Agreements with third countries or international organizations

Agreements of this type can be concluded either by the Community or by the Community and the Member States (joint agreements). These agreements are binding on the Community and the Member States and thus render them liable at international level. Three forms of agreement can be distinguished.

1. Association agreements

Association involves close economic cooperation, combined with extensive financial support from the Community for the partner to the agreement. This category of agreements includes those with the overseas countries and territories, agreements preparing the way for accession and creating a customs union, and the agreement on the European Economic Area (EEA).

2. Cooperation agreements

Cooperation agreements do not have the same scope as association agreements, in that they are concerned only with intensive economic cooperation. Agreements of this kind link the Community in particular with the countries of the Maghreb (Algeria, Morocco and Tunisia) and Masher (Egypt, Jordan, Lebanon and Syria) and with Israel.

3. Trade agreements

These are agreements on customs and trade policy concluded with non-member countries or groups of non-member countries or within the framework of international trade organizations. The agreement establishing the World Trade Organization (WTO) comes into this category.

Agreements between the Member States

These are binding legal instruments concluded between the Member States either to resolve matters that are closely linked to the activities of the Community but for which the Community institutions have not been given any powers or to extend the territorial limits of national provisions in order to create uniform law at Community level (the agreement on the Community patent, for example).

Secondary legislation

Introduction

The ‘secondary legislation’ is the third major source of Community law after the treaties (primary legislation) and international agreements. It can be defined as the totality of the legislative instruments adopted by the European institutions pursuant to the provisions of the treaties. Secondary legislation comprises the binding legal instruments (regulations, directives and decisions) and non-binding instruments (resolutions, opinions) provided for in the EC Treaty, together with a whole series of other instruments such as the institutions’ internal regulations and Community action programmes.

The legal instruments associated with the second and third pillars, which do not, strictly speaking, form part of secondary legislation since they continue to be governed by intergovernmental relations, have been included in this category for reasons of proper documentation.

Regulation

Adopted by the Council in conjunction with the European Parliament or by the Commission alone, a regulation is a general measure that is binding in all its parts. Unlike directives, which are addressed to the Member States, and decisions, which are for specified recipients, regulations are addressed to everyone.

A regulation is directly applicable, which means that it creates law which takes immediate effect in all the Member States in the same way as a national instrument, without any further action on the part of the national authorities.

Directive

Adopted by the Council in conjunction with the European Parliament or by the Commission alone, a directive is addressed to the Member States. Its main purpose is to align national legislation.

A directive is binding on the Member States as to the result to be achieved but leaves them the choice of the form and method they adopt to realise the Community objectives within the framework of their internal legal order.

If a directive has not been transposed into national legislation in a Member State, if it has been transposed incompletely or if there is a delay in transposing it, citizens can directly invoke the directive in question before the national courts.

Decision

Adopted either by the Council, by the Council in conjunction with the European Parliament or by the Commission, a decision is the instrument by which the Community institutions give a ruling on a particular matter. By means of a decision, the institutions can require a Member State or a citizen of the Union to take or refrain from taking a particular action, or confer rights or impose obligations on a Member State or a citizen.

A decision is:

· an individual measure, and the persons to whom it is addressed must be specified individually, which distinguishes a decision from a regulation,

· binding in its entirety.

Other instruments

1.3.5.1. Recommendation

A recommendation allows the institutions to make their views known and to suggest a line of action without imposing any legal obligation on those to whom it is addressed (the Member States, other institutions, or in certain cases the citizens of the Union).

1.3.5.2. Opinion

An opinion is an instrument that allows the institutions to make a statement in a non-binding fashion, in other words without imposing any legal obligation on those to whom it is addressed. The aim is to set out an institution’s point of view on a question.

1.3.5.3. Joint action (common foreign and security policy)

A joint action is a legal instrument under Title V of the Treaty on European Union and is thus of an intergovernmental nature. Adopted by the Council of the European Union unanimously or, in certain cases, by a qualified majority, a joint action is binding on the Member States, which have to achieve the objectives set unless major difficulties arise.

1.3.5.4. Joint action (police and judicial cooperation in criminal matters)

See “police and judicial cooperation in criminal matters”

1.3.5.5. Decision, framework decision and joint action (police and judicial cooperation in criminal matters)

Since the entry into force of the Treaty of Amsterdam, decisions and framework decisions have replaced joint actions in the field of police and judicial cooperation in criminal matters. These are legal instruments under Title VI of the Treaty on European Union that are intergovernmental in nature. Decisions and framework decisions are adopted by the Council of the European Union unanimously on the initiative of the Commission or a Member State.

A framework decision is binding on the Member States as to the result to be achieved and leave to the national authorities the choice of form and methods (like the directive in the Community context).

Decisions are used in the field of police and judicial cooperation in criminal matters for any purpose other than the approximation of the laws and regulations of the Member State, which is the preserve of framework decisions.

