When lobbying the European institutions, be it defensively or proactively, it is crucial to understand the legal and moral value of each of the instruments used by the various institutions, notably:
- To assess the exact impact they may have on you
- To evaluate the need to lobby them
- To assess how easy it is going to be to amend them (often, the less-binding the instrument is from a legal point of view, the easier it is to obtain changes, if you bring forward the right arguments).
This section only looks at secondary legislation, the treaties constituting primary legislation being less of a mainstream lobbying target.
In terms of secondary legislation, two main categories can be identified:
- Hard law proposals, which are binding on Member States and for which the right of initiative normally lies with the European Commission.
- Soft law proposals, which are non-binding and can be issued by any of the three institutions.
Hard law instruments are binding on Member States. They are usually initiated by the European Commission, using its right of initiative.
Directives are legal instruments addressed to the Member States, that can be adopted either by the Council in conjunction with the European Parliament, or by the European Commission alone and which require member states to achieve a certain result without dictating the methods chosen to achieve it.
Directives usually provide for a timetable for their implementation by member states into national law (“transposition”). Failure to do so by the deadline or improper transposition can lead to the Commission starting an infringement proceeding against the concerned member state before the European Court of Justice.
It must be noted that following European jurisprudence, it is now considered that Directives can under certain conditions have a direct effect, whereby an EU citizen can ask them to be enforced before a national court of law regardless of their transposition.
Decisions are legal instruments used to give a ruling on a particular issue that can be adopted either by the Council alone, or by the Council in conjunction with the European Parliament, or by the European Commission alone.
Decisions are individual measures (as opposed to regulations) that are binding in their entirety, and that usually either require a Member state or a person (natural and legal) to take or refrain from taking a particular action, or confer rights or impose obligations on a Member state or person. Well-known types of Decisions are those issued by the Competition Commissioner in case of proposed mergers.
Regulations are legal instruments that apply in a general manner (as opposed to decisions) and that can be adopted by the Council in conjunction with the European Parliament, or by the European Commission alone. In other words, unlike Decisions, which are aimed at specified recipients, and Directives, which are addressed to the Member States, Regulations apply to everyone directly, i.e. with immediate effect and without the need for national legislation to transpose them.
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Soft Law Proposals
Soft law instruments are non-binding and can be issued by any of the three institutions. They can be a moral or political pressure tool by one institution on another, or indicate that hard law proposals are being envisaged in a certain area.
Most Communications from the European Commission are legislative proposals that then end up being adopted as Directives, etc.
However, the Commission can also issue Communications as a precursor of a proposal, under two forms, namely:
Recommendations are non-binding instruments that are issue by the European Commission to set out its views and suggest a line of action on a specific issue. Recommendations, contrary to Opinions, normally specify the addressee (Member States or even individual state).
Though Recommendations have technically no legal force, they do carry political weight and can in some cases, when linked to provisions in a legal binding instrument (e.g. a Directive or Regulation), even have an indirect obligatory power.
Opinions are issued by the Community institutions when giving an assessment of a given situation or development in the Community or individual Member States. In some cases, they prepare the way for subsequent, legally binding acts, or are a prerequisite for the initiation of proceedings before the Court of Justice.
As with a Recommendation, the value of an Opinion is political and moral.
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