The ‘untouchable’ core of EU Law

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FACULTY OF LAW

Stockholm University

The ‘untouchable’ core of EU

Law

An analysis of constitutional principles

in the light of the jurisprudence of the

Court of Justice of the European Union

Hanna Vallström

Thesis in European Union Law, 30 HE credits

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Abstract

The aim of this thesis is to analyse the seemingly ‘untouchable’ core of EU law from different perspectives. The concept of the ‘constitutional core’ is used as a functional summary of the norms that follow from the systematics of EU law, the constitutional principles of the EU and the fundamental rights. The generic notion seeks to describe a concept developed by the Court of Justice of the European Union that entails that there is a group of constitutional norms in EU law that not even the Member States have full control over. The analysis has relied on a legal dogmatic approach with elements of legal analytical method.

The norms that make up the heart of EU constitutional law follow from a systemic and teleological interpretation of EU law. The ‘constitutional core’ includes; the autonomy of EU law, respect for the values in Article 2 TEU and the fundamental freedoms as set out in Arti-cle 3 TEU, the principle of conferral of powers, the primacy of EU law and the principle of direct effect, the principle of sincere cooperation set out in the first subparagraph of Arti-cle 4(3) TEU, the protection of fundamental rights recognised by the EU Charter and ArtiArti-cle 6 TEU, the judicial system and the exclusive jurisdiction of the Court of Justice of the Euro-pean Union and judicial review of legal acts to ensure judicial protection of individual’s rights through Articles 19 TEU and 344 TFEU.1_{The fundamental norms of EU law are}

fur-ther unaffected by international law and can be viewed as a tool to protect the Member States and the legal order that they have concluded through the constituent Treaties. It can also constitute limitations that might impact the ability of Member States to comply with their obligations under international law. These fundamental values cannot simply be modified by the “Masters of the Treaties”. The only way around these limitations, and to avoid application of the ‘constitutional core’, would be to dissolve or withdraw from the EU. The validation for such reasoning seem to lie in the principle of an ‘ever closer union’ set out in Article 1 TEU.

The notion of a ‘constitutional core’ puts the discussion on legitimacy of EU law on its edge. On the basis of the jurisprudence regarding the ‘constitutional core’, the Court of Justice of the European Union has moved from a traditional concept of legitimacy based on conferred powers to another concept of legitimacy based on the effectiveness and scheme of EU law in order to protect its values. Thus, there is a tension between different concepts of legitimacy of EU law built into the legal order that is reflected in the notion of the ‘constitutional core’.

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Table of Abbreviations

AG Advocate General

CJEU Court of Justice of the European Union

ECHR European Convention on Human Rights

EEA European Economic Area

EU European Union

EU Charter Charter of Fundamental Rights of the European Union GATT General Agreement on Tariffs and Trade

ICJ Statute Statue of the International Court of Justice

TEU Treaty on the European Union

TFEU Treaty on the Functioning of the European Union

OJ Official Journal of the European Union

UN Charter Charter of the United Nations UN Security Council United Nations Security Council

VCLT The Vienna Convention on the Law of Treaties

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1. Introduction

1.1 Background and introduction to the subject

Are there norms in EU law that are not subject to change even through the Treaties?

The question whether there are norms in European Union (EU) law that cannot be subject to change is actualised by the jurisprudence of the Court of Justice of the European Union2, inter alia, by the Melloni3_{ruling, the Kadi}4_{case and Opinion 2/13}5_{. This thesis aims to give a}

systematic picture of the norms of EU law that do not appear to be modifiable by the Treaties or other sources of law. The analysis of these norms will be conducted on the basis of the ge-neric concept of the ‘constitutional core of EU law’. The concept of the ‘constitutional core’ is used as a functional summary and a generic concept of the norms that follow from the systematics of EU law, the constitutional principles of the EU and fundamental rights. There are other examples of terminology that reflects similar constitutional concepts and issues, such as ‘the notion of constitutional identity’6 and ‘the fundamental norms of EU law’. It should be noted that the notion of the ‘constitutional core’ is a relatively new concept in EU law that has been articulated and debated in the legal doctrine.7 The terminology itself is a product developed by scholars.

Further, the reference to ‘a constitutional core of EU law’ might give rise to controversy. There is a difference of opinion as to whether the European Union is ‘just’ an

intergovernmental organisation governed by public international law, without a constitution in the proper sense. Thus, the notion of a ‘constitutional core’ of EU law might seem unsup-ported. On December 1 2009 the Treaty of Lisbon entered into force, and the abandonment of the idea of the Treaty establishing a Constitution of Europe was a fact.8 However, in sub-

2_{Hereafter the CJEU.}

3_{Case C-399/11 Melloni, EU:C:2013:107.}

4_{Joined cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v} Council of the European Union and Commission of the European Communities, ECLI:EU:C:2008:46. 5_{Opinion 2/13, ECLI:EU:C:2014:2454.}

6_{To be clear, the ’constitutional identity’ refers to EU law and not to the constitutional identity of the Member}

States in Article 4(2) TEU.

7_{See for example Lavranos, Nikolaos, Revisiting Article 307 EC: The Untouchable Core of Fundamental} European Constitutional Law Values and Principles, in Fontanelli, Filippo, Martinico, Giuseppe and Carozza,

Paolo (ed.), SHAPING THE RULE OF LAW THROUGH DIALOGUE: International and supranational

experiences, Europa Law Publishing, Groningen, 2009 and Da Cruz Vilaça, José Luis, EU law and integration – twenty years of judicial application of EU law, Hart Publishing, Oxford and Portland, 2014.

8_{The Treaty on European Union and the Treaty on the Functioning of the European Union, as amended by the}

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stance, the Lisbon Treaty incorporates vital parts of the Constitutional Treaty. Article 1 in the Treaty on European Union (TEU) marks out the course of European integration by establish-ing ‘a process of createstablish-ing an ever closer union among the people of Europe’. The lack of a fixed ‘end’ of that process forms the ideological and teleological basis for the study of the EU in the terms of ‘constitutionalisation’.9 Therefore, there is reason to assume that there at least exists a functional constitution of EU law, regardless of whether there exists a formal

constitution in the sense it is referred to in some national legal orders.

The CJEU has played a crucial role in shaping the current constitutional structure of the EU including the hierarchy of norms that decide the application and validity of norms within the EU legal system. The CJEU has further characterised the Treaties as a ‘constitutional charter based on the rule of law’.10 In recent years however, the CJEU has, through its jurisprudence, developed a view on the constitutional structure of EU law that entails that apart from the division into primary and secondary law, there is also a division between the norms that make up the core of EU law and primary and secondary law. In several rulings, the CJEU has more generally used terminologies like the “very foundation of the Community legal order”11_and

“the specific characteristics arising from the very nature of EU law”12_{when referring to a}

separate group of norms that have emerged in the constituent Treaties and the general princi-ples. The Court’s systemic and teleological reasoning suggests that there exists a ‘hard’ core of constitutional EU law, which is more fundamental than primary EU law. The CJEU has, in this context, emphasised several fundamental and constitutional principles that stems from the highest tier of norms.

