EU Legal Order: Treaties, Charter and Sources of Law
What the exam tests
This domain tests the hierarchy of EU law and the effect of each instrument in national courts. Start with the distinction between primary law (Treaties, Charter, general principles), international agreements concluded by the EU, and secondary law (regulations, directives, decisions), plus non-binding recommendations and opinions. General principles such as proportionality, legal certainty and fundamental rights form part of primary law and can be invoked against EU acts.
Core rules
- Regulations are directly applicable in all Member States and do not need transposition. Directives bind Member States as to the result and require transposition; they can have vertical direct effect against the state if precise and unconditional, but not horizontal direct effect against private parties.
- Decisions bind those to whom they are addressed. Recommendations and opinions have no binding force.
- EU law prevails over conflicting national law. National courts must interpret national law consistently with directives and may refer questions to the Court of Justice under Article 267 TFEU. National courts are also EU courts in the decentralised system.
- The Charter applies to EU institutions and to Member States only when implementing EU law (Article 51). It does not create a general EU competence.
Worked example
An employee sues a private employer relying solely on a directive that was not transposed. The directive is precise and unconditional, but it cannot be invoked horizontally against the private employer. The national court must first try consistent interpretation of national law. If that is impossible, the employee may claim damages against the Member State for breach of EU law, provided the breach is sufficiently serious and there is a causal link. The Charter does not help unless the national measure implements EU law.
Traps
Do not say directives are directly applicable; they are binding as to result. Do not extend direct effect of directives to private defendants. Do not treat the Charter as applicable to every national law. Do not confuse supremacy with direct effect. Do not forget that international agreements can be invoked only if their provisions are sufficiently clear and unconditional.