The legislative acts of the European Union (EU) can have different forms: regulations, directives, decisions, recommendations and opinions.
A directive fixes the objectives to be pursued by the EU member states, but leaves freedom of choice for the ways of obtaining them (maintaining an obligation to achieve the result): "A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods." (art. 249 ex.189).
In practice, with the exception of directives related to the common agricultural policy, the Union 'addresses' directives to all member states, and specifies a date by which the states must have put the directive into effect. Individual states frequently miss these deadlines, and when the deadlines slip badly, the European Commission can and does commence proceedings in the European Court of Justice against the countries involved.
Through its case law, the European Court of Justice has provided guidelines for member state judges on how to deal with cases where directives have not been transposed into national law, or have been transposed incorrectly.
- When national law has multiple possible interpretations, the judge must choose the interpretation that conforms with EU law. This rule also applies to directives not yet transposed into national law.
- In cases against the state or any state body, directives have 'direct effect'. A state that hasn't transposed a directive on time may not invoke this to its own benefit. 'Direct effect' only applies to rules that are sufficiently clear.
- Citizens can sue the state for damages caused because of tardy transposition.
This process under which most directives are negotiated between the European Commission which issues the proposal, the European Parliament and the Council of the European Union is called Codecision procedure.
The justification for a directive has to be the needed Harmonisation to reduce market barriers and help to create a European single market.
How each country puts the directive into effect depends on their legal structure, and may vary. For example, in the UK most directives are brought in via statutory instruments but some directives create such major changes to the law that Parliament passes a separate Act to incorporate the changes.
- UK House of Commons: Report of the EU Legislative Process and scrutiny by national parliaments (http://www.publications.parliament.uk/pa/cm200102/cmselect/cmeuleg/152-xxxiii/15201.htm).
- EUR-LEX, European Union Law (http://europa.eu.int/eur-lex/).