← The hardest concepts in European Union law
In one breath
A regulation applies directly in every Member State without national implementation, a directive binds the Member States as to the result and leaves them to choose how to achieve it, and a decision binds those to whom it is addressed. Recommendations and opinions have no binding force, although courts may take them into account.
The picture
The blueprint, the brief and the letter
An architect can give a builder three kinds of document. A blueprint is complete: the builder follows it line by line and may not redraw the walls. A brief says only that the house must be warm, safe and finished by spring, and leaves the builder to choose bricks and method. A personal letter instructs one named builder to repair one named gutter, and binds that builder alone.
Regulations are the blueprint: a single text, binding in its entirety and directly applicable. Directives are the brief: binding as to the result, addressed to the Member States, who must pass their own laws within a deadline. Decisions are the personal letter: binding in their entirety, and where they name addressees, binding on them only. Each form has a different effect on the persons who read it.
Where the picture stops working
A builder cannot refuse to build, whereas a Member State that ignores a directive may be taken to the Court, and individuals may in some cases rely on its terms (see the pages on direct effect). The picture also misses the legislative route: all three can be adopted by different procedures, by the Union legislature or by the Commission under delegated or implementing powers.
How it really works
- 1Know where the rule comes from. The three kinds of binding act are defined in the Treaty on the Functioning of the European Union (Article 288). Their effects were drawn out in the Court’s case law.
- 2Regulations. They have general application and are binding in their entirety and directly applicable in all Member States. They normally take effect without national legislation, and national measures that merely restate them are in general not allowed, because they could obscure their Union origin.
- 3Directives. They bind each Member State to which they are addressed as to the result, leaving the choice of form and methods to national authorities. Member States must transpose them by a deadline set in the directive.
- 4Decisions. They are binding in their entirety. Where a decision specifies those to whom it is addressed, it binds them only.
- 5Recommendations and opinions. They have no binding force, but national courts must take them into account in interpreting national law that implements them.
Why people get it wrong
- Equating “directly applicable” with “directly effective”. Direct applicability means a regulation enters national law on its own; direct effect asks whether a provision can be invoked by individuals before a court.
- Assuming that a regulation needs transposition. It does not, and national legislation may be needed only to supply sanctions or enforcement machinery.
- Believing that a directive binds individuals as such. It is addressed to the Member States and must be transposed.
- Supposing that a directive’s freedom of method means freedom of result. The result must be achieved, and a late or faulty transposition may expose the State to liability.
- Treating decisions as always general. They can be addressed to a single company or a single State.
A worked example
The facts are invented
Take three invented acts. The first, a regulation on the labelling of cleaning products, states in a single text what the label must say. A shop in any Member State must obey it on the day it applies, and the shop’s national government need not pass a law first. A State passing its own differently worded labelling law would be in breach, since the regulation already is the law.
The second act is a directive giving online shoppers a minimum period to cancel a purchase. It sets the aim and leaves each State to put the rule into its own consumer law before the deadline. The third is a decision addressed to a named manufacturer, ordering it to stop a particular practice. It binds that manufacturer, and nobody else is its addressee. The shopper, the State and the manufacturer therefore meet three different kinds of act.
Try it
A Member State passes a national statute repeating word for word the main provisions of a Union regulation, to make the rules easier to find. What is the usual position?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Treaty on the Functioning of the European Union, Article 288, regulations, directives, decisions, recommendations and opinions
- Variola v Italian Finance Administration, Case 34/73, 1973
- Van Duyn v Home Office, Case 41/74, 1974
Where to go next
More hard concepts in European Union law
- Implied external powers (Institutional law)
- Harmonisation and the internal market (Internal market)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.