The conclusions of the CJEU in Opinion 2/1313, regarding the compatibility of the EU Trea-ties with the Draft Agreement on Accession of the EU to the European Convention on Human

9_{Rosas, Allan, Armati, Lorna, EU Constitutional Law – An Introduction, 2 ed., Hart Publishing, Oxford and}

Portland, 2012, p. 37.

10_{Case C-294/83, Les Verts v Parliament, ECLI:EU:C:1986:166, para. 23, Opinion 1/91, EU:C:1991:490 para.}

21 and Joined cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International

Foundation v Council of the European Union and Commission of the European Communities,

ECLI:EU:C:2008:46, para. 281.

11_{Case C-43/75 Defrenne, ECLI:EU:C:1976:56, para. 29, Case C-106/77 Simmenthal, ECLI:EU:C:1978:49,}

para. 18, Opinion 1/91, EU:C:1991:490, para. 35-36 and 71 and see also similar wording in Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the

European Union and Commission of the European Communities, ECLI:EU:C:2008:461, paras. 282 and 304. 12_{Opinion 2/13, ECLI:EU:C:2014:2454, para. 166.}

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Rights14, meant that the CJEU declared the provisions of the draft agreement to be incompati-ble with the EU Treaties, in significant part because of how the accession would undermine some of the norms at the very heart of EU constitutional law, such as the autonomy of EU law.15 The Court’s own autonomy and exclusive jurisdiction was also an essential ground for rejection. Further, as appeared in both Opinion 2/13 and the Melloni case16, the highest norm category affects the interpretation of the EU Charter of Fundamental Rights. In Melloni the Court ruled that the doctrine of primacy of EU law, as an essential feature of the EU legal order, applies against all national law, even Member States constitutional law.17 Thus, the principle of primacy of EU law prevailed over Article 53 in the EU Charter.

The ‘discovery’ of the core of EU law has further been used by the CJEU to shield EU law from the interference of international law. In Kadi18, the CJEU found that EU’s obligations under international law could not be modified by international commitments. Therefore, the EU legal assessment of whether measures infringed on the fundamental rights or not, could not be replaced by assessments of the UN Security Council or other UN bodies. This controversial outcome resulted in the fact that EU law could come in conflict with Member States obligations under the UN Charter. The ruling indicates that the constitutional norms shaping the very core of EU law are superior, or at least unaffected by international law.

It seems that the ‘constitutional core’ of EU law consists of such fundamental values that even the Member States, as “Masters of the Treaties”, cannot simply abrogate or modify them. According to the Court, not even the constituent power of the Member States can be exercised free from constitutional constraints. In this regard, the discretion of the Member States

concerning Treaty revisions has been limited. The only way around these limitations would be to withdraw from, or to dissolve the Union altogether.

With regards to the development of a ‘constitutional core’ there is also a central issue of legitimacy of EU law. The main concern is whether the systematic character of EU law can be a foundation for overriding actual regulations in the constituent Treaties and as such, goes

14_{Hereafter the ECHR.}

15_{Opinion 2/13, EU:C:2014:2454, paras. 180–189.} 16_{Case C-399/11 Melloni, EU:C:2013:107.}

17_{Case C-399/11 Melloni, EU:C:2013:107, para. 57-59.}

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against the concept of legitimacy of EU law based on the conferral of powers.

The development of such norm category affects several aspects of EU law and its interpreta-tion. It is therefore useful to speak of a EU constitutional order and a ‘constitutional core’ of EU law. Hence, in this thesis the notion of the ‘constitutional core’ has been selected as a collective concept to problematise and discuss the issues at hand. The ’constitutional core’ refers to the functional constitution of the EU legal order.

1.2 Aim and research questions

The aim of this thesis is to analyse the constitutional core within EU law and to identify its content in order to seek clarity to what the rather unexplored notion entails. The character of the research questions varies and the notion of the constitutional core is examined from sev-eral perspectives. The first part of the thesis aims to identify the substantive content of the constitutional core, through which sources it is conveyed and its relationship to the interna-tional legal order in terms of respecting internainterna-tional law when practicing EU law. The first two questions are studied on an internal level of EU law with respect to its norm hierarchy and constitutional structure.

The thesis will further examine the relation between the notion of the constitutional core as something potentially more fundamental than primary law and therefore also interfering with the Member States role as the “Masters of the Treaties”. The thesis will also analyse how the development of a constitutional core reflects the different grounds for legitimacy of EU law.

In achieving the overall aim of the thesis the following five research questions, divided into two parts, have been formulated:

Part I:

1) What is the notion of the constitutional core of EU law and what does it entail? 2) Through which sources of EU law is the constitutional core conveyed?

3) How does the constitutional core relate to the principle of respecting international law in the exercise of EU law?

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4) How does the constitutional core relate to the principle of the Member States as the ”Mas-ters of the Treaties”?

5) What concepts of legitimacy of EU law does the constitutional core reflect?

1.3 Delimitations

The constitutional core can be analysed from different perspectives. This thesis examines the substantive content of the constitutional core and puts it in relation to the internal hierarchy within EU law, international law and the Member States as decision makers. It is primarily an analysis of the implications from the CJEU. The thesis is further conducted from a constitu-tional perspective of EU law. The concept of the constituconstitu-tional core does not capture all norms or elements of norms considered as principles in the Treaties or by the CJEU, but only a few essential provisions. The research questions represent the thesis utmost and overall delimitation.

Further, the thesis have been limited in the sense that it will not have any comparative compo-nents in relation to Member States constitutional structures or legal systems. Thus, the

comparison between the constitutional structure of EU law and national law and its linkages will not be extensively covered.

1.4 Method and materials

The following thesis provides a legal analysis of the constitutional core of EU law in several aspects. In order to fulfil the aim of the thesis and answer the research questions above, a traditional legal doctrinal method have been applied, meaning that the purpose is to deter-mine, systematise and interpret the law as it stands, de lege lata rather than de lege ferenda.19 However, it should be mentioned that legal doctrinal method lacks an exhaustive definition. With that said, the method does not necessarily prohibit the sources from being analysed.20 From de lege lata, coherent conclusions have been drawn in order to answer the research questions above. Further, the legal doctrinal method entails determining de lege lata, based on the “inner logic” of the law. The sources of law and the norms they represent are viewed as a coherent system. The legal doctrinal method is a quality-orientated method where authority of

19_{Sandgren, Claes, ”Rättsvetenskap för uppsatsförfattare”, 3 ed., Norstedts Juridik, Stockholm, 2015,}

p. 43 and Kleineman, Jan, Rättsdogmatisk metod, in Korling, Fredric, Zamboni, Mauro, (ed.), Juridisk

metodlära, Studentlitteratur, Lund, 2014, pp. 21-47.

