A directive is a normative note taken by the institutions of the European Union. With the payments and the recommendations, the Community directives belong to the right derived from the European Union. To the difference of a Community payment which applies completely and directly, a directive gives objectives to be reached by the Member States, with a time. This time makes it possible the national governments to adapt to the new regulation.
PresentationA directive binds any Member State recipient as for the result to reach, while leaving to him competence as for the form and to the means; in other words, the directive is a text adopted at the stage of the European Union which fixes rules that the Member States must include in their Législation intern (one speaks about “transposition” in national right). The States with this intention have a time of transposition.
According to article 189 of the the Treaty of Rome, the directive fixes a goal to reach, but leaves in the States the choice of the means to arrive there. Thus contrary to the payments, the directives are not direct application in the internal rights, they thus require an intervention of the States, but this intervention is not comparable to a measurement of reception, as in international law.
But in practice, the directives quickly became of the complete and finished acts that the States recipients were restricted to recopy.
After the Treaty of Rome
The new article 249 subparagraph 3 of the Treaty THIS lays out from now on that " the directive binds any Member State recipient as for the result to reach while leaving with the national authorities the choice as for the form and with the moyens". It is about a true obligation of result, which is not respected by the Member States (at March 18th, 2004, the Newspaper the Echoes counted 108 directives not transposed to France (13/14 févr. 2004)). The Court of justice THIS recognizes from now on that the directives have a " direct" effect;. Taken by the Council or the Commission, the directives must be published in the Official journal of the EU (CHEEK) (Article 251 T EC).
Legal authenticity of the not transposed directiveThe directives becoming very precise, the question arose of their legal authenticity beyond the text of the treaties.
Position of the CJCEThe Court of justice of the European Communities started by increasing their legal authenticity by admitting their direct effect with his stops Frantz Grad C Finantzamt and Van Duyn . She thus admitted that the justiciable ones can be prevailed about it in the absence of transposition (or after a badly transposed directive) under certain conditions:
- the directive must first of all be clear, i.e. it poses an obligation to make or not to make ( stop )
- Ensuite, it must be precise, i.e. it does not require a Implementing regulation.
- Enfin, it must also be unconditional i.e. it will be directly invocable only at the end of the time of transposition.
Position of the Council of French State
Jurisprudence “ Cohn-Bendit”
The Council of State refused this evolution with the stop Cohn-Bendit of December 22nd, 1978 by deciding that the Community directives " cannot be called upon in support of a recourse directed against an individual administrative act in the absence of any dispute of on the legality of lawful measurements taken to conform to this directive ".
It moderated its Décision then considerably by admitting the direct effect of the directive on many assumptions.
TemperamentsThe Council of State distinguished according to nature from the contested act, lawful or individual.
For the lawful acts
- One cannot take contrary note with the objectives of the directive before the expiry of the period (THIS natural France environment).
- the absence of transposition within the deadlines is illegal
- This absence of transposition engages the responsibility for the State (stop SA Arizona Tobaco Products of the Council of State which follows the stop Andréa Francovitch C Italy of the CJCE)
For the individual acts
- the French State cannot be prevailed of a not transposed directive (stop Lillyfrance of the Council of State).
- jurisprudence Cohn Bendit refuses the invocability of a directive not transposed against an individual act. But by applying the theory of the plea of illegality, the Council of State cancels nevertheless while being based on the lawful act on the base of which was taken the individual note. It also applied this theory in the absence of text, by sanctioning a state of the right or a jurisprudence.
The european companies must make a regular Veille on the directives in progress or to come.
- Directive 98/44/CE on the Patent ability of the biotechnological inventions
- Directive 2001/18/CE on the dissemination of GMO
- Directive 2001/29/CE on the harmonization of the royalties
- '' EUR-Lex, database of the European right ''
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