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WHAT IS THE AIM OF THE ARTICLE?
It defines the various types of legal acts that the EU may adopt, including directives.
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 incorporated — or transposed — by EU countries so it becomes law in their countries.
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 TFEU states that a directive is binding in the countries to whom it is addressed (one, several or all of them) as to the result to be achieved, while leaving national authorities the competence as to form and means.
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.
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 to a new conviction which may result in fines).
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 EU countries have already set higher standards. In this case, EU countries have the right to set higher standards than those set in the directive.
In the case of maximum harmonisation, EU countries may not introduce rules that are stricter than those set in the directive.
Protection of individuals in the event of incorrect transposition of directives
In principle, the directive only takes effect once transposed. However, the Court considers that a directive that is not transposed can produce certain effects directly when:
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).
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).
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 Commission in December 2016, shows that 20 countries were not able to achieve this goal and that only 1 country 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:
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)
last update 11.07.2018