The European Union

Laws/Legislative Acts

Overview of EU Laws, legal terms, and categories

Forms of laws

• There are a number of terms used to describe EU laws, the legal system, or the legislative process, using different classification methods which sometimes overlap, seemingly change meanings, depending on the context. They can describe totally different things or be looking at the same thing from a different perspective. One method is to divide laws into five main forms: 1) Regulations; 2) Directives; 3) Decisions; 4) Recommendations; and 5) Opinions. Recommendations and opinions are considered to be non-binding, or simply suggestions about how a court or judge thinks laws should be interpreted.(1) Some terms deal primarily with treaties and how they are to be interpreted. Treaty-related terms fall into three categories: 1) Protocols; 2) Declarations; and 3) Resolutions.(2) Some classifications rank laws into a hierarchy of importance, depending on their source. These fall into three categories: 1) Primary Law; 2) Secondary Law; and 3) Supplementary Law.(3) In 2004 there was an attempt to create a new classification or ranking system, which was called a "hierarchy of norms." It divided laws and legislation into five categories: 1) the constituent treaties, TEU and TFEU, and the Charter of Rights - the constituent treaties refers to what are considered the founding treaties; 2) general principles of law; 3) legislative acts; 4 delegated acts; and 5) implementing acts.(4) One category which stands by itself is confined to EU treaties. It refers to the founding treaties, meaning the original treaties creating the EU. Different terms have been used in this context: "foundational treaties" or "founding treaties" or "constitutive treaties" or "constituent treaties."(5) Finally, there is a classification system which applies to the legislative process involved in creating laws, which uses just two categories: 1) ordinary legislative procedure and 2) special legislative procedure.(6)

1) Regulations

• Regulations are generally considered the highest, most rigorous form of legislation that the European Commission and Council of the European Union are empowered to enact, although this is not true in all cases. Regulations have general application, are binding in their entirety, and directly applicable in all Member States. While said to be "directly applicable" they have been interpreted to mean the Member State must pass their own legislation before they become law.(7)

2) Directives

• Directives are the second type of legal instrument that the European Commission and the Council of the European Union are empowered to enact and the most common form of European Union legislation. Dirctives are binding, as to the result to be achieved, upon each Member State to which they are addressed, but leave to the national authorities of the Member States the choice of form and methods. Directives differ from regulations in two ways: first, they do not have to be addressed to all Member States, and second, while they are binding as to the end to be achieved, they leave some choice as to the form and method to be used to the Member State. (8)

3) Decisions

• Decisions are the third type of legislation that the European Commission and the Council of the European Union are empowered to enact. Decisions are said to be binding in their entirety, but can be limited in scope by being addressed to specific parties, rather than all Member States. Decisions are only binding on those they are addressed to. (9)

4) Recommendations

• Recommendations are one of two kinds of non-binding pronouncements, the other being "opinions," that the European Commission and the Council of the European Union may issue. Recommendations merely express the preference of the European Union (EU) which, as a form of advice or suggested interpretation, can be ignored or disregarded by the Member states. They are a form of "soft" law which, while not binding, can influence interpretations, contribute to understanding, or provide guidance when dealing with judicial rulings.(10)

5) Opinions

• Opinions are one of two kinds of non-binding pronouncements, the other being "recommendations," that the European Commission and the Council of the European Union may issue. Opinions merely express the preference of the European Union (EU) which, as a form of advice or suggested interpretation, can be ignored or disregarded by the Member states. They are a form of "soft" law which, while not binding, can influence interpretations, contribute to understanding, or provide guidance when dealing with judicial rulings.(11)

6) Articles

• Articles is the name for the provisions of a legislative act. They are numbered and may be limited to a single paragraph or contain several paragraphs of text.(11A)

7) Recitals

• Numbered introductory sentences, or 'preambles,' found at the beginning of article provisions within legislative acts. Recitals are legally non-binding, since they are not recognized as part of the enacted legislative terms. However, they serve as preambles or explanatory remarks about legislative acts which may help to explain what the legislators intended.(11B)

