How EU Legislation Actually Works

The Legislative Hierarchy

EU law operates on a clear vertical structure. Primary law sits at the top. Secondary law sits below it. Soft law and guidance sit below that. Understanding where each instrument sits tells you how much legal weight it carries and what happens when two instruments conflict.

Primary Law: The Foundation

The Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) are the constitutional bedrock. They define the EU's objectives, competences, institutions, and decision-making procedures. No secondary legislation can contradict them.

The Charter of Fundamental Rights has had the same legal value as the Treaties since the Lisbon Treaty (2009). It binds EU institutions when they act, and member states when they implement EU law.

Secondary Law: Regulations, Directives, Decisions

Below primary law sits secondary legislation, the bulk of what most lawyers work with daily. The three main instruments are regulations, directives, and decisions. A decision is binding only on those to whom it is addressed.

Delegated and Implementing Acts

Below secondary legislation sit delegated acts (Article 290 TFEU) and implementing acts (Article 291 TFEU). These fill in the operational detail that the main legislative text leaves open. In heavily regulated sectors like financial services, this is where the real substance lives.

Technical Standards and Soft Law

Regulatory Technical Standards (RTS) and Implementing Technical Standards (ITS) are specific to financial services. Below them sit guidelines, Q&As, recommendations, and supervisory statements. These are not legally binding in the same way, but ignoring them is rarely safe.

Key takeaway: When you research an EU law question, always locate where the relevant rule sits in the hierarchy. A guideline from the EBA does not carry the same legal weight as a provision in the Capital Requirements Regulation.

Regulations vs Directives: The Core Distinction

A regulation is directly applicable. It enters into force on the date specified, applies in every member state without further action, and has the same text in all 27 member states. The GDPR and the AI Act are regulations. You read the EU text; that is the law.

A directive sets an outcome that member states must achieve but leaves them the means to do so. Member states must transpose directives into national law within a deadline. To know the law in a specific member state, you need to read that state's national implementing legislation, not just the directive.

Direct effect, established in Van Gend en Loos (Case 26/62), means certain EU law provisions create rights enforceable in national courts. Regulations have direct effect as a rule. Directives can have vertical direct effect against the state after the implementation deadline, but not between private parties.

Key takeaway: Before researching any EU rule, ask: is this a regulation or a directive? If it is a directive, you need the national implementing measures too.

How EU Legislation Is Made

Most EU legislation follows the Ordinary Legislative Procedure (OLP) under Article 294 TFEU. The European Commission proposes legislation. The European Parliament and Council of the EU are co-legislators.

In practice, around 85% of EU legislation is agreed through trilogues, informal negotiations between the Parliament, Council, and Commission before formal readings conclude. The Legislative Observatory tracks the full procedural history of every act.

Delegated Acts vs Implementing Acts

Delegated acts (Article 290 TFEU) supplement or amend non-essential elements of a legislative act. Parliament and Council retain the right to revoke the delegation or object. They flesh out policy choices the main act leaves open.

Implementing acts (Article 291 TFEU) ensure uniform conditions for implementation. They do not amend or supplement the legislative act. They implement it.

Key takeaway: For any major EU regulation, check whether it empowers the Commission to adopt delegated or implementing acts. In financial services, the vast majority of operational rules are found in these secondary instruments.

RTS and ITS in Financial Services

The three ESAs (EBA, ESMA, EIOPA) draft Regulatory Technical Standards and Implementing Technical Standards. When a regulation like DORA empowers the Commission to adopt an RTS, the relevant ESA drafts it, consults publicly, and submits it to the Commission for adoption.

Once adopted, they are published in the Official Journal as Commission Delegated Regulations (RTS) or Implementing Regulations (ITS). The ESA websites are the best place to track standards in development.

Recitals: Not Binding, But Frequently Cited

Recitals are the numbered paragraphs in the preamble beginning "Whereas". They are not operative provisions. Despite this, the CJEU regularly cites them to determine the purpose and context of ambiguous articles.

One research trap: consolidated texts on EUR-Lex only display the original recitals. Recitals added by amending regulations do not appear. If you are working on an amended provision, check the amending act for new recitals.

The 24-Language Problem

EU legislation is published in all 24 official languages, all equally authentic. The CJEU's approach from CILFIT (Case C-283/81): where a provision is ambiguous, compare multiple language versions and interpret in light of the legislation's purpose.

For practitioners, comparing English, French, and German versions of an ambiguous provision is a legitimate and sometimes essential research step. EUR-Lex lets you switch between language versions with a single click.

National Transposition

When a directive is adopted, member states have 12 to 24 months to transpose it into national law.

Gold-plating refers to imposing requirements beyond the directive minimum. Transposition deficits occur when a member state fails to transpose on time or correctly. The Commission can bring infringement proceedings under Article 258 TFEU.

EUR-Lex's "National execution measures" tab links to each member state's implementing legislation. To read the actual national text, visit the relevant national database: Legifrance (France), gesetze-im-internet.de (Germany), legislation.gov.uk (UK), BOE (Spain).

The Preliminary Reference System (Article 267 TFEU)

The CJEU does not hear appeals from national courts. The mechanism for uniform interpretation is the preliminary reference procedure. Where a question of EU law arises, a national court may (and sometimes must) refer it to the CJEU. The ruling binds all courts in all member states.

Courts against whose decisions there is no further remedy are generally obliged to refer, unless the CJEU has already ruled on the point or the correct interpretation is acte clair (also from CILFIT).

Where to Find Everything

• EUR-Lex (eur-lex.europa.eu) - 2M+ documents. Treaties, secondary legislation, preparatory acts, case law, national transposition measures. Free and comprehensive.
• Official Journal - the only official source of EU law. Published Tuesday to Saturday in 24 languages.
• Curia (curia.europa.eu) - every CJEU and General Court judgment, AG opinion from 1954. Free and searchable.
• Legislative Observatory - European Parliament's tracker for every legislative proposal from introduction to adoption.
• ESA websites (EBA, ESMA, EIOPA) - draft RTS/ITS, consultation papers, Q&As, guidelines.
• National databases - Legifrance, gesetze-im-internet.de, legislation.gov.uk, and equivalents for other member states.

Key takeaway: EUR-Lex and Curia are your two core sources. Everything else supplements them for specific tasks.

A Practical Research Workflow

• Identify the instrument type. Regulation or directive? This determines whether you need national implementing legislation.
• Find the primary act on EUR-Lex. Search by CELEX number or title.
• Check for delegated and implementing acts. Search EUR-Lex for related Commission Delegated Regulations and Implementing Regulations.
• For financial services, check RTS and ITS. Visit the relevant ESA website.
• Read the relevant recitals. They are interpretive context for ambiguous text.
• Search Curia for CJEU case law. Read the AG opinion alongside the judgment.
• If a directive, check national transposition. Use EUR-Lex's national execution measures tab.
• Compare language versions if ambiguous. Switch between English, French, and German on EUR-Lex.
• Check soft law and supervisory guidance. Guidelines, Q&As, and opinions from the relevant authority.

Platforms like Venato are designed to make this workflow faster by keeping documents current and linking citations directly to source texts. But the workflow above applies regardless of which tools you use.

Where EU Law Is Heading

Since 2019, the Commission has adopted over 13,000 regulations. Major frameworks like DORA, MiCA, the AI Act, and the Data Governance Act are all generating second-level acts now, with guidance and national implementation to follow.

Understanding the full architecture means you know where to look when the law changes, not just where to start. That is the real value of getting this right early in your career: developing the habit of always checking where a rule sits before you rely on it.