Legal Instruments of the EU (Others)
The TFEU/EC Treaty and Union law practice provide the European Union with more legal instruments than merely regulations and directives. Article 288 TFEU/249 EC explicitly mentions decisions (see 2. below), recommendations and opinions (see 3. below) as possible alternative forms of action; other—atypical—instruments have emerged from Union practice (see 4. below). A legal act is classified according to its material content as opposed to its formal denomination. The classification is important for determining Union competence, the instrument’s effect and the means by which it is subject to challenge.
The decision is of individual scope. It is addressed to one or more specific or identifiable person(s) and is binding in its entirety upon those to whom it is addressed. The fact that the decision is binding in its entirety links it to the regulation—both decisions and regulations differ in this regard from not directly applicable directives and generally non-binding recommendations, opinions, notes and informative comments. Unlike the regulation, however, the decision is not applicable to all persons falling within its scope, but only to its addressees. The addressees must at a minimum be determinable. A legal act addressing numerous persons is classified as a decision if the target group is fixed and cannot be expanded in retrospect (‘collective decision’).
Decisions can be addressed to private persons, eg when the European Commission obliges a dominant undertaking to refrain from competition law infringements. In such cases, decisions are comparable to administrative acts. Decisions can, however, also be addressed to the Member States (Member States as such but not particular bodies or institutions of the Member States). This is, for example, the case when the Commission requires a Member State to reclaim financial aid or when the Commission decides to approve of or decline regulations that contravene harmonization measures pursuant to Art 114(6) TFEU/95(6) EC. Following predominant opinion, decisions can further be addressed to public bodies of the Union (eg the Secretary General of the Council).
The decision is binding in its entirety (Art 288(4) TFEU/249(4) EC). This presupposes that it can in fact and is intended to cause legal effects, ie to constitute rights and/or duties. The non-binding legal acts mentioned above, as well as intermediate measures that are only meant to prepare the final decision, lack this quality.
The decision is individual in scope, ie it is only binding ‘upon those to whom it is addressed’ (Art 288(4) TFEU/249(4) EC) (contrary to the regulation, which is of ‘general application’). This is important for legal standing according to Art 263(4) TFEU/230(4) EC (see c) below).
Even though this is not explicitly provided for, the decision, unlike the regulation or directive, refers to a concrete individual case with regard to its subject matter, its scope and its temporal effects. A decision addressing Member States, which regulates an individual case between the Community and a Member State, can however have a normative effect, similar to that of a directive, eg in the case of an approving decision according to Art 114(6) TFEU/95(6) EC. In general, classification depends on the aim of the legal act in question: if it intends to harmonize legislation it is classified as a directive, if it intends to influence actual administrative action in the Member States then it is classified as a decision.
Decisions are directly applicable upon entry into force (usually on publication in the Official Journal of the European Union or notification: see Art 297(2)(2), (3) TFEU/254(1)(3) EC); transposition is not required. The effect of a decision differs depending on its addressee.
Decisions addressed to individuals, such as decisions concerning competition law, take effect inter partes only.
Decisions addressed to Member States are binding upon the entire public authority of the addressed Member State. Furthermore, the European Court of Justice (ECJ) also recognizes a direct applicability of such decisions in favour of (private) third parties. Similar to its considerations with regard to the direct applicability of directives, the court also justifies the direct applicability with regard to the effet utile and the principle of estoppel. Like directives, decisions can only be directly applicable if ‘the nature, general scheme and wording of the provision in question are capable of having direct effect on the relations between Member States and individuals’ (and, where applicable, if a conceded time limit is exceeded); ECJ Case 9/70 – Grad  ECR 825 paras 6 and 10.
c) Judicial review
When deciding whether or not to uphold a decision, a court has to take into consideration whether it is lawful or unlawful, whether it is detrimental or favourable to its addressee and whether the decision could have been legitimately relied upon. A lawful and favourable decision can therefore not be revoked ex tunc or ex nunc. The reversal of an unlawful decision is possible within an appropriate time limit; an unlawful favourable decision can be revoked with prospective effect at any time.