20_{Sandgren, Claes, Är rättsdogmatiken dogmatisk, Tidsskrift for Rettsvitenskap, TfR, Vol. 118, nr 4-5, 2005, pp.}

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the sources of law is important.21

In addition, it should be mentioned that the last research question (5), regarding the constitu-tional core and concepts of legitimacy of EU law, is not simply of legal doctrinal nature in terms of determining de lege lata, but compels a legal analytical method. There is a point of contact between legal analytical method and the legal doctrinal approach. However, rather than determining de lege lata according to legal doctrinal method that is limited by a few authoritative sources, this part of the thesis requires a broader legal analysis, allowed by an analytical method, that enables a deeper consideration of the law including valuations and criticism. The legal analytical method permits use of a wider spectrum of sources of EU law and other materials. Legal analytical method is further suitable for analysing the material from a certain perspective or theme and for incorporating valuations in the analysis, such as legiti-macy, that is relevant in this specific research.22 The notion of legitimacy is a complex con-cept and legal scholars have suggested various yardsticks. The discussion in this this section will focus on the legitimacy of EU law, rather than the legitimacy of the CJEU. The two tiers are, however, correlated. It should further be noted that it is not possible to conclude what fundamental ground for legitimacy of EU law shall prevail through a legal dogmatic ap-proach.

Regarding interpretation methods, the CJEU frequently uses a purposive, teleological, interpretation method rather than interpretation solely based on the wording of the relevant legal rules, so called lexical interpretation.23 These arguments look to the purpose of the legal norm, its functions in the legal scheme and the consequences of the selected interpretation.24 Interpretation of EU law therefore requires taking into account the purpose of the legislation and the Treaties in question and the objectives contained therein. Further, the CJEU also uses a systemic interpretation method. Systemic arguments put the interpreted provision into a wider context and seek to establish coherence with the rest of the legal system. In this type of argument, the CJEU looks at recitals of legislation, other provisions of the same legal text, relevant secondary legislation, general terms and concepts used by EU law and also the

gen-

21_{Sandgren, Claes, ”Rättsvetenskap för uppsatsförfattare”, 3 ed., Norstedts Juridik, Stockholm, 2015, p. 43.} 22_{Sandgren, Claes, ”Rättsvetenskap för uppsatsförfattare”, 3 ed., Norstedts Juridik, Stockholm, 2015, pp. 45-47.} 23_{Hettne, Jörgen, Otken Eriksson, Ida, EU-rättslig metod: Teori och genomslag i svensk rättstillämpning, 2 ed.,}

Norstedts Juridik, Stockholm, 2011, p. 36.

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eral principles of EU law.25 A unique feature of the CJEU is the use of ‘meta-teleological’ arguments. The previous AG Miguel Poiares Maduro, has also described the CJEU’s

interpretation method as a meta-teleological reasoning since “the Court has not simply been concerned with ascertaining the aim of a particular legal provision. It also interpreted that rule in the light of the broader context provided by the EU legal order and its “constitutional telos”. There is a clear association between the systemic (context) and teleological elements of interpretation in the Court’s reasoning.”26 The ‘meta-teleological’ arguments invoke the telos of the whole legal order and the function and consequences of the specific interpretation. The Court would thus, for example, refer to the effectiveness of the EU legal order or the protection of individual rights. It is also reflected by expressions such as ‘the spirit of the Treaties’ or ‘the very foundations of the Community legal order’. The methods of interpret-ing the sources of EU law lay out the ground for what kind of argument one can make.27 The constitutional core, that is the very heart of the EU legal system, is in particular established by a systemic and teleological interpretation of EU law, which is also seen in the CJEU’s argu-ments.

In this thesis, the legal doctrinal analysis is especially conducted in the light of the specific constitutional structure and systematics of EU law. De lege lata will be determined based on the established sources of EU law. Therefore, EU legal method is also applied to determine the normative content of EU law with the use of relevant sources of EU law and legal interpretation methods as well as with respect to the constitutional structure of the EU. The fact that EU law is an autonomous legal order affects the understanding of EU legal method. With that said, there is not one pervading EU legal method. In this thesis, EU legal method is an approach used to manage and interpret the sources of EU law.28 Since the EU has a legal personality and as such, has its own legal order, it is important to underline that EU legal method originates from its own principles of interpretation and sources of EU law.29 To

25_{Komárek, Jan, Legal reasoning in EU law, in Arnull, Anthony, Chalmers, Damian, The Oxford Handbook of} European Union Law, Oxford University Press, Oxford, 2015, p. 46.

26_{Maduro, Miguel Poiares, Interpreting European Law – Judicial adjunction in a Context of Constitutional} Pluralism, Working Paper IE Law School, WPLS08-02, 5 February 2008, p. 3 and Walker, Neil, Contrapunctual Law: Europe’s Constitutional Pluralism in Action, Sovereignty in Transition, Hart Publishing, Oxford, 2003, pp.

502-537.

27_{Komárek, Jan, Legal reasoning in EU law, in Arnull, Anthony, Chalmers, Damian, The Oxford Handbook of} European Union Law, Oxford University Press, Oxford, 2015, p. 45.

28_{Reichel, Jane, “EU-rättslig metod”, in Korling, Fredric, Zamboni, Mauro, (ed.), Juridisk metodlära,}

Studentlitteratur, Lund, 2014, p. 109.

29_{Reichel, Jane, “EU-rättslig metod”, in Korling, Fredric, Zamboni, Mauro, (ed.), Juridisk metodlära,}

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exhaustively account for the EU legal method would be a very extensive task. However, a brief review of the sources of EU law and their hierarchical order is necessary.

1.4.1 The sources of EU law

EU law consists of three main sources, namely primary EU law, secondary law and

supplementary law. The main sources of primary law are the constituent Treaties, the Treaty on the European Union, TEU, and the Treaty on the Functioning of the European Union, TFEU. The Charter of Fundamental Rights of the European Union was given the same value as primary legislation following the entry into force of the Lisbon Treaty. The general princi-ples of EU law hold a special position in the norm hierarchy of EU law as they are considered part of primary law despite not being codified. They are considered to sit below the constitu-ent Treaties but above secondary law.30 These principles are for example used when interpret-ing the Treaties or the EU Charter. Secondary law contain legal instruments based on the Treaties and include those acts listed in Article 288 TFEU such as regulations, decisions, opinions and recommendations. Further, secondary law includes “atypical” acts, conventions and international agreements not listed in Article 288 TFEU. Supplementary sources are ele-ments of law not provided for by the Treaties, including CJEU case law and international law. Thus, primary law including the Charter of Fundamental Rights and the general principles, binding secondary law and international agreements are all binding sources of EU law. The same applies to the jurisprudence of the CJEU.31 Legislative history, on the other hand, is not given the same consideration when determining de lege lata according to EU legal method. Chapter two contains a further in depth examination of the constitutional core in its legal con-text.

