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Regulations: Direct applicability and Direct effect

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  1. Introduction.
  2. The concept of regulation as stated in article 249 of the EC Treaty.
    1. Article 249 of the European Community Treaty.
    2. The characteristics of a regulation according to article 249.
  3. The concept of direct applicability.
    1. Definition of direct applicability.
    2. The legal consequences of direct applicability.
  4. The concept of direct effect and its relations with regulations.
    1. The origin of the concept of direct effect.
    2. Direct effect and its application to regulations.
  5. Regulations and direct effectiveness.
    1. Non-fulfillment of the conditions for direct effect.
    2. Is direct effect of regulations still a relevant issue?
  6. Conclusion.

Article 249 of the European Community Treaty provides that Regulations shall be directly applicable in all Member States. Does this mean that they are also necessarily directly effective? As notices Josephine Steiner , this question is of paramount concern to EC lawyers. If a provision of EEC law is directly effective, not only shall national court apply it, but they must do so in priority over any conflicting provision of national law. Thus the broader the approach of the concept of direct effect, the greater the potential for conflicts.However, before we can answer this question, it is necessary to state first what a regulation is, and then define the concept of direct applicability and direct effect. Thus in this essay, we will explore in a first part the concept of regulation and its different components. Then in a second part we will discuss the concept of direct applicability and explain why a regulation, by its very definition is directly applicable. In the third part, we will explain how, from the concept of direct applicability followed the concept of direct effect. We will also analyse what are the conditions of direct effect and why a regulation shall have normally direct effect. Eventually, in a fourth part, we will demonstrate that if in principle, regulations are directly effective, when the required conditions for direct effect are not met, a regulation can however be denied direct effect. Thus we will come to the conclusion that if regulations are normally directly effective, they are however not necessarily directly effective.

[...] In the case Politi v Italy[26], it stated that: By reason of their nature and their function in the system of the sources of community law, all regulations have direct effect and are, as such, capable of creating individual rights which national courts must protect. On many other occasions, the court confirmed this character of regulations like in the cases Leonesio v Italian Ministry of agriculture and Forestry[27], Antonio Munoz Cia SA v Frumar Ltd[28], or SpA Marimex v Ministry of Finance of the Italian Republic[29]. [...]

[...] Craig, de Burca, European Union law, Oxford See eg Rawlinson and Cornwell-Kelly, European Community Law, Waterlow Publishers And Mathijsen, A guide to European Union law, Thomson Sweet and Maxwell Sacha Prechal, Does direct effect still matter?, Common Market Law Review 1047-1069. Craig, de Burca, European Union Law, Oxford See Josephine Shaw, European Community Law, Macmillan See also Ólafur Börkur Thorvaldsson, Direct Effect, Supremacy and State Liability A Comparison between EC Law and the EEA Agreement See Case 39/72 Commission of the European Communities v Italian Republic, ECR 101. [...]

[...] Part the concept of direct effect and its relations with regulations The objective of this part is to explain how direct applicability resulted in the concept of direct effect, and what the conditions of direct effect are. Then we will explain to what extent this concept is relevant for regulations. A. The origin of the concept of direct effect The concept of direct effect refers to the capacity of EC law to be invoked by individuals in proceedings before national courts[18]. [...]

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