Opinion of the Advocate General — ECLI:EU:C:1999:37
Date: 1999-01-28
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 
1. Acts of the institutions — Directives — Direct effect — Conditions — Legal basis of 
the directive — Irrelevant 
(EC Treaty, Art. 100a (now, after amendment, Art. 95 EC)) 
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SUMMARY — CASE C-319/97 
2. Acts of the institutions — Directives — Direct effect — Conditions — Notification of 
a Member State in accordance with Article 100a(4) of the Treaty (now, after 
amendment, Article 95(4) to (9) EC) — Irrelevant — No confirmation by the 
Commission — No effect 
(EC Treaty, Art. 100a(4) (now, after amendment, Art. 95(4) to (9) EC)) 
1. A directive can have direct effect even 
though its legal basis is Article 100a of 
the EC Treaty (now, after amendment, 
Article 95 EC) and Article 100a(4) 
allows Member States to request a 
derogation from the implementation 
of that directive. The general potential 
of a directive to have direct effect is 
wholly unrelated to its legal basis, 
depending instead on its intrinsic char­
acteristics. 
2. The direct effect of a directive, where 
the deadline for its transposition into 
national law has expired, is not 
affected by the notification made by a 
Member State pursuant to Arti­
cle 100a(4) of the Treaty (now, after 
amendment, Article 95(4) to (9) EC) 
seeking confirmation of provisions of 
national law derogating from the direc­
tive, even where the Commission fails 
to respond to that notification. 
The aim of the procedure under Arti­
cle 100a(4) of the Treaty is to ensure 
that no Member State applies national 
rules derogating from the harmonised 
legislation without obtaining due con­
firmation from the Commission. Arti­
cle 100a(4) is silent as to the time 
within which the Commission must 
adopt a position with regard to provi­
sions of national law which have been 
notified. However, that does not 
absolve the Commission from the obli­
gation to act with all due diligence in 
discharging its responsibilities. Accord­
ingly, although failure on the part of 
the Commission to act with due dili­
gence following a notification effected 
by a Member State under Arti­
cle 100a(4) may therefore constitute a 
failure to fulfil its obligations, it cannot 
affect full application of the directive 
concerned. 
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