EUROPEAN UNION DIRECTIVES

The directive is one of the legal instruments available to the European institutions for implementing European Union policies. It is a flexible instrument mainly used as a means to harmonise national laws. It requires EU countries to achieve a certain result but leaves them free to choose how to do so.

SUMMARY

The directive is one of the legal instruments available to the European institutions for implementing European Union policies. It is a flexible instrument mainly used as a means to harmonise national laws. It requires EU countries to achieve a certain result but leaves them free to choose how to do so.

The directive forms part of the EU’s secondary law. It is therefore adopted by the EU institutions in accordance with the founding Treaties. Once adopted at EU level, it is then transposed by EU countries into their internal law for application.

For example, the directive on the organisation of working time sets mandatory rest periods and a limit on weekly working time authorised in the EU. However, it is up to each individual country to develop its own laws to determine how to apply these rules.

A binding act of general application

Article 288 of the Treaty on the Functioning of the EU states that a directive is binding on the countries to whom it is addressed (one, several or all of them) as to the result to be achieved, while leaving national authorities competence as to form and means.

However, a directive is distinct from a regulation or a decision:

—	unlike a regulation, which is immediately applicable in EU countries' internal law immediately after its entry into force, a directive is not directly applicable in EU countries. It must first be transposed into national law before governments, businesses and individuals can have recourse to it,

—	unlike a decision, the directive is a text with general application to all EU countries.

The directive is adopted following a legislative procedure. It is a legislative act adopted by the Council and Parliament under the ordinary or special legislative procedures.

Mandatory transposition

For a directive to take effect at national level, EU countries must adopt a law to transpose it. This national measure must achieve the objectives set by the directive. National authorities must communicate these measures to the European Commission.

EU countries have room for manoeuvre in this transposition process. This allows them to take into account specific national characteristics. Transposition must take place by the deadline set when the directive is adopted (generally within 2 years).

When a country does not transpose a directive, the Commission may initiate infringement proceedings and bring proceedings against the country before the Court of Justice of the EU (the non-enforcement of the judgment on this occasion can lead a new conviction which may result in fines).

Protection of individuals in the event of incorrect transposition of directives

In principle, the directive only takes effect once transposed. However, the Court of Justice of the EU considers that a directive that is not transposed can produce certain effects directly when:

—	the transposition into national law has not taken place or has been done incorrectly,

—	the provisions of the directive are unconditional and sufficiently clear and precise, and

—	the provisions of the directive give rights to individuals.

When these conditions are met, individuals may rely on the directive against an EU country in court. However, an individual may not rely on making a claim against another individual with respect to the direct effect of a directive if it has not been transposed (see Judgment in the Case C-91/92 Paola Faccini Dori v Recreb Srl of July 14, 1994).

The Court of Justice also allows, under certain conditions, individuals the possibility of obtaining compensation for directives whose transposition is poor or delayed (Judgment in the Cases C-6/90 and C-9/90 Francovich and Bonifaci of 19 November 1991).

Fighting transposition delays

EU countries’ late transposition of directives remains a persistent problem, which prevents citizens and businesses from benefiting from the tangible benefits of EU law.

The EU has set a target of reducing the transposition deficit to 1 %. The table of the transposition of EU directives on the single market, published by the European Commission in July 2014, shows that only 5 countries were not able to achieve this goal. Conversely, 12 countries managed to achieve a compliance deficit for national legislation of below the 0.5 % proposed in the Single Market Act of April 2011.

For more information, see ‘EU law’on the European Union's website.

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