An Order Inside an Order
Spain joined a distinct legal order. Article 93 CE allows treaties that attribute to an international organisation the exercise of competences derived from the Constitution. This is the basis of European construction in Spanish law.
The sources
Primary law comprises the treaties (TEU and TFEU) and the Charter of Fundamental Rights.
Secondary law is listed in Article 288 TFEU:
| Instrument | Binding force | Addressees | Directly applicable |
|---|---|---|---|
| Regulation | In its entirety | General | Yes |
| Directive | As to the result | Member State targets | No |
| Decision | In its entirety | Specific or general | Yes |
| Recommendation / opinion | None | Varies | Not applicable |
Directives require national transposition. Consequently, they generate significant litigation when deadlines are missed.
Court of Justice Case Law
The Court of Justice established two core principles:
- Van Gend en Loos (1963) established direct effect. European Union law confers rights that national courts must protect.
- Costa v ENEL (1964) established primacy. Community law prevails over later national legislation.
- Simmenthal (1978) held that any national court must give immediate effect to Union law, disapplying conflicting domestic provisions.
Directives without timely transposition can be invoked only against the state. Under Francovich, a Member State must pay damages for non-implementation.
The Spanish qualification
In Declaration 1/2004 on the Constitution for Europe, the Spanish Constitutional Court stated that primacía is not supremacía (2004). The Spanish Constitution remains supreme, but Union law takes application precedence within ceded competences.
Common pitfall: Confusing direct applicability with direct effect. Applicability means an EU act needs no national transposition. Effect means an individual can enforce the right in a domestic court.