6.3 Hierarchy of EU Legal Acts & General Principles

6.3 Hierarchy of EU Legal Acts & General Principles

Core Principle: Every secondary rule of Union law derives its validity from primary law. An administrative decision cannot contravene a regulation, an implementing act cannot exceed its basic legislative mandate, and no secondary or international instrument can breach the foundational Treaties or the Charter of Fundamental Rights.

In administrative practice within the European institutions, officials daily draft, interpret, and execute instruments across the hierarchy of EU norms. For EPSO AD5 candidates, differentiating between legislative, delegated, and implementing acts, identifying the conditions for directive direct effect, and applying the Charter of Fundamental Rights under CJEU case law are indispensable competencies.

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The Hierarchical Pyramid of EU Legal Sources

The European Union legal order is organized into four distinct hierarchical tiers:

                 ▲
                / \
               /   \
              / Tier \
             /   1    \
            / Primary  \
           /    Law     \
          /───────────────\
         /     Tier 2      \
        /  International    \
       /    Agreements       \
      /───────────────────────\
     /         Tier 3          \
    /      Secondary Law        \
   / (Legislative Acts: Art. 289)\
  /───────────────────────────────\
 /             Tier 4              \
/ Non-Legislative Acts: Arts. 290 & 291\
─────────────────────────────────────────

Tier 1: Primary Law (Droit primaire)

At the summit of the EU legal order sits primary law, binding on all EU institutions and Member States:

• The Treaties: The Treaty on European Union (TEU) and Treaty on the Functioning of the European Union (TFEU), including their Protocols and Annexes, which have identical legal value to the Treaties under Article 51 TEU;
• The Euratom Treaty;
• Treaties of Accession for past and future Member States;
• The Charter of Fundamental Rights of the EU, given treaty status by Article 6(1) TEU;
• General Principles of EU Law: Fundamental unwritten constitutional principles recognized by the CJEU (legal certainty, legitimate expectations, non-retroactivity, proportionality, procedural fairness, right to good administration, and protection of fundamental human rights).

Tier 2: International Agreements Concluded by the EU (Article 216 TFEU)

Agreements concluded by the Union with third countries or international organizations bind the institutions and Member States (Art. 216(2) TFEU). They occupy an intermediate rank: subordinate to Primary Law (an international agreement cannot violate the Treaties: Kadi, Joined Cases C-402/05 P & C-415/05 P) but superior to Secondary Law (such agreements form an integral part of EU law from their entry into force: Haegeman, Case 181/73; and secondary law must, as far as possible, be interpreted consistently with them: Case C-61/94 Commission v Germany).

Tier 3: Secondary Law — Legislative Acts (Article 289 TFEU)

Legal acts adopted by legislative procedure (Ordinary or Special) constitute legislative acts (Art. 289(3) TFEU). These take the form of Regulations, Directives, or Decisions governed by Article 288 TFEU.

Tier 4: Non-Legislative Acts — Delegated & Implementing Acts

Executive and technical measures adopted to implement or supplement basic legislative acts: Delegated Acts (Article 290 TFEU) and Implementing Acts (Article 291 TFEU).

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The Article 288 TFEU Typology of Legal Acts

Article 288 TFEU defines five specific legal instruments available to Union institutions:

1. Regulations (Article 288(2) TFEU)

"A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States."

• General Application: Operates objectively on categories of persons defined in the abstract and applied to indeterminate situations, distinguishing regulations from individual administrative decisions.
• Binding in its Entirety: Member States cannot pick and choose provisions, apply them incompletely, or attach domestic reservations.
• Direct Applicability (applicabilité directe): A regulation enters into domestic legal systems automatically on the date specified in the act (or the 20th day following publication in the Official Journal of the European Union, Art. 297 TFEU). It requires no national transposing legislation. In Variola (Case 34/73) and Amsterdam Bulb (Case 50/76), the CJEU held that Member States are strictly prohibited from adopting national measures that duplicate, paraphrase, or disguise the Union nature of a regulation.
• Direct Effect: Produces both vertical direct effect (enforceable against the state) and horizontal direct effect (enforceable between private parties).

2. Directives (Article 288(3) TFEU)

"A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."

• Two-Stage Law-Making: The directive establishes common mandatory EU objectives, but requires national authorities to enact transposing legislation (mesures de transposition) within a designated time limit (typically 18 to 24 months).
• The Transposition Period: Prior to the expiration of the deadline, a directive does not produce direct effect. However, under the Inter-Environnement Wallonie doctrine (Case C-129/96), Member States are under a standstill obligation: they must refrain from adopting any domestic measures liable to seriously compromise the result prescribed by the directive.
• Transposition Deficits & Judicial Remedies: When a Member State fails to transpose a directive by the deadline, or transposes it incorrectly, individuals cannot be denied EU rights due to state default. The CJEU has developed the following rules:
  1. Vertical Direct Effect (Van Duyn Case 41/74; Ratti Case 148/78): Once the deadline has expired, an individual may invoke provisions that are clear, precise, and unconditional against the Member State or public bodies ("emanations of the state", broadly defined in Foster v British Gas, Case C-188/89, to include entities providing public services under state control with special powers).
  2. No Horizontal Direct Effect (Marshall Case 152/84; Faccini Dori Case C-91/92): Directives cannot of themselves impose legal obligations on private individuals or corporations. An individual cannot sue another private entity relying directly on an untransposed directive.
  3. Indirect Effect / Harmonious Interpretation (Von Colson Case 14/83; Marleasing Case C-106/89): National courts are obligated to interpret national law, as far as possible, in the light of the wording and purpose of the directive to achieve its intended result, applying to all domestic law whether enacted before or after the directive.
  4. State Liability (Francovich Joined Cases C-6/90 & C-9/90; Brasserie du Pêcheur Joined Cases C-46/93 & C-48/93): Member States must compensate individuals for loss sustained as a result of breaches of EU law (such as failure to transpose a directive). The three Francovich conditions are:
     • The rule of EU law infringed must be intended to confer rights on individuals;
     • The breach must be sufficiently serious (manifest and grave disregard of discretion);
     • There must be a direct causal link between the breach of the state's obligation and the damage sustained.

