Legal History and Legal Instruments of the EU (Others): Difference between pages

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by ''[[Johannes Liebrecht]]''
by ''[[Karl Riesenhuber]]''


== 1. Legal history and legal histories ==
== 1. Overview ==


It is well known that legal systems across Europe comprise a number of fields which exhibit great variety in their structures and priorities and have been subject to very different processes of development. There is not only a great diversity of legal fields outside private law, but also within it. There are special and quasi-autonomous areas such as consumer ([[Consumers and Consumer Protection Law|consumers and consumer protection law]]) and insurance law ([[Insurance Contracts|insurance contracts]]), or [[Commercial Law|commercial law]], [[Company Law|company law]] and labour law. Alongside this multiplicity of substantive systems of law, there is an equally multifarious arsenal of approaches to them that has given rise to many, and occasionally very lively, scholarly disputes. They range from traditional doctrinal ways of arguing, which focus on interpretation of statutes ([[Interpretation of Statutes, History of|interpretation of statutes, history of]]) and usually aim to achieve systematic coherence, across functionalist [[Comparative Law|comparative law]] and empirical or sociological ‘legal realism’ to [[Economic Analysis of European Private Law|economic analysis of European private law]] in its various guises. In light of this, it is not surprising that there is no unitary history'' ''of law. Legal history can be written not only for each area but also from a variety of viewpoints. It may deal with legal rules or institutions with a long tradition (eg defective performance in [[Sale|sale]]), or it may be concerned with the development of comprehensive, almost philosophical concepts (such as the emergence of the idea of the subjective right). Legal history may be an account of the development of legal institutions within a given society (such as the law of [[Marriage|marriage]] and [[Divorce|divorce]]) or of political strategies for the maintenance of public order and punishment for deviant conduct (historical criminology), but it may also encompass many other perspectives. In doing so, legal history exposes the historical contingency of allegedly timeless elements such as legal doctrine, case law or legislation.
The TFEU/EC Treaty and Union law practice provide the [[European Union]] with more legal instruments than merely [[Regulation|regulations]] and [[Directive|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.


== 2. The European dimension of the history of private law ==
== 2. Decisions ==


One of these many legal histories concerns the development of modern private law in Europe. It constitutes one of the most important legal developments in western civilization, for it saw the rise of a scholarly and doctrinal tradition of law which proved to be unique and particularly successful. This tradition had its origins in classical antiquity, when Hellenistic scholarly methods were absorbed by Roman legal culture, allowing the development of ever more refined legal rules as well as to specialist legal literature and a new profession—the jurist. The primary concern of so-called classical [[Roman Law|Roman law]] was what we would regard today as private law. Many of the relevant texts were compiled in the [[Corpus Juris Civilis|''Corpus Juris Civilis'']] and were thus preserved, allowing them a ‘second life’, which began in the High Middle Ages. As their study began again in Italy in the 11th century, the Roman body of texts attracted much interest. Glosses on the texts multiplied with the foundation of universities. Later, commentaries were written on the legal rules and principles of Roman law. This new learning spread across the whole of Europe, although its impact was greater on the Continent than in the United Kingdom.
=== a) Term ===


No less important for the structure of European private law was the other major legal development of the High Middle Ages: the emancipation of the church from the Empire which culminated in the Investiture Controversy. It provided a new systematic understanding of the case law tradition of Roman law, giving rise to the concept of a secular political system, but it also allowed the church to develop into a hierarchical, carefully regulated institution of a previously unknown type. In the ''ius canonicum'' ([[Canon Law|canon law]]), the church developed the first modern system of courts and law in Europe (Harold Berman). The Roman, and supposedly imperial, legal traditions combined with ecclesiastical ideas based on the church’s conception of theological truth. This combination allowed consideration of new questions and moulded the new learned jurisprudence which spread across Europe, leading to the creation of the [[Ius Commune|''ius commune'']].  
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’).  