Significant for the EU legal order is that the jurisprudence of the CJEU is an essential source of law that inter alia expresses the general principles of EU law. The case law of the CJEU is therefore a strong source of law within the EU legal order.32 The notion of the constitutional core as a concept is not codified, meaning that it cannot explicitly be found in the Treaties. The analysis in relation to the research questions contained in the first part of the thesis (re-search questions 1-3) will therefore, primarily focus on relevant jurisprudence by the CJEU,

30_{Craig, Paul, De Burca, Grainne, EU LAW: text, cases and materials, 6 ed., Oxford University Press, Oxford,}

2015, p. 111.

31_{Hettne, Jörgen, Otken Eriksson, Ida, EU-rättslig metod: Teori och genomslag i svensk rättstillämpning, 2 ed.,}

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since the subject in matter, is a notion mainly identified and developed by the Court. The case law will focus both on the internal relationship between the EU and its Member States and on the external relationship of the Union with the International legal order. The case law will also include opinions of the Court on draft agreements between the EU and non-EU countries or international organisations. Further, understanding how the CJEU develops its jurisprudence is important in order to understand and interpret each ruling from the CJEU. The Courts rul-ings on a specific subject should be analysed in its entirety as “links in a chain of case law” rather than separately.33

Further, the CJEU often uses general principles of EU law as a source of law. As previously mentioned, the general principles of EU law hold a high norm-hierarchical value within EU law. The fact that general principles are not codified in the Treaties, does not make them less important as a source of EU law. The CJEU has established that the general principles of EU law have constitutional status.34 They form the “unwritten” constitution of the EU legal order and are important in relation to the Court’s interpretation background. EU law should there-fore be interpreted in accordance with the general principles.35

The overall research will rely on the binding sources of EU law, but EU legal doctrine is used in order to provide further guidance, as a non-binding source of EU law.36 A variety of doc-trine from renowned authors within the field of EU law have been used. These sources are considered authoritative in the purpose of determining de lege lata.

1.5 Structure and outlook

The thesis consists in two parts. With regards to the structure, the first chapter serve as an introductory chapter, presenting the subject and the aim of the thesis, research questions, method and material, delimitations and outline.

The second chapter is an introduction of the context in which part one of the thesis will take place. It will examine the constitutional core in its context by analysing the hierarchy of

34_{Case C-101/08, Audiolux, ECLI:EU:C:2009:626, para. 63 and Case C-178/08 NCC Construction Danmark,}

ECLI:EU:C:2008:364, para. 42.

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norms in EU law and the sources of EU law. The second chapter aims to establish the constitutional structure of EU law and to introduce relevant fundamental principles such as the autonomy of EU law and the doctrine of primacy.

The third chapter is in many ways the heart of the thesis. It researches the substantive content of the constitutional core, focusing on relevant jurisprudence of the CJEU. The chapter aims to determine the principles and values of the core and its place in the norm hierarchy of EU law, including through which sources of EU law it is conveyed.

Chapter four highlights the relation between the constitutional core and the principle of re-spect for international law in the exercise of EU law. This includes examining the relation to Article 103 in the UN Charter, the principle of jus cogens and other obligations that Member States have under international law.

The second part of the thesis starts with the fifth chapter that focuses on how the constitu-tional core relates to the principle of the Member States as the ”Masters of the Treaties” and if the discretion of Member States is limited with regards to Treaty revisions.

The sixth chapter discusses how the notion of the constitutional core, as a concept developed by the CJEU, reflects and complies with different concepts of legitimacy of EU law.

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2. The constitutional structure of EU law

The constitutional perspective on EU law continues to make sense even after the demise of the Constitutional Treaty. The constituent Treaties performs many of the same functions as a national constitution.37

2.1 Legal acts and the hierarchy of norms in EU law

‘Hierarchy is a ranking of acts according to the democratic legitimacy of their respective authors and adoption procedures’.38

Prior to the Treaty of Lisbon, there was no formal hierarchy between the various acts of the EU.39_{The current hierarchy of norms in the EU legal order is primarily a result of the work} by the Convention on the Future of Europe between 2002 and 2003. The Convention aimed to make the EU legal order more comprehensible to the citizens of the EU and providing a guarantee that the acts with the same legal force have the same foundation in terms of demo-cratic legitimacy.40 The hierarchy of norms was further said to be the consequence of a better separation of powers.41

The hierarchy of norms within the EU legal system concerning legal acts has since the Treaty of Lisbon been defined. The main sources of EU law are, as previously mentioned, primary EU law, secondary law and supplementary law.42 When discussing the hierarchy of norms within EU law, it is common to think of regulations, directives and decisions taking the form of legislative, delegating and implemented acts as listed in Article 288 TFEU. However, the complete tiers of norms include five principal levels, starting with the constituent Treaties and the Charter of Fundamental Rights of the European Union.43 The Charter of Rights has the same status as the Treaties, which is established in Article 6(1) TEU.

37_{De Witte, Bruno, EU law: Is it international law?, in Barnard, Catherine, Peers, Steve, (ed.), European Union} Law, Oxford University Press, Oxford, 2014, p. 191.

38_{Lenarets, Koen and Desomer, Marlies, Towards a Hierarchy of legal acts in the Euopean Union?} Simplification of Legal Instruments and Procedures, European Law Journal nr. 11, 2005, pp. 744-745. 39_{Curtin, Deirdre and Manucharyan, Tatevik, Legal Acts and Hierarchy of Norms in EU Law, in Arnull,}

Anthony, Chalmers, Damian, The Oxford Handbook of European Union Law, Oxford University Press, Oxford, 2015, p. 103.

40_{Final Report of Working Group IX on Simplification, CONV 424/02, 29 November 2002, p. 2.}

2015, p. 110.

42_{See Chapter 1.4.}

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The second tier of the hierarchy of norms consists of general principles of EU law. General principles are above legislative, delegated and implementing acts in the hierarchy. This means that general principles can be used to interpret such acts and also as a ground for invalidation of a legal act. The general principles are at large a product developed by the CJEU.

Further the CJEU has considerable discretion when it comes to recognizing a new general principle of law.44 The Court may also recourse to a general principle as a source of law in order to fill a gap in written law.45 For example, the Court has noted principles such as the principle of proportionality, fundamental rights, legal certainty etc. in the Treaties and used them as a foundation for judicial review under Articles 263 and 267 TFEU. 46 These princi-ples have constitutional status.47

There are several theories regarding the character of different types of general principles. Tridimas has, for instance, argued that there is a category of systemic principles, which under-line the constitutional structure of the EU and define its legal edifice. These refer to the relationship between the EU and the Member States and include primacy, attribution of competences, subsidiarity and the duty of cooperation. They may also concern the legal posi-tion of the individual, for example the principle of direct effect. These principles that define the constitutional structure of EU law were ‘discovered’ by the CJEU, which is indicative to the influence the Court has on the development of EU law. This applies for example to the doctrine of primacy and direct effect, which in the Courts own language derives from the ‘essential characteristics of the Community legal order’.48

The bottom tiers of the hierarchy of norms consist of legislative acts, delegated acts and

2015, pp. 111-113 and Case C-101/08 Audiolux, ECLI:EU:C:2009:626.

