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11 April 2011 Supervision Supervision label Factsheet

Under the Treaty on the functioning of the European Union, the institutions of the European Union have various instruments (legal acts) for drawing up European legislation. Each of these legal acts, viz. Regulations, Directives, Decisions, recommendations and advices, operates differently. The main distinguishing feature is that legal acts may be immediately binding or not immediately binding.

(Binding Technical Standards are not independent legal acts)

Immediately binding

The Regulation is the most important legal act which is immediately binding. A Regulation is ‘in force’ and all national rules that are not compatible with it are not operative. Even national law no longer plays a role. Firstly, this means that the Regulation may not be converted into national law, ensuring that the legal act concerned is applied in every Member State in the same way. Secondly, national law must yield to the Regulation.

Not immediately binding

The Directive is the only legal act which is not immediately binding. In principle, persons and institutions may not derive any rights from a Directive. A Directive requires Member States to adapt their national laws and obliges them to realise certain results. The provisions in the Directive must be converted into national law with binding force. Member States are free to choose how and by what means they implement the Directive. Directives always provide for a deadline within which Member States must have realised the prescribed result. If a Member State exceeds this deadline and is too late with implementation, then that Member State breaches Community law. The same applies if a Member State converts the Directive in such a way that it does not, or not fully, realise the prescribed result. The Member State then runs the risk of being condemned by the Court of Justice if the Commission instigates infringement proceedings against it.

Non-binding

Recommendations and Advices are the legal acts which are non-binding. The Guidelines are, in principle, non-binding, but the Council and the European Parliament endowed the ESA guidelines with binding effect by stating that supervisors and financial institutions should make the utmost effort to comply with the Guidelines within a specified period. If they do not manage to do so, or if it is their intention not to comply with the Guidelines, the supervisor must report this to ESA giving reasons. The ESA keeps the European Parliament, the Council and the Commission informed of all established Guidelines and Recommendations, and also reports which national supervisors have not followed them.

sector

  • Banks
  • Clearing institutions
  • Collective investment schemes
  • Insurers
  • Investment firms
  • Payment institutions
  • Pension funds
  • Trust offices