Primary law

Primary law




Primary law, still called source primary or right originally, appears as the Supreme Law of the European Union (EU). It is located at the top of the pyramid of the European legal order. It includes essentially the constituent treaties of the European Union.



Primary law (primary or right source originally) is the Supreme right of the European Union (EU), that is, it takes precedence over any other source of law. The Court of Justice is responsible for enforcing this rule via different remedies, such as the action for annulment (article 263 of the Treaty on the functioning of the European Union (TFEU)) and the preliminary action (section 267 of the TFEU).

Primary law consists mainly of the EU Treaty. These treaties contain the formal and material rules governing the implementation of the policies of the European institutions. They also determine the formal rules which set out the distribution of competences between the Union and the Member States, and founded the power of institutions. They also determine material rules that define the scope of the policy and structure the action of the institutions.

Scope of primary law

The primary law is composed of all the founding EU treaties, amended and adapted by various treaties and acts. This is:

· "founding" treaties establishing the European Union;

· major amending Treaties of the EU;

· Protocols annexed to the said treaties;

· additional treaties which make sectoral changes to the founding treaties;

· Treaty of accession of countries to the EU.

The "founding" treaties establishing different European Communities:

· the Treaty of Paris (18 April 1951);

· the treaties of Rome (Euratom Treaty and Treaty establishing the European Economic Community) (25 March 1957);

· the Treaty of Maastricht on European Union (February 7, 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 (February 26, 2001);

· the Treaty of Lisbon (December 13, 2007) entered into force on 1 December 2009.

Additional treaties, which provide sectoral changes to the founding treaties, are:

· the Treaty "of fusion of the executives' (8 April 1965);

· the Treaty amending certain budgetary provisions of the Treaty community (April 22, 1970);

· the Brussels Treaty amending certain financial provisions of the Community treaties and establishing a Court of Auditors (22 July 1975);

· "the Act" on election of representatives of the Parliament by direct universal suffrage (20 September 1976).

The accession treaties:

· the United Kingdom, the Denmark, the Ireland and the Norway (January 22, 1972);

· of the Greece (May 28, 1979);

· the Spain and the Portugal (12 June 1985);

· the Austria, the Finland, the Norway and the Sweden (June 24, 1994);

· Cyprus, the Estonia, the Hungary, Malta, the Poland, the Latvia, the Lithuania, the Czech Republic, the Slovakia and the Slovenia (April 16, 2003);

· the Romania and the Bulgaria (April 25, 2005).

The acts of accession of the Norway on 22 January 1972 and on 24 June 1994 have never entered into force. A treaty was signed February 1, 1985, creating a specific status for Greenland.

Scope of primary law

On the space scope of primary law, article 355 of the TFEU States that the EU law applies to the territories Metropolitan of the Member States and in certain overseas territories and Islands (such as Madeira, the Canary Islands and the French overseas departments). It also applies to the territories in which a State ensures external relations (such as Gibraltar and the Åland Islands).

Section 355 of the TFEU provides that the Council may determine a particular regime for certain territories. It is the case, for example, Gibraltar and Saint-Pierre et Miquelon in customs matters. Finally, 355 TFEU article expressly provides that Community law does not apply to certain territories such as the Faroe Islands.

On the temporal scope of primary law, it applies at the time of the entry into force of the Treaty, except transient period.

For what is the duration of application, within the sphere of primary law texts are in principle of unlimited duration (for example the TFEU article 356).

Legal regime of primary law

Regarding the commitments concluded by the Member States between them , if they are:

· prior to the Treaty of Rome in principle, , they cease to be applicable. In this hypothesis, commitments fall within the scheme of the succession of treaties under international law. By exception, article 350 of the TFEU expressly authorizes certain regional associations between the Belgium, the Luxembourg and the Netherlands;

· subsequent to the Treaty of Rome , they are subject to the General obligation of the loyalty principle in article 4 of the TEU. Under this section, States shall refrain from taking any measure likely to jeopardize the achievement of the goals of the TUE.

Regarding the commitments concluded by the Member States with third countries , if they are:

· prior to the Treaty of Rome , the rights of third parties are preserved under section 307 of the EC Treaty and the jurisprudence of the Court of Justice (CJUE, International Fruit Company on December 12, 1972). In other words, these agreements are binding on the community of the fact of the transfer of competence of the States to it. By exception, incompatible agreements with the EC Treaty rights are not enforceable;

· subsequent to the Treaty of Rome , they are recognized as being valid, unless the State exceeded its powers (if the EU has a jurisdiction of the State has not respected) and if the agreement violates the General obligation of the principle of loyalty.

The Court of Justice of the EU can achieve an interpretation of the treaties. However, it does not operate a control of their validity, which is determined by the right international

In some circumstances, the Court of Justice of the European Union acknowledges that the provisions of primary law may be relied on before it by individuals. The provisions must be directly, their content must be clear, precise and unconditional (CJUE, Sagoil of 19 December 1968).

Last modified the: 12.08.2010