45_{Tridimas, Takis, The General Principles of EC Law, 2 ed., Oxford University Press, Oxford, 2006, p. 17.} 46_{See for example Case C-11/70 Internationale Handelsgesellschaft, EU:C:1970:114, Case C-8/55 Federation}

Charbonniere de Belgique v High Authority, ECLI:EU:C:1956:11, Case C-331/88 The Queen v Ministry of

Agriculture, Fisheries and Food ex parte Fedesa, ECLI:EU:C:1990:391, Case C-98/78 Firma A Racke v Hauptzollamt Mainz, ECLI:EU:C:1998:293 and Craig, Paul, De Burca, Grainne, EU LAW: text, cases and materials, 6 ed., Oxford University Press, Oxford, 2015, p. 111 and pp. 551-563.

47_{Tridimas, Takis, The General Principles of EC Law, 2 ed., Oxford University Press, Oxford, 2006, pp. 4-6.} 48_{Tridimas, Takis, The General Principles of EC Law, 2 ed., Oxford University Press, Oxford, 2006, p. 6 and}

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implementing acts, in the following descending order. These acts form a part of secondary law.49

2.2 Constitutional principles that distinguish EU law

The following section aims to account for some of the most central principles within EU law. These principles mark the foundation of what separates EU law from Member States legal systems and international organisations. They are further essential in understanding the constitutional structure of the EU.

2.2.1 The Autonomy of EU law

The word autonomy means self-legislation or the legal authority to govern domestic affairs without external interference.50

In the 1950s, it was widely assumed that the traditional model of international law, marked by state sovereignty, would apply to the EU. Consequently, Member States are considered ‘Mas-ters of the Treaties’ and could collectively change the Union’s powers and interpret the mean-ing of the Treaties. It was also for states to determine the domestic legal effects of EU law as an international treaty and its relationship to national law. However, the period eventually came to mark a time when many EU Member States were reconsidering their approach to international law. After the Second World War there was a belief in stronger authority and role for international organisations and international law.51

Against this context, the CJEU adopted its first landmark cases that established that the EU legal order must be distinguished from the international legal order, as a separate system.52 The CJEU launched the notion that EU law derives from an autonomous source.53

The autonomy of EU law is a concept developed by the jurisprudence of the CJEU.54 The

2015, pp. 105-109.

50_{Gragl, Paul, The Accession of the European Union to the European Convention on Human Rights, Hart}

Publishing, Oxford and Portland, 2013, p. 19.

51_{Chalmers, Damian, Davies, Gareth, Monti, Giorgio, European Union Law, Text and Materials, 3 ed.,}

Cambridge, 2014, pp. 200-201.

52 _{Case C-26/62 Van Gend & Loos, EU:C:1963:1 and Case C-6/64 Costa v ENEL, EU:C:1964:66.}

53_{Case C-6/64 Costa v ENEL, EU:C:1964:66 and Chalmers, Damian, Davies, Gareth, Monti, Giorgio, European} Union Law, Text and Materials, 3 ed., Cambridge, 2014, pp. 200-201.

54_{Lock, Tobias, The European Court of Justice and the International Courts, Oxford University Press, Oxford,}

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Courts teleological interpretation of the Treaties is considered the first step in establishing a functioning constitutional order of its own that is autonomous from the national legal systems of the Member States.55 The norm is not regulated in the Treaties and therefore lacks an ex-plicit definition.56 The CJEU has built upon this internal autonomy, extending its influence to external borders of the EU.57 The autonomy of EU law is of fundamental importance since it determines the internal understanding of international law and the relationship to national law.58

The notion of autonomy of law entails, first, that it is the legal order which determines which activities are governed by it and, secondly, that it determines which particular laws are to ap-ply to these activities and how these laws are to be administered. In other words, the auton-omy of EU law requires that EU law alone decides which activities it regulates and that its central principles and institutional features cannot be compromised by other legal orders.59

The assertion that EU law, and no other legal order, determines which activities are governed by it is implicit in the famous case Costa v ENEL.60_{It is widely known that the internal} auton-omy of EU law was expressed for the first time in Costa although it appears from earlier literature and case law from the ECSC-Court that the matter of autonomy of EU law had been raised previously.61 The dispute in Costa revolved around whether Italian law or EU law was to govern activities that fell within the scope of the EU Treaties. In asserting that it was to be EU law, the CJEU, was not merely seeking to resolve the conflict between Italian law and EU law but also claiming a monopoly for EU law to determine the activities governed by it and which EU law provisions were to apply.

55_{Gragl, Paul, The Accession of the European Union to the European Convention on Human Rights, Hart}

Publishing, Oxford and Portland, 2013, p. 19.

56 _{Lock, Tobias, The European Court of Justice and the International Courts, Oxford University Press, Oxford,}

2015, pp. 77-81.

57_{See Opinion 1/91, EU:C:1991:490, Case C-459/03 Commission v Ireland (Mox Plant), ECLI:EU:C:2006:345,}

and Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v

Council of the European Union and Commission of the European Communities, ECLI:EU:C:2008:461. 58_{Case C-11/70 Internationale Handelsgesellschaft, EU:C:1970:114, para. 3, Case C-106/77 Simmenthal,}

ECLI:EU:C:1978:49, para. 21 and Lavranos, Nikolaos, Revisiting Article 307 EC: The Untouchable Core of

Fundamental European Constitutional Law Values and Principles, in Fontanelli, Filippo, Martinico, Giuseppe

and Carozza, Paolo (ed.), SHAPING THE RULE OF LAW THROUGH DIALOGUE: International and

supranational experiences, Europa Law Publishing, Groningen, 2009, p. 119 ff.

Cambridge, 2014, pp. 199-205.

60 _{Case C-6/64 Costa v ENEL, EU:C:1964:66.}

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In this respect, international law poses particular challenges. The Union is bound by interna-tional agreements which are either concluded by it or to which it has succeeded the Member States.62 Insofar as these form part of EU law, it could be argued that activities regulated by them are regulated by EU law.

