Types of EU Law

PRIMARY LEGISLATION

    Every move the European Union (EU) makes is based on agreements that are called treaties, which all EU member countries have previously negotiated and agreed upon. A treaty is a binding agreement between member states, laying out the EU objectives, fundamental principles, the rules its institutions should follow, how decisions are made, organisational structure and the relationship between the EU and its member countries.¹

    We call these treaties “primary legislation.” If a certain topic isn’t mentioned in a treaty, the EU institutions can’t suggest and/or adopt new (secondary) laws or rules in that area. This follows one of the main EU principles called the rule of law. It means that everything the EU does is based on agreed-upon rules to keep things fair and transparent.

    The full texts of these treaties, together with laws, case law and proposals for new laws, are available on the EUR-Lex website. 

    SECONDARY LEGISLATION

      Secondary legislation covers a range of instruments, including regulations, directives, decisions, recommendations and opinions. There is, however, an exception in matters relating to the common foreign, safety and defence policy, where decisions are channeled through intergovernmental processes. General guidelines and conclusions are adopted in this area.²

      Article 289 of the Treaty on the Functioning of the European Union (TFEU) establishes the categories of legal acts as follows:

      1. Legislative acts: they are adopted following one of the legislative procedures set out in the EU treaties – ordinary or special. These acts include the adoption of new laws or changes to existing ones.
      2. Non-Legislative Acts, which are generally formulated by the European Commission (according to specific rules) and come in two forms:
      1. Delegated Acts: The Commission is empowered to create these legally-binding acts based on authority delegated to them by legislative acts. The delegated act, which allows the Commission to supplement or amend non-essential parts of EU legislation (for example to define detailed measures), enters into force only if Parliament and Council have no objections.
      2. Implementing Acts: These legally-binding acts are designed to put legislative acts into practical effect. Implementing acts enable the Commission (under the supervision of committees made up of representatives of EU countries) to set conditions that ensure uniform application of EU law.

      POLICY INSTRUMENTS³

      A combination of regulatory and non-regulatory instruments can be used to achieve the objectives of the intervention. Each option must be carefully evaluated, taking into account the principle of proportionality, which dictates that the measure adopted must not exceed what is necessary to achieve the objective. When choosing an instrument, it is also necessary to take into account the experience gained from the evaluation of the existing policy framework, as initiatives are often based on existing policies. In addition, compliance with related policy instruments must be considered to maximize synergies, such as compliance monitoring by competent authorities, while avoiding any negative impact on the effectiveness of existing instruments or increasing coordination costs.

      Policy instruments at the EU level can be broadly categorized into the following categories: 

      (1) ‘HARD’, LEGALLY BINDING RULES 
      DirectivesDirectives are designed to achieve a certain result in the Member States that address them, but the specific ways and methods of achieving this are left to national authorities. In order to ensure maximum flexibility, directives must be general in nature, specifying objectives, duration and essential requirements. Technical details are left to the discretion of the Member States.
      RegulationsThe regulations are directly binding and fully enforceable in all member states. They are usually employed in situations where it is crucial to ensure consistent implementation of policy intervention, such as in the case of internal market regulation.
      DecisionsDecisions are binding in their entirety to whom they are addressed (e.g. individuals, companies or Member States).
      (2)  ‘SOFT’ REGULATION
      RecommendationsA recommendation serves as a legal instrument that motivates recipients to take certain actions, but does not impose binding commitments on them. Within the EU framework, the institutions articulate their views and propose measures, but do so without establishing any legal authority for the recipients. Recommendations are not enforceable.
      OpinionsAn opinion acts as a non-binding tool that allows the EU institutions to express a point of view, without any requirement for legal compliance on the part of the entity being assessed.
      Technical standardsStandards are technical documents that provide specifications and other information about various products, materials, services, and processes. They are developed by recognized standardization bodies, both internationally and in Europe, such as the European standardization organizations (ESOs) under the EU’s active standardization policy. The main purpose of standards is to establish a common understanding among businesses, stakeholders, and public authorities about the state of the art in a specific field. They also promote cross-border trade, harmonize conflicting national standards, and support the competitiveness of European industries in the global market in a less intrusive way than technical regulations.
      Regulation (EU) No 1025/2012 allows the EU to use voluntary European standardization to support Union legislation and policies for products and services. The regulation sets procedures for the Commission to request voluntary European standards from ESOs, which can specify compliance with legal requirements and avoid unnecessary regulation. It ensures inclusive stakeholder participation and transparency in the standardization process, with all European standards available as national standards. Private technical standards should be limited to European standards adopted by ESOs and requested by the Commission, due to the public-private partnership established by the regulation.
      Self-Regulation (‘pure’ voluntary bottom-up initiatives)Self-regulation is when businesses or industry sectors create their own codes of conduct or operating constraints and are responsible for enforcing them. However, pure self-regulation is rare, and at the EU level, the Commission usually facilitates the development of voluntary agreements.
      Co-Regulation (legislation-induced co-regulatory actions)Co-regulation entrusts specific policy objectives to recognized parties such as NGOs or businesses. Policy initiatives set boundaries, objectives, and deadlines while monitoring and sanctions are determined by the parties involved. It combines binding legislation with flexible implementation that can foster innovation, simplify rules, and remove barriers to the single market. The New Legislative Framework falls under this category.
      Open method of coordination (OMC)OMC is an intergovernmental method created as part of the employment policy and the Luxembourg process. Its objective is to direct Member States’ national policies towards common objectives. The OMC is used in areas where the Union cannot supersede Member State competence such as employment, social protection, social inclusion, education, youth, and training. It involves jointly identifying objectives, establishing measuring instruments, benchmarking, and exchanging best practices. Soft law measures are used, which are legally binding on the Member States to varying degrees but never take the form of directives, regulations, or decisions. As part of the Lisbon strategy, the OMC requires the Member States to draw up national reform plans and forward them to the Commission.
      (3) EDUCATION AND INFORMATION 
      To achieve EU objectives, providing better information to citizens, consumers, and producers can be an effective policy instrument. This may include information campaigns, training, disclosure requirements, and standardised testing or rating systems. This approach can be cost-effective and adaptable to changing circumstances, particularly in areas where collecting information is challenging or unclear legislation needs clarification. An example of an effective information scheme is the energy labelling of energy-using products.
      (4) ECONOMIC INSTRUMENTS
      Market-based instruments (MBIs) are policy tools that typically require hard regulation in the form of directives or regulations. MBIs consist of various measures such as taxes, charges, fees, fines, penalties, liability and compensation schemes, subsidies and incentives, deposit-refund systems, labelling schemes, and tradable permit schemes.
      (5) BEHAVIOURAL INSIGHTS, REGULATORY SANDBOXES AND COMBINATIONS OF INSTRUMENTS
      Behavioural insightsInsights from behavioural sciences and empirical studies could lead to more effective policy instruments. Conventional assumptions based on classical rational choice theory do not always match observed evidence of individuals and businesses’ behavior. Behavioral sciences can help address this gap by incorporating realistic representations of problem matters and their determinants into models. 
      Regulatory SandboxThe emergence of new products, services, and business models presents regulatory challenges that can be addressed by setting up a relatively new policy instrument, a “regulatory sandbox,” which allows firms to test innovations under a specific plan developed and monitored by a competent authority. 
      Combinations of instrumentsSome instruments complement each other naturally, such as using economic incentives (e.g., taxation, tax reductions) and information disclosure, which can be informed by behavioural evidence, to tackle issues related to social norms and information overload. Information disclosure alone may not be wholly effective but can complement other instruments. However, some combinations of policy instruments may be counterproductive and should be avoided. Combinations of policy instruments should aim to be mutually supportive and carefully calibrated to achieve policy goals in the most effective and efficient way.

      ¹https://european-union.europa.eu/principles-countries-history/principles-and-values/founding-agreements_en
      ²https://www.gov.si/en/topics/european-union-law/
      ³https://commission.europa.eu/system/files/2023-02/br_toolbox-nov_2021_en.pdf