Developing Community policy.

However in very ‘exceptional’ cases national legislation may be required in order for the regulation to be ‘effective’ when the provisions of a regulation are in Steiner & Woods (2001) words ‘insufficiently precise’ or are too ‘conditional’ to have direct effect. In the UK, the European Communities Act 1972 (as amended) provides for the direct applicability of EC regulations. 

The second legislative act the Treaty provides for is the issuing of ‘directives’. Article 249 (previously Art 189) of the Treaty illustrates that directives differ from regulations in two important ways. Firstly they apply only to those Member States to whom it is addressed. Secondly a directive sets out the result to be achieved, but leaves some choice to each Member State as to the form and method of achieving the end result. Thus the legislation adopted to implement a directive need not use the same words as the directive itself.

The Community institutions generally have considerable choice whether to legislate by means of regulations or directives.  The ability to legislate through directives as well as regulations gives the Community valuable flexibility. The direct applicability of regulations means that they have to be in Craig and Burca’s (2003) words ‘parachuted’ into the legal systems of all the Member States just as they are. It is for this reason that it is often the case that regulations are extremely detailed, down to the very last word, since Member States must not tamper with them. It should be remembered that the Member States have differing legal systems, some being common law, some civil law, and that there are considerable differences between civil law regimes. It is for this reason that directives have become particularly useful as the Member States will have discretion as to how the directive is to be implemented and thus ensuring harmonization of the laws within a certain area. It should not, however be thought that directives are vague. The ends which Member states have to meet will be set out in considerable detail, and will thus leave little discretion to the Member State. It could be argued that the evidence serves to illustrate not only the flexibility that directives offer Member States but, when viewed in the context of detail, the similarity between directives and regulations.

One distinct difference between a regulation and a directive, once thought to be clear and noticeable for a brief period in history became less visible. The case of Van Duyn v. Home Office established that directives could possibly have ‘direct effect’ taking into consideration whether the obligation imposed in the directive was sufficiently clear and exact to be capable of being applied directly by a national court. Having attracted much criticism, subsequent cases such as Pubblico Ministero v. Tullio Rattiand Marshall v. Southampton and South-West Hampshire Area Health Authority (Teaching) have to a certain degree made the distinction between directives and regulations more noticeable. In both Ratti and Marshall the Court held that since the terms of each directive gave Member States a specific date by which implementation must be assured, the provisions of the directive cannot be pleaded directly by individuals before that date. However, both cases established that they (directives) may produce ‘similar effects’ to regulations when the time limit for their implementation has expired and the State has not properly implemented them. Both cases serve to illustrate the modern day distinction between directives and regulations, from the context of the degree to which each are ‘directly effective’.

As previously mentioned regulations are not only ‘directly applicable’ and ‘directly effective’ but also can be invoked either vertically (against Member States) or horizontally (against individuals). However directives differ in that are not ‘directly applicable’ and when they do become part of UK law they can only be invoked vertically (against Member States).         

Finally Article 249 EC Treaty provides that a decision is binding in its entirety on those to whom it is addressed. Article 254 (3) (previously Art 191 (3)) provides that a decision must be notified to the person or Member State to whom it is addressed and that it will take effect upon such notification. 

The Community institutions remain free to proceed by way of decisions in many areas. There are, however, areas where the Treaty stipulates that decisions should be used. 

Decisions are distinguished from the regulations by being of individual application, the persons to whom it is addressed must be named in it and are the only ones bound by it. It is distinguished from the directive in that it is binding in its entirety (whereas the directive simply sets out objectives to be attained). 

However, like directives, the distinction between decisions and regulations has often been clouded. Decisions are not normally normative, in the sense of creating generally applicable EU law; this is certainly the case with competition decisions which do not create general rules of conduct for undertakings, but merely bind those to whom they are addressed.  On the other hand, Shaw (2000) outlines that decisions adopted by the Commission in pursuance of a policy objective laid down by the Treaty such as that of coordinating cooperation between the Member States in a field of social policy are more akin to a general normative act. In this sense, the concept of ‘decision’ has been refined somewhat. It seems to be a contradiction to regulations – i.e. general measures not amenable to individual challenge. It thus shows the capability of a decision to be a ‘hybrid’ of both a decision (of individual nature) and a regulation (of general application). 

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