However, this is contrived when the content of these agreements clashes with other provisions of EU law. In these cases, it is international law and not EU law which determines the remit of EU legal authority. The CJEU has squared this circle by stating that the autonomy of EU law allows international agreements to prevail over secondary legislation but not over fundamental principles of the Treaty.63 Institutions established by a Treaty with its own law making or judicial institutions, which elaborate norms of international law that could displace EU law can be established according to the CJEU as long as they do not have powers that can alter the essential character of EU law. The issue of the external relationship of the EU with the international legal order emerged in Opinion 1/91 on the EEA draft agreement, the CJEU held that the autonomy of EU law itself is considered part of the very foundations of the EU legal order and must be protected by the CJEU.64_{Further in Opinion 1/09, concerning the} draft agreement for the creation of a unified patent litigation system the Patent Court would have exclusive jurisdiction over infringements, revocations and damages concerning the uni-fied patent. The CJEU held that by conferring on an international court outside the judicial framework of the EU’s exclusive jurisdiction, the courts of Member States and the CJEU would be deprived of their powers established by the preliminary ruling system. Conse-quently, the essential character of the powers, which the Treaties confer on the institutions and Member States and which are vital to the preservation of the very nature of EU law would be altered.65 By firmly linking the concept of autonomy to the ‘municipal’ nature of the EU legal order, the CJEU finally seemed to come full circle in the Kadi judgment, that linked external autonomy of the EU legal order to the ‘very foundations of the Community.’66

62 _{See Article 216 TFEU.}

63_{Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v} Council of the European Union and Commission of the European Communities, ECLI:EU:C:2008:461, para.

304-309 and Chalmers, Damian, Davies, Gareth, Monti, Giorgio, European Union Law, Text and Materials, 3 ed., Cambridge, 2014, p. 205.

64_{Opinion 1/91, EU:C:1991:490, paras. 21 and 35.} 65_{Opinion 1/09, EU:C:2011:123, para. 89.}

66_{Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v} Council of the European Union and Commission of the European Communities, ECLI:EU:C:2008:461, para.

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2.2.2 The principle of attributed competence

The EU is not a sovereign state and therefore only has competence conferred by the Member States in the constituent Treaties. This is what is meant by stating that the EU has attributed competence. The principle of attributed competence is essential in understanding the relation-ship between EU law and national law. The extent of the attributed competence creates limita-tions as to the powers of the EU. The Member States that can give the EU further competence through the constituent Treaties. Competences not conferred upon the EU in the Treaties re-main with the EU countries. Further, the principle of attributed competence is built on “func-tional integration”, which entails that the Member States transfer competence in certain policy areas. The areas where competences have been transferred to the EU have increased over time with the development of European integration.67

Further, the link between competences and legitimacy has been recognized.68 The Lisbon Treaty was therefore a reform in this aspect, where existence and scope of EU competence were key features.69_{Article 5 of the TEU lays down several specific principles that govern the} existence and exercise of EU competences by stating that ‘the limits of Union competences are governed by the principle of conferral’. The exercise of Union competences is also gov-erned by the principles of subsidiarity and proportionality.70_{Since the entry into force of the} Lisbon Treaty, there are now several categories of competence.71 The EU may have exclusive

competence72, shared competence73 or competence only to categorization74.75

The principle of attributed competence can further be reinterpreted by the CJEU as the ulti-mate interpreter of the Treaties. The power to determine the validity of EU law belongs exclu-sively to the CJEU.76 The Court can as such, invalidate a Union measure on any ground,

67_{Bermann, George A, Competences of the Union, in Tridimas, Takis, Nebbia, Paolisa, European law for the} twenty-first century, Hart publishing, Oxford and Portland, 2004, pp. 67-68 and Lebeck, Carl, EU-stadgan om grundläggande rättigheter, Studentlitteratur, Lund, 2013, p. 33.

68_{Bermann, George A, Competences of the Union, in Tridimas, Takis, Nebbia, Paolisa, European law for the} twenty-first century, Hart publishing, Oxford and Portland, 2004, p. 65.

2015, pp. 73-74.

70_{The principles are embodied in Article 5(3)-(4) TEU.}

71_{See Article 2 TFEU and Chalmers, Damian, Davies, Gareth, Monti, Giorgio, European Union Law, Text and} Materials, 3 ed., Cambridge, 2014, p. 74.

72_{For example in common commercial policy, monetary policy for euro area countries and conclusion of}

international agreements under certain conditions.

73_{Such as in the area of the internal market and agriculture.} 74_{For example in policy areas such as industry and health.} 75_{Article 4 and 5 TEU and Article 2, 3 and 4 TFEU.}

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including that the gourd was ultra vires. Some critics have therefore claimed that the CJEU has indirect “competence-competence” which entitles the Court to assign power to itself in its role as the outmost interpreter of EU law.77 The concept of ‘competence-competence’ refers to the Courts sovereign power to grant itself ‘new’ competences.78 This concept presents a conflict between national courts and the CJEU where the national courts have claimed that they have the ultimate authority to determine the limitations for the competence conferred by the Member States to the EU through the Treaties.79 Nevertheless, the cooperation of the Member States is an essential feature in the integration and development process of the EU legal order. The reasoning in which the CJEU is viewed as an institution with ‘competence-competence’ is therefore questionable.

2.2.3 The effectiveness of EU law: sincere cooperation, direct effect and the primacy doc-trine

The constitutionalisation of EU law is often linked to the CJEU’s jurisprudence which has aimed to strengthen the effectiveness of EU law, such as case law concerning primacy. The principle of effectiveness in EU law can be seen to derive from the CJEU’s case law but also a priori from the principle of sincere cooperation that constitutes a mutual legal obligation for the EU and its Member States ‘to assist each other in carrying out the tasks which flow from the Treaties’.80 The principle of effectiveness of EU law is expressed by the CJEU’s tendency to choose expansive interpretations in favour of integration of EU law to ensure the so called effet utile. It is also the foundation for other essential principles, such as the primacy doctrine (also known as the principle of supremacy) and the principle of direct effect.81

Handbook of European Union Law, Oxford University Press, Oxford, 2015, p. 417.

77_{Schilling, Theodor, The Autonomy of the Community Legal Order – An Analysis of Possible Foundations,}

Harvard International Law Journal nr. 37, 1996 and Weiler, J.H.H., The autonomy of the Community legal order:

Through the looking glass, in Weiler, J.H.H, The Constitution of Europe “Do the new clothes have an

emperor?” and other essays on European integration, Cambridge University Press, Cambridge, 1999, p. 288. 78_{Schutze, Robert, EU Competences: Existence and Exercise, in Arnull, Anthony, Chalmers, Damian, The} Oxford Handbook of European Union Law, Oxford University Press, Oxford, 2015, p. 79.

79_{Weiler, J.H.H., The autonomy of the Community legal order: Through the looking glass, in Weiler, J.H.H, The} Constitution of Europe “Do the new clothes have an emperor?” and other essays on European integration,

Cambridge University Press, Cambridge, 1999, p. 288. See also Judgment of the German Federal Constitutional Court of 12 October 1993, BVerfGE 89, 155.

80_{Von Bogdandy, Armin, ‘Founding Principles’, in Von Bogdandy, Armin, Bast, Jurgen, Principles of} European Constitutional Law, 2 ed., Hart Publishing Ltd and Verlag CH Beck oHG, Oxford and Munchen,

2010, p. 30. For the principle of sincere cooperation see Article 4(3) in TEU.

