Keywords

Summary



Keywords

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1. Actions against Member States for failure to fulfil obligations ° Examination by the Court as to whether an action is well founded ° Situation to be taken into consideration ° Situation at the expiry of the period set by the reasoned opinion

(EC Treaty, Art. 169)

2. Acts of the institutions ° Directives ° Implementation by Member States ° Transposition of a directive without legislative action ° Conditions ° Existence of a general legal context guaranteeing full application of the directive ° Inadequacy of administrative rules

(EC Treaty, Art. 189, third para.)

3. Acts of the institutions ° Directives ° Right of persons affected to rely on directives in the absence of adequate implementing measures ° Effect not releasing Member States from their obligation to implement directives

(EC Treaty, Art. 189, third para.)

Summary

1. In an action brought under Article 169 of the Treaty for a declaration that a Member State has failed to fulfil its obligations by not ensuring the correct transposition of a directive, amendments made to national legislation are irrelevant for the purpose of giving judgment on the subject-matter of the action if they have not been implemented before the expiry of the period set by the reasoned opinion.

2. The transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation, and a general legal context may, depending on the content of the directive, be adequate for the purpose, provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before national courts.

In the case of rules regarding participation and advertising in directives coordinating procedures for the award of public contracts, the protection which such rules are intended to confer on tenderers against arbitrariness on the part of a contract-awarding authority cannot be effective if a tenderer is not able to rely on those rules as against a contract awarder and, if necessary, to plead their breach before national courts.

Provisions of national law applied as administrative rules, which do not confer any right on individuals capable of being relied on before national courts, do not, for that reason, guarantee the full application of such directives.

3. The effect of the third paragraph of Article 189 of the Treaty is that Community directives must be implemented by appropriate implementing measures taken by the Member States. Only in specific circumstances, in particular where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, has the Court recognized the right of persons affected thereby to rely in law on a directive as against a defaulting Member State. This minimum guarantee, arising from the binding nature of the obligation imposed on the Member States by the effect of the directives under the third paragraph of Article 189, cannot justify a Member State' s absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive.