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A directive is a legal act of the European Union [1] 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. [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 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.
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 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. [3] [ failed verification ]
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).
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. [4] 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. [5]
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.
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. [6] 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, the Unfair Terms in Consumer Contracts Regulations 1994, [7] to implement the EU Unfair Terms in Consumer Contracts Directive 1993. [8] For reasons that are not clear, the 1994 SI was deemed inadequate[ citation needed ] and was repealed and replaced by the Unfair Terms in Consumer Contracts Regulations 1999. [9] 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.
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 [10] 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.
A societas Europaea is a public company registered in accordance with the corporate law of the European Union (EU), introduced in 2004 with the Council Regulation on the Statute for a European Company. Such a company may more easily transfer to or merge with companies in other member states.
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.
A regulation is a legal act of the European Union which 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 national law. Regulations can be adopted by means of a variety of legislative procedures depending on their subject matter.
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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 required member states to achieve particular results without dictating the means of achieving that result. However unlike directives, framework decisions were not capable of direct effect, they were only subject to the optional jurisdiction of the European Court of Justice and enforcement proceedings could not be taken by the European Commission for any failure to transpose a framework decision into domestic law.
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The Unfair Terms in Consumer Contracts Regulations 1999 is an old UK statutory instrument, which had implemented the EU Unfair Consumer Contract Terms Directive 93/13/EEC into domestic law. It replaced an earlier version of similar regulations, and overlaps considerably with the Unfair Contract Terms Act 1977.
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Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62 was a landmark case of the European Court of Justice which established that provisions of the Treaty Establishing the European Economic Community were capable of creating legal rights which could be enforced by both natural and legal persons before the courts of the Community's member states. This is now called the principle of direct effect. The case is acknowledged as being one of the most important, and possibly the most famous development of European Union law.
Van Duyn v Home Office (1974) C-41/74 was a case of the European Court of Justice concerning the free movement of workers between member states.
The Unfair Terms in Consumer Contracts Directive93/13/EEC is a European Union directive governing the use of surprising or onerous terms used by business in deals with consumers.
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The Treaties of the European Union are a set of international treaties between the European Union (EU) member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures and objectives. The EU can only act within the competences granted to it through these treaties and amendment to the treaties requires the agreement and ratification of every single signatory.
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The Union has two primary types of legislative acts, directives and regulations
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