Bulgaria has been part of the European Union for over 18 years, but the specifics of the European Union Law (EU Law) are still rather unknown to the general public. In the following lines we will briefly discuss what are the so-called “sources” of the EU Law – that is, the types of legal documents (and not only) that contain the legal rules of the Union and what is their legal force.
The sources of the EU Law can be divided into four main groups – primary legislation, general EU Law principles, EU international treaties and so-called secondary (derived) legislation.
Primary legislation
The main sources of the EU’s primary legislation are the EU’s so-called founding treaties. These are the Treaty on European Union Treaty (TEU), the Treaty on the Functioning of the European Union (TFEU), the Treaty establishing the European Atomic Energy Community (Euratom). The Treaties on the admission of Member States to the EU and Charter of Fundamental Rights of the the EU (CFREU) are also part of the primary legislation. The set of these treaties is sometimes referred to as the EU’s ‘constitutional charter’. The Union does not have a single constitution, and the competences of the Union’s institutions, how they function and how they are elected are regulated in the various treaties. Moreover, the treaties occupy the highest hierarchical level in relation to other sources of law – hence, the so-called derived law (e.g. regulations and directives) must NOT conflict with primary law.
A special place among the primary EU Law is considered to be occupied by the so-called “legal principles” of the EU and the legal principles that are “common” to the constitutional traditions of the Member States. These are not explicitly spelled out, but the Court of Justice of the EU (CJEU) often refers to them when interpreting the EU Law.
International agreements
The EU’s international agreements with third countries or international organisations are also part of the EU Law. Hierarchically, they are considered to stand above secondary legislation but below primary legislation – that is, secondary law complies with them and they in turn comply with primary law.
Secondary legislation
Secondary legislation consists of legal acts adopted by the EU institutions in the exercise of the Union’s competences. Article 288 TFEU lists the secondary sources of EU Law: regulation, directive, decision, opinion and recommendation. In addition to the aforementioned acts, there are also so-called atypical sources, which are not explicitly mentioned in Article 288 TFEU and constitute an instrument for regulating interinstitutional relations.
The Regulation and the Directive are the most important in practical terms. A regulation can be conventionally described as a “law” adopted by the EU institutions which applies throughout EU’s territory. That is, the rules of the regulation are binding in each Member State. For example, the eSignature Regulation must be applied in the same way in both Bulgaria and Germany.
The Directive has a more complex legal character. It contains rules and guidelines that require individual countries to take action to “transpose” it. To transpose a Directive means to adopt national legislation that will lead to the intended result – for example, equal rights for consumers in all Member States. This means that the legal framework here is not the same in all EU countries (as with the Regulation), but each country is free to adopt its own laws to achieve the intended result. They often differ from each other, but the differences should nevertheless be such that they do not go beyond the limits set by the Directive. The Directive provides for a time limit within which the Member States must teanspose it. However, these deadlines are often missed. When this happens, in certain circumstances, the individual citizen can invoke his or her rights under the directive, even though they have not yet been specified by national measures. It must be stressed that this is not always possible and, in general, each individual hypothesis must be examined very carefully before assuming that someone can invoke an untransposed directive.
Relationship of EU Law with national law
One of the most significant features of EU Law is the so-called “primacy” it has in relation to national law. Simply put, if a national law contradicts a rule laid down in one of the sources of EU Law, national courts (i.e. Bulgarian, German courts, etc.) should refuse to apply the national legal rule and instead refer to the one, stated in EU Law. It is the principle of primacy that turns EU law into a Community legal order whose rules govern public relations in all 27 Member States. Therefore, every Bulgarian citizen should bear in mind that EU law is not just a ‘Brussels abstraction’, which they are informed about from the TV screen, but a ‘living’ law which regulates a huge part of their own social activity on a daily basis.
This article expresses a personal opinion of the author, which clarifies principle and hypothetical positions – i.e. the positions expressed should not be considered applicable in every particular case. Therefore, the text does not constitute and should not be construed as legal advice. If you require such advice, you may contact us at office@legaexpert.com.