Hierarchy of (Legal) Norms - Ranking the Importance of Laws from Most to Least

Hierarchy of Norms

• The Constitutional Treaty, agreed by the EU in 2004, but not ratified, created what was called a "hierarchy of norms," which was a reform proposal to standardize the ranking or importance of legal acts. The Lisbon Treaty, which entered into force in 2009, retained the idea but watered it down to a "hierarchy of legal acts." While this hierarchy did not create new types of laws or alter the existing institutional laws, such as regulations, directives, and decisions, it did create a classification system which, if nothing else, provides an alternative view of the legal structure, as well as insight into the judicial process. The hierarchy divides legal activities into five categories: 1) the constituent Treaties (the treaties considered the main treaty components of the EU) - the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), along with the Charter of Rights; 2) general principles of law; 3) legislative acts; 4) delegated acts; and 5) implementing acts.(12)

1) The Treaties and the Charter of Rights

• The constituent Treaties, the Treaty on European Union (TEU) (originally established by the 1992 Maastricht Treaty, but amended/renumbered by the 2009 Lisbon Treaty), the Treaty on the Functioning of the European Union (TFEU) (new name given by the 2009 Lisbon Treaty to the Treaty Establishing the European Community, created by the 1957 Treaty of Rome) plus the Charter of Rights are considered to sit at the top of the hierarchy. They should serve to provide guidance to the European Parliament and the European Courts in their activities. Legislative acts and legislation should be considered with the goal of conforming with the Treaties and the Charter, and Union Courts should interpret acts in keeping with the spirit of the Treaties and the Charter.(13)

2) General Principles of Law

• General principles of law are primarily a creature of Union Courts and how the court system interprets laws and cases. As such, they are not a formal enactment, like legislation, or delegation of power, but more related to tradition, reliance on prior case law decisions, historical approaches, and understood court rules, almost a form of common law, or a concept of judicial power known as judicial review. While seemingly a only a theoretical power, judicial review provides courts the ability to intrepret legislative acts, even to invalidate laws, as well as to uphold them. Judicial review gives the Union Courts the final say.(14)

3) Legislative Acts

• Legislative acts, within the hierarchy, are acts which have been adopted by following a formal legislative procedure. Legislative acts is a broad term, in the sense that it covers most legal acts, whether in the form of a regulation, directive, or decision. This procedure also encompasses what are called ordinary or special legislative procedures. Ordinary legislative procedures are those which have gone through all the formalities required to pass legislation. Special legislative procedures involve the formal adoption of an act, but only adoption with less than the full requirements for ordinary legislative procedures. Acts which have not been adopted in accordance with these procedures fall outside the definition of legislative acts.(15)

4) Delegated Acts

• Delegated acts were a new category of acts, along with implementing acts, established by the 2009 Lisbon Treaty which provided for delegating certain functions to the Commission. Generally, delegated acts involved actions which were not passed through ordinary or special legislative procedures, and might be considered as "minor" or routine changes, such as amendments or supplementation, to prior legislation, with less significance than legislation which went through the formal approval process.(16)

5) Implementing Acts

• Implementing acts were a new category of acts, along with delegated acts, established by the 2009 Lisbon Treaty which allowed the European Parliament and the Council to lay down in advance the rules and general principles governing member state implementation of Union acts of general application. What distinguishes an implementing act from a delegated act is that implementing acts execute the legislative act without amendment or supplementation.(17)

