The Gazette 1974

LEGAL EUROPE

The Effects of Community Law from the point of view of the National Judge

by LORD MACKENZIE STUART, Judge of the Cou rt of Justice of the European Communities. Delivered in Luxembourg, May 1974.

PART II

vis the citizens of all the Member States, the Com- munity Regulations become part of the national legal system which must make possible the direct efficacy mentioned in Article 189, so that individuals may invoke them without being met with provisions or practices of a national nature." "Therefore the budgetary rules of a member state cannot impede the immediate efficacy of a Com- munity provision o r,consequently, the immediate ex- ercise of the subjective rights that that provision attributes to individuals." Obligation to achieve ill-defined results An allied problem which may face the national judge arises from the fact that Community Regulations, in the agricultural markets in particular, may neces- sarily be extremely complicated and they frequently impose on the national administration obligations to achieve a certain result without always clearly defining how the obligation is to be implemented. There have thus been many cases where the national administra- tion has thought it desirable to add to the Community rules in matters of detail. The Court has always con- strued the Regulations in a way that ensures uniformity throughout the Community and has set its face against unilateral additions to a Community rule which in- crease the obligations which it imposes. In Hamburg v Bollman (1970) CMLR 153, the Court had to consider Article 14 of Regulation 22, which is in the following terms : "The Member States shall adopt all measures to adapt their legislative and administrative provisions so that this Regulation, unless therein otherwise pro- vided, may be effectively applied from 1 July 1962." "In the absence of provisions to the contrary the Member States are prohibited from adopting measures for the implementation of the Regulation intended to modify its scope or add to its provisions. To the extent that the Member States have assigned legislative powers in tariff matters to the Community in order to ensure the proper operation of the com- mon agricultural market, they no longer have the power to make, legislative provisions in this field." (c) Directives and Decisions Normally one would not expect a directive to be capable of creating enforceable rights at the instance of an individual since in terms of Article 189, although it is binding upon the Member State to which it is addressed, it leaves open to the national authorities 269

(l>) Regulations The effect of Regulations is, of course, specifically dealt with by Article 189, "A Regulation shall have general application. It shall be binding in its entirity and directly applicable in all member states." Neverthe- less it is still necessary to construe the Regulations in order to understand its effect. Where a Regulation imposes a clear prohibition or requires a member state to do something positive, these obligations can normally be invoked by an individual in an appropriate case. Frequently, however, a regula- tion of the Council requires implementation by a re- gulation of the Commission in order to produce direct effect. In the Agricultural markets there are abundant instances of a multi-tier structure of regulations. For example in the cereals sector of the Common Agricul- tural Market there is a basic Council regulation creating a system of prices, levies and refunds. There is a second regulation of the Council laying down the general criteria to be adopted by the Commission in fixing, inter alia, the amount of the refund and, finally, there is the Commission regulation which actually fixes the refund applicable for a stated period. It is only at this point that the right to a refund vests in the ex- porter. If however the right has vested, it does so whether or not the internal procedure in a Member State for obtaining the necessary funds for granting a refund have been completed or, indeed, even begun. This can be illustrated by a decision of the European Court— Leonesio v. Italian Minister of Agriculture (1973) CMLR 343. In 1969 the Council adopted a regulation providing a premium for the slaughter of milk cows in pursuance of its policy to reduce the excess quantity of milk in the Community. At this point no rights to this premium became vested. The same year the Commission adopted a regulation fixing the conditions for the grant of the premium and the amount thereof, from which point the right to a premium vested in the person who ful- filled the conditions laid down in these two regulations. When the plaintiff, who by then had slaughtered her cows, applied for the premium, she was informed that the budgetary funds had not yet been voted by Parlia- ment. In the regulations which applied in the Leonesio case there was no mention of budgetary action by the Member State, so that it was possible for the Court to say that : "To enable them to have the same efficacv vis-á-