1 Acts of the institutions - Directives - Direct effect - Conditions - Legal basis of the directive - Irrelevant
(EC Treaty, Art. 100a (now, after amendment, Art. 95 EC))
2 Acts of the institutions - Directives - Direct effect - Conditions - Notification of a Member State in accordance with Article 100a(4) of the Treaty (now, after amendment, Article 95(4) to (9) EC) - Irrelevant - No confirmation by the Commission - No effect
(EC Treaty, Art. 100a(4) (now, after amendment, Art. 95(4) to (9) EC))
1 A directive can have direct effect even though its legal basis is Article 100a of the EC Treaty (now, after amendment, Article 95 EC) and Article 100a(4) allows Member States to request a derogation from the implementation of that directive. The general potential of a directive to have direct effect is wholly unrelated to its legal basis, depending instead on its intrinsic characteristics.
2 The direct effect of a directive, where the deadline for its transposition into national law has expired, is not affected by the notification made by a Member State pursuant to Article 100a(4) of the Treaty (now, after amendment, Article 95(4) to (9) EC) seeking confirmation of provisions of national law derogating from the directive, even where the Commission fails to respond to that notification.
The aim of the procedure under Article 100a(4) of the Treaty is to ensure that no Member State applies national rules derogating from the harmonised legislation without obtaining due confirmation from the Commission. Article 100a(4) is silent as to the time within which the Commission must adopt a position with regard to provisions of national law which have been notified. However, that does not absolve the Commission from the obligation to act with all due diligence in discharging its responsibilities. Accordingly, although failure on the part of the Commission to act with due diligence following a notification effected by a Member State under Article 100a(4) may therefore constitute a failure to fulfil its obligations, it cannot affect full application of the directive concerned.