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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.
LEGAL EUROPE
PART II
(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-
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
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