Article 249 of the European Community Treaty provides that Regulations shall be directly applicable in all Member States. Does this mean that they are also necessarily directly effective? As notices Josephine Steiner , this question is of paramount concern to EC lawyers. If a provision of EEC law is directly effective, not only shall national court apply it, but they must do so in priority over any conflicting provision of national law. Thus the broader the approach of the concept of direct effect, the greater the potential for conflicts.However, before we can answer this question, it is necessary to state first what a regulation is, and then define the concept of direct applicability and direct effect. Thus in this essay, we will explore in a first part the concept of regulation and its different components. Then in a second part we will discuss the concept of direct applicability and explain why a regulation, by its very definition is directly applicable. In the third part, we will explain how, from the concept of direct applicability followed the concept of direct effect. We will also analyse what are the conditions of direct effect and why a regulation shall have normally direct effect. Eventually, in a fourth part, we will demonstrate that if in principle, regulations are directly effective, when the required conditions for direct effect are not met, a regulation can however be denied direct effect. Thus we will come to the conclusion that if regulations are normally directly effective, they are however not necessarily directly effective.
[...] In the case Politi v Italy[26], it stated that: By reason of their nature and their function in the system of the sources of community law, all regulations have direct effect and are, as such, capable of creating individual rights which national courts must protect. On many other occasions, the court confirmed this character of regulations like in the cases Leonesio v Italian Ministry of agriculture and Forestry[27], Antonio Munoz Cia SA v Frumar Ltd[28], or SpA Marimex v Ministry of Finance of the Italian Republic[29]. [...]
[...] Craig, de Burca, European Union law, Oxford See eg Rawlinson and Cornwell-Kelly, European Community Law, Waterlow Publishers And Mathijsen, A guide to European Union law, Thomson Sweet and Maxwell Sacha Prechal, Does direct effect still matter?, Common Market Law Review 1047-1069. Craig, de Burca, European Union Law, Oxford See Josephine Shaw, European Community Law, Macmillan See also Ólafur Börkur Thorvaldsson, Direct Effect, Supremacy and State Liability A Comparison between EC Law and the EEA Agreement See Case 39/72 Commission of the European Communities v Italian Republic, ECR 101. [...]
[...] Thus in the case Gebroeders van Es Douane Agenten BV v Inspecteur der Invoerrechten en Accijnzen the European Court of Justice reaffirmed this principle, and denied a regulation direct effect because of this lack of legal certainty[39]. The third condition is that to be directly effective, a regulation must not depend on further implementation. There are some cases where regulations provide for implementing, or further measures to be taken by the Community Institutions or by the Member States through administrative measures[40]. [...]
[...] of the EC Treaty In this part, our main aim is to fully describe the concept of regulation: what are its components, and which specificities does it imply for a regulation, especially regarding the concept of direct applicability. Article 249 of the European Community Treaty A regulation is described in article 249 as: A regulation shall have general application. It shall be binding in its entirety and directly applicable in all member States. For a better understanding of the concept, it is of great interest to compare this with the other provisions of the article: A directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods. [...]
[...] Since Commission Regulation (EEC) No 482/74 of 27 February 1974 on the classification of goods within subheading 23.04 B of the Common Customs Tariff was not amended by the Commission in accordance with the second subparagraph of Article 15(1) of Council Regulation No 2658/87 of 23 July 1987, it cannot be applied to declarations concerning importations after 1 January 1988 inasmuch as that failure to amend the former regulation prevents individuals from determining its precise scope.” See eg Kapteyn, Verloren and van Themaat, Introduction to the law of the European Communities See also Ólafur Börkur Thorvaldsson, Direct Effect, Supremacy and State Liability A Comparison between EC Law and the EEA Agreement See Mathijsen, A guide to European Union law, Thomson Sweet and Maxwell See also Ólafur Börkur Thorvaldsson, Direct Effect, Supremacy and State Liability A Comparison between EC Law and the EEA Agreement See Case 403/98 Azienda Agricola Monte Arcosu Srl v Regione Autonoma della Sardegna, Organismo Comprensoriale nº 24 della Sardegna and Ente Regionale per l'Assistenza Tecnica in Agricoltura (ERSAT), ECR 2001 00103: last subparagraph of Article of Regulation No 797/85 on improving the efficiency of agricultural structures and the last subparagraph of Article of Regulation No 2328/91 on improving the efficiency of agricultural structures may not be relied on before a national court by limited companies seeking to obtain the status of farmers practising farming as their main occupation where the legislature of a Member State has not adopted the provisions necessary for their implementation in the national legal system.” See eg Hartley 98-99. [...]
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