Skills: Legal Research and

Reasoning
Number of words: 2200

What are the sources of law of the European Union, which are the most
controversial among them, and how do they affect the EU reputation in the
Member States?

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Table of contents

1. Introduction
2. What is a source of law
3. What are the sources of law of the European Union
4. What is the product of the legislative process (examples of secondary
sources of EU law)
5. Trifling rules, euromyths and euroscepticism
6. Blame and reputation
7. Better law-making
8. Conclusion

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 Introduction

Almost a whole lifetime without war!, free movement of persons, goods,

services and capital without much bureaucracy, and uniform electrical equipment and
voltage, are only some of the privileges that a citizen of a Member State could benefit
from. These are, however, only the good news about the EUs state, as Enzensberg
suggests.1 What are the bad news, how bad they are, and is the EU losing ground on
its Member States is a goal of this research.
The term acquis communautaire stands for the whole body of European law,
including all legal documents and all EU law is based on it. European law is not
separate from the national law of the Member States but has become an integral part of
it. National courts have equal role in EU decision making. That made European law an
integral part each member states legal system bringing pieces of common law and civil
law with it and therefore has provoked tensions between the different legal traditions.
This paper aims to pay close attention to what are the sources of law at the European
Union, which are the most scandalous laws among them, and how this affects the EU
prestige in the Member States.2 This paper aims to pay close attention to what are the
sources of law at the European Union, which are the most scandalous laws among them,
and how this affects the EU prestige in the Member States.

What is a source of law

A source of law is a point of origin for law or legal analysis; it is something that
provides authority for legislation and for judicial decisions.3 Legal science uses the
term in three main senses: historical (the juridical acts that include legal rules which are
not anymore binding and do not create legal consequences desuetudo in Latin),
material (facts of the nature or social reality that constitute reasons or grounds for the
emergence and existence of the rules), and formal (certain formal procedures and
instruments through which legal norms acquire legal force). Only legal norms contained
in the formal sources of law have legal force and are legally binding, or in other words
the effect of each legal system is done through the formal legal sources.

What are the sources of law of the European Union

As far of representation of legal systems is concerned, again three different
sources of law can be distinguished: sources of public international law, sources of
European Union law and sources of domestic/national law of sovereign states. This
paper discusses only the European Union law sources. All sources of EU law together
form a single system built hierarchically. From the moment of joining of a country to
the union, all these sources in their entirety become applicable in it and all contained
therein rules are rules in force throughout its territory.

1
Hans Magnus Enzensberg, Brussels, the gentle monster (Seagull books, 2011)
2
Patrick Overy, European information: A guide to official sources (European
Information Association, 2005).
3
Bryan A. Garner (ed), Blacks Law Dictionary (9th edn, WEST PUBLISHING CO.,
2009)
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The most important distinction between the sources of law of the European Union on
which emphasis will be put is the one between primary, secondary and supplementary
sources of law.4
Primary sources of law are the particles of the EU legislation that created the EU
as it is today: the Charter of Fundamental Rights of the European Union 2000, the EU
Charter Treaties,5 as well as the recognized from the Member States General Principles
of EU Law. These are generally clear and accepted without much disapproval by the EU
Member States, so they will not be a topic of this research.
Secondary sources of law are the rules created by the institutions of the
European Union that have an active role in the EU legislative process in various forms.
Some of them are binding (regulations, directives, decisions), and the others hold only
advisory effects on the Member States legislation (opinions, recommendations). Yet
we will see why sometimes Member States find some of these rather controversial and
express discontent with them.

What is the product of the legislative process (examples of secondary

sources of EU law)

Regulations are, by definition, legal acts defined by Article 288 of the Treaty on
the Functioning of the European Union (TFEU). They have general application, are
binding in their entirety and directly applicable in all European Union countries.
Directives are other legal instruments of the European institutions for
implementing European Union policies. It is a flexible instrument mainly used as a
means to harmonize national laws. They require EU countries to achieve a certain result
but leave them free to choose how to do so.
Decisions are the third of binding sources of the European Union law which may
have general application or may apply to a specific addressee. Depending on the case,
the decision may apply to one or more addressees; equally, it may not specify to whom
it is addressed.6
Recommendations and opinions according to Article 288 of the TEU are the two
kinds of non-binding legal acts of the EU institutions. Recommendations call upon the
party to whom they are addressed to behave in a particular way without placing
particular way without placing them under any legal obligation, whereas opinions
issued by the EU institutions give assessments of situations or developments in the
Union or in the individual Member States. They may also prepare the way for
subsequent, legally binding acts, or be a prerequisite for the institution of proceedings
before the Court of Justice.
The case law of the CJEU along with international law and the general principles
of law form the supplementary law which aims to enable the Court to bridge gaps left
by primary and/or secondary law. International law is a source of inspiration for the
Court of Justice when developing its case law. The court cites written law, custom and
usage. General principles of law are unwritten sources of law developed by the case law