1.3.5.6. Common position (common foreign and security policy and police and judicial cooperation in criminal matters)

The common position in the context of the common foreign and security policy and police and judicial cooperation in criminal matters is a legal instrument under Titles V and VI of the Treaty on European Union and is intergovernmental in nature. Adopted unanimously by the Council of the European Union, it determines the Union’s approach to particular questions of foreign and security policy or police and judicial cooperation in criminal matters and gives guidance for the pursuit of national policies in these fields.

1.3.5.7. International agreements (common foreign and security policy and police and judicial cooperation in criminal matters)

These are a legal instrument under Titles V and VI of the Treaty on European Union that was not provided for in the Treaty of Maastricht. In the context of the second and third pillars there was thus no legal basis for concluding international agreements. In order to prevent each agreement signed by the Council from having to be formally concluded by the Member States, the Treaty of Amsterdam made provision for the Council to be able to authorise the Presidency to enter into negotiations when necessary.

The agreements are binding on the institutions of the Union, but not on the Member States whose constitutional provisions lay down particular rules for concluding such agreements. In such cases the other Member States meeting within the Council can decide that the agreement will nonetheless be applicable on a provisional basis.

Consolidated legislation

Consolidation consists of incorporating into a single text, with no official authenticity, a basic instrument (a Treaty or piece of Community legislation) and the amendments and corrections subsequently made to it. A consolidated version of the Treaty establishing the European Community is available in EUR-Lex.

All the secondary legislation in force has been consolidated and can be consulted in EUR-Lex. These texts are intended to be used purely for documentation purposes, and the institutions do not accept any liability for their content.

On the basis of consolidated texts, the Commission may undertake a legislative consolidation or recasting. Legislative consolidation consists of getting the consolidated text, with a certain amount of redrafting, adopted through a legislative procedure. The new text is then published in the Official Journal as a legislative instrument and becomes authentic.

The Commission can also take the initiative of recasting a text where it considers it necessary to thoroughly overhaul the legislation in a particular field. In that case it launches a new legislative procedure.

Preparatory material

Introduction

Preparatory material comprises all the documents issued by the institutions in connection with a legislative procedure. Also included in this category are some documents of more general significance. The main documents that are considered to form part of the preparatory material are explained below.

Preparatory act

1.5.2.1. Legislative proposals and opinions from the Commission

The Commission has a near-monopoly in initiating Community instruments (directives, regulations, decisions or international agreements), except where it shares this right with the Member States or the European Central Bank. The treaties almost always require the Council to take decisions on the basis of proposals from the Commission. However, the Council can invite the Commission to draw up a proposal, as can the European Parliament.

At any point in the procedure the Commission can amend its proposal or, if necessary, withdraw it.

The Commission is again involved in a later stage of the legislative procedure. Once the Commission’s proposal has been transmitted to the European Parliament and the Council, point (c) of the second subparagraph of Article 251(2) lays down that, if Parliament proposes amendments to the common position adopted by the Council, the amended text is forwarded to the Council and to the Commission, which delivers an opinion on those amendments. If the Commission is not in favour of the amendments proposed by Parliament, the Council must act unanimously; if it is in favour, the Council may act by a qualified majority.

1.5.2.2. Member States’ initiative

The Treaty of Amsterdam provided for the Member States to have a right of initiative on questions of asylum and immigration. For a period of five years the legislative right of initiative was thus shared between the Commission and the Member States, either party being able to put forward proposals independently of the other. This transitional period of five years ended on 1 May 2004, and the Member States now have a right of initiative only for the second and third pillars, i.e. in the fields of foreign and security policy and police and judicial cooperation in criminal matters.

1.5.2.3. Council common position

A common position is an instrument adopted by qualified majority by the Member States meeting within the Council as part of a legislative procedure in which the Council shares its decision-making power with the European Parliament (cooperation procedure or co-decision procedure). It expresses the Council’s position on a Commission proposal in the light of the opinion of the European Parliament (see European Parliament’s legislative resolution) and the opinions of the other institutions and bodies involved in the procedure (European Economic and Social Committee, Committee of the Regions, European Central Bank, Court of Auditors).

1.5.2.4. European Parliament’s legislative resolution

The European Parliament is involved in a number of stages in any legislative procedure (cooperation procedure and co-decision procedure): the documents adopted by Parliament at each stage in the procedure are generally resolutions and may contain instruments of various types, such as opinions or amendments to the Council’s common position. Legislative procedures are referred, depending on the subject matter, to a Parliamentary committee, which prepares a report containing a draft resolution for adoption by Parliament in plenary session.

1.5.2.5. Opinions of the European Economic and Social Committee and the Committee of the Regions

The European Economic and Social Committee and the Committee of the Regions give technical opinions on questions concerning regional policy and economic and social policy respectively. Opinions are given either on a Committee’s own initiative or at the request of Parliament, the Council or the Commission and serve to guide these institutions in their legislative activity. It is sometimes mandatory to consult the European Economic and Social Committee and/or the Committee of the Regions, but their opinions are not binding.