A Common Law for Europe

5. The Adaptation of National Laws to Community Law

CHAPTER V The Adaptation of National Laws to Community Law Key words: Directives – Transposition/Implementation – Failure to implement – Incorrect Implementation – Remedies – Non-implemented Directives – Vertical Direct Effect – Horizontal Direct Effect – Interpretation ‘in conformity’ with Community Law – Member States’ Liability – Damages 1. Foreword Community law now constitutes an integral part of domestic law within the Member States. However, the two principle embodiments of Community law generate different situations which cannot be overlooked: whereas the Treaty provisions and the Regulations have immediate direct effect on coming into force, the Directives, on the other hand, must be implemented by the national legislature before becoming directly effective , in order to satisfy the requirements of the founding Treaty. In fact, owing to some principles which have been developed by the Court of Justice and accepted by Member States, there are some directives which national bodies are bound to apply even in the absence of a national measure of implementation.1 The directives allow the States a period of time (varying from few months to several years) to develop implementing laws, whether this be by statute, decree, or whatever other provision is considered suitable. The national measures of implementation shall have the same legal force as those applicable in the Member State in regard to the subject matter of the directives. The problem arises from the fact that the large number of Community directives being issued every year, and the mixed nature of the mechanisms for adopting laws in many Member States, means that the time allowed for debate and approval of the implementing legislation is prolonged beyond reason. The Member States face real difficulty in adapting domestic law to the legislative output of the Community. 1 See below, this chapter, § 8. 2. The Transposition of Directives: the Italian ‘Community Act’ as an Illustration Community law does not impose a uniform procedure on the Member States in order to make the directives become part of domestic law within each legal system. The States are free to develop whatever adoption procedure best suits the kind of legal system they have. Let us take Italy as an example. For many years the Italian State came last among the Member States regarding the time taken to adopt the directives . This record has meant the Italian State has had to respond to a very long series (around 30% of the total) of enforcement actions before the Court of Justice (ex art. 169, now art. 226 TEC). The Commission’s enforcement role is general. As a result of an amendment to art. 228 TEC, the Commission may seek and the Court of Justice may impose a pecuniary fine where a Member State is found not to have complied with a previous judgment of the Court of Justice condemning it for the same violations.2 The situation, however, changed some years ago. The problem of chronic tardiness which marked out the Italian legal system has largely been resolved thanks to the solution provided by the Act of March 9th 1989, no. 86, the so-called Community Act (Italian: legge comunitaria or “La Pergola” Act).3 This statute introduced a special procedure to ease the implementation of Community directives, on the basis of which, at the beginning of each year, the Minister for the Co-ordination of Community policies, having verified the state of conformity of the domestic legal system with the Community one, submits a draft proposal to the Italian Government (Council of Ministers) containing “proposals for fulfilling the obligations deriving from Italy’s membership of the European Community” (Community Act draft). The draft proposal sets out all the directives regarding whether the time-limit for implementation has, or is about to, run out, which should be implemented, usually by means of legislative decrees, in the course of the year. The Community Act draft must be submitted to the Italian Parliament for approval, and becomes an ordinary statute, which is a sub-constitutional source of law. This annual approval of the Community Act is an important event in the Italian legal system. Indeed, the statute is not limited to listing the 216 A Common Law for Europe 2 See this chapter, § 8. 3 Named after the Minister for the Co-ordination of Community policies, Antonio La Pergola. In Gazz.Uff. March 10th 1989, no. 58. directives which are to be implemented by means of delegated powers to Government, but in some case itself provides for the immediate implementation of certain...