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.
[...] This makes regulations differ from directives, which only bind as to the result to be achieved by the Member States. Thirdly, regulations are “directly applicable in all Member States”, which concisely means that they are “intended to take immediate effect without the need for further implementation”[4]. This feature is so essential that it can be found as well in the Euratom Treaty[5]. As we can notice, a regulation compared to other European legislations is the only one that is granted direct applicability. [...]
[...] First, regulations have “general application”. They are distinguished by the non-individualised character both of the situation to which they apply and the legal effects they entail for the legal subject to whom they are addressed. In the cases 789-790/79 Calpak v Commission and 16-17/62 Producteurs de fruits, The European Court of Justice stated that being essentially of “legislative nature, a regulation is applicable not to a limited number of persons, defined or identifiable, but to categories of persons viewed abstractly and in their entirety”. [...]
[...] Direct applicability thus secures the status of regulations as law within the legal order of each Member State, as well as their uniform interpretation and application. For this reason, it was necessary to prevent Member States to interfere with the application of Community law. This objective follows from the EC Treaty, article 10, which states: Member States shall take all appropriate measures ( ) to ensure fulfilment of the obligations arising out of this Treaty ( They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty. [...]
[...] Josephine Steiner, Textbook on European Economic Community law, Blackstone press limited See Article 161 para Euratom Treaty. Per Lord Denning MR in H.P Bulmer Ttd v J. Bollinger SA (1974) Ch 401. 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. [...]
[...] Definition of direct applicability Although article 249 provides that regulations are directly applicable, this gives little information about what actually means direct applicability. The first explanation of the concept is provided for in the United Kingdom. The European Community Treaties were incorporated into UK law by the European Community Act 1972. Section 2 of this act states: All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties ( ) are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly. [...]
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