Governance, Law, and Policy of the
European Union
2021 – 2022
Vrije Universiteit Brussel
Professor Y. Devuyst
,1. Explain the basics of the EU’s primary law, including the principle of conferral,
the autonomy of the EU’s legal order and the “challenge” by the German
Federal Constitutional Court to these principles.
This primary law takes the form of treaties signed and ratified by all the member states of
the European union. So all 27 current member states of the European Union they have signed
and ratified a number of treaties. SO, The primary law are the treaties of the European Union.
(ratified means making it officially valid).
There are 2 different treaties; both have equal value.
In the first treaty on the European Union we can find for example: how can a country become
a member state, how can a country withdraw from the union as the UK left the union (BREXIT)
and how to change the treaties. On the Second basis treaty; on the functioning of the
European union; here we find all the details on the various policy areas with which the EU is
dealing. We find the details describing what the EU is supposed to do in the various policy
areas with which the EU is dealing for example; taxations, competitions rules etc. Specific we
find what the member state are pretended to do within the policy areas. Both treaties have
equal value, but they deal with different issues
In addition to the 2 previous discussed treaties, we also have protocols that are annexed to
the 2 treaties That also have the full value of a treaty. Protocols are just like the 2 treaties;
they are legally binding, and they have exactly the same status as the treaties themselves.
Why separate than from the treaties? Separate for a technical reason the protocols go into
great detail into certain subjects for example the statute of the European investment bank.
Otherwise, the treaties will be more complex. In addition to the protocols, we also have
declarations. These declarations are not legally binding. Declarations are political statements
by the member states. Some of them are made by all the member states, and they give a
political interpretation to how the member would like to read certain treaty articles. So, the
declaration might be useful to better understand the meaning of a treaty article.
We also have the charter of fundamental rights that is binding on the EU-institutions and
binding on the member states when they are implementing EU-law.
Charter of fundamental rights of the EU: this Consolidate and enshrine (set down) the broad
array of rights afforded to citizens of the European Union. The Charter of fundamental rights
of the EU: is binding, it has the same legal value as the treaties. The provisions of this Charter
are addressed to the institutions, bodies, offices and agencies of the Union. That means that
the provisions of the Charter are binding upon the institutions, bodies, agencies, etc. so when
the parliament for example take decisions, they must be take into consideration the provisions
of the Charter. The members states are (bonded) addressed by the Charter only when they
are implementing European law.
Page | 1
,→ The court of justice considers the EU-treaties as the constitutional charter/framework of
the European Union.
→ In 2004 the members of the EU all signed a treaty that would create a constitution for
Europe. But this treaty never entered into force because in France and NL, the population
in those countries did not approve this constitution for Europe. Although that
constitutional treaty was rejected the courts says whatever happened we have a primary
law of the EU and those founding treaties could be or should be considered as the
constitutional charter of the European Union.
→ Treaties are also applicable to the nationals of the member state, notably by this principle
of direct effect.
This charter Is entirely binding on the European union institutions. But the member states are
bind by the charter of fundamental rights to the degree that they are implementing EU-law in
their member states. So when a member states is legislating on a domestic issue without any
link to European union law in that case the charter of fundamental rights of the EU cannot be
involved against that member states. It can only be involved before the court of justice in
those cases where there is a clear link between what the member states is doing at a domestic
level and the application of the EU-law.
The primary law is on fundamental importance because the European Union works in
accordance with the principle of conferral. The principle of conferral states that the EU only
has those competences that have been explicitly attributed to it by the member states in the
treaties. Competences not conferred upon the Union in the treaties stay with the Member
States. So, the European Union does not have competences to decide over its own
competences, this is something settled by the member states when they make the Treaties.
In the division of competence between the EU and the member state, what is very important
is the principle of conferral (article 5 treaty EU) which said that the limits of Union
competences are governed by the principle of conferral; the Union shall act only within the
limits of the competences conferred upon it by the Member States in the Treaties.
Competences not conferred upon the Union in the Treaties remain with the Member States.
SO, The European Union does not have the competence to decide on its all competence, this
is something settled by the member states when they make the Treaties.
The principle of conferral is a basic principle of the entire European Union construction. And
we find it in art 5 of the treaty on European Union.
“The limits of Union competences are governed by the principle of conferral. Under the
principle of conferral, the Union shall act only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set out
therein. Competences not conferred upon the Union in the Treaties remain with the
Member States.”
Page | 2
, → So it is the member states that have the basic competence they have the power to deal
with policy areas and it is only when the members state together by signing and ratifying
the treaties decide to confer a competence upon the Union. It is only when the Union
has been conferred a competence by the member state that than indeed the union may
act.
Over the years, the court of justice of the European Union has developed a doctorial saying
that the European Union is an Autonomous legal order. An Autonomous legal order that is a
legal order that is no longer an order under public international law, and it is also independent
its autonomous from the legal order of the member states.
In the case of the EU we have seen that the Union is quite detached from its member states.
In the sense that in the interpretation of the court of justice the EU has created a new legal
order that is autonomous from the member state legal order and autonomous also from
public international law overall.
And the autonomous legal order is characterized by a number of principles of the law such as
the primacy of EU law over national law, direct effect of EU law, which means that as a citizen
you can directly rely on European union law before a national court creating their a directly
relationship between the European law and the citizen.
A final thing to add is the primacy of the EU law over national law of the member states.
Note that this primacy of EU-law over the national law off the member state you do not really
find it in a specific treaty article. It is the court of justice that in 1964 in a famous case called
‘Costa v ENEL’ determined this primacy of EU-law. In a nutshell the court said that the
uniformity/the unity of EU law would be completely lost if we would allow that EU law is made,
and then individual member state would thereafter be able to adopt an national legislation
that contradict the EU-law and that national legislation would apply contradicting EU-law. In
that case the idea to have a coherent uniform legal space of a EU could not exist because if
member states would each individually be able to overturn what was adopted by the EU In
that case EU-law might applied in BELGIUM but not in Germany, Spain,.. that is a system that
doesn’t work and is not compatible with the treaties, because the treaties prescribe a uniform
application of the EU-law and the treaties also say that for instance regulations which is an
instrument of the EU to make a policy, that such regulations are binding on the member states.
The binding character of the EU would be lost if member states would afterwards be able to
overturn that law in unilateral manner. Based on this the court decided that EU-law has
precedence over national law. Precedence over any type of national lax including also over
constitutional law of the member state.
European law has primacy over national law and it has a direct effect; it means that as a
citizen you can rely on it before a national court.
Page | 3
