Snapshot

EU law is a self-standing legal order — neither classical international law (which binds states) nor purely domestic law (which binds citizens through national channels). Two judicial moves in the 1960s — direct effect (Van Gend en Loos, 1963) and supremacy (Costa v ENEL, 1964) — gave the system its operating logic: EU law creates rights individuals can invoke before their own national courts, and it prevails over conflicting national rules. Everything else in this chapter is downstream.

Legal Anchors

• •TEU Article 5 — conferral, subsidiarity, proportionality.
• •TFEU Article 288 — types of legal acts (regulation, directive, decision, recommendation, opinion).
• •TFEU Article 290 — delegated acts.
• •TFEU Article 291 — implementing acts.
• •TFEU Article 263 — actions for annulment against EU acts.
• •TFEU Article 267 — preliminary references (interpretation of EU law by the CJEU).

Why It Matters

Knowing which instrument an EU rule takes is not academic: a regulation is law in every member state on the day it enters into force; a directive sets a target each state must reach through its own legislation; a decision binds a named addressee; a recommendation has no binding force at all. Whether an EU rule applies directly, whether you can sue your government for failing to implement it, and whether it can be challenged before the Court of Justice — all turn on the typology in Article 288 TFEU.

Core Concepts — Reorganised by Theme

1. The hierarchy of norms. Four layers stack vertically:

• •Primary law — the treaties (TEU, TFEU, Euratom Treaty, protocols and annexes) plus the Charter of Fundamental Rights, which has had treaty rank since Lisbon. This is the constitutional layer; everything else must conform.
• •General principles — judge-made principles such as fundamental rights, proportionality, legal certainty, legitimate expectations and non-discrimination. They occupy a layer between primary and secondary law and are used to interpret and check both.
• •Secondary law — the five act-types listed in Article 288 TFEU: regulations, directives, decisions, recommendations, opinions. These are what EU institutions adopt to implement the treaties.
• •Tertiary law — delegated acts (Article 290) and implementing acts (Article 291), plus national transposition rules where applicable.

2. Primary law in detail. The TEU contains the foundational stuff: values, objectives, institutional roles, foreign policy and accession/withdrawal. The TFEU contains the operational stuff: how the institutions actually run, what the competences are, and the policies in detail. The two treaties have equal legal weight (TEU Article 1, third paragraph). The Charter and the Euratom Treaty round out primary law. Treaty amendment requires unanimity plus ratification in all member states (Article 48 TEU) — see Chapter 17.

3. The five secondary acts decomposed.

• •Regulation — binding in its entirety and directly applicable in all member states. No national transposition; the regulation itself is the law. Example: the General Data Protection Regulation (Regulation 2016/679) became enforceable across all 27 member states on the same day.
• •Directive — binding as to the result; each member state chooses form and methods. Each directive sets a transposition deadline (usually two years). A directive that has not been transposed by deadline can, in some circumstances, still be invoked by individuals against the state — the doctrine of vertical direct effect of directives developed in Marshall v Southampton (1986). Directives generally cannot be invoked between private parties (no "horizontal" direct effect), though the principle of consistent interpretation can push national courts in that direction.
• •Decision — binding in its entirety on those to whom it is addressed (a state, a company, an individual). Example: a Commission antitrust decision fining a specific company.
• •Recommendation — not binding. A soft-law instrument suggesting a course of action.
• •Opinion — not binding. Used to express a position.

4. Delegated vs. implementing acts. Lisbon split what used to be "comitology" into two cleaner categories.

• •Delegated acts (Article 290 TFEU) — the Commission, acting under a delegation from the legislator (Parliament + Council), can adopt non-legislative acts that supplement or amend non-essential elements of the original legislative act. Parliament or Council can revoke the delegation or object to a specific act within a set period. Useful for technical updates (e.g. updating annexes of substance lists).
• •Implementing acts (Article 291 TFEU) — when uniform implementation across all member states requires it, the Commission (or, exceptionally, the Council) adopts implementing acts. Member-state experts oversee this through committees (the comitology procedures: advisory and examination).