The addressee (Member State or individual) and, in certain cases, also third parties (eg a Member State or competitor) can appeal the decision with a nullity action according to Art 263(2) or (4) TFEU/230(2) or (4) EC.
3. Recommendations and opinions
Recommendations and opinions have no binding force (Art 288(5) TFEU/249(5) EC). While the recommendation is usually initiated by the recommending body itself, the opinion is usually initiated by others. Apart from that, recommendations and opinions also differ in intention and content. The recommendation suggests certain behaviour to its addressee whereas the opinion expresses a political or expert position.
There are some areas of Union Law in which the recommendation is the only form of action available to the EU (eg Arts 60(2) TFEU/53(2)EC, 97(3) TFEU/77(3) EC). Otherwise, the Council and the Commission make use of the recommendation when the competences are not clear, when a binding approximation of laws is impossible (Art 165(4) TFEU/149(4) EC, Art 166(4) TFEU/150(4) EC (now explicitly including the recommendation), Art 167(5) TFEU/151(5) EC, Art 168(6) TFEU/152(4)2 EC) or in order to prepare a regulation. In some cases, the opinion is a legal requirement for litigation (a reasoned opinion, Art 258(1) TFEU/226(1) EC, Art 259(3) TFEU/227(3) EC and Art 228(2)(1) EC (this requirement was omitted in Art 260(2) TFEU) or the preparatory participation of a body within the legislative procedure (eg opinion of the Parliament according to Art 294(3) TFEU/251(2) EC (now labelled ‘position’); opinion of the Commission according to Art 228(4) TFEU/195(4) EC, Art 294(7)(c) TFEU/251(2)(2)(c) EC; opinion of the Economic and Social Committee according to Art 304 TFEU/262 EC; opinion of the Committee of the Regions according to Art 307 TFEU/ 265 EC; opinion of the European Central Bank according to Art 132(1) 3rd indent TFEU/110(1) 3rd indent EC).
As instruments of the EC, recommendations and opinions underlie the principle of limited specific competence deriving from Art 5(1)(1) TEU/5(1) EC. In part, the authorization to give a recommendation or opinion is granted explicitly (eg Art 60(2) TFEU/53(2) EC, Art 97(3) TFEU/77(3) EC, Art 121(4) TFEU/99 EC, Art 207(3)(1) TFEU/ 133(3)(1) EC, Art 165(4) 2nd indent TFEU/149(4) 2nd indent EC; concerning the opinion see (a) above), in part it results from the authorization to adopt ‘measures’ (Art 114 TFEU/95 EC, Art 166(4) TFEU/150(4) EC (now explicitly mentioning the recommendation), Art 352 TFEU/308 EC). The principle of limited specific competence is, however, breached by Art 211 2nd indent EC (no longer included in the TFEU), according to which the Commission can formulate recommendations or deliver opinions on matters, even if it is not explicitly authorized to do so, if the Commission ‘considers it necessary’. In practice, the Commission usually prefers equally non-binding communications.
Although not legally binding, recommendations and opinions have legal and extra-legal effects.
First, the recommendation is considered to have a ‘psychological-political effect’. Although it cannot grant judicially enforceable rights to individuals, the ECJ stresses that recommendations are not ‘legally ineffective’. The national courts have to consider recommendations, especially when they (a) facilitate the interpretation of the norms that were passed to implement them or (b) are meant to complement EC Regulations; ECJ Case C-322/88 – Grimaldi  ECR 4407 para 18. An obligation to ‘consider’ the recommendation does not mean, however, that the courts have to follow them; they only have to include them in their decision-making process. Additionally, the recommendation can cause legitimate expectations binding the recommending organ to not contradicting itself (estoppel).
The opinion is considered to have the same effects.
d) Judicial review
According to the explicit exclusion laid down in Art 263(1)1 TFEU/230(1) EC an action for nullity is not admissible with regard to recommendations and opinions.