Treaty Law

Founding Treaties

• Founding Treaties is a phrase generally applied to the four documents which established the European Communities and the European Union: 1) the 1951 Treaty of Paris establishing the European Coal and Steel Community (ECSC); 2) the 1957 Treaty of Rome establishing the European Economic Community (EEC); 3) the 1957 Treaty of Rome establishing the European Atomic Energy Community (EAEC or Euratom); and 4) the Treaty on European Union (TEU) (the Maastricht Treaty of 1992).(18) The European Atomic Energy Community (EEAC) has survived to the present day, although in a diminished role, serving mostly in a research and study capacity, with a focus on supply problems related to nuclear ores and materials.(19) The Treaty on European Union (TEU) survived, although it was amended several times, and its provisions re-numbered with the 2009 Treaty of Lisbon. The Treaty Establishing the European Economic Community (EEC), established by the 1957 Treaty of Rome was renamed the Treaty on the Functioning of the European Union (TFEU) by the 2009 Treaty of Lisbon. At the time of the Lisbon Treaty, the European Economic Community (EEC) was known as the European Community (EC), having been replaced in 1967, when the Merger Treaty came into force.(20)

Additional Treaty Elements - Protocols, Declarations, and Resolutions

Protocols

• A protocol is an additional element of a treaty which either provides details on the implementation of treaty requirements or is considered too lengthy for inclusion in the body of the treaty. Despite this, protocols are considered to be of equal status as the main body of the treaty or basically, are part of the treaty.(21)

Declarations

• A declaration is a political statment issued by one or more member states or the states participating in an intergovernmental conference (IGC), where the participants produce a summary report of the conference proceedings and its recommendations. The declaration attempts to clarify provisions of a treaty or summarizes the outcomes of the IGC negotiations. Since the main purpose of a declaration is to express the intention of the signatories, and often is an "after-the-fact" statement, issued after treaty negotiations have been completed, rather than as part of negotiations, declarations are considered of lesser status than protocols, with limited judicial force. The term declaration is also applied to statements issued following meetings of the European Council.(22)

Resolutions

• Resolutions are statements of principle adopted by the Council of the European Union on the recommendation of the European Commission. While resolutions are indications of government agreement or a willingness to act, they have no basis in the founding treaties of the European Communities and are not legally binding on the member states.(23)

Three Sources of EU Law

Primary Law, Secondary Law, and Supplementary Law

• The origins or sources of EU law can be found in its treaties, legislation, and court rulings. One way of understanding the legal system is by assigning its sources to one of three categories: primary law, secondary law, and supplementary law. This serves as an alternative classification scheme.(24)

Primary Law

• Primary law comes from the EU treaties, primarily the two current treaties, the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).(25)

Secondary Law

• Secondary law might be called statutory law and includes all the legislation which has been passed by the European Parliament, such as regulations and directives. While it has a basis in the treaties, legislation falls into a category of its own. Some legislation may be passed through what is considered the "ordinary legislative procedure," which involves a formal legislative approval process by different bodies. Although legislation might be a narrowly-defined term in some situations, in others it can be used in a broader sense and legislation passed through any process would be considered secondary law, since, by default, it would not be categorized as primary law.(26)

Supplementary Law

• Supplementary law refers to the body of case law that has been devloped by the Court of Justice since the 1950s.(27)

Legislative Procedures

Ordinary Legislative Procedures and Special Legislative Procedures

• The concept of the "ordinary legislative procedure" was introduced by the 1992 Treaty on European Union (TEU) (Maastricht Treaty). At the time it was known as the "co-decision procedure," and was considered to be the European Union's standard decision-making procedure. It required all legislation adopted under the procedure to be approved by both the Council of the European Union and the European Parliament. Where the two institutions were unable to approve legislation, a Conciliation Committee was to be held. The term "co-decision procedure" remained in use until the 2009 Lisbon Treaty, when it was formally re-named the "ordinary legislative procedure" in the Treaty on the Functioning of the European Union (TFEU). The term "special legislative procedure" was used by the Lisbon Treaty (TFEU) to deal with situations where all the formalities had not been observed, such as when the European Parliament had approved legislation with the participation of the Council, but without a formal vote by the Council. It did not matter what form the legislation took, since it applied whether the adoption was in the form of a regulation, directive, or decision.(28)

