Directive (European Union)#Implementation

{{about-distinguish2|directives for EU member-state legislation|negotiating directives in EU foreign policy}}

A directive is a legal act of the European Union{{cite book |title=European Union law after Maastricht: a practical guide for lawyers outside the common |quote=The Union has two primary types of legislative acts, directives and regulations}} that requires member 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.{{cite web |title=Treaties, regulations, directives and direct effect |url=http://hum.port.ac.uk/europeanstudieshub/learning/module-3-governance-in-a-multi-level-europe/direct-effect-and-direct-applicability/ |website=European Studies |publisher=University of Portsmouth |access-date=21 January 2021}} 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 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 and the Council—composed of relevant ministers of member governments, initially for evaluation and comment and then subsequently for approval or rejection.

Justifications

Directives commence with a preamble and a number of recitals which provide treaty contexts, references to other relevant legislation, and principles seen as justifying the terms of the directive.Humphreys, L., Santos, C., di Caro, L., Boella, G., van der Torre, L. and Robaldo, L. (2015), [https://icr.uni.lu/leonvandertorre/papers/jurix2015.pdf Mapping Recitals to Normative Provisions in EU Legislation to Assist Legal Interpretation], accessed on 10 April 2025

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.{{cn|date=October 2019}} 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.{{Cite web|url=https://www.legislation.gov.uk/ukia/2012/190|title=UK implementation of EU Directive 2009/20/EC on the insurance of ship-owners for maritime claims - Impact Assessment}}{{not in citation|date=October 2019}}{{OR|date=October 2019}}

Legal basis

The legal basis for the enactment of directives is Article 288 of the Treaty on the Functioning of the European Union (formerly Article 249 TEC).

{{quote|Article 288

To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.

A regulation 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 each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

A decision 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.{{Cite web|url=http://www.w4mp.org/html/library/standardnotes/snia-03689.pdf |title=The European Union: a guide to terminology procedures and sources |author=Christine Fretten |author2=Vaughne Miller |date=21 July 2005 |access-date=3 September 2009 |publisher=UK House of Commons Library, International Affairs and Defence Section |page=8 |id=Standard Note: SN/IA/3689 |quote=Both the Council of Ministers and the Commission are empowered under the EC Treaty to make laws. |url-status=dead |archive-url=https://web.archive.org/web/20100612213147/http://w4mp.org/html/library/standardnotes/snia-03689.pdf |archive-date=12 June 2010 }} 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.{{cite book |last1=Steiner |first1=Josephine |first2=Lorna |last2=Woods |first3=Christian |last3=Twigg-Flesner | title=EU Law |url=https://archive.org/details/eulaw0009stei |url-access=registration |edition=9th |year=2006 |publisher=Oxford University Press |location=Oxford |isbn=978-0-19-927959-3|pages=[https://archive.org/details/eulaw0009stei/page/56 56]–60}}

Legal effect

Directives are binding only on the member states to whom they are addressed, which can be just one member state or a group of them. In general, however, with the exception of directives related to the Common Agricultural Policy, 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.{{cite web |url=http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1122&format=HTML&aged=0&language=EN&guiLanguage=en |title=Internal Market Scoreboard: best result ever – Member States reach new target ahead of deadline |publisher=Europa |access-date=18 January 2009 |date=9 July 2008}} 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 may initiate legal action against the member state in the European 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 the Verkooijen case, in which the European Court of Justice rendered a judgement on 6 June 2000 (case no. C-35/98).

The United Kingdom passed a statutory instrument (SI), the Unfair Terms in Consumer Contracts Regulations 1994,UK Legislation, [http://www.legislation.gov.uk/uksi/1994/3159/made The Unfair Terms in Consumer Contracts Regulations 1994 – SI 1994/3159] to implement the EU Unfair Terms in Consumer Contracts Directive 1993.{{Cite web|url=http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:71993L0013:EN:NOT#FIELD_UK|title=National provisions communicated by the member states concerning Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts}} For reasons that are not clear, the 1994 SI was deemed inadequate{{cn|date=October 2019}} and was repealed and replaced by the Unfair Terms in Consumer Contracts Regulations 1999.{{Cite web|url=http://www.legislation.gov.uk/uksi/1999/2083/contents/made|title=The Unfair Terms in Consumer Contracts Regulations 1999}} The Consumer 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.

=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 of direct effect where unimplemented or badly implemented directives can actually have direct legal force. In the important case of Francovich v. Italy, the ECJ extended the principle of Van Gend en Loos Van Gend en Loos: EU Treaties are capable of creating legal rights enforceable by both natural and legal persons 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.

References

External links

[https://publications.parliament.uk/pa/cm200102/cmselect/cmeuleg/152-xxxiii/15201.htm UK House of Commons: Report of the EU Legislative Process and scrutiny by national parliaments].
[http://eur-lex.europa.eu/ EUR-Lex, European Union Law database].
[https://web.archive.org/web/20050308103418/http://www.eubusiness.com/guides/legislation EU Legislative Procedures]

Directive