What is European law and how does it work?Posted on: September 20, 2022
by David Diaz
Article 2 of the Treaty of the European Union (EU) lists the key values on which the Union is founded:
- Respect for human dignity
- The rule of law
- Respect for human rights, including the rights of persons belonging to minorities.
As one of the key values – and underpinning all of the values – EU law is critical to how the Union is designed and how it functions. The values are based on protecting fundamental rights – especially basic human rights. Detailed in the Charter of Fundamental Rights of the European Union, the rights, freedoms and principles include aspects such as: the right to life; prohibition of slavery and forced labour; the right to education; the right to asylum; non-discrimination; state aid; the right to vote; and free movement within the EU.
How does European law work?
The EU – which has 27 member states – is based on the rule of law.
According to the European Commission, this means that “every action taken by the EU is founded on treaties that have been approved democratically by its members. EU laws help to achieve the objectives of the EU treaties and put EU policies into practice.”
These treaties form the basis of how the EU is structured and governed. Any legislation, change to legislation, or disputes regarding legislation, is handled by the:
- European Commission, who proposed the laws
- European Parliament and the Council of the European Union, who pass the proposals
- Court of Justice of the European Union (CJEU), who deal with disputes regarding their interpretation. Based in Luxembourg, the CJEU ensures that EU law is interpreted, applied, and abided by, the same in every EU country.
The Treaty on the Functioning of the European Union (TFEU) is one of two main treaties that form the basis of EU law.
The adoption of the majority of EU laws follows a routine legislative process: the European Parliament, together with the Council of the EU – which features representatives from all 27 countries – have equal say and must agree on any proposal for it to become EU law. Throughout the member states, national parliaments all receive the legislative proposals and can react with opinions. In some cases, national parliaments can advise whether they deem action to be more effective at national or regional level.
Types of EU law
EU law is separated into two main types – primary (treaties) and secondary (regulations, directives, decisions, recommendations and opinions):
- Treaties. These are the fundamental laws governing the EU and set out the rules for how EU institutions function. Each treaty must be passed and agreed – i.e. ratified – by EU member states. Any expansion and development of the EU, much like its founding, is underpinned by treaty agreements among all member states in the European community.
- Regulations. These are laws applying to all member states and form part of national law. As they come into force, they can be enforced through national courts.
- Directives. These are goal-setting laws that member states must implement, usually accompanied by a deadline. However, directives do not dictate the decision-making and means by which a state must implement the law. Each state can introduce laws that transpose directives into national law.
- Decisions. These are laws that are only relevant to specified bodies, and have a direct effect on either the country or organisation that the decision relates to.
- Recommendations and opinions. These comprise non-binding recommendations or advice that member states can choose to follow if they wish to.
Access to justice within the EU
The European Convention of Human Rights (ECHR) was established to ensure that EU governments did not dehumanise and abuse people’s rights with impunity. It protects the human rights of those in countries that belong to the Council of Europe.
If a member of the European community’s rights are violated – by an individual or anyone else – they have the right to an effective remedy before a tribunal. In EU law, particular attention is paid to specific groups of victims, including: victims of trafficking; children; and victims of terrorism.
For those who are either suspects or accused in criminal proceedings, the Charter also demands the right to a fair trial. This means they must receive minimum procedural safeguards within EU member states.
What is the difference between EU law and international law?
While EU law is technically a specific form of international law, there do exist some key differences within its main body. For example, EU citizens have the ability to invoke rights that are guaranteed by EU law before courts in European Union member states. Generally, under international law, laws must be transposed into national law before citizens are able to plead them.
Often, EU law prevails over the law of the individual member states.
How does EU law affect the United Kingdom?
Since Brexit, the United Kingdom (UK) is no longer a member of the EU. European Union Law and legislation – as it directly or indirectly applied to the UK on 31 December 2020 – is now part of UK domestic legislation, known as ‘retained EU legislation’. As per the European Union (Withdrawal) Act (2018), “any remaining EU rights and obligations, including directly effective rights within EU treaties, continue to be recognised and available in domestic law after exit.”
Further Acts uphold the relationship, and the arrangements, between the UK and the EU. This includes aspects such as security procedures regarding the exchange and protection of classified information, trade and cooperation, and nuclear cooperation.
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