Unilateral acts form part of the secondary legislation of the European Union (EU). Through them rights are conferred by the institutions acting in an entirely autonomous manner. The first of act comprises those defined in Article 288 of the Treaty on the Functioning of the EU (TFEU): regulations, directives, decisions, opinions and recommendations. The second comprises so-called atypical acts such as communications, White Papers and Green Papers.
Through unilateral acts, individual rights are conferred by the institutions acting in an entirely autonomous manner. They are adopted by the institutions in accordance with the founding Treaties of the European Union (EU). Along with conventions and agreements, they constitute the secondary legislation of the (EU).
Nomenclature of unilateral acts
The unilateral acts described in the nomenclature of Article 288 of the Treaty on the Functioning of the EU are:
Moreover, Article 289 of the Treaty on the Functioning of the EU establishes a distinction between legislative acts, namely those adopted following a legislative procedure, and acts which are, by default, non-legislative. Generally, the aim of non-legislative acts is to implement legislative acts or certain specific provisions from the Treaties. For example, they relate to the internal regulations of institutions, certain Council decisions, measures adopted by the Commission in the field of competition, etc.
Certain atypical acts can also be classified as unilateral acts. Such acts are considered "atypical" in so far as they do not appear in the Article 288 of the Treaty on the Functioning of the EU. They are provided for by other provisions in the Treaties or have already been created through institutional practice. These acts are frequently used by institutions. For example, they relate to resolutions, conclusions, communications, etc. These acts have a political application, but they are not generally legally binding.
Unilateral acts, instruments at the service of European policies
The European authorities are free to choose the act that they deem most appropriate for implementing their policy. For example, where policies are designed to have an incentive effect, the Council or the Commission may opt for a recommendation.
Under the terms of the principle of conferral, acts must have a legal basis in the Treaty on the Functioning of the EU corresponding to the field in which the European authorities wish to take action. For want of a precise legal basis, they may have recourse to the flexibility clause (Article 352 of the Treaty on the Functioning of the EU), which concerns the EU's subsidiary powers.
Moreover, the unilateral acts adopted by the European institutions are subject to review by the Court of Justice of the EU.
Legal status of unilateral acts
As to form, acts are required to cite the instruments conferring 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").
Acts must be published in the Official Journal of the European Union. Parties to whom an act is addressed may also be informed, as is the case with decisions.
As a rule, acts enter into force on the day they are notified or published in the Official Journal. Exceptionally, they may enter into force on the 20th day following that of their publication. They may also provide for implementation on a date later than that of their entry into force.