EUROPEAN DIRECTIVE

A directive is a legislative act of the European Union addressed to the Member States, adopted by the Council in conjunction with the European Parliament or by the Commission alone. According to Article 288 of the Treaty on the Functioning of the European Union (formerly Article 249 TEC), which represents its legal basis, "the Directive binds Members States to certain objectives to be achieved, leaving them free to decide the right means to achieve that result". The main purpose is to align national legislations, so the Directives need the intervention of the national legislation to be implemented within a determined period of time. The national legislator is free to choose the proper means to implement the directive, even by imposing more restrictive prescriptions, but in any case it must be ensured that all elements included in the Directive are covered by the national legislative act. This is also in line with the provision of article 10 of the Treaty of Rome that prescribes that Member States shall take all appropriate measures, whether general or particular, to ensure the fulfillment of the obligations arising from the Treaties or resulting from actions taken by the institutions of the Community. In particular, Member States shall facilitate the achievement of the Community's tasks and abstain from any measure that could jeopardise the attainment of the objectives of the Treaty. By reason of this particular feature, the directive is considered as the opposite of regulations, which are self-executing in nature, and the procedure by which it is emanated is articulated into two ideal and practical steps. Firstly, the directive is binding on the Member States as to the result to be achieved. Secondly, the Member State can choose the form in which it will realize the directive’s objectives within the framework of the national legal order. If a Member State fails to transpose the directive into the national legislation or if it has been transposed incompletely within the predetermined time period, the Commission can intervene asking the European Court of Justice (ECJ) to impose a fine to the Member State because this misbehaviour is considered as an infringement of the Treaty. Sometimes, under certain conditions, citizens are allowed to directly invoke the directive in question before the national courts. This happens if the Court of Justice considers that a directive has vertical (individual against institutions not against another individual) direct effect. The conditions that must be satisfied to invoke the direct effect of a European directive when a national measure has not been taken before the prescribed deadline are the following: the provision must be sufficiently clear and precisely stated; it must be unconditional and not dependent on any other legal provision; it must confer a specific right upon which a citizen can base a claim. These conditions were firstly introduced in the EU law by the European Court of Justice (ECJ) in the case of NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen, Case 26/62 [1963].

Editor: Bianca GIANNINI
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