The authority of the Roman tradition was challenged by [[Humanism|humanism]], and rejected altogether by proponents of [[Natural Law|natural law]]. However, the doctrines of the early modern ''ius commune'' lived on, albeit in a state of constant transformation, until the great European [[Codification|codifications]] and the renewal in legal scholarship brought about by the [[Historical School|historical school]] in the 19th century. Even the Anglo-Saxon [[Common Law|common law]] was not as isolated from the European tradition as we might first expect. Despite major differences in legal culture and doctrine, there was also some impact of the ''ius commune'' continental influence on the English legal development (Reinhard Zimmermann). Within the framework of the ''ius commune'' the evolution of many modern legal doctrines can be traced. Over the centuries, concepts at both the centre and the periphery of private law were constantly refined, and reinterpreted, sometimes also merely developed or abandoned. Many examples may be mentioned: the doctrinal development of the Roman paradigm of sale of goods; the gradual formation of a general law of delict ([[Law of Torts/Delict, General and Lex Aquilia|law of torts/delict, general and ''lex Aquilia'']]); the growing influence of the will theory in thinking about private law; the doctrine of error ([[Mistake|mistake]]) in all its forms along with many other ‘minor histories’. But there was also an array of further factors that had significant influence on the modern European understanding of private law. Apart from the world of the common law, there was a multiplicity of regional legal traditions across Europe alloyed with the learned law in varying proportions. The most important of these were the [[Usus Modernus|''usus modernus'']] and the municipal laws ([[Stadtrechte (Town Laws)|''Stadtrechte'' (town laws)]]), which led to extensive regional differences and legal rules influenced by Roman law in very different degrees. The wider changes brought about by the rise of modern capitalism had a significant impact on private law across Europe. The many practical innovations in European commerce included the emergence of modern banking and insurance and the great trading companies of the 17th and 18th centuries with their complex, nascent commercial and company law doctrines. Finally, the 19th century saw the spread of wide-ranging freedom in private law and the formation of legal institutions under the influence of a bourgeois ideology. As a result of the industrial revolution private law experienced further upheavals, for instance, by manufacturing and commercial practices and the legal standardization of wage labour.
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 history of private law in Europe is thus marked by both striking structural parallels and a great number of national peculiarities. The dominance of the latter has been counteracted in recent decades by the growing influence of [[European Private Law|EU private law]] and through discussions about a possible [[European Civil Code|European Civil Code]]. Yet one feature particular to private law thinking can be traced back to Roman times: through all changes and upheavals it has never lost its anchor in academic teaching. It is based on an autonomous body of terminology and gives expression to its own sophisticated concept of social order, which is not obvious but has to be appreciated by way of legal training. If European private lawyers look for ‘solutions’, they do not so much look for pragmatic answers to real confrontations, but rather design refined doctrinal concepts which can assist the understanding of legal questions within a legal system. This process, the so-called ‘scientification’ of law (Franz Wieacker) can be regarded as a motor for the process of rationalization of western society since the High Middle Ages.
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.  


== 3. The history of private law and European legal unification ==
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|regulation]], which is of ‘general application’). This is important for legal standing according to Art 263(4) TFEU/230(4) EC (see c) below).


The fact that many European private law doctrines can be traced back to common pre-national, social and intellectual roots may invite us to ask how far legal history can assist and help direct the Europeanization of private law. Historical (so-called vertical) comparative law can highlight and explain structural differences and their origins, just as (horizontal) [[Comparative Law|comparative law]] does for the present. Comparative-historical analyses of this type can attempt to overcome the nationalization of private law in Europe and to develop a sustainable vision of a common private law for Europe. This has been ongoing for some time, primarily in Germany and the Netherlands but also in Anglo-Saxon discussions. Such cooperation between comparative law and legal history may seem obvious because of the proximity of the two academic disciplines, the former having borrowed several techniques from the latter in the early 20th century. However, the extent to which a common European history of private law will prepare the way for a Europeanization of private law remains open to question. Objections do not only arise from the epistemological concerns in both legal historical and comparative law discourse: some argue, for instance, that a narrow focus on the development of private law, to the exclusion of other aspects of legal history, gives a distorted picture which denies other areas of law their proper historical and contemporary importance. Others claim that legal history ought not to focus on legal doctrine but should pursue an empirical research agenda firmly rooted in the social sciences, a debate also known in comparative law. The most significant obstacle, however, probably consists in the existing diversity of approaches to and traditions of writing legal history within Europe. It will be no easier to find a common European view of legal history than to create a unified European private law.
Even though this is not explicitly provided for, the decision, unlike the regulation or [[Directive|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.


