Adirective is alegal act of the European Union[1] which requiresmember states to achieve particular goals without dictating how the member states achieve those goals. A directive's goals have to be made the goals of one or more new or changed national laws by the member states before this legislation applies to individuals residing in the member states.[2] 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 oflegislative procedures depending on their subject matter.
The text of a draft directive (if subject to theco-decision process, as contentious matters usually are) is prepared by theCommission after consultation with its own and national experts. The draft is presented to theParliament and theCouncil—composed of relevant ministers of member governments, initially for evaluation and comment and then subsequently for approval or rejection.
Directives commence with a preamble and a number ofrecitals which provide treaty contexts, references to other relevant legislation, and principles seen as justifying the terms of the directive.[3]
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" terminology.[citation needed] For example, while EU Directive 2009/20/EC (which simply requires all vessels visiting EU ports to haveP&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.[4][failed verification][original research?]
The legal basis for theenactment of directives is Article 288 of theTreaty on the Functioning of the European Union (formerly Article 249TEC).
Article 288
To exercise the Union's competences, theinstitutions shall adopt regulations, directives, decisions, recommendations and opinions.
Aregulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon eachMember State to which it is addressed, but shall leave to the nationalauthorities the choice of form and methods.
Adecision shall be binding in its entirety upon those to whom it is addressed.
Recommendations and opinions shall have no binding force.
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.[5] 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.[6]
Directives are binding only on the member states to whom they are addressed, which can be just onemember state or a group of them. In general, however, with the exception of directives related to theCommon Agricultural Policy, directives are addressed to all member states.
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 astransposition) in order for the directive to be implemented correctly. This is done in approximately 99% of the cases.[7] 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, theEuropean Commission may initiate legal action against the member state in theEuropean Court of Justice. 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 theVerkooijen case, in which the European Court of Justice rendered a judgement on 6 June 2000 (case no. C-35/98).
The United Kingdom passed astatutory instrument (SI), theUnfair Terms in Consumer Contracts Regulations 1994,[8] to implement the EUUnfair Terms in Consumer Contracts Directive 1993.[9] For reasons that are not clear, the 1994 SI was deemed inadequate[citation needed] and was repealed and replaced by theUnfair Terms in Consumer Contracts Regulations 1999.[10] TheConsumer Rights Act 2015, a major United Kingdom statute consolidating consumer rights, then abolished the 1999 SI; so presumably the 2015 Act complies with the 1993 EU directive, which remains extant.
Even though directives were not originally thought to be binding before they were implemented by member states, the European Court of Justice developed thedoctrine ofdirect effect where unimplemented or badly implemented directives can actually have direct legal force. In the important case ofFrancovich v. Italy, the ECJ extended the principle ofVan Gend en Loos[11] 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.
The Union has two primary types of legislative acts, directives and regulations
Both the Council of Ministers and the Commission are empowered under the EC Treaty to make laws.
