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Published online by Cambridge University Press: 05 November 2012
Union law consists of so-called primary and secondary law. The concept of primary law relates to law made by the Member States via their international law treaty-making powers. Therefore, it comprises the initial 1957 Treaty of Rome plus various treaty amendments, such as the SEA, the Maastricht, Amsterdam, Nice and Lisbon Treaties, the Charter of Fundamental Rights as well as the accession treaties. Secondary law, on the other hand, refers to law made by the Union’s institutions based on the authorisation contained in the Treaties (the primary law). Articles 288 to 292 TFEU outline the different categories of legal acts of the Union. Whereas Article 288 TFEU refers to the instruments to be used by the Union, Articles 289–292 TFEU establish a hierarchy of norms between legislative and non-legislative acts. Article 294 TFEU specifies the most important form of law-making, the ordinary legislative procedure, whereas various special legislative procedures are found throughout the Treaty.
What kind of instruments are used for Union law-making?
The instruments at the disposal of the Union for law-making are regulations, directives and decisions, as well as soft-law instruments such as recommendations and opinions. Article 288 TFEU briefly characterises the legal quality of these legal acts:
“To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.
“A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
“A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
“A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
“Recommendations and opinions shall have no binding force.”
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