Article 288 of the Treaty on the Functioning of the European Union
Article 289 of the Treaty on the Functioning of the European Union
They describe the main unilateral acts of the European Union (Article 288), and in particular those that are legal acts (Article 299).
What are unilateral acts?
Among the sources of EU law, unilateral acts are that part of the EU’s secondary legislation other than conventions and agreements.
They are adopted autonomously by the EU institutions in accordance with the founding treaties.
What are the different types of unilateral acts?
These are primarily the acts listed in Article 288 TFEU:
Regulations, directives and decisions which, as indicated in Article 289, are legal acts. They are adopted through the legislative procedure and have binding force, with nuances of scope and binding effect.
Opinions and recommendations, which are not legal acts. They do not confer any rights or obligations on those to whom they are addressed, but may provide guidance as to the interpretation and content of EU law.
Other non-binding unilateral acts, of a more political character, are called ‘atypical acts’ — not because they are not frequently used but because they are not listed in Article 288. These include resolutions, conclusions, communications and green and white papers. They are cited in other articles in the EU treaties or come from the practice of the EU institutions.
The legal status of unilateral acts
The EU institutions are free to choose the type of act that they deem most appropriate for implementing their policy.
However, since the EU only has the competences conferred on it by the treaties, any act must cite the legal basis in the TFEU corresponding to the field in which the European institutions are taking action.
Moreover, acts are required to cite the instruments giving the power to adopt them (in citations beginning with ‘having regard to’) and to state the reasons on which they are based (in recitals beginning with ‘whereas’).
Acts have to be published in the Official Journal of the EU. They may enter into force the day of their publication, unless otherwise indicated in their text (as is often the case).
Their legality can be challenged at the Court of Justice of the EU.
Consolidated version of the Treaty on the Functioning of the European Union – Part Six – Institutional and financial provisions — 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)
Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Institutional provisions — Chapter 2 — Legal acts of the Union, adoption procedures and other provisions — Section 1 — The legal acts of the Union — Article 289 (OJ C 202, 7.6.2016, p. 172)