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EU directives and regulations Visa
European directives and regulations explained: These European rights apply.
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what is the difference between an EU directive and an EU regulation
what European secondary law is
what EU secondary law regulates in the area of immigration
direct applicability of EU directives
1. What is EU secondary law?
2. Most important EU directives (migration law)
3. Most important EU regulations (migration law)
4. EU secondary law and visa
5. FAQ
6. Conclusion
1. What is EU secondary law?
EU secondary law encompasses all legal acts that are indirectly based on the founding treaties of the European Union – in particular the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). These include regulations, directives , decisions, recommendations, and opinions. Regulations and directives are the most important instruments in the area of migration and visas, as they offer the EU institutions the opportunity to directly shape the legal situation.
The legal framework for secondary law arises from Article 288 TFEU . Secondary law serves to implement the objectives of primary law—such as the regulation of migration, asylum, or freedom of movement—and to create uniform minimum standards within the EU. While regulations are directly applicable in all EU member states, directives must be transposed into national law by the member states.
2. Most important EU directives (migration law)
Several directives are of great importance in EU migration law. They set minimum standards across Europe that member states must incorporate into their national laws . Important examples of secondary legislation in the area of visas and migration include the following directives:
Free Movement Directive (Directive 2004/38/EC) (implemented by the Free Movement Act (FreizügG/EU) )
Highly Qualified Workers Directive (Directive 2009/50/EC) (implemented by the EU Blue Card regulations pursuant to Section 18g of the Residence Act)
Permanent Residence Directive (Directive 2003/109/EC) (implemented by the introduction of the EU permanent residence permit, Section 9a of the Residence Act)
Family Reunification Directive (Directive 2003/86/EC) (implemented by Sections 27 et seq. of the Residence Act ( Family Reunification ))
Student and Researcher Directive (2016/801/EU) ( REST Directive ) (implemented by Section 16b of the Residence Act)
Each of these directives establishes binding framework conditions in the area of migration and visas, but leaves member states some leeway in their practical implementation . This can lead to differences between countries – including in the issuance of visas.
3. Most important EU regulations (migration law)
Unlike directives, regulations apply directly in all EU member states, thus creating a high degree of legal uniformity. A regulation does not have to be transposed into national law, but is directly applicable. The most well-known regulation in the visa area is the Visa Code Regulation (Regulation (EC) No. 810/2009) . It governs the procedure for issuing Schengen visas throughout Europe. Accordingly, the regulation exempting third-country nationals from the visa requirement ( Regulation (EU) 2018/1806 ) is also important. TheEntry/Exit System (EES) Regulation and the European Travel Information and Authorization System (ETIAS) Regulation are also key building blocks of a uniform EU border management system.
Another important regulation is the Schengen Borders Code (Regulation (EU) 2016/399) , which, among other things, regulates when and how EU external borders are controlled. These regulations apply without national implementation requirements and must be directly applied by authorities and courts. Especially in the area of visas, this means that applicants can directly invoke their rights under regulations, and member states have no discretion in their implementation.
4. EU secondary law and visa
The interplay of directives and regulations decisively shapes visa law in the European Union. While Schengen visas are largely governed by EU regulations in terms of content and procedure , many national visas involve the implementation of directives . Anyone applying for a national visa for family reunification or study purposes, for example, benefits from the protective mechanisms and minimum standards of the relevant directive.
The system of secondary law in the visa area can therefore be summarized as follows: the Schengen Area and Schengen visas are directly governed by EU regulations, while the member states have sovereign discretion in implementing long-term D visas through the directives. At the same time, this presents a challenge: Since directives must first be transposed into national law, differences exist in practice between member states – for example, regarding processing deadlines, document requirements, or grounds for refusal. This makes sound legal advice on visa procedures all the more important.
5. FAQ EU secondary law and visa
What is the difference between a directive and a regulation?
Regulations apply directly in every EU country, while directives must first be implemented into national law.
Which system of EU secondary law applies in the visa area?
Schengen visas and Schengen rules are mostly regulated by regulations, while long-term D visas are mostly regulated by directives.
Which regulation governs the Schengen visa?
The Visa Code Regulation (EC No. 810/2009) regulates the procedure and conditions for issuing a Schengen visa.
As an applicant, can I rely on an EU directive?
In principle, yes—especially if the transposition deadline has expired or national law incorrectly implements the directive. However, directly invoking directives is legally complex and challenging.
6. Conclusion EU secondary law and visa
EU secondary legislation largely determines how visa law is structured in Germany and other member states. While regulations apply immediately, directives only establish framework conditions that must be developed nationally. Anyone applying for a visa should know which European legal requirements apply – because they establish specific rights and obligations. VISAGUARD supports you in reliably assessing and enforcing your options in light of EU law.
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List of Sources (Paywall)
[1] NK-AuslR/Thomas Oberhäuser, 2nd ed. 2016, Freedom of Movement Act/EU § 2 Rn. 1-53