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The Directive is one of the legal instruments available to the European institutions for implementing European policies. It is a tool mainly used in operations to harmonise national legislations. The directive is a very flexible instrument; it obliges the Member States to achieve a certain result but leaves them free to choose how to do so.
The directive forms part of the secondary law of the European Union (EU). It is therefore adopted by the European institutions in accordance with the founding Treaties. Once adopted at European level, the directive is then transposed by Member States into their internal law.
A binding act of general application addressed to the Member States
Article 288 of the Treaty on the Functioning of the EU states that a directive is binding. Like the European regulation or the decision, it is binding upon those to whom it is addressed. It is binding in its entirety and so may not be applied incompletely, selectively or partially.
However, a directive is distinct from a decision or a regulation. While a regulation is applicable in Member States’ internal law immediately after its entry into force, a directive must first be transposed by the Member States. Thus, a directive does not contain the means of application; it only imposes on the Member States the requirement of a result. They are free to choose the form and the means for applying the directive.
Furthermore, a directive also differs from a decision as it is a text with general application to all the Member States.
Moreover, Article 289 of the Treaty on the Functioning of the EU (TFEU) specifies that a directive is a legislative act when it is adopted following a legislative procedure. In principle, a directive is therefore the subject of a Commission proposal. It is then adopted by the European Council and the Parliament in accordance with the ordinary legislative procedure or the special legislative procedure.
A directive enters into force once it has been notified to the Member States or published in the Official Journal.
A legal act which must be transposed
This is a two-tier legal act which comprises:
- the directive proper, issued by the European institutions;
- national implementing measures, issued by the Member States.
Entry into force does not in principle imply direct effect in national law. In order for this to happen, a second stage is necessary: transposition. Transposition is carried out by the Member States; it means adopting national measures to enable them to achieve the results stipulated by the directive. The national authorities have to notify the Commission of these measures.
Solutions found to deal with failure to transpose a directive properly
In principle, a directive must be transposed by a deadline set by the institutions (between six months and two years). Once the deadline has passed:
- the Commission may ask the Court of Justice to rule against a Member State (failure to comply with the Court's ruling may lead to a further negative ruling, which could result in fines).
- under certain circumstances, the Court of Justice has also allowed individuals the possibility of redress where directives have been transposed poorly or late (see its judgment in the case of Francovich and Bonifaci of 19 November 1991).
- the Court of Justice considers that a directive has direct effect (i.e. an individual may rely on it in court).
A directive has vertical direct effect once the deadline for transposition has passed. This means that an individual may rely on the text against a Member State in court. However, it does not have horizontal direct effect (i.e. an individual may not rely on the text against another individual in court).
However, the Court of Justice has established several conditions so that an individual may refer to a directive before the courts, specifically:
- the provisions of a directive are unconditional and sufficiently precise;
- the directive shall not have been correctly transposed by a national measure by the set deadline.