What Constitutes the Hierarchy of Norms in European Union Law?
Craig, P, & De Burca, G. EU Law: Text, Cases, and Materials (2015, 6th Ed) Oxford University Press, Chapter 4
Craig, P. (2004) ‘The Hierarchy of Norms’ in Tridimas, T. & Nebbia, P. (eds.) European Union Law for the Twenty-First Century: Rethinkin the New Legal Order, Hart Publications.
Lenaerts, K. & Desoner, M. (2005) .’Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures’ ELJ 11: 744
Prior to the Lisbon Treaty the legal acts of the Union was represented by the Treaties and Derived Legislation from the Treaties. After Lisbon there became a formal hierarchy of norms, which existed before but not formally. This hierarchy is as follows:
Treaties and the Charter of Rights;
General Principles of Law;
Legislative Acts; and
Delegated Acts and Implementing Acts.
A Legal Norm, as conceived here:
1) It may apportion norm-making competence among persons in the EU; e.g. consider here how the Member States confer powers onto the Union Institutions.
2) It may regulate the procedure to be followed in creating Norms; e.g. how the derived law is formed by developing the aims and objectives in the Treaties.
3) It may limit the content for valid norms; i.e. limitations on legislative acts.
There are therefore a number of issues that can been considered for the assignment.
Consider the hierarchy of norms as listed above, i.e. from Treaties to legislative and non-legislative acts.
Consider how the Member States confer, on the EU, norms in the form of competences.
Consider how the hierarchy of norms became part of the Lisbon Treaty, e.g. sought the objectives of simplification, democratic legitimacy, and separation of powers against institutional balance. See Final Report of Working Group IX on Simplification, attached below.
Consider how the general principles of law govern the creation of legislative and non-legislative acts, or take justice one of the general principles including:
Subsidiarity, Proportionality, Legal Certainty, Legitimate Expectations, Equality, Precautionary Principle, or Procedural Justice.
Fundamental Principles of Human Dignity (right to life, etc.); Freedom (right to liberty, private life, protection of personal data); Equality (non-discrimination); Solidarity (worker’s right); Citizen Rights; and Justice (effective remedy, fair trial). How do these feed into the legislative and non-legislative law? How do they affect the relationship between the Union and Its Member States.
Consider what constitutes the non-legislative act, i.e. delegated acts (Art. 290 TFEU) and Implementing Acts (Art. 291 TFEU) This particularly refers to delegation of Power. How does this differ from comitology? See Case C-427?12 Commission v European Parliament and Council
Ultimately the binding force of all such norms derives from the basic norm of the particular legal system. So if you wished to consider Kelsin’s legal science, from which the ideas of the hierarchy of norms principally come you could; you would just then need to link it to the EU.
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