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FEATURES OF THE UNWRITTEN SOURCES OF EUROPEAN UNION LAW
Roxana-Mariana POPESCU
5
Treaty of Maastricht i.e. TEU 1992, Treaty of Amsterdam 1997, Treaty of Nice 2001,
Treaty of Lisbon 2007
6
http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=uriserv:ai0036

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of the CJEU. They have allowed the Court to implement rules in different domains of
which the treaties make no mention.7

Examples of famous controversial EU laws

The bendy banana legend in brief, producers and traders all over Europe
were reported in the news to be hindered from growing and trading their yield for years
due to a 1994 regulation from the EU8 imposing special requirements for thickness,
length and how bent a banana/ a cucumber should be. 9 Apart from that, the broad EU
audience, not directly affected by this law, found it silly, futile and too intrusive in the
EU citizens lives and turned it into a historical one that keeps appearing in official and
amateur charts about the most controversial (even stupid) EU laws.10
The ban on water hydrates you labeling on bottles here the case is again the
same producers and suppliers complain about too stringent EU law11 that allows them
write on their bottles that water can regulate the bodys temperature and help it carry out
normal physical and cognitive functions, but not that it hydrates you since there is no
scientific evidence for such statement. Again EU rulings seriousness was questioned by
the media and the people. 12
The Cookie law the EU directive on privacy and electronic communications
13
is one of the most inciting disobedience law amongst the EU website owners. The
law requires websites to get consent from visitors to store or retrieve any information on
a computer, smartphone or tablet.14 However, again because of its statute (a directive),
people comply that its pointless and couldnt do any good to the European society
since no real restrictions are imposed and no real protection to the consumers is
offered.15

Trifling laws, euromyths and euroscepticism

7
http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=URISERV:l14534
8
Commission Regulation (EC) No 2257/94 of 16 September 1994 laying down quality
standards for bananas (Text with EEA relevance)
9
Commission Regulation (EEC) No 1677/88 of 15 June 1988 laying down quality
standards for cucumbers
10
http://www.businessinsider.com/eu-directives-law-2011-12?IR=T
11
COMMISSION REGULATION (EU) No 1170/2011 of 16 November 2011 refusing
to authorise certain health claims made on foods and referring to the reduction of
disease risk (Text with EEA relevance)
12
http://www.dailymail.co.uk/health/article-2065204/Dehydration-EU-says-CANT-
claim-drinking-water-stops-body-drying-out.html ;
http://www.forbes.com/sites/nadiaarumugam/2011/12/01/eu-bans-bottled-water-claim-
that-water-prevents-dehydration-ludicrous-or-just/ ;
http://www.telegraph.co.uk/news/worldnews/europe/eu/8897662/EU-bans-claim-that-
water-can-prevent-dehydration.html
13
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002
concerning the processing of personal data and the protection of privacy in the
electronic communications sector (Directive on privacy and electronic communications)
14
http://www.cookielaw.org/the-cookie-law/
15
http://nocookielaw.com/
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 Some EU laws, lacking the justification for their existence by the EU
institutions, are rightfully accepted as trifling by the broad audience. We should,
however, also examine what does the term euromyth stand for, what are its sources of
origin, and what role does it play in forming our overall impression of the EU.
The BBC online newspaper coined the idea perfectly: The British public loves
a euro-furore - a story about changes to our traditional way of doing things, usually
dreamt up by "barmy Brussels bureaucrats" or "meddling eurocrats". The stories do not
have to be true to get wide circulation, though usually there is at least a grain of truth.
Even though the aim of the paper is not to put the blame on the UK, it is hard to deny its
position of in Europe but not of it. Most of the time, the rumors about the EU, namely
about EU legislation, stem from the media (and most usually the UK media). This is
partially due to its hunger for sensation, but also to other factors. On the one hand,
reading legal documents require some level of competence, terminology and EU
working languages knowledge. On the other hand, it sometimes happens that the state
authorities intentionally interpret the rules publically in a way that will shift their
liability to and therefore threaten the reputation of the EU when both parties share the
responsibility.
Euromyths are particles of the degradable euroscepticism they mean to ruin
EU reputation and authority among the Member States, and hinder the European
integration. Chief representatives of this phenomenon are namely the UK government
and the UK media. Euromyths like the ban on prawn cocktail crisps, pigs should be
given toys, the EU wants to dig-up your garden, barmaids breasts should be covered,
all come from the UK and have spread all around Europe like a virus. These are not
accidentally misinterpreted but with rather specific focus.
Cecile Leconte on the other hand, speaks in her book Understanding
Euroscepticism mentions some characteristics of the constructive EU criticism. She says
that today every country, not only the UK is eurosceptic and this is a good thing. In the
original Greek sense, scepticism is a way of thinking that does not accept a priori the
validity of any belief or opinion; all claims should first be subject to critical
examination. Due to positive euroscepticism, for example, in 2008 the Commission
repealed the emblematic regulation laying down quality standards for bananas.

