ABSTRACT
Having examined the structure, institutions and law making process of the European Union and Community in the previous chapter, it is now necessary to turn attention to the forms of Community law and the interaction between Community law and domestic law. The primary sources of Community law are the Treaties, as amended. Secondary legislation is law made by the Community institutions, and includes the interpretation of both primary and secondary sources by the European Court of Justice (ECJ). Secondary legislation comprises regulations, directives and decisions. Article 249 of the EC Treaty defines these terms as follows:
It is clear from Article 249 that regulations and directive have ‘binding effect’ in all Member States, but, as discussed below, this takes different forms. Decisions and recommendations, on the other hand, have more limited effect, the former binding those to whom they are addressed, the latter having ‘no binding force’. There are, however, other ‘sources’ which, while not having legally binding force, nevertheless have a significant impact on the working of the Community and Union.1 The institutions of the Union, for example, formulate their own procedures for self-regulation. In addition, as will be seen below, the Council has the power to enter into international agreements between the Community and non-EU states on behalf of the Member States of the Union. In addition, there are measures which are labelled ‘soft’ (as opposed to ‘hard’) law. In addition to recommendations and opinions under Article 249, Jo Shaw (2000) cites ‘communications, conclusions, declarations, action programmes and communiqués’ as examples of soft law. Joint actions taken by Members States in pursuit of Union objectives also fall within soft
law, as do conventions and ‘framework decisions’ made in relation to policy. While the principal concern in this chapter is with the ‘hard law’ of the Community and Union, it must also be recognised that these disparate mechanisms exist in order to further European objectives across wide ranging fields of policy on which it may not be possible always to secure complete agreement between all 15 Member States, and therefore translate a soft law measure into hard law which has binding legal effect.
