In many cases, the Treaties determine the type of acts to be adopted. In many other cases, however, no type of legal act is indicated. In such cases, Article 296(1) TFEU provides that the institutions are to select them on a case-by-case basis `in accordance with the applicable procedures and the principle of proportionality`. Union acts are listed in Article 288 TFEU. These are regulations, directives, decisions, recommendations and opinions. The EU institutions can only adopt such acts if they are empowered to do so by the Treaties. The limits of the European Union`s competences are governed by the principle of conferral laid down in Article 5(1) TEU. The TFEU defines the scope of the Union`s competences and divides them into three categories: exclusive competences (Article 3), shared competences (Article 4) and supporting competences (Article 6), with the EU adopting measures to support or complement Member States` policies. Articles 3, 4 and 6 TFEU list the areas covered by each category of Union competence. In the absence of the powers necessary to achieve one of the objectives set out in the Treaties, the institutions may apply Article 352 TFEU and thus adopt `appropriate measures`. 104. See, for example: the relevant paragraph of the final report of the Reflection Group of December 1995: `The majority of members recall the advantage of international legal personality for the Union of enabling it to conclude international agreements in the field of Titles V and VI relating to the CFSP and the external dimension of justice and home affairs. For them, the fact that the Union does not exist legally is a source of external confusion and diminishes their external role.
Others consider that the creation of an international legal personality for the Union could lead to a risk of confusion with the legal prerogatives of the Member States. Reflection Group Report and Other References for Documentation Purposes, Intergovernmental Conference 1996, General Secretariat of the Council of the European Union (Brussels 1996), paragraph 150, p. 76. The Treaty of Lisbon established the legal personality of the whole Union in the very important Article 47 TEU. It replaced the European Community with a legally new European Union. 30. International legal personality is mentioned in Article 107(2) EC and private legal personality in Article 9(1) of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank. If these conditions are met, individuals may invoke the provision in question against the public authorities. Even if the provision does not confer rights on individuals and only the first and second conditions are met, the authorities of the Member States are required to take account of the directive that has not been transposed. That decision is based, inter alia, on the principles of effectiveness, prevention of failure to fulfil obligations and judicial protection.
On the other hand, an individual cannot rely on the direct effect of a directive not transposed against other persons (`horizontal effect`; Case C-91/92 Faccini Dori [25] ECR I-3325 et seq. The European Union has legal personality and, as such, has its own legal order, distinct from international law. In addition, EU law directly or indirectly affects the law of its Member States and forms part of the legal order of each Member State. The European Union itself is a source of law. The legal order is generally divided into primary law (treaties and general principles of law), secondary law (treaty-based) and complementary law. Opinion 1/94 on the legality of the Community`s accession to the WTO, see also Meinhard Hilf, ECJ Opinion 1/94 on the WTO — Not surprising, but wise? [1995] 6 EJIL, 1-15. Article 47 of the Treaty on European Union (TEU) explicitly recognises the legal personality of the European Union, making it a separate entity. To establish a legal order for the Union in order to achieve the objectives set out in the Treaties. In addition, there are various forms of action, such as recommendations, communications and acts relating to the organisation and functioning of the institutions (including interinstitutional agreements), the designation, structure and legal effects of which result from various provisions of the Treaties or provisions adopted pursuant thereto. 4. Provisions on powers, procedures, implementation and enforcement of acts 103.
A number of States, although in the minority, considered that the Union already had legal personality, since, in practice, the Union is accepted in international relations as an autonomous and formal entity. This argument does not seem to hold water. Third party partners may recognise the Union as a separate entity, but this is only done in a purely political context. So far, there is no indication that this could happen if the conclusion of (binding) agreements is at stake. Implementing acts shall normally be adopted by the Commission, which shall be competent to do so where uniform conditions for the implementation of legally binding acts are required. Implementing acts shall fall within the competence of the Council only in duly justified specific cases and in areas falling within the common foreign and security policy. Where a basic act is adopted in accordance with the ordinary legislative procedure, the European Parliament or the Council may at any time inform the Commission that it considers that a draft implementing act exceeds the implementing powers provided for in the basic act. In this case, the Commission must revise the draft act concerned. The European Union is a Union based on the rule of law, which has put in place a comprehensive system of legal remedies and procedures to enable the Court of Justice of the European Union (CJEU) to review the legality of acts of the EU institutions (Article 263 TFEU).
Treaties and general principles are at the top of the hierarchy and are called primary law. Following the entry into force of the Treaty of Lisbon on 1 December 2009, the Charter of Fundamental Rights was given the same value. International agreements concluded by the European Union are subject to primary law. Secondary legislation is the next step in the hierarchy and is only valid if it is compatible with the acts and agreements that prevail over it. The doctrine of the primacy of EU law is a fundamental pillar of the EU legal order and aims to ensure the unity and coherence of EU law. The CJEU formally insists that EU law takes absolute precedence over the national law of the Member States and has always claimed ultimate authority in determining the relationship between EU and national law. In the landmark cases van Gend en Loos v. Nederlandse Administratie der Belastingen and Costa v. ENEL, the CJEU developed the fundamental lessons of the direct effect and primacy of EU law.