== 4. The scholarship of legal history in Europe ==
=== b) Effects ===


For while studies in legal history across Europe began with very similar questions, they developed within various national contexts. As a result, all of them display many peculiarities. [[Humanism|Humanism]] may be taken as the starting point for reflection on legal history as its proponents recognized the contemporary relevance of a reflection of the legal past. In a narrower sense, new questions concerning the background of the particular national legal traditions (for instance, the work of Sir Matthew Hale in England, or Claude Fleury in France) or the reception of [[Roman Law|Roman law]] (as with Hermann Conring in Germany), and addressed for the first time in the 17th century focused on the legal past as an independent object of study. Later, the German [[Historical School|historical school]] gave a powerful boost to historical legal thinking, and drove the movement towards specialization across Europe. Critical research into the history of the law, sustained by a philologically-informed scrutiny of the sources became an extensive and independent scholarly discipline. By the turn of the 20th century, however, it lost much of its immediate political and practical significance owing to the influence of Leopold von Ranke’s historical method on one hand, and the drafting of the German [[Bürgerliches Gesetzbuch (BGB)|''Bürgerliches Gesetzbuch'' (BGB)]] of 1900 on the other. It was now, ie between 1870 and 1930, turned into a purely philological and historical discipline, still located in university law faculties. The intensity of historical legal research stimulated by this change of focus has never been matched. It spurred the professionalization of legal history in some countries (for instance by Frederick William Maitland in England or Eduardo de Hinojosa in Spain), but it did not lead to a uniform approach to historical scholarship. Rather, different national perspectives have dominated until the present day.
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.


However, some of the common questions in European legal history arose from common external influences, which predetermined the understanding of the law and its history. Thus the 20th century saw a massive decline in interest in ancient and medieval history across Europe. Although both continue to be taught and studied, they have been overshadowed by an emphasis on early modern and modern legal history, particularly on developments in the 19th century. This reflects an apparently foreshortened view of the past. Equally, legal histories across Europe were under the spell of the great European [[Codification|codifications]], which led to a focus on the history of legal rules. Just as, in the course of the 20th century, French legal history slowly rediscovered its sources concerning judicial practice, the focus of legal history in Germany also shifted to the law in action. This was matched by corresponding changes in [[Comparative Law|comparative law]]; in Italy, this change of perspective was even driven by a comparatist (Gino Gorla). In contrast, the United Kingdom, unaffected by codification, did not experience a similar development. Finally, we may observe that legal historical study across Europe in the second half of the 20th century began to lose its fixation on national law as a result of the gradual growth of political interest in a common Europe. Both French legal history, at times marked by autarky, and the somewhat isolationist English tradition began to consider general and supranational questions. Similarly, whereas German and Italian scholarship had been dominated by national, even nationalistic themes for a long time, they now began to adapt comparative perspectives. On the other hand, scholarship from smaller countries (such as those in Scandinavia, the Netherlands, Scotland, Austria or Switzerland) had been much more open for a long time. Naturally, such changes facilitate the development of a common European history of private law. All the same, there is still only a small number of works which combine deep analysis with genuinely supranational coverage.
Decisions addressed to individuals, such as decisions concerning competition law, take effect ''inter partes'' only''.''


These common tendencies should not hide the fact that the approaches of scholarship in legal history remain disparate. They correspond to particular national legal identities and subject the past and the historical development of the law to a variety of different preconceptions. This has major methodological consequences. Whereas the French obsession with the quasi-mythological watershed of the French Revolution and the [[Code Civil|''Code civil'']] is gradually fading, some parts of Europe, such as Slovakia and Lithuania, have been considering their own legal history and identity for the first time since 1989. Some eastern European states have seen very little research in legal history while others, such as Poland or Hungary, can look back on a long tradition. In the German legal culture, legal doctrine has traditionally been accorded a great deal of respect. This has led German legal historians to take a great interest in the learned law of the past. Another approach can be found in English legal history, where a long established and essentially uncodified law inspired an emphasis on the earlier case law and judicial reasoning rather than on academic doctrine. Indeed, compared with continental Europe, this is seen less as a form of historical study than as an attempt to find authority and normative force in the past. Thus legal history’s role in England is very different from the one it plays in continental Europe (particularly in Italy, Spain and France).
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 [[Directive|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'' [1970] ECR 825 paras 6 and 10.


