A directive is a legal act of the
European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
that requires
member states
A member state is a state that is a member of an international organization or of a federation or confederation.
Since the World Trade Organization (WTO) and the International Monetary Fund (IMF) include some members that are not sovereign states ...
to achieve a particular result without dictating the means of achieving that result. Directives first have to be enacted into national law by member states before their laws are ruling on individuals residing in their countries. Directives normally leave member states with a certain amount of leeway as to the exact rules to be adopted. Directives can be adopted by means of a variety of
legislative procedures depending on their subject matter.
The text of a draft directive (if subject to the
co-decision
The European Union adopts legislation through a variety of legislative procedures. The procedure used for a given legislative proposal depends on the policy area in question. Most legislation needs to be proposed by the European Commission and ...
process, as contentious matters usually are) is prepared by the
Commission after consultation with its own and national experts. The draft is presented to the
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
and the
Council
A council is a group of people who come together to consult, deliberate, or make decisions. A council may function as a legislature, especially at a town, city or county/shire level, but most legislative bodies at the state/provincial or natio ...
—composed of relevant ministers of member governments, initially for evaluation and comment and then subsequently for approval or rejection.
Justification
There are justifications for using a directive rather than a regulation: (i) it complies with the EU's desire for
"subsidiarity"; (ii) it acknowledges that different member States have different legal systems, legal traditions and legal processes; and (iii) each Member State has leeway to choose its own statutory wording, rather than accepting the Brussels' official "
Eurospeak
European Union (EU) concepts, acronyms, and jargon are a terminology set that has developed as a form of shorthand, to quickly express a (formal) EU process, an (informal) institutional working practice, or an EU body, function or decision, and w ...
" terminology.
For example, while EU Directive 2009/20/EC (which simply requires all vessels visiting EU ports to have
P&I cover) could have been a regulation (without requiring member states to implement the directive), the desire for subsidiarity was paramount, so a directive was the chosen vehicle.
Legal basis
The legal basis for the
enactment
Enactment may refer to:
Law
* Enactment of a bill, when a bill becomes law
* Enacting formula, formulaic words in a bill or act which introduce its provisions
* Enactment (British legal term), a piece of legislation or a legal instrument made un ...
of directives is Article 288 of the
Treaty on the Functioning of the European Union
The Treaty on the Functioning of the European Union (TFEU) is one of two treaties forming the Treaties of the European Union, constitutional basis of the European Union (EU), the other being the Treaty on European Union (TEU). It was previously ...
(formerly Article 249
TEC).
The Council can delegate legislative authority to the Commission and, depending on the area and the appropriate legislative procedure, both institutions can seek to make laws.
There are Council directives and Commission directives. Article 288 does not clearly distinguish between legislative acts and administrative acts, as is normally done in national legal systems.
Legal effect
Directives are binding only on the member states to whom they are addressed, which can be just one
member state
A member state is a state that is a member of an international organization or of a federation or confederation.
Since the World Trade Organization (WTO) and the International Monetary Fund (IMF) include some members that are not sovereign states ...
or a group of them. In general, however, with the exception of directives related to the
Common Agricultural Policy
The Common Agricultural Policy (CAP) is the agricultural policy of the European Union. It implements a system of agricultural subsidies and other programmes. It was introduced in 1962 and has since then undergone several changes to reduce the ...
, directives are addressed to all member states.
Implementation
When adopted, directives give member states a timetable for the implementation of the intended outcome. Occasionally, the laws of a member state may already comply with this outcome, and the state involved would be required only to keep its laws in place. More commonly, member states are required to make changes to their laws (commonly referred to as
transposition) in order for the directive to be implemented correctly. This is done in approximately 99% of the cases. If a member state fails to pass the required national legislation, or if the national legislation does not adequately comply with the requirements of the directive, the
European Commission
The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body o ...
may initiate legal action against the member state in the
European Court of Justice
The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Un ...
. This may also happen when a member state has transposed a directive in theory but has failed to abide by its provisions in practice.
If a Member State fails to implement a Directive timely or correctly, the Directive itself becomes binding on the Member States, meaning that parties in proceedings against the state may rely on provisions of the untimely or incorrectly transposed Directive. An example of a case in which the applicant was able to invoke the provisions of an untimely transposed Directive is the ''Verkooijen'' case, in which the European Court of Justice rendered a judgement on 6 June 2000 (case no. C-35/98).
Britain passed a
statutory instrument
In many countries, a statutory instrument is a form of delegated legislation.
