedoms, and also principles that are common to the Member States. However, the court has developed a number of unwritten principles that it will use when it interprets the Treaties and the secondary legislation. The general principles of law have been recognized as binding on the institutions, the Member States, and indeed on individual citizens. The main ones are:

- proportionality (no measure should place a burden on a citizen beyond what is necessary to achieve the purpose. A simpler explanation would be to say that nothing should be done that is more than is necessary to achieve the end);

- equality (the concept of equal treatment or non-discrimination is not just a general principle; it is also one of the founding principles of the EC treaty itself. The original EC Treaty included three specific prohibitions against discrimination: evidence in Article 12 no discrimination on nationality, Article 141 equality between men and women, Article 34(2) no discrimination between producers and consumers in relation to the Common Agricultural Policy (CAP));

- legal certainty (the law must be both certain and predictable);

- natural justice (the right to an unbiased hearing, the right to be heard, the right to a reasoned decision);

- the protection of fundamental human rights (the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law);

- subsidiarity (EU should only act if result cannot be achieved satisfactorily at national level; and can be achieved in a more satisfactory way by the Community).

There are certain other tertiary sources of less certain legality. These are of three main types:

- acts adopted by representatives of Member States governments meeting in Council (there is a quick and easy method of making decisions that fall outside the competence of the Community. While resolutions coming out of such meetings do not have the full force of law, the ECJ will consider them);

- national law of Member States (national law is not formally recognized as being part of Community law. There are two instances when it will be taken into account: firstly, where Community law actually makes reference to national law, as in determining the legal status of individuals, i.e. capacity; secondly, where national law has developed EC law and the ECJ looks to that law for guidance when there is a gap in the law);

- International Treaties negotiated by the EC (this refers to multinational treaties to which the EU is a party. An example would be the General Agreement on Tariffs and Trade (GATT)).

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