The first thing to say is that the EU legal system and its Treaties and other Union law are not static bodies of law, but change as they are amended from time to time as the member states agree, and to which I will refer later. 

The printed edition contains the two most important current Treaties which are the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). Following the entry into force of the Lisbon Treaty, these are the principal sources of law for the Union and those with which we are most concerned. They are what are referred to as framework Treaties which mean that they provide broad principles and aims, and in doing so reflect the way in which civil law countries approach legislative enactment with codified law. They commence with general abstract principles, such as, for example, the Preamble and Articles 2 and 3 in TFEU.

This approach has been further strengthened by the latest amendments and rearrangement of the Treaties and their content. The TEU has been made into a general overview Treaty providing the broad basis for the former EC Treaty, which has become, as it is inelegantly titled, the Treaty on the Functioning of the European Union. The TEU also has a general Preamble and Articles 2 and 3 providing a list of objectives including, for example, under Article 3(4), that ‘The Union shall establish an economic and monetary Union whose currency is the euro’.

The TFEU provides the details of the overall policies set out in the EU Treaty. It too, though, retains its general introduction and Articles and its character as a framework Treaty.  The rest of the TFEU, although putting the broad aims into greater detail, nevertheless provides merely an outline for the areas of law that the member states agreed should be integrated. It provides, for example, the basic legal regime for free movement of goods and workers, competition law, and agriculture. Some sections are more detailed than others, and whereas free movement of goods has required little secondary legislation, competition law and agriculture have been subject to considerable legislative regulation. Thus, for the most part, the Treaties require completion by detailed Regulations and Directives.

The scope of the Treaties has expanded considerably since their establishment as the areas agreed by the member states can and have been added to, for example environmental protection and research and technology were added by the SEA, and new policy areas were introduced by the TEU, notably economic and monetary union, public health, and consumer protection. The Treaties now cover wide areas of the economic and social life of the member states, including economic and monetary policy, culture and tourism, humanitarian aid, judicial and police cooperation, and foreign policy, among many others, although not all to the same level of integration and control.

Apart from the secondary legislation needed to put into effect the goals of the various policies, any gaps and ambiguities in the legislation and interpretation of the Treaty and secondary legislation are resolved by the Court of Justice.

The Treaties

The Treaties are what is termed the primary source of law in the Union, with the above mentioned two main Treaties of equal standing: the TEU and the TFEU (see Article 1 of both) along with the European Atomic Energy Treaty (EURATOM). The original Treaties were amended and supplemented considerably by a number of Treaties, including the 1965 Merger Treaty and the various Treaties or Acts of Accession providing details for the entry into the Communities and Union of new member states. More fundamentally, they were amended by the Single European Act (SEA), the original TEU (also known as the Maastricht Treaty), the Treaty of Amsterdam, the Treaty of Nice, and, finally and most fundamentally, the Lisbon Treaty in 2009.

The special nature of these Treaties is encapsulated within the concept of direct applicability, which means that, on the accession of a member state to the Union, all of the provisions of the Treaties automatically become part of the generally binding law of the member state. The provisions are applicable not only to the member states, but also to the citizens of each country. This form of law is also known as ‘self-executing law’, a term previously recognized in international law. This describes the way in which some provisions of law have legal validity in the member states, in that no further action need be taken by a member state to incorporate or transform the Treaty into the national legal order once it has ratified the Treaty. Some member states, however, such as the UK, may need an introductory Act formally to mark the presence of the Treaty, but even then would not reproduce the text of the Treaty into a national Act. Self-executing law, such as the Treaties, does not rely on the way in which the member state has incorporated it for its validity.

The Protocols attached to the Treaties

The TEU and TFEU do not represent the entirety of primary Union law because, following an unfortunate practice of limited beginnings, each successive Inter-Governmental Conference of the member states, which negotiate new Treaties or significant Treaty amendments, has added what has now amounted to a complex range of Protocols to the Treaties. Article 51 TEU declares Protocols to be an integral part of the Treaties, which means that they possess Treaty status and provide further information about aspects or elements of the Treaties themselves. Put another way, they often contain the understandings that all or some of the member states have of what particular Treaty articles mean.

Declarations

In addition to the various Protocols, further attached to each subsequent Treaty is usually a list of Declarations of the member states, sometimes by all member states, but mainly by a few or only one, which makes a unilateral declaration or understanding on a particular matter, for example the Declaration by Austria and Luxembourg on credit institutions that was attached to the Amsterdam Treaty. These Declarations need to be noted because, like the Protocols, they may alter our view or perception of the meaning or application of Treaty provisions. However, unlike the Protocols, they enjoy no express Treaty status, and their status in EU law is not clear.

