European Union directives

KEY POINTS

• Directives form part of the EU’s secondary law. They are therefore adopted by the EU institutions in accordance with the treaties. Once adopted at EU level, they are then transposed by EU Member States so they become law in the Member States.
• For example, Directive 2003/88/EC (see summary) 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 Member State 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 European Union states that a directive is binding, as to the result to be achieved, in the Member States to whom it is addressed (one, several or all of them), while leaving national authorities the power to choose the form and methods to achieve the result.
• A directive is distinct from a regulation or a decision because:
  • unlike a regulation, which is directly applicable in Member States after its entry into force, a directive is not directly applicable in Member States, it must first be transposed into national law before it is applicable in each Member State;
  • unlike a decision, the directive has general application.

Adoption

• A directive can be adopted following a legislative procedure. It is then a legislative act adopted by the Council of the European Union and the European Parliament under the ordinary legislative procedure, or only by the Council under the special legislative procedures; in that case, the Parliament should consent or be consulted.
• A directive may also be adopted by means of a non-legislative procedure, as in the case of Directive (EU) 2017/159 implementing the agreement regarding the 2007 Work in Fishing Convention of the International Labour Organization, which is a non-legislative act.

Mandatory transposition

• For a directive to take effect at national level, Member States 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.
• 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 European Union (the non-enforcement of the judgment on this occasion can lead to a new conviction, which may result in fines).
• Under Article 260, paragraph 3, where a Member State fails to notify the measures transposing a directive, the Commission may request that the Member State in question pays a fine.

Maximum and minimum harmonisation

• It is important to distinguish between minimum and maximum (or full) harmonisation requirements in directives.
• In the case of minimum harmonisation, a directive sets minimum standards, often in recognition of the fact that the legal systems in some Member States have already set higher standards. In this case, Member States have the right to set higher standards than those set in the directive.
• In the case of maximum harmonisation, Member States have to introduce rules with minimum and maximum standards set in the directive.

Protection of individuals in the event of incorrect or lack of transposition of directives

• In principle, the directive only takes effect once transposed. However, the Court of Justice considers that a directive that is not transposed can have certain effects directly when:
  • the transposition into national law has not taken place or has been done incorrectly;
  • the terms of the directive are unconditional and sufficiently clear and precise;
  • the terms of the directive give rights to individuals.
• When these conditions are met, individuals may rely on the directive against a Member State in national courts. 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 (the Judgment in Case C-41/74 Yvonne van Duyn v Home Office is an example of vertical direct effect¹, and the Judgment in Case C-152/84 M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) is an example of lack of horizontal direct effect²).
• The Court of Justice also allows individuals, under certain conditions, the possibility of obtaining compensation from the state for directives whose transposition is insufficient or delayed (for example, the Judgment in Case C-6/90 Francovich).

Transposition delays

• To ensure the proper application of EU law for the benefit of citizens and businesses, the Commission monitors the transposition to make sure that it has taken place, that it is correct and complete in order to attain the intended results, and that it has been done by the necessary deadline.
• The EU has set a target of reducing the transposition deficit – the gap between the number of directives adopted by the EU and the number of directives Member States have transposed – to 1%. A transposition scoreboard is updated every year as part of the single market scoreboard and is found in the section on performance per governance tool, where information is available on the EU as a whole and broken down by Member State.