4. Atypical legal acts
a) (Other) ‘decisions’
The TFEU and the EC Treaty sometimes mention the ‘decision’ as a form of action without, however, referring to the court decisions or decisions within the meaning of Art 288 TFEU/249 EC. Such decisions are mainly of practical use for organizational acts (creation and formation of Union institutions, see eg Arts 255(2)2, 236 TFEU and Art 225a EC; appointment see Art 255(2)2 TFEU), the conclusion of Union agreements (Art 217, 218 TFEU/310, 300 EC) and for the handling of special community action and support programs. The competence for ‘rules’, ‘measures’ and ‘provisions’ can also authorize acts in the form of a decision (eg Art 18(2) TFEU/12(2) EC, Art 21(2) TFEU/18(2) EC, Art 113 TFEU/93 EC, Art 114(1)2 TFEU/95(1)2 EC, Art 166(4) TFEU/150(4) EC and Art 352(1)1 TFEU/308 EC).
Decisions in this sense are normative legal acts with general consequences that are not addressed to a specific person or group and are not binding for or within the Member States, but only for the EU itself or its institutions. Within the EU, however, they do not need an implementing act in order to have binding effect. The classification whether a legal act is to be considered a binding decision or a non-binding resolution (see b) below) depends on the intent of the enacting body.
In addition to the binding effect within the EU, decisions can also require Member States to promote their implementation under the principle of good faith vis-à-vis the Union (Art 4(3) TEU/10 EC). As far as they constitute individual rights, these can (only) be claimed before Union courts.
The bodies of the EU sometimes make use of the resolution as a form of action not explicitly mentioned in the TFEU. Resolutions are usually employed in order to develop politically controversial topics or to prepare Union action or legislation at a very early stage (even before an opinion would be feasible). The resolution therefore is mainly a statement of political intention; it can, however, have normative elements given that it is considered to be part of the aquis communautaire (eg in cases concerning the accession of new Member States). In principle the resolution is not binding, and naturally it cannot derogate binding primary or secondary Union law. It also does not result in the enacting body being committed to act accordingly in the future. As an ‘act’ of the EU it can, however, bind community bodies in accordance with the principle of good faith vis-à-vis the Union (Art 4(3) TEU/10 EC). The resolution does not constitute rights and duties for individuals; due to the lack of self-commitment, this holds true even in combination with the principle of legitimate expectations.
c) Internal acts of the Union
Interinstitutional agreements as well as organizational acts can be called internal acts of the Union.
Interinstitutional agreements are an instrument developed over the course of Community practice. They were in some cases recognized by the EC Treaty (Art 226(3) TFEU/193(3) EC and Art 195(4) EC (differing in Art 228(4) TFEU: ‘regulation’), Art 295(1) TFEU/218(1) EC (expanded by the ‘European Parliament’), Art 287(3)(3) s 1 TFEU/248(3)(3) s 1 EC, Art 272(9)(5) EC (no longer in the TFEU)) and are officially recognized as a form of cooperation of the Union bodies—Parliament, Council, Commission—in Art 295 s 2 TFEU. Interinstitutional agreements have the aim of facilitating cooperation when applying the TFEU and can be understood as an expression of the duty of loyal cooperation (Art 4(3) TEU/10 EC). In principle, they require the consent of the Commission, Council and Parliament. The ECJ considers them to be legal instruments and thereby part of the Union’s system of sources of law. In the hierarchy of norms, without doubt they rank below primary law; neither, however, can they deviate from secondary law, since competence and procedures for the enactment of secondary law are specifically regulated. Article 295 s 2 TFEU clarifies that interinstitutional agreements can also be binding in character. To date, it is assumed that interinstitutional agreements can only bind the bodies of the Union and, where applicable, the Member States (based on the principle of good faith vis-à-vis the Union (Art 4(3) TEU/10 EC)); individual persons are not bound by interinstitutional agreements.
