The law of the European Union may be categorised according to various features:
First of all, a differentiation may be drawn between the law of the European Communities (Community law) and the law of the fields of activity of the European Union, which is characterised as Union law in the narrower sense. One unique feature of Community law is its primacy over the law of the Member States. This is an essential element of the supranationality of the European Communities.
Secondly, a differentiation may be made between primary and secondary law by looking at its source. The latter is promulgated according to relevant proposals by the responsible bodies, whereby there are differences both with regard to the types of action and procedures between the law of the European Communities and Union law in the narrower sense.
In the area of Community law, the EC Treaty differentiates between the following forms of secondary Community law and/or types of action:
- Regulation – this has general validity, is binding in full, and is directly applicable in every Member State. As such, Regulations are a part of the domestic legal order, by virtue of which individuals may also be imbued with direct rights and obligations. German administrative authorities and courts are required to apply them on their own initiative. Due to the primacy of Community law, they must, if applicable, decline to apply conflicting national law.
- Directive – this is binding on the Member States to whom it is addressed with regard to the goal to be attained, but the domestic authorities are left to decide how to implement the Directives into their domestic laws. If the Member States neglect to implement the Directive within the imposed deadline, this represents a violation of the EC Treaty, which under certain preconditions may give rise to rights and claims on the part of individuals.
- Decision – this is, like an administrative action in German law, binding in full on the respective addressee. Most Decisions are issued by the Commission which, for example in the case of a cartel engaging in anti-competitive conduct, may impose a fine against the offending companies.
- Recommendations and written observations – these types of action are not legally binding in and of themselves; however, in addition to their political significance, under certain circumstances they might attain a legal relevance as well, for example as criteria for the interpretation of binding provisions.
Depending upon the substantive area, different provisions apply regarding the participation of the bodies in legislating these legal instruments. The legislative procedure necessary for resolving generally binding Directives and Regulations begins with a proposal by the Commission. This must be approved by the Council, whereby depending on the material, various majority or unanimity rules apply. The participation of the European Parliament is regulated in various manners as well. In most cases, the co-decision procedure is applicable. It provides that a legal instrument will come to fruition only if both the Council and the European Parliament have approved it.
There are also secondary legal instruments in the area of Union law in the narrower sense. The types of action in the area of common foreign and security policy are designed somewhat differently than those in the area of police and judicial cooperation. The Treaty establishing the European Union provides for the following possibilities in this regard:
- Common positions – they determine the conduct of the Union regarding a given issue. The Member States use them to express a certain political will.
- Framework Decisions – they serve to approximate the legal and administrative provisions of the Member States and, like the Directives in Community law, are binding on the Member States with regard to the goal to be attained; however, they leave the selection of the form and the means to the domestic authorities.
- Decisions – they may be adopted for any purpose not attainable by a Framework Decision and are legally binding in full upon the Member States.
- Conventions – they are not concluded by the Council itself; rather, they are merely worked up and subsequently concluded by the Member States as treaties under international law.
The decision-making procedure in the substantive areas of Union law differs from that in the area of Community law in that the role of the Council and the influence of each individual Member State is greater. In adopting the above-specified instruments of secondary Union law, which may be proposed by the Commission or by a Member State, the principle of unanimity applies. The European Parliament has only the right to be heard.