United Kingdom
Statutory instruments are the principal form of delegated or secondary legislation in the United Kingdom.
National government
Statutory instrument ...
, the
Unfair Terms in Consumer Contracts Regulations 1994
The Unfair Terms in Consumer Contracts Regulations 1999SI 1999/2083 is an old UK statutory instrument, which had implemented the EU (then EEC) Unfair Consumer Contract Terms Directivebr>93/13/EECinto domestic law.Implemented under the European C ...
, to implement the EU
Unfair Terms in Consumer Contracts Directive 1993
The Unfair Terms in Consumer Contracts Directive''93/13/EECis a European Union directive (then called European Economic Community directive) governing the use of surprising or onerous terms used by business in deals with consumers.
National law
I ...
. For reasons that are not clear, the 1994 SI was deemed inadequate and was repealed and replaced by the
Unfair Terms in Consumer Contracts Regulations 1999
The Unfair Terms in Consumer Contracts Regulations 1999SI 1999/2083 is an old UK statutory instrument, which had implemented the EU (then EEC) Unfair Consumer Contract Terms Directivebr>93/13/EECinto domestic law.Implemented under the European C ...
. The
Consumer Rights Act 2015
The Consumer Rights Act 2015 is an Act of Parliament of the United Kingdom that consolidates existing consumer protection law legislation and also gives consumers a number of new rights and remedies.
Provisions for secondary ticketing and l ...
, a major UK statute consolidating consumer rights, then abolished the 1999 SI; so presumably the 2015 Act complies with the 1993 EU directive, which remains extant.
Direct effect
Even though directives were not originally thought to be binding before they were implemented by member states, the European Court of Justice developed the
doctrine
Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system ...
of
direct effect
In European Union law, direct effect is the principle that Union law may, if appropriately framed, confer rights on individuals which the courts of member states of the European Union are bound to recognise and enforce.
Direct effect is not ex ...
where unimplemented or badly implemented directives can actually have direct legal force. In the important case of ''
Francovich v. Italy
''Francovich v Italy'' (1991) C-6/90 was a decision of the European Court of Justice which established that European Union Member States could be liable to pay compensation to individuals who suffered a loss by reason of the Member State's fai ...
'', the ECJ extended the principle of ''
Van Gend en Loos
Van Gend & Loos was a Dutch distribution company. It was established in 1809, and was purchased by DHL in 2003.
History
Van Gend & Loos was established by the Antwerp-based innkeeper and carriage driver Jan-Baptist van Gend. He had marrie ...
''
[ ''Van Gend en Loos'': EU Treaties are capable of creating legal rights enforceable by both ]natural
Nature, in the broadest sense, is the physical world or universe. "Nature" can refer to the phenomena of the physical world, and also to life in general. The study of nature is a large, if not the only, part of science. Although humans are p ...
and legal person
In law, a legal person is any person or 'thing' (less ambiguously, any legal entity) that can do the things a human person is usually able to do in law – such as enter into contracts, sue and be sued, own property, and so on. The reason for ...
s in the courts of Member States. to provide that Member States who failed to implement a directive could incur liability to pay damages to individuals and companies who had been adversely affected by such non-implementation.
See also
*
EudraLex
EudraLex is the collection of rules and regulations governing medicinal products in the European Union.
Volumes
EudraLex consists of 10 volumes:
*Concerning Medicinal Products for Human use:
**Volume 1 - Pharmaceutical Legislation.
**Volume 2 - ...
*
EUR-Lex
Eur-Lex (stylized EUR-Lex) is an official website of European Union law and other public documents of the European Union (EU), published in 24 official languages of the EU. The Official Journal (OJ) of the European Union is also published on EUR- ...
*
European Union regulation
A regulation is a legal act of the European Union that becomes immediately enforceable as law in all member states simultaneously. Regulations can be distinguished from directives which, at least in principle, need to be transposed into nation ...
*
Framework decision
A framework decision was a kind of legislative act of the European Union used exclusively within the EU's competences in police and judicial co-operation in criminal justice matters. Framework decisions were similar to directives in that they r ...
*
Law of the European Union
European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...
*
List of European Union directives
The following is a thematic list of European Union directives:
For a date based list, see the :European Union directives by number
Numbering
From 1 January 1992 to 31 December 2014, numbers assigned by the General Secretariat of the Council ...
*
Policy measures of the European Union
References
External links
UK House of Commons: Report of the EU Legislative Process and scrutiny by national parliaments
EUR-Lex, European Union Law database
EU Legislative Procedures
{{Portal bar, European Union, Law
Directive