Primary law, also known as the primary or original source of law, can be seen as the supreme source of law in the European Union (EU). It is at the apex of the European legal order. It consists mainly of the founding treaties of the European Union.
Primary law (primary or original source of law) is the supreme source of law of the European Union (EU), that is it prevails over all other sources of law. The Court of Justice is responsible for securing that primacy through a variety of forms of action, such as the action for annulment (Article 263 of the Treaty on the Functioning of the European Union (TFEU) and the preliminary ruling (Article 267 of the TFEU).
Primary law consists mainly of the Treaties of the EU. These Treaties contain formal and substantive provisions, which frame the implementation of the policies of the European institutions. They also determine the formal rules that allocate the division of competences between the European Union and Member States. They also lay down substantive rules that define the scope of the policies and provide a structure for the action taken by the institutions regarding each of them.
Scope of primary law
The primary law is made up of the set of founding Treaties of the EU, amended and adapted by different Treaties and Acts. It concerns:
- the founding Treaties establishing the European Union;
- the major Treaties amending the EU;
- the Protocols annexed to those Treaties;
- additional Treaties making changes to specific sections of the founding Treaties;
- the Treaties of accession of new Member States to the EU.
The Treaties establishing the different European Communities are:
- the Treaty of Paris (18 April 1951);
- the Treaties of Rome (Euratom Treaty and the Treaty establishing the European Economic Community) (25 March 1957);
- the Maastricht Treaty on European Union (7 February 1992).
The amending Treaties are:
- the Single European Act (17 and 28 February 1986);
- the Treaty of Amsterdam (2 October 1997);
- the Treaty of Nice (26 February 2001);
- the Treaty of Lisbon (13 December 2007) entered into force on 1 December 2009.
The additional Treaties making changes to specific sections of the founding treaties are:
- the Treaty on the merger of the executive institutions (8 April 1965);
- the Treaty amending certain budgetary provisions of the Community treaties (22 April 1970);
- the Treaty of Brussels amending certain financial provisions of the Community treaties and establishing a Court of Auditors (22 July 1975);
- the "Act" on the election of members of the European Parliament by direct universal suffrage (20 September 1976).
The Treaties of Accession:
- United Kingdom, Ireland, Denmark and Norway (22 January 1972);
- Greece (28 May 1979);
- Spain and Portugal (12 June 1985);
- Austria, Finland, Norway and Sweden (24 June 1994);
- the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia (16 April 2003);
- Romania and Bulgaria (25 April 2005).
The Acts of Accession signed by Norway on 22 January 1972 and 24 June 1994 never came into force. A Treaty signed on 1 February 1985 gives Greenland a special status.
Scope of primary law
Regarding the geographical scope of primary law, Article 355 of the TFEU provides that EU law is to apply to the metropolitan territories of the Member States and certain islands and overseas territories (such as Madeira, the Canaries and the French overseas departments). It also applies in territories where a Member State is responsible for external relations (Gibraltar and the Åland islands, for instance).
Article 355 of the TFEU provides that the Council may lay down specific conditions for specific regions. It has done so in customs matters for Gibraltar and Saint-Pierre-et-Miquelon. Finally, Article 355 of the TFEU specifically excludes certain regions such as the Faroe Islands.
Regarding the scope of primary law in terms of time, it applies as soon as the Treaty enters into force unless a transitional period is scheduled. Regarding duration, instruments of primary law are generally concluded for an unlimited period (for example, the TFEU in accordance with Article 356).
Legal status of primary law
Regarding commitments entered into by the Member States between themselves, if they:
- date from before the Treaty of Rome, they cease to be applicable. These commitments are then subject to the rules of international law on the succession to Treaties. Article 350 of the TFEU, for instance, expressly authorises certain regional associations between Belgium, Luxembourg and the Netherlands.
- date from after the Treaty of Rome, they are basically subject to the general obligation of the principle of cooperation stated in Article 4 of the TEU, whereby Member States must refrain from taking any measure which could jeopardise the attainment of the TEU objectives.
Regarding commitments entered into by the Member States with third countries, if they:
- date from before the Treaty of Rome, third-party rights are preserved by Article 307 of the EC Treaty and upheld by the Court of Justice (CJEU, International Fruit Company, 12 December 1972). In other words, these agreements can be relied on in actions against the Community since powers have been transferred to it from the Member States. By way of exception, rights deriving from agreements that are incompatible with the EC Treaty cannot be relied on against it.
- date from after the Treaty of Rome, they are acknowledged as valid, except if the state had exceeded its powers (if the EU has a competence which the State has not respected) and if the agreement violates the general obligation of the principle of cooperation).
The Court of Justice of the EU can interpret the Treaties. But it cannot rule on their validity, which depends on international law.
In certain circumstances, the Court of Justice of the EU allows individuals to rely on provisions of primary law in certain circumstances. The provisions have to have direct effect and their content must be sufficiently clear, precise and unconditional (CJEU 19 December 1968).