The paper will discuss briefly the 3 binding instruments of legislative and secondary acts, which are regulations, directives and decisions. This paper will also discuss the ordinary legislative procedure, outlining the process and the role of each institution. The focus then shifts to examine the two types of secondary acts mainly, delegated and implementing acts. This paper will also analyse the regime for the acts based on the language, showing that it’s more complex than it seems.
An act of legislation may take form in 3 ways:
Firstly, Article 288 TFEU provides that a Regulation shall have general application and be directly applicable to all member sates. They can be addressed to member states, companies and EU institutions. They become legally valid in the member states without any need for implementation. In fact, it is illegal for member states to try to implement it into national law as seen in the Variola case. They can be relied on by an individual or company against the state (vertical direct effect) or against another individual or company (horizontal direct effect).
Secondly, Article 288 also specifies that Directives are binding as to the result to be achieved upon each member state to which it is addressed. Directives are particularly useful when the aim is to harmonise the laws within a certain area or to introduce complex legislative change, this is because discretion is left to member states as to how the directive is to be implemented. They cannot be addressed to individuals or companies. Furthermore, it does have vertical direct effect but no horizontal direct effect.
Thirdly, Article 288 TFEU states that a Decision is binding in its entity and a decision that specifies those to whom it is addressed is binding only on them. They can require authorities and individuals in Member States either do something or stop doing something, and can also confer rights on them.
(Art 294 (2) TFEU) The ordinary legislative procedure starts with a proposal from the commission, which may have been requested by the Council, the European Parliament, group of member states or the European Court of Justice. The proposal then gets submitted to the European Parliament and the Council. At the European parliament, the president refers the proposal to the competent parliamentary committee to verify its legal basis and whether it’s not in breach of fundamental rights and that it respects the principles of subsidiarity and proportionality (EP Rules of Procedure, Rule 43 and Rule 36 to 38a). It also sees that sufficient financial resources are provided. The committee drafts a report comprising of any amendments, a draft legislative resolution and an explanatory session on which the Parliament holds debate and a vote at the plenary session (EP Rules of Procedure, Rule 45 and Rule 55). The parliament then takes a position and then sends it to the Council.