EU Data Protection Directive of 1995

1995

• October 24 - European Parliament and Council adopt Data Protection Directive (Directive 95/46/EC) "European Community Directive on Data Protection," intended to establish rules for the collection, processing, transmission, and protection of information about individuals. Established the concept of a Data Protection Authority (DPA), a member state body with responsibility for monitoring and enforcing protection of individual data. Article 29 Working Party (WP) created, serving as an advisory body, drafting guidelines, recommending legislative changes, and issuing opinions on interpretations of data protection law. The 1995 Data Protection Directive was replaced by the General Data Protection Directive (GDPR) in May of 2018 (May 25, 2018). The Article 29 Working Party was replaced by the European Data Protection Board (EDPB) by the GDPR.(29)

ePrivacy Directive

2002

• Directive on Privacy and Electronic Communications (Directive 2002/58/EC) "ePrivacy Directive" adopted by EC. The ePrivacy Directive establishes specific protections covering electronic mail, telephone communications, traffic data, calling line identification, and unsolicited communications.(30)

General Data Protection Regulation (GDPR)

2012

• January 25 - European Commission proposes the General Data Protection Regulation (GDPR), a comprehensive proposal to update the 1995 Data Protection Directive to strengthen online privacy rights and boost Europe's digital economy.(31)

2014

• March 12 - European Parliament shows support for the General Data Protection Regulation (GDPR) by voting in plenary session with 621 votes in favor, 10 against, and 22 abstentions.(32)

2016

• April - European Parliament approves and adopts the General Data Protection Regulation (GDPR), intended to increase data protection and privacy protection for individuals within the European Union. The GDPR updated and replaced the Data Protection Directive of 1995 (Data Protection Directive 95/46/EC).(33)

2018

• May 25 - General Data Protection Regulation (GDPR), adopted in April 2016, comes into force, replacing the Data Protection Directive of 1995. European Data Protection Board (EDPB) assumes responsibility for administering data protection laws, replacing the Article 29 Working Party of the 1995 Data Protection Directive.(34)

Digital Operational Resiliance Act (DORA) Regulation (EU)

2023

• January 16 - Digital Operational Resiliance Act (DORA) enters into force. DORA is a European Union (EU) regulation intended to strengthen the IT security of financial entities, such as banks, insurance companies, and investment firms, and provide guidance on measures to be taken to minimize disruptions and maintain operations or recover from incidents causing disruption of operations.(35)
• December - European Parliament and the Council of the EU reach political agreement on the Artificial Intelligence Act (AI Act) intended to provide a legal framework, rules, and guidance for the development and use of artificial intelligence.(36)

EU Artificial Intelligence Act

2024

• February - European Artificial Intelligence (AI) Office established within the European Commission. The agency is to oversee the AI Act's enforcement and implementation by the member states.(37)

2025

• January 17 - Digital Operational Resiliance Act (DORA), intended to strengthen financial entity IT security applies.(38)

