EU Regulation or EU Directive?

Shane119

I'm just wondering what determines whether an issue will be dealt with via a Regulation or a Directive.

Robbo

It's quite a broad question and there's no real short answer to it. Many factors will determine how a legislative act of the EU is brought about.

Off the top of my head, here are some factors that may influence things:

1. The topic of the legislative act.
2. Which institution of the EU instigated the legislative process
3. How harmonised law in the particular area is across the EU. For example, anything that touches on criminal law is likely to be done by way of Directive
4. Whether there is to be any margin of appreciation extended to Member States in implementation
5. The timeline for implementation. Directives tend to have longer implementation periods

hullaballoo

Well, it's ultimately down to the will of the EU legislature but there are some factors that will determine whether a regulation or directive is appropriate.

For anyone who might be reading but isn't sure of the difference, regulations have direct effect in that once they are enacted at EU level, they apply to all member states as law. Directives set out principles and require each member state to adopt those principles through their own legislation.

One of the considerations as to whether a regulation or directive is used aside from the objective of the legislation (i.e. to establish law vs. principles) is how readily the member states can adapt to the new laws. If there's significant disharmony between legal systems, a directive can be a better way to proceed to allow the member states decide for themselves how to implement the new laws in line with their own system. The individual member states will have a better idea how to go about achieving the objectives of a directive within the legal framework.

Regulations may be better where there is little need for individual member states to tweak their own systems or where the EU ascribe sufficient importance to the law they are seeking to implement to discard any conflicts.

Both directives and regulations enjoy supremacy over individual members states' local laws so ultimately a directive will have to be implemented within its own terms but directives are usually more flexible and do allow a certain latitude in their transposition.

Shane119

Thanks for this.

Sorry for the vagueness of the question, by the way. Every source that I look at seems to just define them and gives examples of each but no where that I looked does it state the circumstances in which one or other is used.

I thought it might have to do with the importance of the subject matter i.e. regulations for the really important stuff, whereas directives, which allow member states discretion in their transposition, for relatively less important stuff. But this doesn't hold any water. For example, equal treatment in employment (a fairly serious matter, I would think) is dealt with via Directive 2000/78/EC whereas 'bendy bananas' are dealt with via Commission Regulation (EC) No. 2257/94.

hullaballoo

A good illustration might be data protection.

Initially in the 1980s, it was a directive to establish a framework for what was at the time a new concept. It would have been nearly impossible to implement this concept across all member states uniformly at the time, so member states were instead allowed to implement the principles of the framework directive in their own way.

This harmonised EU-wide laws somewhat by establishing the broad principles in each member state. However, there was still significant divergence in the implementation of the principles across the EU, which is to be expected with directives of this nature and scale. So, after a lengthy bedding-in of the principles behind data protection, the EU legislators were able to adopt the GDPR which took effect last year.

This regulation tightens the cross-EU harmonisation but was only possible due to the groundwork done by the directive in the 1980s.

Obviously not every directive will require copperfastening by a regulation and not every regulation requires a directive to give it a grounding but if you can think about the areas of grey there, it might help to show you the rationale behind directives/regulations.

GM228

Shane119 wrote: »

Thanks for this.

Sorry for the vagueness of the question, by the way. Every source that I look at seems to just define them and gives examples of each but no where that I looked does it state the circumstances in which one or other is used

There actually seems to be nothing written about this, but I do have some insight into it.

Ultimately the EU has complete discretion in which method that they use, but there are guiding principles written into EU law which provides for a "subsidiarity and proportionality" consideration to be applied before deciding on a directive or regulation.

By definition a regulation is more intrusive than a directive and so it used to be a case that a directive was the preferred method for this very reason, in fact Protocol 30 (annexed to the Treaty establishing the European Community), the "Subsidiarity and Proportionality Protocol" specifically gave directives a preference over regulations.

It has however since been replaced by Protocol 2 (annexed to the Treaty on the Functioning of the European Union), the "The Application of the Principles of Subsidiarity and Proportionality Protocol" which under Article 5 requires there to be a consideration and justification for draft legislative articles based on the principle of subsidiarity and proportionality. Also the Inter-institutional agreement on better law-making gives effect to the same principles and under Article 25 there must be an explanation and justification given for the type of legislative act used.

There has also been cases where the justification under the principle of subsidiarity and proportionality has been tested, such as the Joined Cases C-402/05 and C-415/05 Yassin Kadi and Al Barakaat International Foundation vs Council and Commission [2008] ECJ case where it was found that measures in the Bin Laden Regulation represented a disproportionate interference with the right to property because there were no procedural safeguards enabling the affected persons to have their rights decided upon at a national level, but that's not really concerning weather it should have been a directive or regulation though, it's still in force in an amended version.

Other than that there isn't much else to point to with regards to what circumstances dictate what legislative act should be used.

Shane119

GM228 wrote: »

There actually seems to be nothing written about this, but I do have some insight into it.

Ultimately the EU has complete discretion in which method they they use, but there are guiding principles written into EU law which provides for a "subsidiarity and proportionality" consideration to be applied before deciding on a directive or regulation.

By definition a regulation is more intrusive than a directive and so it used to be a case that a directive was the preferred method for this very reason, in fact Protocol 30 (annexed to the Treaty establishing the European Community), the "Subsidiarity and Proportionality Protocol" specifically gave directives a preference over regulations.

It has however since been replaced by Protocol 2 (annexed to the Treaty on the Functioning of the European Union), the "The Application of the Principles of Subsidiarity and Proportionality Protocol" which under Article 5 requires there to be a consideration and justification for draft legislative articles based on the principle of subsidiarity and proportionality. Also the Inter-institutional agreement on better law-making gives effect to the same principles and under Article 25 there must be an explanation and justification given for the type of legislative act used.

There has also been cases where the justification under the principle of subsidiarity and proportionality have been tested, such as the Joined Cases C-402/05 and C-415/05 Yassin Kadi and Al Barakaat International Foundation vs Council and Commission [2008] ECJ case where it was found that measures in the Bin Laden Regulation represented a disproportionate interference with the right to property because there were no procedural safeguards enabling the affected persons to have their rights decided upon at a national level.

This is very informative. Thank you.

angel eyes 2012

Data Protection example again might assist.

The Law Enforcement Directive, or ‘LED’, is a piece of EU legislation, parallel to the GDPR, which also had effect from May 2018. As suggested by its name, the LED deals with the processing of personal data by data controllers for ‘law enforcement purposes’ – which falls outside of the scope of the GDPR.

Part 5 of the Irish Data Protection Act, 2018 deals with with data protection for law enforcement purposes and transposed the Directive.