The European Union’s secondary law

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.