5. Foundational judicial principles. Three CJEU rulings shaped the system more than any treaty article:

• •Van Gend en Loos (Case 26/62, 1963) — direct effect. Sufficiently clear and unconditional EU provisions create rights that individuals can invoke before national courts.
• •Costa v ENEL (Case 6/64, 1964) — supremacy. The Court held that EU law, "stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question." The case arose from a Milanese lawyer's refusal to pay an electricity bill of about 1,925 lire after Italy nationalised the electricity sector; the Italian Constitutional Court had taken the opposite view, applying lex posterior derogat priori. The ECJ's response set the doctrine for the next sixty-plus years.
• •Francovich (Joined Cases C-6/90 and C-9/90, 1991) — state liability. A member state must compensate individuals for losses caused by its failure to implement EU law, if three conditions are met (the EU rule confers rights, the breach is sufficiently serious, and there is a direct causal link).

6. Competences — who is allowed to act.

• •Exclusive competence (Article 3 TFEU) — only the EU can legislate; member states act only when authorised. Covers the customs union, competition rules for the internal market, monetary policy for the eurozone, the common commercial policy, and conservation of marine biological resources under the CFP.
• •Shared competence (Article 4 TFEU) — both EU and member states can legislate; member states act where the EU has not yet acted ("pre-emption"). Covers the internal market, social policy (defined aspects), economic, social and territorial cohesion, agriculture and fisheries (other than conservation), environment, consumer protection, transport, trans-European networks, energy, the Area of Freedom, Security and Justice, and common safety concerns in public-health matters (defined aspects).
• •Supporting competence (Article 6 TFEU) — the EU supports, coordinates or supplements member-state action without harmonising. Covers protection and improvement of human health, industry, culture, tourism, education, vocational training, youth and sport, civil protection, and administrative cooperation.
• •Special-regime competences — economic and employment policy coordination (Article 5 TFEU) and the CFSP (Articles 23–46 TEU) sit outside this trichotomy.

7. Cardinal principles for institutional action. Article 5 TEU sets three:

• •Conferral — the EU acts only within the powers conferred on it by the treaties.
• •Subsidiarity — in areas of shared competence, the EU acts only if objectives cannot be sufficiently achieved at national level.
• •Proportionality — the content and form of EU action must not exceed what is necessary.

The Court applies further unwritten principles: legal certainty, non-retroactivity of penal provisions, equality before the law, legitimate expectations, the rights of the defence, good administration, and loyal cooperation (Article 4(3) TEU, a duty running in both directions between the EU and the states).

Numbers & Dates

• •1963 — Van Gend en Loos: direct effect.
• •1964 — Costa v ENEL: supremacy.
• •1991 — Francovich: state liability.
• •2009 — Lisbon makes the Charter binding (1 December).
• •2018 — GDPR (Regulation 2016/679) becomes applicable (25 May).

Recent Developments

The supremacy principle has been politically pressured by national constitutional courts in Poland and Germany in recent years (the Polish Constitutional Tribunal's 2021 ruling and the German Federal Constitutional Court's 2020 Weiss judgment on ECB asset purchases). The EU response has combined infringement proceedings with the new rule-of-law conditionality mechanism that links access to EU funds to compliance with rule-of-law principles (Regulation 2020/2092, upheld by the CJEU in 2022).

Common Confusions

• •"Directly applicable" (a property of regulations: no national act needed) is not the same as "direct effect" (a property of an EU provision: it creates rights individuals can invoke). A regulation is directly applicable; a treaty article or even a directive provision can have direct effect.
• •The supremacy principle is not in the body of the treaties — it lives in Declaration No. 17 attached to the Final Act of the Lisbon IGC, which incorporates the case law. The Court of Justice did the constitutional work.
• •"Implementing act" (Article 291) is a different beast from "implementing legislation in a member state" (the national act transposing a directive).

Capsule Glossary

• •Direct effect — capacity of an EU provision to be invoked by individuals before national courts.
• •Supremacy / primacy — EU law prevails over conflicting national law.
• •Conferral — EU acts only within powers conferred by the treaties.
• •Comitology — committee-based oversight of Commission implementing acts.
• •Acte clair — exception to the obligation to refer a preliminary question when the answer is so obvious that no reasonable doubt exists.
• •Plaumann test — strict standing requirement for private parties bringing an annulment action under Article 263 TFEU.

Cross-References

• •Preliminary references and the Court's structure → Chapter 7
• •The Charter as primary law → Chapter 3
• •Legislative procedures that produce these acts → Chapter 9
• •Rule-of-law mechanisms → Chapter 17

Primary Sources

• •TFEU, Article 288 — eur-lex.europa.eu
• •Costa v ENEL (Case 6/64) judgment — eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61964CJ0006
• •EPRS, Costa v Enel: 60 years on — europarl.europa.eu/thinktank/762361)

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