EU law

The law of the European Union (EU law) emerged with the creation of the EU in the Treaty on European Union, which came into force in 1993. Before then, European Community law (EC law) was the law of the three Communities established in the 1950s: the European Coal and Steel Community (ECSC, expired in 2002), the European Economic Community (EEC) and the Atomic Energy Community (Euratom). After the Treaty on European Union, the EEC became the ‘European Community’ and this term was used to refer to all three Communities. From 1993 to 2009 , the European Community was one of the three ‘pillars’ of the EU, but it ceased to exist with the ratification of the Lisbon Treaty.

EU law is supranational law: that is, it is not determined or confined by national law. National rules on employment and industrial relations have been transformed by the infusion of rules having supranational origin: EU law. Understanding this requires a mental leap, from seeing the laws of the Member States as national and autonomous systems of rules and institutions to seeing the Member State laws, including their labour laws, as part of a transnational system of rule-making and enforcement machinery, comprising the institutions of the EU established by the Member States.

The distinctive quality of the EEC Treaty (now TFEU) was defined by the European Court of Justice in the most significant passage of its most notable decision: Van Gend en Loos (N.V. Algemene Transport- en Expeditie Onderneming van Gend & Loos and Nederlandse administratie der belastingen (Netherlands Inland Revenue Administration), Case 26/62 [1963]:

The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement, which merely creates mutual obligations between the contracting states. This view is confirmed by the preamble to the Treaty, which refers not only to governments but also to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and their citizens…

In addition, the task assigned to the European Court of Justice under Article 267 TFEU, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the states have acknowledged that Community law has an authority, which can be invoked by their nationals before those courts and tribunals.

However, the significance of the ruling that EU law could create enforceable legal rights for individuals in national courts was greatly magnified by the European Court ruling that precedence was to be accorded to EU law over domestic law. The Court not only characterised EU law as part of domestic law, it declared the supremacy of EU law over other domestic law:

The precedence of Community law is confirmed by Article [249 EC], whereby a regulation ‘shall be binding’ and ‘directly applicable in all Member States’. This provision which is subject to no reservation, would be quite meaningless if a state could unilaterally nullify by means of a legislative measure which could prevail over Community law.

This goes beyond the incorporation into domestic law of EU law. It means that the EU institutions may create law, even where the Member State opposes the adoption of that law by those EU institutions, provided that a voting procedure based on a majority rule applies to that specific field. EU law must be enforced in national courts even where this involves overriding the national law produced by domestic law-making institutions.

In the course of time, national constitutional courts have accepted the principles of supremacy of the EU law affirmed by the European Court of Justice, but some continue to express reservations as to whether it overrides fundamental principles of each national constitution.

See also: decisions; directives; enforcement of EU law; European Commission; fundamental rights; judicial enforcement of EU law; preliminary reference procedure; regulations; soft law; supremacy of EU law; treaty provisions.