Explanatory Notes

EU laws and legislation

40 The EU treaties are the highest level of EU law. They set out where the EU is permitted to act, to what extent and how. They contain a mixture of procedural rules for how the EU operates and substantive rules, such as free movement rights for EU citizens. The EU treaties also set out subject areas in which the EU can make more specific laws. This is known as the EU’s competence.

41 The two main treaties are the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) . Some provisions of the TFEU have been found to be sufficiently clear, precise and unconditional to confer rights directly on individuals. These are referred to as ‘directly applicable’ or ‘directly effective’ treaty provisions. Other treaty provisions do not confer directly applicable rights but simply give the EU the power to adopt legislation to give effect to the treaties’ provisions.

42 Below the treaties, the EU adopts directives, regulations and decisions using the powers, and following the procedures provided for, in the EU treaties.

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43 EU regulations contain detailed legal rules. Regulations have the force of law in the UK and throughout the EU. It is therefore not necessary in principle for member states to create their own legal rules in order to ensure the regulation has the desired legal effect.1

44 Directives set out a legal framework which member states have to follow, but leave discretion as to how the member state chooses to make it part of their law. So, once an EU directive has been agreed, all member states have an obligation to make domestic laws that give it effect, but they have a choice as to precisely how to do so.

45 The EU can also adopt binding decisions. Decisions may be addressed to a particular party or parties, which could be individuals (including companies) or member states. For example, the Commission has powers to issue decisions that are binding in order to enforce competition rules.2 Where a decision is addressed to a member state, implementation in domestic law may be necessary to give effect to the decision.3 Some decisions are generally and directly applicable and are available in domestic law without the need for specific implementing legislation.4

46 Below regulations, decisions and directives which are made using one of the EU legislative procedures, the EU also adopts measures in order to supplement and amend, or to implement, the rules set out in directives, regulations or decisions. Such measures are referred to respectively as ‘delegated’ and ‘implementing’ acts, and are sometimes referred to as ‘tertiary’ legislation.5 For example, under Article 4 of Regulation (EU) No 1143/2014 on the prevention and management of the introduction and spread of invasive alien species , the European Commission adopts implementing acts in order to list plant species which are assessed as invasive alien species for the purposes of the regulation.

47 The EU institutions can also adopt recommendations and opinions. These are not legally binding. However, recommendations can have legal effects, in that national courts are under a duty to take them into account in interpreting domestic legislation designed to implement them or where they are designed to supplement binding Union provisions.6 There are various forms of ‘soft law’ which are not strictly legally binding but may have legal effects in the interpretation of legally binding instruments. They include resolutions, conclusions, communications, codes of conduct, guidelines and notices.

48 The TFEU distinguishes between legislative and non-legislative acts. This is a reference to the procedure used for the adoption of an act, rather than whether an act is legally binding or not. Legislative acts are defined in Article 289(3) TFEU as those adopted by legislative procedure, that is the ordinary legislative procedure or the special legislative procedure. They may take the form of regulations, directives or decisions. Non-legislative acts are adopted other than by the ordinary or special legislative procedures and may also take the form of regulations, directives or decisions.

49 EU legislation of general application (such as EU regulations, or directives which are addressed to all member states) will come into force on the date stated within it; however, if the legislation does not state such a date, it will come into force on the twentieth day following its publication in the Official Journal. EU legislation can also provide for ‘staggered application’ where, although the instrument is in force, parts of it only apply from a specified date. Legislation of narrower application (such as decisions addressed to particular member states) will come into effect when they are notified to the relevant parties.

1 Examples of exceptions to this general rule include Regulation (EU) No 1143/2014 on the prevention and management of the introduction and spread of invasive alien species and Regulation (EC) No 726/2004 laying down procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency.

2 See, for example, decisions adopted by the Commission in 2007 in relation to certain car manufacturers – http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32007D0788&from=EN.

3 For example the case of Hansa Fleisch V Landrat des Kreises Schleswig-Holstein ( ECLI:EU:C:1992:423, C - 156/191) concerned provisions of a decision which had been implemented in national law.

4 For example Commission Decision 2011/753/EU, establishing the rules and methods for calculating targets for re-use and recycling set out in the Waste Framework Directive, has not been implemented via specific UK legislation, but is available in domestic law via section 2(1) ECA.

5 EU tertiary legislation consists of delegated acts and implementing acts made under powers contained in EU legislation (such as regulations or directives). It can be used to supplement or amend certain elements of the parent legislation. It is also used where uniform conditions are needed to implement a legally binding act. Powers to make tertiary legislation are conferred on the Commission (and in certain limited cases the Council).

6 See for example Grimaldi v Fonds de Maladies Professionnelles, Case 322/88, EU:C:1989:646, paragraph 18


Prepared 13th July 2017