Sources of European Union law

SUMMARY OF:

Article 216 of the Treaty on the Functioning of the European Union

Article 288 of the Treaty on the Functioning of the European Union

Article 6(3) Treaty on European Union

WHAT IS THE AIM OF ARTICLES 216 AND 288 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION AND ARTICLE 6 OF THE TREATY ON EUROPEAN UNION?

• Article 216 of the Treaty on the Functioning of the European Union (TFEU) states the conditions under which the European Union (EU) may conclude agreements with non-EU countries and international organisations.
• Article 288 TFEU defines the different types of legal acts that the EU may adopt.
• Article 6(3) of the Treaty on European Union (TEU) states that fundamental rights constitute general principles of EU law.

KEY POINTS

There are three sources of EU law: primary law, general principles of EU law and secondary law (detailed in the hierarchy of norms).

Primary law

• The main sources of primary law are the treaties establishing the EU: the TEU, the TFEU and the Treaty on the European Atomic Energy Community (Euratom). These treaties set out the distribution of competences (powers) between the EU and the EU Member States, describing the powers of the EU institutions. They therefore set out the legal framework in which the EU institutions are working to implement policies.
• Primary law also includes:
  • the amending EU treaties;
  • the protocols annexed to the founding treaties and to the amending treaties;
  • the treaties on the accession of new Member States to the EU;
  • the Charter of Fundamental Rights (since the Treaty of Lisbon – December 2009).

General principles of law

• These can be unwritten sources of law developed by the case-law of the Court of Justice of the European Union (CJEU).
• General principles of EU law can also be a result of the constitutional traditions common to the Member States. The treaties explicitly name fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, as general principles of EU law.

Secondary law

Secondary law comprises legal acts, which can be divided into two categories:

• those listed in Article 288 TFEU: regulations, directives, decisions, opinions and recommendations;
• those not listed in Article 288 TFEU: atypical acts, such as the rules of procedure of the institutions and interinstitutional agreements.

International agreements with non-EU countries or with international organisations are also an integral part of EU law. They are separate from primary law and secondary law. According to the CJEU ruling in the Meryem Demirel v Stadt Schwäbisch Gmünd case (Case 12/86), they can have direct effect and their legal force is superior to secondary legislation, which must therefore comply with them. Their rules have direct effect if they contain a clear and precise obligation that is not subject to the adoption of any subsequent measure.

Other sources of EU law

These include the following.

• CJEU case-law.
• international law – often a source of inspiration for the CJEU when developing its case-law. The CJEU cites written and customary law.

MAIN DOCUMENTS

Consolidated version of the Treaty on the Functioning of the European Union – Part Five – The Union’s external action – Title V – International agreements – Article 216 (OJ C 202, 7.6.2016, p. 144).

Consolidated version of the Treaty on the Functioning of the European Union – Part Six – Institutional and financial provisions – Title I – Institutional provisions – Chapter 2 – Legal acts of the Union, adoption procedures and other provisions – Section 1 – The legal acts of the Union – Article 288 (ex Article 249 TEC) (OJ C 202, 7.6.2016, p. 171).

Consolidated version of the Treaty on European Union – Title I – Common provisions – Article 6 (ex Article 6 TEU) (OJ C 202, 7.6.2016, p. 19).

last update 21.04.2022