81_{Tridimas, Takis, The General Principles of EC Law, 2 ed., Oxford University Press, Oxford, 2006, pp.}

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Primacy is considered a general principle in international law, which implies that international treaties take precedence over national law and that national law cannot be invoked to prevail over international treaties.82 Primacy on an international level does not concern the domestic effect of such treaties in the national legal orders. In the EU legal order however, the constitu-ent Treaties does not, according the CJEU, give the Member States such freedom.83 In Costa, the Court interpreted the Treaties in the light of their terms and spirit (systemic and teleologi-cal interpretation method) and held that it was impossible for the Member States to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Primacy was in part based on the autonomous nature of EU law, resulting from the transfer of competences or limitations of sovereignty by Member States.84 The Costa case is considered to have had a revolutionary outcome on EU law that forever changed the character of the EU. The Costa ruling together with Van Gend en Loos was the start of a constitutionalisation of EU law. Primacy is thus a cornerstone in EU law that distinguishes the EU legal order from other international legal orders.85

Stephen Weatherill has famously stated that ‘even the most minor piece of technical Commu-nity legislation ranks above the most cherished constitutional norm’.86_{In Internationale} Han-delsgesellschaft the CJEU ruled that not even a fundamental rule of national constitutional law could challenge the primacy of directly applicable EU law.87

Moreover, in the Simmenthal ruling, the court developed the doctrine of primacy further by making it clear that it was applicable regardless of whether the national law pre-dated or post dated the EU law.88

The Melloni case is a more recent, but constitutionally significant case where the Court, yet again, withheld its stance that the need for absolute and unconditional primacy is necessary to

82_{United Nations, The Vienna Convention on the law of treaties, concluded at Vienna on 23 May 1969, Vol.}

1155, I-18232.

83_{Claes, Monica, The primacy of EU Law in European and National Law, in Arnull, Anthony, Chalmers,}

Damian, The Oxford Handbook of European Union Law, Oxford University Press, Oxford, 2015, p. 181.

Damian, The Oxford Handbook of European Union Law, Oxford University Press, Oxford, 2015, p. 181. Further, the effectiveness of EU law was also an important underpinning component for the doctrine of primacy.

86_{Weatherill, Stephen, Law and Integration in the European Union, Clarendon Press, Oxford, 1995. p. 106.} 87_{Case C-11/70 Internationale Handelsgesellschaft, EU:C:1970:114, para. 3.}

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ensure the effectiveness of EU law.89 The judgment centres on the possibilities and limits of overriding EU primacy through Member States national constitutional rights. 90 The CJEU rejected the view that article 53 of the EU Charter can be viewed as a general authorisation to a Member State to apply the higher national constitutional standard of protection and to give it priority over the application of provisions of EU law since it would undermine the principle of the primacy of EU law. Thus, Article 53 in the EU Charter does not contain an exception to primacy because of the primacy of EU law. Neither Article 53 of the EU Charter nor the iden-tity clause in Article 4(2) TEU has essentially altered the principle of primacy.91

Primacy is most effective in connection to direct effect. With regards to the principle of direct effect, it should be noted that it applies to all binding EU law, including the Treaties and the Charter of Fundamental Rights, general principles, secondary legislation and international agreements. By broad definition, direct effect means that provisions of binding EU law that are clear, precise and unconditional to be considered justiciable can be invoked and relied on by individuals before national courts. It was in Van Gend en Loos92_{that the CJEU established}

the initial conditions for Treaty provisions to have direct effect.93

2.2.4 The role of the European Court of Justice as the interpreter of EU law

The CJEU is one of the institutions of the EU. The Court has been praised by some as the steady motor of European integration and criticised by others as an example of a clearly bi-ased institution.94

Regardless, the CJEU has since the beginning of the European Community held an essential role in the development of Union law. Article 19(1) TEU states that the Court ‘shall ensure that in the interpretation and application of the Treaties the law is observed. The CJEU is, as the EU judiciary, the ultimate interpreter of the constituent Treaties, including interpretation of the Treaties boundaries. Therefore, the Court is also the ultimate interpreter of the limits of

89_{Case C-399/11 Melloni, EU:C:2013:107.}

90_{Krenn, Christoph, Autonomy and Effectiveness as Common Concerns: A Path to ECHR Accession after} Opinion 2/13, Special Section – Opinion 2/13: The E.U. and the European Convention on Human Rights,

German Law Journal, Vol.16 No. 01, 2015, p. 156.

92_{Case C-26/62 Van Gend en Loos, ECLI:EU:C:1963:1.}

Cambridge, 2014, pp. 185-190.

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its own competence.95 The CJEU is also linked to the national courts of the Member States through the preliminary ruling procedure.96 However, no other court may be given jurisdiction to interpret EU law in a manner, which would be binding on the EU or its institutions.97 The exclusive jurisdiction of the CJEU is regulated in Article 344 TFEU. The main purpose of Article 344 is to prevent disputes between Member States over EU law being brought to an-other forum.98

2.2.5 Protection of fundamental rights and freedoms

The protection of fundamental rights holds a key position in the constitutional structure of the EU.99 The CJEU has had a pioneering role in developing the protection of fundamental rights in the EU as we know it today.100 The CJEU still holds an important role in the area of protection of fundamental rights after the explicit references in the Treaties and the EU Char-ter. Early in the development of its jurisprudence, the CJEU sensed that the doctrines of pri-macy and direct effect of EU law, as developed in the early landmark cases, could not hold their ground without being coupled with a system of judicial review of violations of

fundamental rights. The CJEU proceeded prudently by first asserting that fundamental rights are enshrined in the general principles of EU law101_{and protected by the Court and later on} stating as sources of inspiration from the common constitutional traditions of Member States and the international treaties to which they are signatories.102

The Charter of fundamental rights of the EU enshrines the key political, social and economic rights of EU citizens and residents in EU law. The EU Charter was approved in its present form in 2000 by the European Parliament, the Council of Ministers and the European Commission. However, its legal status remained uncertain until the entry into force of the Treaty of Lisbon in December 2009. The EU Charter obliges the EU to act and legislate

95_{Lebeck, Carl, EU-stadgan om grundläggande rättigheter, Studentlitteratur, Lund, 2013, p. 45.} 96_{Article 267 TFEU.}

97_{Opinion 1/91, EU:C:1991:490, para 35.}

98_{Lock, Tobias, The European Court of Justice and the International Courts, Oxford University Press, Oxford,}

2015, p. 82.

99_{See Article 6 TEU.}

100_{See for example Case C-11/70 Internationale Handelsgesellschaft, EU:C:1970:114 and Tridimas, Takis, The} General Principles of EC Law, 2 ed., Oxford University Press, Oxford, 2006, p. 298.

