ECJ (Judgment) 1 Member States – Obligations – Failure to fulfil obligations – Retention of a national provision incompatible with Community law – Justification on the basis of administrative practices ensuring that the Treaty is applied – Not permissible
2 Acts of the institutions – Directives – Implementation by the Member States – Directive intended to confer rights on individuals – Transposition without legislative action – Not permissible
3 The incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty.
4 The provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the requirement of legal certainty, under which, in the case of a directive intended to confer rights on individuals, persons concerned must be enabled to ascertain the full extent of their rights.
That is not the case where, because a legislative provision incompatible with a provision in a directive has been retained, individuals are in a position of uncertainty as to their legal situation and exposed to unwarranted criminal proceedings. Neither the obligation for national courts to secure the full effect of Article 5 of the directive by not applying any contrary national provision, nor a ministerial answer to a parliamentary question can have the effect of amending a statutory provision.
Citations:
[1997] ECR I-1489, C-197/96, [1997] EUECJ C-197/96
Links:
European, Constitutional
Updated: 03 June 2022; Ref: scu.161887