European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The direct effect is not to be confused with the principle of direct applicability, according to which European law is applied in the domestic legal system without it being necessary to ensure that it is received and transposed under domestic law . Although, for certain rules such as regulations, direct effect and direct applicability go hand in hand, others may have a direct effect without being  …

Temporal application

The direct effect is not to be confused with the principle of direct applicability, according to which European law is applied in the domestic legal system without it being necessary to ensure that it is received and transposed under domestic law . Although, for certain rules such as regulations, direct effect and direct applicability go hand in hand, others may have a direct effect without being directly applicable.

Some provisions contain a transitional period on expiry of which the direct effect is suspended . This was the case, in particular, for Article 49 TFEU relating to the freedom of establishment which is of direct application since the expiry of the transitional period, regardless of whether the required directives have been adopted .

According to Article 288 TFEU, regulations are binding in their entirety and directly applicable in all Member States, while directives are binding, as to the result to be achieved, upon the Member States but leave to the national authorities the choice of form and method. Therefore, directives can be relied on by individuals before national courts only after the expiry of the time-limit laid down for their transposition into national law , unless the provision is likely to allow them to escape criminal sanctions by virtue of the principle of the retroactive effect of more favorable provisions of criminal law . At the end of that time-limit, the fact that the directive cannot be relied upon by individuals before the national court is limited to two cases: either the State fails to implement the directive within the time-period set forth in its provisions  or the provision has not been correctly implemented by the Member State .

Under Article 297 TFEU, a directive shall take effect with respect to the Member States to which it is addressed upon its notification. Therefore, Member States must refrain from adopting measures liable seriously to compromise the result prescribed by the directive during the implementation period . During the period of time between the coming into force of the directive and its transposition, national law must further be interpreted in the light of the European rule, insofar as the national rules concerned now fall within the scope of application of European law . The adoption of provisions contrary to the European provision before its transposition makes the Member State liable to infringement proceedings . The same is true as regards a transitional period if the directive provides for such action on expiry of that period .  

In all events, even absent any integration in the national legal system, the principle of primacy results in the EU rule prevailing over the national rule in case of conflict, Case 106/77, Amministrazione delle finanze dello Stato v Simmenthal [1978] ECR 629, LawLex200700001337JBJ.

Case 33/70 Spa Sace v Ministero delle finanze [1970] ECR 1213, LawLex200900001950JBJ.

Case C-165/09 Stichting Natuur en Milieu [2011] ECR I-4599,  LawLex201200000083JBJ.

Case 2/74 Reyners v Belgian State [1974] ECR 631, LawLex200900001650JBJ.

Case 148/78 Ratti [1979] ECR 1629, LawLex200900001559JBJ; Case C-316/93 Vaneetveld v Le Foyer [1994] ECR I-763, LawLex200900002112JBJ; Case C-157/02 Terra Baubedarf-Handel [2004] ECR I-5583, LawLex200900000615JBJ.

Case C-230/97 Awoyemi [1998] ECR I-6781, LawLex200900001305JBJ.

Case C-156/91 Hansa Fleisch v Landrat des Kreises Schleswig-Flensburg [1992] ECR I-5567, LawLex200900000562JBJ.

Case C-156/91 Hansa Fleisch v Landrat des Kreises Schleswig-Flensburg [1992] ECR I-5567, LawLex200900000562JBJ; Case C-140/91 Suffritti and others v INPS [1992] ECR I-6337, LawLex200900000539JBJ.

Case C-129/96 Inter-Environnement Wallonie v Région wallonne [1997] ECR I-7411, LawLex200900000500JBJ; Case C-144/04 Mangold [2005] ECR I-9981, LawLex200900000570JBJ.

See implicitly, Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, LawLex200900002308JBJ; explicitly, Case C-246/06 Velasco Navarro [2008] ECR I-105, LawLex200900000925JBJ.

Case C-422/05 Commission v Belgium [2007] ECR I-4749, LawLex200900000783JBJ.

European Business Law

177. Temporal application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

177. Temporal application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise