The European Union has a number of options when policymakers and politicians want to create a new law, each with their own characteristics and strengths. Here’s how to tell them apart.
EU law is divided into primary and secondary law. Primary law is set by the EU treaties, which lay down the fundamental architecture of how the bloc’s institutions and various bodies work, make decisions and interact with one another.
Treaty changes are rare and fraught with political complexities, as every country has to agree on them. The last time amendments were made was in 2007 when the Lisbon Treaty updated how the EU works. But don’t hold your breath for further changes anytime soon.
It is in secondary law where it gets really interesting and relevant to day-to-day policymaking in Brussels. Here we’re talking about regulations, directives, decisions, opinions and recommendations.
Each of these vary in their scope and legal weight. Arguably the most powerful of these law formats is the regulation, as it effectively works like any normal national piece of legislation.
Regulations are binding in all of the EU’s member states and must immediately be enforced once fully agreed in Brussels. Examples include the GDPR data protection regulation and the REACH regulation which governs rules around chemicals.
Depending on the subject matter, regulations either need to be agreed unanimously by national governments or a simple qualified majority will suffice. Sensitive issues like foreign policy or taxation require all 27 governments to agree.
Directives give countries more flexibility to reach a stated goal but effectively have the same legal weight as a regulation. Both have an objective of sorts in mind and member states are bound to adhere to them once they are in force.
However, unlike regulations, directives need to be transposed into national law. This means that parliaments need to incorporate the rules set down by a directive into the national codex of rules and regulations.
A prime example of a directive is the renewable energy directive. This format was chosen for energy policy because national governments want to be able to meet objectives like emission reductions how they see fit.
Austria, for example, doesn’t have a coastline so can’t rely on offshore wind. Finland doesn’t get a lot of sunlight so solar power is less effective. The Netherlands is flat, so hydropower isn’t much of an option.
A directive allows all 27 to work towards a shared target, in the renewables directive’s case this is a bloc-wide goal of getting at least 42.5% of energy supply from renewable sources.
Regulations and directives are the big hitters but other legal instruments like decisions, recommendations and opinions also have their place in EU policymaking.
Decisions are like a ‘Regulation Lite’ as they are only binding on specific parties, be they individual or groups of countries or even companies. The European Commission uses these to agree free trade deals or fine companies like Microsoft for breaching EU law.
Recommendations and opinions are not legally binding and governments can choose whether to follow or ignore them. Ignoring the Commission too many times is of course a bad look and starts to eat away at the rule of law, so they are by no means impotent instruments.
The Commission will often use these when intervening in issues or topics over which it has little to no jurisdiction. They are also used to offer guidance on other EU laws.
When it comes to EU law and which format to choose, it really is a case of horses for courses.
