Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

61997J0319 European Court reports 1999 Page I-03143 5
Article 100a(4) of the Treaty of Rome?
3. If Question 2 is answered in the affirmative, how does the notification by the Member State affect the
question of direct effect during the following periods:
(a) between notification and reply? (b) from the reply?'
Admissibility
15 The Danish and Dutch Governments maintain that the reply to the questions referred is not necessary
for adjudication of the dispute in the main proceedings, since that dispute concerns events which occurred
before the expiry of the deadline for transposition of the Directive into national law and Member States
cannot assume, vis-à-vis their nationals, obligations under a Directive before the expiry of such a deadline.
16 In that regard it need only be stated that the national court, when called upon to adjudicate in criminal
proceedings, must apply those provisions of law which are least harsh at the time when its decision is
delivered. In so far as the provisions of the Directive are more favourable to Mr Kortas than the relevant
provisions of national law, the questions referred for a preliminary ruling are objectively necessary in order
to give judgment.
17 Consequently, the admissibility of the reference for a preliminary ruling cannot be disputed as regards
the date of the entry into force of the Directive.
18 The French Government doubts whether the second question is admissible, maintaining that an answer
is not necessary to enable the national court to give judgment in the main proceedings. It observes that
the Kingdom of Sweden cannot rely on Article 100(4) of the Treaty because it did not participate in the
procedure for adoption of the Directive, not being at that time a Member of the Community.
19 On that point, it need merely be stated that there is nothing in the wording of Article 100a(4) of the
Treaty to suggest that a State which has joined the European Union after the adoption of a particular
directive may not rely on that provision vis-à-vis that directive.
Question 1
20 By its first question, the national court essentially asks whether a directive can have direct effect even
though its legal basis is Article 100a of the Treaty and Article 100a(4) allows Member States to request a
derogation from the implementation of that directive.
21 The Court has consistently held (see, inter alia, Case 8/81 Becker [1982] ECR 53, paragraph 25; Case
103/88 Fratelli Costanzo [1989] ECR 1839, paragraph 29; and Joined Cases C-246/94 to C-249/94
Cooperativa Agricola Zootecnica S. Antonio and Others [1996] ECR I-4373, paragraph 17) that, whenever
the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and
sufficiently precise, they may be relied upon before the national courts by an individual against the State
where that State has failed to implement the directive in national law by the end of the period prescribed
or where it has failed to implement the directive correctly.
22 It is not decisive, in determining whether or not a directive has direct effect, that its legal basis allows
Member States to apply to the Commission for a derogation from its implementation if they consider this
necessary. The general potential of a directive to have direct effect is wholly unrelated to its legal basis,
depending instead on the intrinsic characteristics referred to in paragraph 21 above.
23 The answer to the first question must therefore be that a directive can have direct effect even though
its legal basis is Article 100a of the Treaty and Article 100a(4) allows Member States to request a
derogation from the implementation of that directive.
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