Article 288 of the Treaty on the Functioning of the European Union (TFEU)
The Lisbon Treaty revised the classification of EU legal acts. In the interests of simplification, it reduced from more than 10 to 5 the number of legal acts at the EU institutions’ disposal.
In addition, it enabled the European Commission to adopt a new category of acts: delegated acts. It also strengthened the Commission’s competence to adopt implementing acts. Both these changes sought to improve the effectiveness of EU decision-making and of the implementation of these decisions.
EU legal acts and their classification
Under Article 288 of the TFEU, the European institutions may adopt 5 types of legal acts:
Regulations, directives and decisions are binding legal acts, while the recommendation and the opinion are not.
A decision can specifically address one or more addressees (EU countries, businesses or individuals). There are also decisions with no specific addressee, particularly in the area of the Common Foreign and Security Policy (CFSP).
Article 290 of the TFEU allows the EU legislator (generally, the European Parliament and the Council) to delegate to the Commission the power to adopt non-legislative acts of general application that supplement or amend certain non-essential elements of a legislative act.
For example, delegated acts may add new (non-essential) rules or involve a subsequent amendment to certain aspects of a legislative act. The legislator can thus concentrate on policy direction and objectives without entering into overly detailed and often highly technical debates.
The delegation of power to adopt delegated acts is nevertheless subject to strict limits. Indeed, only the Commission can be empowered to adopt delegated acts. Furthermore, the essential elements of an area may not be subject to a delegation of power. In addition, the objectives, content, scope and duration of the delegation of power must be defined in the legislative acts. Lastly, the legislator must explicitly set in the legislative act the conditions under which this delegation may be exercised. In this respect, the Parliament and the Council may provide for the right to revoke the delegation or to express objections to the delegated act.
This procedure is widely used in many areas, for example: internal market, agriculture, environment, consumer protection, transport, and the area of freedom, security and justice.
Responsibility for implementing legally binding EU acts lies primarily with EU countries. However, some legally binding EU acts require uniform conditions for the implementation. In these cases, the Commission or, in duly justified specific cases and in cases provided in the Articles 24 and 26 of the Treaty on European Union, the Council is empowered to adopt implementing acts (Article 291 of the TFEU).
Regulation (EU) No 182/2011 of the European Parliament and the Council lays down the rules and general principles concerning mechanisms for control by EU countries of the Commission’s exercise of implementing powers. This control is performed by means of what is known in EU jargon as comitology procedures, i.e. the Commission is assisted by committees consisting of EU countries’ representatives and chaired by a representative of the Commission. Any draft implementing act is submitted to the committee by its chair.
Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 2 — Legal acts of the Union, adoption procedures and other provisions — Section 1: The legal acts of the Union — Article 288 (ex Article 249 TEC) (OJ C 202, 7.6.2016, pp. 171-172)