The European Union’s secondary law

SUMMARY OF:

Article 288 of the Treaty on the Functioning of the European Union (TFEU)

Article 289 of the Treaty on the Functioning of the European Union (TFEU)

Article 290 of the Treaty on the Functioning of the European Union (TFEU)

Article 291 of the Treaty on the Functioning of the European Union (TFEU)

WHAT IS THE AIM OF ARTICLES 288, 289, 290 AND 291 OF THE TFEU?

European Union (EU) secondary law is the body of law that is based on the EU treaties. This distinguishes it from the EU’s primary law which mainly consists of the treaties, notably the Treaty of Rome (see summary), which evolved into the Treaty of the Functioning of the European Union (TFEU) (see summary), the Treaty on European Union (see summary), based on the Treaty of Maastricht (see summary), and the Euratom Treaty (see summary). Primary law sets out the distribution of powers and responsibilities between the EU and the EU Member States and provides the legal context within which EU institutions formulate and implement policies.

The Treaty of Lisbon (see summary) revised the types of EU legal acts. There are five types of legal acts at the EU institutions’ disposal.

• Article 288 describes the five types of legal acts the EU institutions can adopt.
• Article 289 distinguishes between legislative and non-legislative legal acts, and distinguishes between the ordinary legislative procedure and the special legislative procedure.
• Articles 290 enables the European Commission to adopt a new category of acts: delegated acts.
• Article 291 gives the Commission and, in specific cases, the Council of the European Union the power to adopt implementing acts.

KEY POINTS

EU legal acts and their types

Under Article 288 of the TFEU, the European institutions may adopt five types of legal acts:

• the regulation
• the directive
• the decision
• the recommendation
• the opinion.

Regulations, directives and decisions are binding legal acts. If they are adopted through the legislative procedure in accordance with Article 289, they are considered legislative acts. A decision can specifically address one or more addressees (Member States, natural or legal persons). There are also decisions with no specific addressee, particularly in the area of the common foreign and security policy.

Recommendations and opinions are non-legislative, non-binding legal acts.

There are also acts not listed in Article 288 of the TFEU.

• Certain specific acts based on previous treaties: for example, in the area of criminal matters, freedom, justice and security, ‘framework decisions’ continue to apply (they were adopted before the Treaty of Lisbon entered into force, when judicial and police cooperation in criminal matters had a specific status).
• ‘Atypical acts’, which include interinstitutional agreements (e.g. on budgetary discipline (see summary) and rules of procedure (e.g. the Rules of Procedure of the European Parliament (see summary) and of the Commission (see summary), which are legally binding acts, and resolutions and conclusions, which are not intended to have legal effects. They are cited in other articles in the EU treaties or come from the practice of the EU institutions.

The legal status of secondary law

• The EU institutions are free to choose the type of act that they deem most appropriate for implementing their policy.
• However, since the EU only has the competences conferred on it by the treaties, any act must have the legal basis corresponding to the field in which the EU institutions are taking action.
• Moreover, under Article 296 of the TFEU, acts are required to cite the instruments giving the power to adopt them (in citations beginning with ‘having regard to’) and to state the reasons on which they are based (in recitals beginning with ‘whereas’).
• Under conditions specified in Article 297 of the TFEU, legal acts are either published in the Official Journal of the European Union or notified to the addressee(s). If they are published, they may enter into force on the 20th day after their publication, unless otherwise indicated in their text. Other legal acts, which specify to whom they are addressed, must be notified to those to whom they are addressed and take effect upon notification.
• In many cases, their legality may be challenged at the Court of Justice of the European Union through the action for annulment (under Article 263 of the TFEU). However, this does not apply in the case of recommendations and opinions.

Delegated acts

• Article 290 of the TFEU allows the EU legislator (generally, the European Parliament and the Council) to delegate to the Commission the power to adopt non-legislative acts of general application that supplement or amend certain non-essential elements of a legislative act. The legislator can thus concentrate on policy direction and objectives without entering into overly detailed and often highly technical debates.
• The delegation of power to adopt delegated acts is nevertheless subject to strict limits. Indeed, only the Commission can be empowered to adopt delegated acts. Furthermore, the essential elements of an area may not be subject to a delegation of power. In addition, the objectives, content, scope and duration of the delegation of power must be defined in the legislative acts. Lastly, the legislator must explicitly set in the legislative act the conditions under which this delegation may be exercised. In this respect, the Parliament and the Council may provide for the right to revoke the delegation or to express objections to the delegated act.
• This procedure is widely used in many areas, for example: internal market, agriculture, environment, consumer protection, transport and the area of freedom, security and justice.

Implementing acts

• Responsibility for implementing legally binding EU acts lies primarily with Member States. However, some legally binding EU acts require uniform conditions for the implementation. In these cases, the Commission or, in duly justified specific cases and in cases provided for in Articles 24 and 26 of the Treaty on European Union, the Council is empowered to adopt implementing acts (Article 291 of the TFEU).
• Regulation (EU) No 182/2011 lays down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (see summary). This control is performed by means of what is known in EU jargon as comitology procedures, i.e. the Commission is assisted by committees consisting of Member States’ representatives, which are chaired by a representative of the Commission. Any draft implementing act is submitted to the committee by its chair.

BACKGROUND

For more information, see:

• EU law (Europa).

MAIN DOCUMENTS

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 2 — Legal acts of the Union, adoption procedures and other provisions — Section 1: The legal acts of the Union — Article 288 (ex Article 249 TEC) (OJ C 202, 7.6.2016, pp. 171–172).

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 2 — Legal acts of the Union, adoption procedures and other provisions — Section 1: The legal acts of the Union — Article 289 (OJ C 202, 7.6.2016, p. 172).

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 2 — Legal acts of the Union, adoption procedures and other provisions — Section 1: The legal acts of the Union — Article 290 (OJ C 202, 7.6.2016, p. 172).

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 2 — Legal acts of the Union, adoption procedures and other provisions — Section 1: The legal acts of the Union — Article 291 (OJ C 202, 7.6.2016, p. 173).

RELATED DOCUMENTS

Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management, as well as on new own resources, including a roadmap towards the introduction of new own resources Interinstitutional Agreement of 16 December 2020 between the European Parliament, the Council of the European Union and the European Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management, as well as on new own resources, including a roadmap towards the introduction of new own resources (OJ L 433I , 22.12.2020, pp. 28–46).

Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, pp. 13–18).

European Council Decision 2009/882/EU of 1 December 2009 adopting its Rules of Procedure (OJ L 315, 2.12.2009, p. 51).

last update 02.12.2021