SOURCES OF EU LAW

This chapter examines the sources of EU law. The Treaties do not contain any express provision classifying sources of EU law, nor do they establish the hierarchy of such sources. In the absence of any clarification on either of these points, other factors, such as indications provided by the Treaties, practices established by the EU institutions and the Member States, and judgments rendered by the ECJ, assist in the identification of the following sources of EU law: 1. Primary sources. These are composed of the law in the founding Treaties: the EC and the EA Treaties as amended by subsequent Treaties; protocols and annexes attached to these Treaties which form an integral part of them; and acts of accession of new Member States. Primary sources are at the pinnacle of the hierarchy of EU law. 2. General principles of EU law. This refers mainly to a body of unwritten principles which underpin the EU legal order. However, exceptionally some principles are expressly mentioned in the Treaties and are therefore clearly primary sources. The CJEU has recourse to general principles in order to supplement other sources of EU law. They rank below the primary sources

third states or international organisations. The EU has legal personality and as such is empowered to enter into international agreements. By virtue of Article 216(2) TFEU such international agreements are binding on the EU and the Member States and form an integral part of EU law. In the hierarchy of sources they rank below primary sources and general principles of EU law but above secondary sources. 4. Secondary sources. These are legislative and non-legislative acts which the relevant EU institutions are empowered to adopt. Three types – regulations, directives and decisions – are binding; the remainder – recommendations and opinions – have no binding legal force. Secondary sources which are binding rank in importance below primary sources, general principles of EU law and law stemming from international agreements. The ToL establishes a hierarchy of secondary sources in that a distinction is made between those binding acts which are adopted on the basis of the Treaties, and which are referred to in Article 289 TFEU as legislative acts, and those binding acts which are adopted on the basis of secondary acts, i.e. on the basis of legislative acts. These non-legislative acts are either delegated or implementing acts. 5. EU acts not expressly mentioned in Article 288 TFEU. These are acts of a binding and nonbinding nature, none of which are mentioned in Article 288 TFEU. Their ranking in importance, provided they are of a binding nature, depends on their object and material content. 6. Case law of the ECJ. There is no doctrine of precedent under EU law. However, for many reasons, the most important being legal certainty, the ECJ is reluctant to depart from the principles laid down in earlier cases. Thus, previous case law is important as it provides guidelines for subsequent cases which raise the same or similar issues, but previous judicial decisions are not regarded as a complete statement of law and are not binding on national courts or on the ECJ. Thus, they are not regarded as a source of EU law.