Towards a Hierarchy of Legal Acts in the European Union? Simplification of Legal Instruments and Procedures

• DOI: http://doi.org/10.1111/j.1468-0386.2005.00285.x
• Date: 01 November 2005
• Author: Koen Lenaerts,Marlies Desomer
• Published date: 01 November 2005

*Koen Lenaerts is Judge of the Court of Justice of the European Communities and Professor of Euro-

pean Law, KU Leuven. Marlies Desomer has obtained an LL.M. degree at the European University

Institute, Florence and is Assistant at the Institute for European Law, KU Leuven. All views expressed

are personal.

Towards a Hierarchy of Legal Acts in the

European Union? Simplif‌ication of Legal

Instruments and Procedures

Koen Lenaerts and Marlies Desomer*

Abstract: A remarkable feature of the Union’s legal order is the absence of a genuine hier-

archy of legal acts—a pre-established ranking of different types of legal acts in accor-

dance with the democratic legitimacy of their respective authors and adoption procedures,

which is used as a means to resolve conf‌licts among these different types of legal acts.

There is however a clear suggestion of such hierarchy in the sequence in which the newly

created legal instruments are listed in Article I-33(1) and in the organisation of the sub-

sequent Articles I-34 to I-37 of the European Constitution. In this contribution, the (lost)

logic behind the Union’s current set of legal instruments is analysed, followed by an exam-

ination of the reform of the system of legal instruments carried out in the European Con-

stitution. Lastly, an attempt is made to answer the question as to whether this reform

amounts to the establishment of a genuine hierarchy of legal acts in the Union.

I Introduction

The European Convention has adopted an ambitious understanding of the objective

of ‘simplif‌ication of the Union’s instruments’ contained in the Laeken Declaration of

15 December 2001. It has not merely reduced the number of, and renamed the remain-

ing, legal instruments. Whereas the Union’s legal instruments are currently classif‌ied

predominantly in terms of their impact in the national legal orders, the Convention has

redef‌ined them in terms of their adoption procedures and the political weight of the

content of the act in question. This approach is therefore concerned with increasing

the input legitimacy of Union acts, rather than with achieving a net increase in the

simplicity of the system of legal instruments. The Heads of State or Government have

conf‌irmed this choice during the 2003–2004 Intergovernmental Conference that

followed the Convention, and, f‌inally, in signing, on 29 October 2004 in Rome, the

Treaty establishing a Constitution for Europe.

European Law Journal, Vol.11, No. 6, November 2005, pp. 744–765.

© 2005 The Authors

Journal compilation © 2005 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ,UK

and 350 Main Street, Malden, MA 02148, USA

This contribution examines, f‌irst, the logic behind the Union’s current system of legal

instruments and the elements that have fuelled the debate on the reform of that system

in the Convention (Section II). In Section III, the contribution focuses on the basic fea-

tures of the Union’s new system of legal instruments in the Constitution. Section IV

attempts to answer the question of whether the changes brought about in the Consti-

tution amount to a genuine hierarchy between different types of legal acts in the Union.

II The (Lost) Logic Behind the Union’s Current System of Legal Instruments

AThe Absence of a Hierarchy of Legal Acts in the Union

A remarkable feature of the Union’s set of legal instruments is the absence of a genuine

hierarchy of legal acts that is well known in the national legal orders.1With a genuine

hierarchy of legal acts, we mean a pre-established ranking of different types of legal

acts in accordance with the democratic legitimacy of their respective authors and adop-

tion procedures, which is used as a means to resolve conf‌licts among these different

types of legal acts. In our national legal systems, a statute enacted by the directly elected

parliament generally takes precedence over any regulation adopted by the indirectly

elected government, and a statute enacted by the parliament by means of a special

majorities procedure will generally prevail over a ‘normal’ statute. The European Union

does not recognise a similar hierarchy of acts.

When we focus on the Union’s core business, the Community pillar, we f‌ind that the

def‌initions of the Community legal instruments do not reveal any information as to

the author of the act. On the contrary, according to Article 249 EC, ‘the European Par-

liament acting jointly with the Council, the Council [as well as] the Commission [can]

make regulations and issue directives, take decisions,make recommendations or deliver

opinions’.2Related to that, no connections between legal instruments and specif‌ic

decision-making procedures are established in the EC Treaty, that is, there are no

uniform legislative and implementing procedures, nor are there instruments of a clearly

legislative or executive nature. Instead, each time rule making is considered, the insti-

tutions are to verify their competence, the applicable decision-making procedure and

the legal instrument to be used in the relevant legal basis in the Treaty. Since there is

no general identif‌ication of the institutions as legislative or executive powers, every

single legal basis in the Treaty conveys a different institutional balance. In its 1982 land-

mark case, France, Italy and United Kingdom v Commission,the Court of Justice refuted

the UK’s suggestion that it would be ‘clear from the Treaty provisions governing the

institutions that all original law-making power is vested in the Council, whilst the

November 2005 Towards a Hierarchy of Legal Acts in the EU

© 2005 The Authors 745

Journal compilation © Blackwell Publishing Ltd. 2005

1At present, several hierarchising principles are at work within the framework of the Treaties: binding

Union law takes precedence over national law; so-called secondary Union law has to respect primary

Union law, i.e., all the provisions of the Treaties, as well as the general principles of Union law to be

found on the same level; external agreements take precedence over internal secondary Union law;binding

Union law prevails over non-binding Union law; implementing acts need to respect the basic act they

implement; and later acts prevail over previous acts of the same kind and acts of a specif‌ic nature prevail

over acts of a general scope. These principles settle certain types of conf‌licts between Union and national

norms, but are ‘neutral’ as regards the questions of the democratic foundation of Union acts and the

political weight of their adoption procedures.

2Furthermore, according to Art 110 EC,the European Central Bank can make regulations, take decisions,

make recommendations, and deliver opinions.