unfinished l3 sources of eu law expanded

types of secondary eu legal acts

in eu law the most important issue is not the title of the act but its actual content and legal affects

typical acts= are expressly definied in the treaties

• the classical legal instruments listed in article 288 tfeu

  • regulations

  • directives

  • decisions

non typicak acts= are not expressly definied in the treaties but are frequently used by eu institutions

• some are legally binding while others are soft law

  • recommendations

  • opinions

  • resolutions

  • communications

  • guidlines

eu insitutions may whoose which legal act to use but they must respect proportionality

• this means the eu should not use a more intrusive instruments than necessary

  • regulations are used where uniform detailed rules are required across the eu

  • whereas directive are used where flexibility for ms is preferred

regulations

the legal basis for regulations is article 288 2 tfeu

• the strongest and most intergrated form of eu secondary legislation

• regulations are

  • complete

  • fully binding

  • and directly applicable legal norms

• no national implementation required= ms do not need to pass national laws to apply regulations

  • regulation itself becomes part of national law automatically

• unifomrity= uniform application across all member states is essential

  • member states cannot alter wording

  • modify the meaning

  • or republish regulations in ways that undermine unifomrity

essential characteristics

general application= regulations applu generally like national legislation

• do not target specific persons/adressees

• apply to objective categories and situation

binding in their entirety= every part of the regulation must be applied fully

• cannot choose which provisions to follow

• cannot make reservations (like in treaties)

• cannot impose conditions

direct applicability= automatically become part of domestic law without national implementation measures

• ms cannot change the wording

• cannot supplement the regulation improperly

• cannot alter its oegal meaning

direct effect= regulations may create rights and obligations for both member states and indiduals

• therefore indidvduals can usually invoke regulations before national courts

directives

the legal basis is article 288 (3) tfeu

• directives are binding only as to the result to be achieved (ie gives direction)

• member states must achieve the objective laid down in the directive however they may choose form and methods of implementation

• directivrs set a deadline by which member states must transpose their provisions into national law

  • binding and failing to implement correctly/ontime may resut in infiringement proceedings by the commission under 258 tfeu

• directives mainy aim at harmonisation of national laws

  • they allow approximation of laws while preserving some national flexibility

• no general application= directives do not necessarily apply to everyone

  • they may be adressed to all or only to some member states

• generally no direct effect= they require implementation into national law therefore indiduals usually cannot rely directly on them immediately

  • they are also targetted at member states rather than individuals

• exceptional direct effect= the cjeu has accepted direct effect where a directive is

  • clear

  • precise

  • unconitional

  • and not dependant on further action

    • after the deadline expires these provisions may have vertical direct effect against the state not against private indiduals

    • the court developed this principle to protect the effectiveness of eu law otherwise a ms could avoid eu obligations simply by failing to implement the directive

regulations vs directives

opposites

• uniform rules vs flexible implementation

• automatically applicable vs requires national implementation

• stronger eu integration vs greater national sovereignty

• same rules everywhere vs same goal achieved but states choose different methods

decisions

legal basis found in art 288 tfeu

• decisions are binding in their entirety upon those to whom they are adressed

  • hybrid acts=combine features of regulations and directives

    • regulations= binding in their entirety

    • directives= adressed to specific parties not generally applicable

• binding in its enitrety= every part of the decision must be applied/ complied with fully

  • failure to comply with a biding decision can lead to enforcement action before the cjeu

• addressees of decisions= bining on those to whom it is adressed

  • memeber states

  • indiduals

  • companies

    • some decicions are non adressed decisions ( certain isnitutional or regulatory measures) and may have geeral application)

• directly applicable= decisions do not require national implementation measures/ transoosition to take effect

• direct effect= can produce direct effect where the provisions are suficciently

  • clear

  • precise

  • unconidtional

    • allowing indiduals to rely on them before national courts

• commonly used by the european commission in areas sich as competition law, sate aid, merger control and infrigement procedures

practical difficulty

in practice disguishing between the 3 can sometimes be dificult because their legal effevts may overlap

EU Measure	Binding Effect	Who is Bound?	Need National Implementation?	Main Purpose
Regulation	Binding in its entirety	All Member States and individuals within the EU	No – directly applicable	Creates uniform EU-wide rules
Directive	Binding as to the result to be achieved	Member States addressed	Yes – must be transposed into national law by a deadline	Harmonises national laws while allowing flexibility
Decision	Binding in its entirety	Specific addressees (e.g. Member States, companies, individuals)	Usually no	Deals with specific situations or parties