The EU Charter of Fundamental Rights

The EU Charter, first established in 2001, has now been appended to the Treaties by Declaration No 1 which, with Article 6(1) TEU, declares that it has Treaty status and is fully binding in the member states – hence its classification as primary law within the hierarchy of EU law sources. There are exceptions to the scope of its application internally within Poland and the UK, agreed in Protocol 30 and in the Czech Republic by Declaration No 53, although Article 6(1) TEU makes it clear the Charter does not extend the competences of the Union.

In the 33^rd and latest edition of EU Treaties and Legislation, Article 1 and Section 1 of the European Convention on Human Rights have been included. These are, of course, not products of the EU. Factually and legally, the Council of Europe, which established the Convention, is completely independent from the EU. Articles of the Convention have been mentioned numerous, almost countless times over the decades by the Court of Justice of the European Union. Thus including the text of some of those articles can only be a boon to the collection.

EU Secondary Law

In the EU, secondary legislation arises entirely subject to the authority, higher rank, and procedures provided for in the Treaties. Article 288 TFEU provides the means by which the Union institutions are able to enact secondary legislation, which are also a binding source of law for the member states. The acts of secondary legislation consist of Regulations, Directives, and Decisions.

All EU secondary legislation is published in the Official Journal (OJ), which, as its name suggests, is the official publication of the EU and is published in two main parts with a supplement. The L Series (legislation) contains the binding legislative Acts. The C Series (information and notices) contains a very wide range of documents that are not binding as such, and include notices, draft legislative acts, press releases, job advertisements, and all other non-legally binding publications, with the exception of the public procurement notices, which are published in the S Series (supplement). Some of both are to be found in the printed volume of the EU Treaties and Legislation. 

The OJ is officially authentic as from 1 July 2013 only in its electronic form (see Art 2.1 of Regulation 216/2013) and can be found in this format online but may still be found in printed form in libraries and official documentation centres.

EU Secondary legislation under the TFEU comprises the following:

Regulations are general provisions of legislation applicable to the entire Union, member states, institutions, and individuals, rather than to specific individuals or groups. Regulations are detailed forms of law so that the law in all member states is uniform – in other words, exactly the same. As far as implementation is concerned, like Treaty provisions, Regulations are directly applicable or self-executing. This is the mode of incorporation of law that is generally or universally binding. Regulations become legally valid in the member states without any need for implementation on the date specified or on the twentieth day after publication in the OJ (see Article 297 TFEU).  Regulations are designated by a number following the format of number/year, e.g., Regulation 216/2013, noted above.

Directives are binding on those to whom they are addressed and can be targeted if desired to specific member states, although in practice they are addressed to all member states. Directives set out aims that must be achieved, but leave the choice of the form and method of implementation to the member states. This was done to ease the way in which national law could be harmonized in line with EU law and to give the member states a wider area of discretion to do this. If, for example, a member state considers that the existing national law already conforms with the requirements of a new Directive, then it need not do anything, apart from the requirement now in Directives that the member state inform the Commission of measures taken to implement the Directive.

Directives enter into force either on the date specified or 20 days after publication, which is rare (see Article 297 TEU). Member states are given a period in which to implement Directives, which can range from one year to five years or more, depending on the complexity of the subject matter and the urgency for the legislation, but two years is usual. Some Directives, especially if consolidating and adding rules to an existing area of EU law, may contain more than one date for entry into force, to take account of the law that should already have been enacted and the new provisions for which the member states are given a further implementation period (see, for example, Directive 2004/38 on the free movement of persons, which is included in the printed version). Directives are designated by a number following the format of year/number, e.g., Directive 2004/38, considered in further detail below.

Decisions are specific binding and enforceable acts of law; a more focused form of secondary legislation aimed often at specific issues or addressees. They are normally addressed to individual member states or to specific individuals; for example, in the area of competition law to notify a determination about whether the agreements between companies are in conformity or in conflict with EU competition law rules. They can, though, be addressed to all member states at the same time. Decisions are designated by a number following the format of year/number, e.g., Decision 2009/881.

The style of this secondary legislation is different to what you may be used to with UK and very much follows the continental system of law. I’ll use Directive 2004/38 to example this.

If not contained in a volume such as Foster’s Blackstone’s Statutes on EU Treaties and Legislation (OUP) then they can be found online by following this route to browse: http://eur-lex.europa.eu/browse/directories/legislation.html

Or this route to search, which is easier if you know the year and number: http://eur-lex.europa.eu/advanced-search-form.html?qid=1461840997742&action=update

A directive will consist of its name or Title, which can be quite long: Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

Then follows the so-called Recitals. These are the references to the legislative process that was followed which will include:

• The legal base, which is usually the first recital;
• References to the preparatory documents or opinions received from other EU bodies, which are usually the next recitals and;
• The procedure used, which is usually the last recital.