101_{See Case C-29/69 Strauder v City of Ulm where the CJEU for the first time affirmed a category of general}

principles of EU law , which included protection of fundamental rights. See also Case C-11/70 Internationale

Handelsgesellschaft, EU:C:1970:114.

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consistently with the EU Charter, and enables the EU’s courts to strike down EU legislation that contravenes it. The EU Charter applies to EU Member States but does not extend the competences of the EU beyond the competences given to it in the Treaties.

Further, the relationship between the EU Charter and the general principles is ambivalent. The EU Charter points out the significance of the general principles and the jurisprudence of the CJEU. The EU Charter and the general principles overlap in parts, but the EU Charter also includes social rights that have not been classified as fundamental rights previously. Thus, the EU Charter is not a codification of the general principles.103 The CJEU has stated that the EU Charter is now the principal basis for the Courts observance of human rights protection. Though the general principles are still valid, there practical use has decreased.104

Human rights and fundamental freedoms are complementary forces. However, the functions of the fundamental freedoms differ from the fundamental rights. The four freedoms in which people, capital, services and goods have free movement in the EU is based on the vision of the internal market. Free movement can be modified by EU legislative measures. These free-doms give individuals rights against the Member States.105

2.3 Summary and conclusions

The complete hierarchy of norms in EU law includes five principal levels, starting with the constituent Treaties and the Charter of Fundamental Rights of the European Union. The Char-ter of Rights has the same status as the Treaties, which is established in Article 6(1) TEU. The second tier of the hierarchy of norms consists of general principles. The bottom tiers of the hierarchy of norms consist of legislative acts, delegated acts and implementing acts, in descending order.

There are several constitutional principles essential in understanding the constitutional struc-ture of the EU. The CJEU has held a vital role in developing these principles. In Costa, the CJEU’s teleological interpretation of the Treaties is considered the first step in establishing a functioning constitutional order of its own that is autonomous from the national legal systems of the Member States. The autonomy of EU law is of fundamental importance since it deter-

103_{Lebeck, Carl, EU-stadgan om grundläggande rättigheter, Studentlitteratur, Lund, 2013, p. 55.}

2015, pp. 380-386.

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mines the internal understanding of international law and the relationship to national law. Autonomy of EU law requires that EU law alone decides which activities it regulates and that its central principles and institutional features cannot be compromised by other legal orders. The CJEU stated that the autonomy of EU law allows international agreements to prevail over secondary legislation but not over fundamental principles of the Treaties. By further linking the concept of autonomy to the ‘municipal’ nature of the EU legal order, the CJEU finally seemed to come full circle in the Kadi judgment.

The principle of attributed competence is essential in understanding the relationship between EU law and national law and the extent of the attributed competence creates limitations as to the powers of the EU. Since the entry into force of the Lisbon Treaty, there are now several categories of competence for the EU to consider: exclusive competence, shared competence or competence only to categorisation.

Further, the constitutionalisation of EU law is often linked to the CJEU’s jurisprudence, which has aimed to strengthen the effectiveness of EU law, such as case law concerning pri-macy. It is also the foundation for other essential principles, such as the primacy doctrine and the principle of direct effect. In Melloni the Court clarified that neither Article 53 of the EU Charter nor the identity clause in Article 4(2) TEU has essentially altered the principle of pri-macy.

The CJEU has had an important role in the advancement of EU law as the ultimate interpreter of EU law and the Treaty boundaries. As stated in Article 344 TFEU, the Court has exclu-sive jurisdiction that hinders Member States from taking disputes over EU law to another fo-rum.

Moreover, the CJEU proceeded prudently by asserting that fundamental human rights are en-shrined in the general principles of EU law. The protection of fundamental rights holds a key position in the constitutional structure of the EU and is formally established in the Treaties by Article 6 TEU. Further, the EU Charter obliges the EU to act and legislate consistently with the Charter, and enables the EU courts to strike down EU legislation, which infringes it.

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3. The notion of the ‘Constitutional Core’ of EU law

The hierarchy of norms in EU law is in many ways a norm system developed by the CJEU. In the jurisprudence of the Court, a separate group of norms seem to have emerged in the

constituent Treaties and the general principles that belong to the most fundamental norm-cate-gory of EU law. These norms constitute a central group of principles and values in EU law with an essential constitutional position. Nonetheless, as previously mentioned, the notion of a ‘constitutional core’ as a concept in EU law is relatively new, including the terminology, which is mainly discussed in the legal doctrine.106_{The concept of the ‘constitutional core’ is} used as a functional generic concept of the norms that, according to the CJEU, follow from the systematics of EU law, the constitutional principles of the EU and fundamental rights. The concept and terminology serves to accentuate that the CJEU seems to have ‘discovered’ a set of norms in the Treaties and the general principles that not even the Member States can gov-ern to the fullest.107 However, it is not entirely clear exactly what norms make up the core principles and values of EU law. The aim of this chapter is to analyse the substantive content of the ‘constitutional core’ as developed through the jurisprudence of the Court.

It should be noted that the terminology ‘constitutional core’ is not an expression used by the Court, yet. Instead, the CJEU has been known to use various formulations when referring to the norms of highest category108, for example:

• ‘The very foundations of the Community legal order’109 • ‘An essential feature of the EU legal order’110

• ‘The specific characteristics of the EU and EU law’111

106_{See for example Lavranos, Nikolaos, Revisiting Article 307 EC: The Untouchable Core of Fundamental} European Constitutional Law Values and Principles, in Fontanelli, Filippo, Martinico, Giuseppe and Carozza,

Paolo (ed.), SHAPING THE RULE OF LAW THROUGH DIALOGUE: International and supranational

experiences, Europa Law Publishing, Groningen, 2009 p. 119 ff. and Da Cruz Vilaça, José Luis, EU law and integration – twenty years of judicial application of EU law, Hart Publishing, Oxford and Portland, 2014.

p. 13 ff. For further discussion on terminology see also Chapter 1.

107_{This will be further developed in Chapter 5.}

108_{See for example Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat} International Foundation v Council of the European Union and Commission of the European Communities,

ECLI:EU:C:2008:461, Case C-399/11 Melloni, EU:C:2013:107, Opinion 2/13, ECLI:EU:C:2014:2454, Opinion 1/09, EU:C:2011:123 etc.

109_{Case C-43/75 Defrenne, ECLI:EU:C:1976:56, para. 29, Case C-106/77 Simmenthal, ECLI:EU:C:1978:49,}

para. 18. Opinion 1/91, EU:C:1991:490, paras. 35-36 and 71 and similar wording in Joined cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union

and Commission of the European Communities, ECLI:EU:C:2008:461, paras. 282 and 304.

110_{Case C-399/11 Melloni, EU:C:2013:107, paras. 57-59,}_{Opinion 1/09, EU:C:2011:123, para. 68 and}_{View of}

The ‘untouchable’ core of EU Law

FACULTY OF LAW