Legal Instruments and Law-Making in the Lisbon Treaty

Abstract

The system of sources of EU law consists roughly speaking of five major elements: at the summit of the legal hierarchy are the founding (or ‘basic’) Treaties themselves, essentially the EC and EU Treaty; next in rank are the unwritten general principles of EU law which play an important role in the case law of the ECJ; then come the international agreements concluded by the EC and the EU which must be in conformity with the founding Treaties and the general principles but prevail over the rest of EU law; then we have the binding acts adopted by the EU institutions; and finally (a distinctive characteristic of EU law) a proliferation of various semilegal acts known under the generic name of ‘soft law’. The Lisbon Treaty will leave these five major components¹ as well as their hierarchical relationship intact, with one complication, namely the fact that fundamental rights will have an ambiguous legal status: they will partake of the supreme legal status accorded to the founding Treaties (through the renvoi clause of Article 6(1) TEU-L), but will also continue to be part of the general principles of Union law.

This is not meant to minimise the legal importance of the fact that the EC Treaty will be called Treaty on the Functioning of the European Union. What is presented in the Lisbon Treaty as a simple change of name is, in fact, accompanied by a number of legal implications.