The EU - Critically evaluate the characteristics of Regulations, Directives and Decisions.

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EU Coursework Part 1

Task

Critically evaluate the characteristics of Regulations, Directives and Decisions.

Response

The EU was created in 1951although was more well known by the treaties that were made between states such as the European Coal and Steel Community Treaty (ECSC) 1952. Since then the EU has grown to include 25 Member states. With all the different types of national legislative systems, the EU needed to create their own to ensure uniformity in the community. The Assembly or European Parliament creates EU law from proposals brought forward by the Commission through many different procedures. The EC base principles within the Treaties that member states sign and further legislation is created on the basis of these principles. Examples are the fundamental human rights enshrined in the Treaty of Rome and then stated in the European Convention on Human Rights Act. Other principles include equality, proportionality (the acts of a member state being proportionate to the aim to be achieved) and legal certainty. The main way that the EU creates legislation is through Regulations, Directives and Decisions under Article 249 of the EC Treaty 1957.

Regulations are directly created from the Treaty of Rome also known as the European Economic Community Treaty but now established as the EC Treaty 1957. They take the general principles stated in the Treaties and apply them through Regulations, which apply directly to all member states. An example of this is the case of Nold v Commission where the fundamental human rights were claimed to be inspired by Treaties signed by member states. Regulations bind all member states and as a result must be abided by. Due to the Regulation being directly applicable to all member states, this is the best way to ensure uniformity of legislation throughout the EC especially as there is no need for additional national legislation. Being such a large community, there is a need for an uniformed legislative, which creates a beneficial understanding between member states. There is no need for national legislation and so each member state may need to adapt to allow these Regulations to be directly applicable and so this in turn creates further uniformity. A good example of a Regulation creating uniformity is the Treaty on European Union 1993 also known as the Maarstricht Treaty. This Regulation created provisions for three important areas of the EC, common human rights, subsidiarity and citizenship. More importantly the act created the Economic and Monetary Union which aimed at creating similar economic policies for all member states.

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A Directive is the next level down on EC legislation. These are arguably the most flexible and influential part of the legislative structure. However, although the most flexible, they can also include complex, specific provisions leaving little discretion to the member states. They also stem form the EC Treaty 1957 but rather than binding in their entirety, they bind member states as to the result to be achieved. The Directive therefore doesn’t automatically bind groups of people and requires national legislation to eventually do so. Directives are directly applicable and incorrect application of a Directive can be challenged and compensation could be awarded by the ECJ such as the case of Van Duyn v Home Office The main for reasons for Directives is because despite efforts, legislation is still different in each member state. To be able to achieve the result required, the member states may have to through different procedures. The national government may have to amend existing legislation or maybe create a whole new piece of national legislation. Which ver, it would be easier to set an aim for the member states than to try to apply a Regulation. For example, if the European Parliament decided that there should be less fishing of Cod, one country may already have a limitation which needs to be lowered whereas another country may have no legislation covering this area and would need to create a new piece of legislation.

The last way that legislation is created through the EC is through the form of Decisions. These are binding to the member states that they are addressed to. They can also be addressed to individual corporations and individuals. Decisions are a more personal form of a Regulation and bring in direct legislation for a certain area. For example, a Decision could be made to limit the amount of cod a certain company hauls or the precautionary measures that a group of people take to avoid catching young cod in the North Sea rather than any member state catching the fish. However these are the easiest to challenge in the European Court of Justice (ECJ) if the addressee believes that the decision is unfair.

The three different ways that legislation is made in the EC all operate along certain principles, how binding they are, how directly and to whom they apply, whether they require national legislation and the result to be achieved. In short, each type of legislation has a different scope rather than authority so that the legislation can be used to its optimum efficiency. Regulations and Directives bind directly all member states whereas Decisions bind only those to whom it is aimed or addressed although is directly enforceable to them. Regulations and Decisions don’t require national legislation to be enforced whereas Directives allow for national governments to abide by it through whatever domestic means thought necessary. Regulations and Decisions are strictly to be abided by and are an attempt to bring in a uniformed legislature into the EC thought to benefit all citizens in the member states. Directives are aims for member states to help make the EC more beneficial to all member states, to try to succeed in creating a hypothetical super-nation.

EC Treaty , ART 249, Para 2

Case C-4/73 [1974] ECR 491

Learning European Law, Tom Kennedy, Sweet + Maxwell, 1998, Sources of European law, pg114

Law of the European Community, 3rd edition, Christopher Vincenzi and John Fairhurst, Longman, 2002, Sources of Community Law, pg38.

EC Treaty, ART 249, Para 3

Case 41/74 [1974] ECR 1337

EC Treaty, ART 249, Para 4

Learning European Law, Tom Kennedy, Sweet + Maxwell, 1998, Sources of European law, pg113.