Notes

• 1) Toni Haastrup, Lee McGowan and David Phinnemore, A Dictionary of the European Union, 119, 130, 402, 10th ed., (London and New York: Routledge, 2021); see also Jonathan Olsen, The European Union: Politics and Policies, 92, 7th ed., (New York and London: Routledge, 2021); see also Paul Craig and Gráinne de Búrca, EU LAW Text, Cases, and Materials, 137-140, Seventh Edition, (Oxford: Oxford University Press, 2020) .
• 2) Haastrup, Dictionary, 119, 392, 402.
• 3) Haastrup, Dictionary, 329.
• 4) Craig, EU LAW, 136, 141-142, 153, Oxford University Press.
• 5) Haastrup, Dictionary, 264, 466; see also Craig, EU LAW, 136, 141-142.
• 6) Haastrup, Dictionary, 374; see also Olsen,The European Union, 130; see also Craig, EU LAW, 157-165.
• 7) Haastrup, Dictionary, 402; see also Olsen,The European Union, 92; see also Craig, EU LAW, 137-138.
• 8) Haastrup, Dictionary, 130; see also Olsen,The European Union, 92; see also Craig, EU LAW, 139.
• 9) Haastrup, Dictionary, 119; see also Olsen,The European Union, 92; see also Craig, EU LAW, 139.
• 10) Haastrup, Dictionary, 397-398; see also Olsen,The European Union, 92; see also Craig, EU LAW, 140.
• 11) Haastrup, Dictionary, 372-373; see also Olsen,The European Union, 92; see also Craig, EU LAW, 140.
• 11A) Jasper Krommendijk and Frederik Zuiderveen Borgesius, EU Law Analysis: How to read EU legislation, 4; at https://eulawanalysis.blogspot.com/p/how-to-read-eu-legislation.html, accessed January 27, 2025.
• 11B) Krommendijk, EU Law Analysis: How to read EU legislation, 4.
• 12) Craig, EU LAW, 136, 141, 153.
• 13) Craig, EU LAW, 141-142.
• 14) Craig, EU LAW, 142.
• 15) Craig, EU LAW, 144-145.
• 16) Craig, EU LAW, 145-146.
• 17) Craig, EU LAW, 148-152.
• 18) Haastrup, Dictionary, 264, 466.
• 19) Haastrup, Dictionary, 186; see also Olsen,The European Union, 38.
• 20) Haastrup, Dictionary, 208, 463-464, 466-467.
• 21) Haastrup, Dictionary, 392.
• 22) Haastrup, Dictionary, 119.
• 23) Haastrup, Dictionary, 404.
• 24) Haastrup, Dictionary, 329.
• 25) Haastrup, Dictionary, 329.
• 26) Haastrup, Dictionary, 329, 374.
• 27) Haastrup, Dictionary, 329.
• 28) Haastrup, Dictionary, 329, 374; see also Olsen,The European Union, 130; see also Craig, EU LAW, 157-165.
• 29) From the EUR-Lex website: See Directive - 95/46 - EN - Data Protection Directive - EUR-Lex at https://eur-lex.europa.eu/eli/dir/1995/46/, accessed on June 10, 2024; see also Charlotte A. Tschider, International Cybersecurity and Privacy Law in Practice, 39, 34 (The Netherlands: Kluwer Law International BV, 2018): see also Daniel J. Solove and Paul M. Schwartz, Information Privacy Law, 1217-1219, Seventh Edition, (New York: Walters Kluwer, 2021); see also William McGeveran, Privacy and Data Protection Law, 259, 269-271, (William McGeveran, 2016).
• 30) Tschider, International Cybersecurity and Privacy Law, 51-53; see also Solove Information Privacy Law, 1221; see also McGeveran, Privacy and Data Protection Law, 332-338.
• 31) From the EDPS website: See History of the General Data Protection Regulation at https://eur-lex.europa.eu/eli/dir/1995/46/, accessed on June 10, 2024
• 32) From the EDPS website: See History of the General Data Protection Regulation at https://eur-lex.europa.eu/eli/dir/1995/46/, accessed on June 10, 2024
• 33) From the EDPS website: See History of the General Data Protection Regulation at https://eur-lex.europa.eu/eli/dir/1995/46/, accessed on June 10, 2024; see also General Data Protection Regulation at https://eur-lex.europa.eu/legal-content/EN/TXT, accessed on June 10, 2024
• 34) From the EDPS website: See History of the General Data Protection Regulation at https://eur-lex.europa.eu/eli/dir/1995/46/, accessed on June 10, 2024
• 35) From the DORA website: See Digital Operational Resilience Act at https://eur-lex.europa.eu/eli/dir/1995/46/, accessed on June 10, 2024
• 36) From the European Parliament website: See EU AI Act: first regulation on artificial intelligence at https://europarl.europa.eu/topics/en/article/20230601STO93804/eu-ai-act-first-regulation-on-artificial-intelligence, accessed on August 12, 2024
• 37) From the European Commission website: See AI Act | Shaping Europe's digital future at https://digital-strategy.ec.europa.eu/en/policies/regulatory-framework-ai, accessed on August 12, 2024
• 38) From the DORA website: See Digital Operational Resilience Act at https://eur-lex.europa.eu/eli/dir/1995/46/, accessed on June 10, 2024