3. Decisions (Article 288(4) TFEU)

"A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them."

• Addressed Decisions: Target specific addressees—either Member States (e.g. State aid recovery decisions under Art. 108 TFEU) or individual legal/natural persons (e.g. European Commission cartel fines under Art. 101/102 TFEU). Addressed decisions produce direct effect against the named party (Grad, Case 9/70).
• Non-Addressed Decisions: Codified by Lisbon, general decisions can govern institutional appointments (e.g. European Council decisions on Council presidencies) or foreign policy measures under CFSP.

4. Non-Binding Acts: Recommendations & Opinions (Article 288(5) TFEU)

• Recommendations: Enacted by the Council or Commission to invite addressees to adopt specific conduct or voluntary standards.
• Opinions: Issued by EU institutions to deliver an evaluation or assessment of a given legal or political situation.
• Legal Significance (Grimaldi, Case C-322/88): While recommendations and opinions do not confer enforceable legal rights, they constitute "soft law". National courts are legally bound to take recommendations into consideration when interpreting domestic implementing provisions or clarifying binding EU acts.

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Delegated Acts vs Implementing Acts (Articles 290 and 291 TFEU)

A major achievement of the Lisbon Treaty was the rationalisation of executive rule-making into two distinct categories, ending the opaque pre-Lisbon comitology structure:

The Comitology System (Regulation (EU) No 182/2011)

Under Article 291 TFEU, the Member States supervise the Commission through Comitology committees governed by two main procedures:

1. Advisory Procedure: Used for non-sensitive implementation. The Commission must take "utmost account" of the committee's opinion, but is not bound by it.
2. Examination Procedure: Mandatory for measures of general scope, agriculture, fisheries, environment, trade, and taxation. The Commission cannot adopt the measure if the committee delivers a negative opinion by Qualified Majority (requiring referral to the Appeal Committee).

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The Charter of Fundamental Rights of the European Union

Solemnly proclaimed at Nice in 2000, the Charter of Fundamental Rights was elevated to the apex of the legal order by Article 6(1) TEU in 2009:

• Legal Status: "The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights... which shall have the same legal value as the Treaties."
• Six Substantive Titles:
  1. Dignity: Human dignity (Art. 1), right to life, integrity of the person, prohibition of torture, prohibition of slavery and forced labour.
  2. Freedoms: Liberty and security, private and family life, protection of personal data (Art. 8), thought/conscience/religion, expression, assembly, arts and sciences, right to education, right to work, right to property (Art. 17), right to asylum.
  3. Equality: Equality before the law, non-discrimination (Art. 21), cultural/religious diversity, gender equality, rights of the child, elderly, integration of persons with disabilities.
  4. Solidarity: Workers' right to information and consultation, collective bargaining and action, protection against unjustified dismissal, fair working conditions, prohibition of child labour, healthcare, environmental protection, consumer protection.
  5. Citizens' Rights: Right to vote and stand in EP and municipal elections, right to good administration (Art. 41), access to documents (Art. 42), European Ombudsman (Art. 43), right to petition (Art. 44), freedom of movement.
  6. Justice: Right to an effective remedy and fair trial (Art. 47), presumption of innocence, legality and proportionality of offences and penalties (Art. 49), right not to be tried or punished twice (ne bis in idem, Art. 50).

Field of Application to Member States: Article 51(1) CFR

Under Article 51(1) CFR, the Charter binds EU institutions, bodies, offices, and agencies in all their activities. However, it binds Member States only when they are implementing Union law.

• Case C-617/10 Åkerberg Fransson (2013): The CJEU established that the applicability of the Charter is co-extensive with the scope of EU law: whenever national legislation falls within the field of application of Union law (such as national tax penalties enforcing EU VAT directives), the Charter applies. The Court affirmed: "There are no situations which are covered in that way by European Union law without those fundamental rights being applicable."
• Case C-206/13 Siragusa (2014): Where a domestic rule pursues national objectives without implementing EU legislation and does not fall within the scope of EU law, the CJEU lacks jurisdiction under the Charter.
• Rights vs Principles (Article 52(5) CFR): The Charter distinguishes between judicially actionable rights (which courts can directly apply and enforce) and principles (which require legislative implementation and become significant for courts only when interpreting such implementing acts).