20. Provisions laying down dates, time limits, exceptions, derogations and extensions, transitional provisions (in particular those relating to the effects of the act on existing situations) and final provisions (entry into force, deadline for transposition and temporal application of the act) shall be drawn up in precise terms.
Provisions on deadlines for the transposition and application of acts shall specify a date expressed as day/month/year. In the case of directives, those deadlines shall be expressed in such a way as to guarantee an adequate period for transposition.
In legislative acts, a distinction is made, according to the legal effects to be obtained, between the date of entry into force, the date from which provisions are to have effect, and the date of application.
Entry into force
Acts of general application enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication.
In principle, legislation must give those concerned sufficient time to adapt.
A distinction must be made between entry into force and application, which do not necessarily coincide. The date of application may be set after — or where retroactive application is duly justified — before entry into force.
(a) Date of entry into force
The entry into force of the act must be set at a specific date or a date determined by reference to the date of publication.
It cannot be in the past.
It must not be determined by reference to a date to be set by another act.
The entry into force of an act which forms the legal basis for another act cannot be made conditional on the entry into force of that other act.
No act may enter into force before the date set for the entry into force of the act on which it is based.
The entry into force of an act cannot be made conditional on the fulfilment of a condition of which the general public cannot have knowledge.
(b) Guidelines for determining the date of entry into force
There may be practical reasons and considerations of urgency which justify entry into force prior to the twentieth day after publication. It is primarily for regulations that such a need may arise. The following rules apply.
There must be grounds of urgency for entry into force on the third day following publication. In each case it is necessary to check that there is real urgency.
Entry into force on the day of publication must remain a real exception and be justified by an overriding need — to avoid a legal vacuum, for instance, or to forestall speculation — closely bound up with the nature of the act (see point 20.6). There must be a specific recital giving appropriate reasons for the urgency, except where the general practice is already well known to interested circles (for example, in the case of regulations fixing import duties or export refunds).
The date of publication of an act is the date on which the Official Journal in which the act is published is actually available in all the languages at the Publications Office.
(c) Urgent measures
The daily and weekly regulations in which the Commission fixes the import levies (and/or the additional levies in certain sectors of agriculture) and refunds applicable to trade with third countries have to be adopted as short a time as possible before they are applied, in particular to avoid speculation.
It has therefore been agreed that these periodic regulations are to enter into force on the day of their publication or on the following working day.
(d) Retroactive application of regulations
Exceptionally, and subject to the requirements stemming from the principle of legal certainty, a regulation may have retroactive effect. The words ‘It shall apply from …’ are then added to the final article.
To give retroactive effect to provisions, terms such as ‘for the period ... to …’, ‘from ... to …’ (in the case of tariff quota regulations, for example) or the words ‘with effect from ...’ are often used in an article other than the final article.
(e) Deferred application of regulations
A distinction is sometimes drawn between the entry into force of a regulation and the application of the arrangements introduced by it, which is deferred. This is done, for example, in the case of regulations which set up common market organisations. The purpose of the distinction may be to enable the new bodies provided for in the regulation (for example, management committees) to be set up immediately and to enable the Commission to adopt implementing measures on which those new bodies have to be consulted.
Should it prove necessary to defer the application of part of a regulation until a date after its entry into force, the regulation must clearly specify the provisions concerned.
Formulations such as the following, which do not make it possible to determine the date from which the provision in question is to apply, must be avoided:
Date on which certain directives and decisions take effect
Directives and decisions are binding only on those to whom they are addressed. The concept of entry into force replaces the concept of the date of taking effect for directives and decisions adopted by the co-decision procedure and for directives addressed to all Member States.
However, other directives and other decisions are notified to those to whom they are addressed and they take effect upon such notification. The same applies to directives and decisions referred to in the second paragraph of Article 163 of the Euratom Treaty.
Decisions
sui generis of the Communities do not normally contain any provision specifying when they take effect and may generally be considered to take effect on the date of their adoption.
Decisions of joint bodies set up by agreements (and, in exceptional cases, decisions
sui generis of the Communities) contain provisions concerning their entry into force and, where appropriate, retroactive or deferred application.
Implementation of directives
A distinction must be made between the date of entry into force or taking effect, on the one hand, and the date of application, on the other (see point 20.3), in all cases where the addressees will need time to meet their obligations under the act. This is particularly true of directives. Provisions on implementation will be set out in an article preceding the article concerning the entry into force or, as appropriate, the addressees.
In particular in the case of directives designed to ensure the free movement of goods, persons and services, in order to prevent the creation of new barriers by virtue of differences in the application of the Member States’ provisions up to the end of the prescribed period for transposition, a date should be specified from which national provisions must apply.
Implementation of non-binding acts
Acts which have no binding force, such as EC and Euratom recommendations, do not bear a date of taking effect or application; addressees may be requested to give effect to them by a certain date.
Beginning of periods of validity
In the absence of express indications to the contrary, a period begins at 00.00 hours on the date indicated
. The expressions most commonly used to indicate the beginning of a period are:
- from ... [to] ...
- with effect from ...
- shall take effect on ...
- shall have effect from ...
- shall enter into force on ...
Indication of the end of periods of validity
The final provisions may also specify when the act ceases to apply or to be valid.
Save where expressly provided otherwise, a period ends at midnight on the date specified. The expressions most commonly used to indicate the end of periods are:
- until ...
- shall apply until the entry into force of ..., or …, whichever is the earlier
- … at the latest
- [from …] to ...
- shall expire on ...
- shall cease to apply on ...
|
