Advanced European Law – Literature Notes, Week 4
Kieran St C Bradley, ‘Legislating in the European Union’, in C. Barnard and S. Peers (eds), European
Union Law (2017) chapter 5, only pp. 99-104
2. Forms of legal act (including “soft law”)
The treaty prescribes the form of legal act for action in a small number of areas (such as regulations for
common commercial policy), but for the most part, the institutions may choose the form of legal act.
Nonetheless, they must do so on a case-by-case basis and opt for the least intrusive form.
2.1 Regulations
Under Article 288 TFEU, a regulation “shall have general application [and is binding] in its entirety and directly
applicable in all Member States”; it is in effect the equivalent of a statute or law in a national legal order.
Member States need not adopt any national measures to give effect to a regulation in national law.
2.2 Directives
Directives are normative acts addressed to the Member States, which are then required to adopt the necessary
national provisions to give effect to (“transpose”) the policy objectives set out in the directive, and to notify the
Commission of their transposition measures. It is therefore “binding as to the result to be achieved” while
“leaving to the national authorities the choice of form and methods”. In practice, directives often regulate a
policy area in great detail, leaving the Member States precious little discretion, even as regards “the form and
methods”, particularly where the matter being regulated is highly technical in character. Concerning non-
implementation, the Union’s response has been twofold. First, the CJEU has recognised that, where a MS has
not implemented a directive, an individual may rely on those provisions of the directive which are
unconditional and sufficiently precise in order to defeat the application of the conflicting national provision.
Second, the Maastricht Treaty introduced a special judicial procedure that allowed the Court of Justice to
impose financial penalties on Member States that fail to comply with a previous Court judgement.
2.3 “Rule-making decisions”
The traditional Treaty definition of a “decision” is an act which is “binding in its entirety upon those to whom it
is addressed, under Article 249 TFEU. However, the Union institutions have discovered that certain policy
measures, or measures laying down institutional arrangements, could best be formulated in a decision rather
than a regulation or directive.
2.4 International agreements
International agreements concluded by the Union are incorporated into its legal order by a Council decision,
following a specific (non-legislative) procedure under Article 218(2-8 and 10) TFEU.
2.5 Interinstitutional agreements
In order to facilitate the smooth application of the institutional and budgetary provisions of the Treaties, over
the years the political institutions have concluded a large number of so-called “interinstitutional agreements”.
2.6 Recommendations, opinions, and other non-binding acts
In principle, the essential characteristic of both recommendations and opinions is that they have “no binding
force”. There are, however, important exceptions to this rule, specifically, in the area of economic and
monetary policy, where the Council may issue recommendations. The institutions also adopt various forms of
what is loosely called “soft law”, which is a form of non-binding law. However, where a purported act of “soft
law”, such as a Commission communication, has the effect of creating legal rights or obligations, it is not “soft”,
but rather subject to judicial review and likely to be annulled.
3. Hierarch of norms
In the EU legal order, the denomination of an act as a “regulation”, “directive” or “decision” does not in itself
determine its place in the hierarchy of norms. Obviously, the Court is not empowered to rule on the validity of
provisions of the founding Treaties, though in Pringle, it did examine the question of whether an amendment
to the Treaty had been validly adopted in accordance with one of the simplified revision procedures available
since Lisbon.
Relevant Treaty Provisions
Article 13 TEU
, 1. The Union shall have an institutional framework which shall aim to promote its values, advance its
objectives, serve its interests, those of its citizens and those of the Member States, and ensure the
consistency, effectiveness and continuity of its policies and actions. […].
2. Each institution shall act within the limits of the powers conferred on it in the Treaties, and in
conformity with the procedures, conditions and objectives set out in them. The institutions shall
practice mutual sincere cooperation.
3. […]
4. […]
Article 48 TEU
1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be
amended in accordance with simplified revision procedures.
Ordinary Revision procedure
2. The Government of any Member State, the European Parliament or the Commission may submit to
the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either
to increase or to reduce the competences conferred on the Union in the Treaties. These proposals
shall be submitted to the European Council by the Council and the national parliaments shall be
notified.
3. If the European Council, after consulting the European Parliament and the Commission, adopts by a
simple majority a decision in favour of examining the proposed amendments, the President of the
European Council shall convene a Convention composed of representatives of the national
Parliaments, of the Heads of State or Government of the Member States, of the European Parliament
and of the Commission. The European Central Bank shall also be consulted in the case of institutional
changes in the monetary area. The Convention shall examine the proposals for amendments and shall
adopt by consensus a recommendation to a conference of representatives of the governments of the
Member States as provided in paragraph 4.
The European Council may decide by a simple majority, after obtaining the consent of the European
Parliament, not to convene a Convention should this not be justified by the extent of the proposed
amendments. […].
4. A conference of representatives of the governments of the Member States shall be convened by the
President of the Council for the purpose of determining by common accord the amendments to be
made to the Treaties.
The amendments shall enter into force after being ratified by all the Member States in accordance
with their respective constitutional requirements.
5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States
have ratified it and one or more Member States have encountered difficulties in proceeding with
ratification, the matter shall be referred to the European Council.
Simplified revision procedures
6. The Government of any Member State, the European Parliament or the Commission may submit to
the European Council proposals for revising all or part of the provisions of Part Three of the TFEU
relating to the internal policies and action of the Union.
The European Council may adopt a decision amending all or part of the provisions of Part Three of the
TFEU. The European Council shall act by unanimity after consulting the European Parliament and the
Commission, and the European Central Bank in the case of institutional changes in the monetary area.
That decision shall not enter into force until it is approved by the Member States in accordance with
their respective constitutional requirements.
The decision referred to in the second subparagraph shall not increase the competences conferred on
the Union in the Treaties.
7. Where the TFEU or Title V of this Treaty provides for the Council to act unanimously in a given area or
case, the European Council may adopt a decision authorising the Council to act by a qualified majority
in that area or in that case. This subparagraph shall not apply to decisions with military implications or
those in the area of defence.
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