Alongside these differences, which are rooted in the particular [[Legal Culture|legal cultures]], we see legal history’s fundamental dilemma, ie the problem of its position between legal and historical scholarship. Frederick William Maitland summarized the problem thus: ‘What the lawyer wants is authority, what the historian wants is evidence … The lawyer must be orthodox otherwise he is no lawyer; an orthodox history seems to me a contradiction in terms.’ Only at first sight, this dilemma seems identical to a second question: to what extent should cultural and sociological categories dominate the study of legal history, and how much emphasis should be given to legal concepts ''strictu sensu''? The various scholarly traditions imply particular answers to this question. There are differences between the French and the Italian view of what constitutes institutional history, and legal history in the United States, despite belonging to the [[Common Law|common law]] tradition, is much more heavily influenced by sociological ideals than its British counterpart. However, the major fronts in these methodological disputes about how to regard the legal past are not between the different national legal cultures. Rather, they exist within these cultures. When taken together, they reflect the diversity within modern legal scholarship at large. Any history of private law must choose its frame of reference and this choice will have inevitable consequences. The acceleration of change in legal culture which we perceive today often entails the loss of any consciousness of continuity, and thus research into doctrinal legal history can lose much of its appeal. On the other hand, however, it may serve as a spur for such research which seeks to build a contemporary vision of law with greater coherence and a deeper understanding of its own traditions. Such ideologically loaded alternatives provide a temptation, particularly when combined with an unquestioned faith in the power of the scientific method, to engage in passionate theoretical debates, which can take on a quasi-religious character. Whatever vision of European legal history wins out, it will only be possible to mould the diverse European histories into a common European scholarly endeavour to the extent that the process of Europeanization of the law itself continues to develop.
=== 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 ==
 
=== a) Term ===
 
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).
 
=== b) Competence  ===
 
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.
 
=== c) Effect ===
 
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'' [1989] 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.
 
=== b) Resolutions ===
 
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|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.
 
=== e) Statements  ===
 
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.  


==Literature==
==Literature==
Helmut Coing, ‘Die europäische Privatrechtsgeschichte der neueren Zeit als einheitliches Forschungsgebiet’ (1967) 1 Ius Commune 1; Francisco Tomás y Valiente, ‘Escuelas e historiografía en la historia del derecho español (1960–1985)’ in Bartolomé Clavero and others (eds), ''Hispania entre derechos proprios y derechos nacionales'' (1990) 11;'' ''Reinhard Zimmermann, ‘Der europäische Charakter des englischen Rechts’ (1993) 1 ZEuP 4; Jean Hilaire, ‘L’approche historique d’un système juridique: l’enjeu français’ (1994) 62 Tijdschrift voor Rechtsgeschiedenis 35;'' ''Peter Stein, ‘Legal History: The British Perspective’ (1994) 62 Tijdschrift voor Rechtsgeschiedenis 71; Mathias Reimann and Alain Levasseur, ‘Comparative Law and Legal History in the United States’ (1998) 46 Am&nbsp;J Comp&nbsp;L Supplement 1;'' ''Pio Caroni and Gerhard Dilcher (eds), ''Norm und Tradition. Welche Geschichtlichkeit für die Rechtsgeschichte?''/''Fra norma e tradizione. Quale storicità per la storia giuridica?'' (1998); Jean-Louis Halpérin, ‘L’histoire du droit constituée en discipline: consécration ou repli identitaire?’ (2001) 4 Revue d’histoire des sciences humaines 9; Kjell Å Modéer (ed), ''Rättshistoria i förändring. Olinska stiftelsen 50 år ''/''Legal History in Change. The Olin Foundation for Legal History 50 Years'' (2002).</div>
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.&nbsp;249 EG Rn.&nbsp;26–34 und 132–144’ in Rudolf Streinz (ed), ''EUV''/''EGV'' (2003); Matthias Vogt, ''Die Entscheidung als Handlungsform des Europäischen Gemeinschaftsrechts'' (2005).</div>




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Latest revision as of 18:39, 5 June 2025

by Karl Riesenhuber

1. Overview

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.

2. Decisions

a) Term

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.

b) Effects

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 [1970] 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

a) Term

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).

b) Competence

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.

c) Effect

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 [1989] 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.

b) Resolutions

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.

e) Statements

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.

Literature

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).

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