Sources of EU Law (OCR A-Level Law): Revision Notes
Sources of EU Law
EU law derives from three distinct sources, each with different legal characteristics and methods of incorporation into domestic law. Understanding these sources and how they operate is essential for comprehending how EU law functions within Member States.
Overview of the three sources
The European Union creates law through three primary mechanisms:
- Treaties – the foundational legal instruments
- Regulations – immediately applicable EU laws
- Directives – laws requiring domestic implementation
Each source has a different legal status and operates differently within Member States' legal systems.
The distinction between these three sources is fundamental to understanding how EU law operates. While treaties and regulations apply automatically, directives require Member States to take action to implement them into their domestic legal systems.
Treaties
Treaties form the primary legislation of the European Union. They establish the fundamental legal framework and create the powers of EU institutions.
Key characteristics
Treaties become part of a Member State's domestic law immediately and automatically, without requiring any further legislation. In the UK, this incorporation was achieved through section 2(1) of the European Communities Act 1972, which allowed individuals to rely directly on treaty provisions before domestic courts.
Treaties establish the constitutional framework of the EU and set out fundamental rights and obligations. They take precedence over other forms of EU law and national law.
Legal effect in practice
Because treaties are directly applicable, individuals can invoke treaty provisions in their national courts without any implementing legislation being needed. This means that if a treaty grants a right, an individual can enforce that right immediately.
Van Duyn v Home Office (1974)
This case established that treaty provisions can be directly enforced by individuals in national courts where the provision is sufficiently clear and unconditional. This demonstrates the immediate legal effect of treaty provisions without any need for implementing legislation.
Macarthys Ltd v Smith (1980)
The Court of Appeal confirmed that treaty provisions on equal pay could be relied upon directly by employees. This case demonstrates how treaties create enforceable rights for individuals that can be invoked in domestic courts.
Diocese of Hallam Trustee v Connaughton (1996)
This case further illustrated the direct application of treaty provisions in employment law contexts, showing how treaty articles can override conflicting domestic legislation.
Regulations
Regulations are legislative acts that are binding in their entirety on all Member States. They represent a powerful law-making tool for the EU.
Key characteristics
Regulations are binding on Member States and automatically apply in each Member State without any need for implementing legislation. They take immediate effect on the date specified in the regulation itself.
This automatic application means regulations become part of domestic law directly, creating rights and obligations that national courts must enforce. Member States cannot choose whether or not to apply regulations – they must comply.
Critical distinction: Unlike directives, regulations require no implementing legislation whatsoever. They take effect immediately and uniformly across all Member States, ensuring consistent application of EU law.
Legal effect in practice
The automatic nature of regulations ensures uniformity across the EU. Member States have no discretion in how regulations are applied – they must give them full legal effect as written.
Re Tachographs: Commission v UK (1979)
The UK argued that it had "implemented" an EU regulation by recommending its use rather than making it legally mandatory. The Court of Justice ruled that this was insufficient – regulations must be fully and properly applied as they are binding in their entirety.
Key lesson: This case illustrates that Member States cannot pick and choose how to implement regulations or apply them selectively. The binding nature of regulations ensures uniformity across all Member States.
Directives
Directives are legislative acts that set out objectives that Member States must achieve, but allow each state to decide how to implement them through their own domestic legislation.
Key characteristics
Unlike treaties and regulations, directives are not automatically part of domestic law. Instead, Member States must pass their own legislation to implement directives within a time limit set by the European Commission.
In the UK, directives were typically implemented through delegated legislation (statutory instruments), though primary legislation could also be used where necessary.
Directives are binding as to the result to be achieved but leave the choice of form and methods to national authorities. This flexibility allows Member States to adapt EU objectives to their own legal systems and traditions.
Implementation requirements
Member States have a legal obligation to implement directives by the deadline specified. Failure to implement a directive properly or on time can result in enforcement action by the European Commission and may lead to financial penalties.
Implementation deadline: Once the deadline passes, Member States can no longer excuse non-compliance. If implementation has failed, individuals may be able to rely on the directive directly against the state through the principle of vertical direct effect.
Direct effect of directives
Even though directives require implementation, EU law developed the principle of direct effect to protect individuals where Member States fail to implement directives properly or on time.
Vertical direct effect
Vertical direct effect means an individual can claim rights under a directive directly against the state, even if the directive has not yet been properly implemented into domestic law.
Marshall v Southampton and South West Hampshire Area Health Authority (1986)
Ms Marshall successfully claimed that a directive on equal treatment gave her rights against her state employer (a health authority) even though the UK had not fully implemented the directive.
Key principle: The state cannot rely on its own failure to implement a directive to deny individuals the rights that directive was intended to grant.
Vertical direct effect applies when:
- The directive is sufficiently clear and precise
- The directive is unconditional
- The implementation deadline has passed
- The claim is against the state or a state body
Horizontal direct effect
Horizontal direct effect would allow individuals to rely on directives against other private individuals or companies. However, the Court of Justice has ruled that directives cannot have horizontal direct effect.
Francovich v Italian Republic (1991)
This landmark case established an alternative remedy where individuals suffer loss due to a Member State's failure to implement a directive. Rather than allowing horizontal direct effect, the Court ruled that individuals can claim compensation from the state for losses caused by non-implementation.
This means that while directives create obligations for states, they do not directly create obligations between private parties. However, the state compensation remedy ensures individuals are not left without redress.
Distinction between vertical and horizontal effect
Critical distinction between vertical and horizontal effect:
- Vertical effect: Individual can enforce directive rights against the state (even without implementation)
- Horizontal effect: Directive cannot create enforceable rights between private parties (but state compensation is available for non-implementation)
This distinction exists because directives are addressed to Member States, not to individuals or private organizations.
Summary of sources
The following table provides a quick reference guide to the three sources of EU law and their key characteristics:
| Source | Legal status | Application method | Direct effect |
|---|---|---|---|
| Treaties | Primary legislation | Automatic | Yes – fully applicable |
| Regulations | Secondary legislation | Automatic | Yes – fully applicable |
| Directives | Secondary legislation | Requires implementation | Vertical only (with conditions) |
Exam guidance
Approaching exam questions on EU law sources:
When answering questions on sources of EU law:
- Define each source clearly and explain its legal characteristics
- Distinguish between automatic application (treaties and regulations) and implementation requirements (directives)
- Apply relevant case law to support your analysis
- Analyse the significance of direct effect and explain the difference between vertical and horizontal effect
- Evaluate the effectiveness of each source – consider whether the flexibility of directives is beneficial or whether the uniformity of regulations is preferable
For problem questions involving EU law, identify which source is relevant and whether it has been properly implemented or can be directly enforced.
Key takeaways
Essential points to remember:
- Three sources: Treaties (primary legislation), Regulations (automatically applicable), and Directives (require implementation)
- Treaties and regulations apply automatically in Member States without further legislation needed
- Directives must be implemented by Member States within specified time limits, usually through delegated legislation in the UK
- Vertical direct effect allows individuals to claim directive rights against the state even without implementation (Marshall case)
- Horizontal direct effect does not apply to directives – they cannot create obligations between private parties, but state compensation is available (Francovich case)
- Key cases: Van Duyn (treaties), Re Tachographs (regulations), Marshall (vertical effect), Francovich (state liability)