These will all normally be provided with footnotes indicating where those documents can be found in the OJ.

From Directive 2004/38:

Having regard to the Treaty establishing the European Community, and in particular Articles 12, 18, 40, 44 and 52 thereof,

Having regard to the proposal from the Commission,¹

Having regard to the Opinion of the European Economic and Social Committee,²

Having regard to the Opinion of the Committee of the Regions,³

Acting in accordance with the procedure laid down in Article 251 of the Treaty⁴

Next are the Preambles. These can be very long lists of the reasons or justifications for the legislation: why it was needed, what the problem was that required a solution, why the EU legislation that follows was deemed to be that solution and indeed the best solution, as opposed to national solutions. In proposing legislation now, the Commission is required to make clear that its’ proposal meets the EU requirements of proportionality and subsidiarity (for explanations of these

requirements see Foster EU law Directions, 5th Edition, chapter 3). The preambles will almost invariably start with the word ‘Whereas:’

From Directive 2004/38:

(1)  Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2)  The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

In terms of satisfying the requirement of subsidiarity and proportionality, see preamble 40 from Directive 2005/36:

(40)  Since the objectives of this Directive, namely the rationalisation, simplification and improvement of the rules for the recognition of professional qualifications, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

Then we can move onto the substantive articles of the Directive which contain the actual legal provisions.  The format adopted is well tried and tested and is quite helpful. The first two articles normally consist of the subject matter and then definitions of what or who is covered by the legislation. From Directive 204/38:

Article 1 Subject

This Directive lays down:

(a)          the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

(b)          the right of permanent residence in the territory of the Member States for Union citizens and their family members;

(c)           the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.

Article 2 Definitions

For the purposes of this Directive:

(1) ‘Union citizen’ means any person having the nationality of a Member State;

(2) ‘Family member’ means:

(a)          the spouse;

(b)          the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c)           the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d)          the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

(3)  ‘Host Member State’ means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.

The third article of Directive 2004/38 provides details of those who are the intended recipients of the rules or rights contained within the Directive.

Article 3 Beneficiaries

1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a)          any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b)          the partner with whom the Union citizen has a durable relationship, duly attested. The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

Then follow the actual rights or rules contained within the Directive. For example, just 1 article Article 4 from Directive 2004/38:

Article 4 Right of exit

1. Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State.

2. No exit visa or equivalent formality may be imposed on the persons to whom paragraph 1 applies.

3.  Member States shall, acting in accordance with their laws, issue to their own nationals, and renew, an identity card or passport stating their nationality.

4. The passport shall be valid at least for all Member States and for countries through which the holder must pass when travelling between Member States. Where the law of a Member State does not provide for identity cards to be issued, the period of validity of any passport on being issued or renewed shall be not less than five years.

Then at the end of the legislation, there will usually be a number of articles providing other general details and / or other obligations the member states are required to fulfil, including, for Directives, the most important requirement of by which date they must ensure that the provisions of the Directive have been transformed into national law. They will include, inter alia, details about publicity, sanctions for breaches on the legislation, details of repeals of earlier legislation, if any and the obligation for member states to report to the Commission how and when they transposed the directive into national law. From Directive 2004/38, I have reproduced those 2 Articles on those requirements:

Article 39 Report

No later than 30 April 2008 the Commission shall submit a report on the application of this Directive to the European Parliament and the Council, together with any necessary proposals, notably on the opportunity to extend the period of time during which Union citizens and their family members may reside in the territory of the host Member State without any conditions. The Member States shall provide the Commission with the information needed to produce the report.

Article 40 Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 April 2006.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive together with a table showing how the provisions of this Directive correspond to the national provisions adopted.

Finally, the Directive will provide the date it will enter into force and the addressees of the Directive, which for directive is usually all of the member states.

As I suggested above, this format is pretty standard now. I hope this guide is helpful to you in understanding how EU legislation is constituted.

Please note that from the latest edition, the 33^rd, to save space in view of the extensive Brexit additions, the Preambles, Recitals and signatures have been removed from the collection of EU secondary legislation. In some cases, certain non-substantive or required Articles have also been removed. These are noted in the volume.

Nigel Foster,

August 2022

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¹ OJ C 270 E, 25.9.2001, p. 150.
² OJ C 149, 21.6.2002, p. 46.
³ OJ C 192, 12.8.2002, p. 17.
⁴ Opinion of the European Parliament of 11 February (OJ C 43 E, 19.2.2004, p. 42), Council Common Position of 5 December (OJ C 54 E, 2.3.2004, p. 12) and Position of the European Parliament of 10 March 2004 (not yet published in the Official Journal).