Blame and reputation

This section is mainly backed on the brilliant Oxford University Press book
Blaming Europe? Responsibility without accountability.16 The book is usually
looking into the political aspect of EU responsibility in the electoral process in the
Member States. However, most of the statements fit perfectly to our question how
controversial laws in the European Union affect its authority and reputation in the
Member States. Blaming Europe for poor performance does matter primarily by
reducing the trustworthiness of the EU institutions. The challenge for the EU is thus that
while it is seen as increasingly responsible, it lacks accountability, and this leads to a
crisis of legitimacy.
If there is responsibility, there should also be reward and punishment for the
given authority. In a national government, it would be respectively voting for it in the
elections and withdrawal of powers/ voting for another government in the elections.

16
Sara B. Hobolt & James Tilley, Blaming Europe? Responsibility without
accountability(Oxford University Press, 2014)
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Since the EU has no clear government and cannot be ousted from power, the
punishment would be materialized in the loss of trust in the organization and all its
institutions. This makes the EU exclusively prone to provocations and its
trustworthiness unfairly questionable.
By attributing to the European Union with the same policy levers as national
governments, however, it is of course normal to expect the EU to shoulder more of
the blame when things go wrong. It is then up to the EU as an institution to take care of
its reputation and try its best to make people get it right and show adequate
performance in satisfying its voters interests. Unfortunately the EU cannot prevent
the Member States governments or national media to observe and estimate its actions
(and laws). Thus, it is up to the citizens reasonable thinking, literacy and access to
information to form a credible impression of the EU and its acts. The book focuses on
three aspects of the biases the media form into people: priming, framing and cueing.
Usually the EU media is said to be reporting neutrally, however this research covers
exactly the cueing cases.

Better law-making

Apart from the euroscepticism as a Member States phenomenon, the EU also criticizes
itself. Improving the quality of European legislation has been the stated aim of the
Commission since 1992, when a report was published on The principle of subsidiarity
(SEC(92) 1990). Another means of improving EU performance on law-making level is
to produce annual Better lawmaking reports. 17To keep its reputation and authority,
the EC representing the EU issues explanatory articles about euromyths in a special
blog.18

Conclusion

After a thorough examination of the characteristics of the different source of law of the
European Union and the connection between their being hard to interpret clear by an
average person, the medias coverage and the EU reputation, the conclusion is that
euromyths and euroscepticism are seriously threatening the EUs authority in the
Member States, but as long as the eurosceptic media is less than the pro-european and
the neutral ones, the institutions of the European Union have enough space to defend
themselves from provocations and misunderstandings. The Member States citizens still
do have trust in the EU and interest in knowing about it and finding their own truths,
therefore this propaganda can be easily ignored and shouldnt hinder EU integration,
as long as the EU keeps on working for the EU societys interests using rationalism and
well-argued justifications for creating their laws.

17
Patrick Overy, European information: A guide to official sources (European
Information Association, 2005).
18
http://blogs.ec.europa.eu/
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