Organizational acts can appear in different forms, namely as rules of procedure or decisions (see a) above). Union bodies and other Union institutions can give themselves rules of procedure: the European Parliament (Art 232(1) TFEU/ 199(1) EC), the Council (Art 207(3) EC, no longer in the TFEU, but required in Art 240(1) and (3) TFEU), the Commission (Art 249(1) TFEU/218(2) EC), the European Court of Auditors (Art 287(4)5 TFEU/248(4)5 EC, each with a requirement of approval), the European Economic and Social Committee (Art 303(2) TFEU/ 260(2) EC), the Committee of the Regions (Art 303(2) TFEU/ 260(2) EC); additionally required for each institution, body, office or agency in Art 15(3)(3) TFEU. Rules of procedure rank below primary and secondary law. The ECJ has recognized external legal effects of such rules of procedure in different ways. Thus, procedural requirements may be considered ‘essential’ within the meaning of Art 263(2) TFEU/230(2) EC. Individuals can, however, only contest the breach if the relevant procedural or formal requirement explicitly or factually serves to protect their interests.
d) Informative instruments
The Commission makes use of different informative instruments, in particular in the field of competition law and state aid (eg communications, notices, guidelines, codes of conduct and best practice). Such informative instruments, for example, summarize the Commission’s decision-making practice or interpretation of relevant legislation in order to influence the discretionary practices and enforcement rules employed at the administrative agency level or to inform the public about the administrative action in order to promote legal certainty. In this regard, the informative acts differ from recommendations and opinions.
These informative instruments are in principle non-binding and can be updated or changed at any time. Only the principle of equality and the principle of good faith vis-à-vis the Union can lead to a binding effect in cases where discretion exists. The Member States cannot be bound by such instruments without their consent.
Occasionally, the bodies of the EU and/or the Member States give statements in order to express their opinion on how to interpret certain Union acts. Such statements can be of importance for (historical) interpretation insofar as they are reflected in the wording of the substantive part of the legal act concerned.
f) Judicial review
Following established case law of the ECJ, the question whether a legal act can be challenged under Art 263 TFEU/230 EC depends on its legally effective content rather than its form. Thus, proceedings can be instituted against an atypical legal act if it produces legal effects (natural or legal persons not privileged according to Art 263(1) TFEU, however, may only initiate proceedings if the act is of direct and individual concern to them (Art 263(4) TFEU)).
5. Treaty of Lisbon
The Treaty of Lisbon broadens the scope of Art 288 TFEU/249 EC due to the ‘communitarization’ of parts of the Union Law (see Arts 74, 82(1), 87(2) TFEU). It does not, however, change the legal forms of action available to the Union (as it is called in the Treaty). Contrary to the draft, the denominations in principle also remain the same as before. ‘To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions [see 2. above], recommendations and opinions [see 3. above]’ (Art 288(1) TFEU). With respect to the decision, Art 288(4) s 2 TFEU clarifies that ‘a decision which specifies those to whom it is addressed shall be binding only on them’.
Furthermore, Art 295 TFEU expressly mentions interinstitutional agreements hitherto established in Community practice (see 4. c) above).
Apart from that, many atypical legal acts are still left unmentioned in the Treaty of Lisbon. Considering, however, that the hitherto existing Community practice was known to and not objected by the legislature, its legitimacy has been confirmed also in respect of the remaining atypical legal acts.
Rosa Greaves, ‘The Nature and Binding Effect of Decisions Under Article 189 EC’ (1996) 21 E L Rev 3–16; Andrea Bockey, Die Entscheidung der Europäischen Gemeinschaft (1998); Heike Adam, Die Mitteilungen der Kommission: Verwaltungsvorschriften des Europäischen Gemeinschaftrechts? (1999); Bernd Biervert, Der Missbrauch von Handlungsformen im Gemeinschaftsrecht (1999); Christian Bobbert, Interinstitutionelle Vereinbarungen im Europäischen Gemeinschaftsrecht (2001); Ute Mager, ‘Die staatengerichtete Entscheidung als supranationale Handlungsform’ (2001) Europarecht (EuR) 661; Armin von Bogdandy, Jürgen Bast, Felix Arndt, ‘Handlungsformen im Unionsrecht’ (2002) 62 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 77; Werner Schroeder, ‘Art. 249 EG Rn. 26–34 und 132–144’ in Rudolf Streinz (ed), EUV/EGV (2003); Matthias Vogt, Die Entscheidung als Handlungsform des Europäischen Gemeinschaftsrechts (2005).