The Administrative Judge and the Directives: A Renewal of Direct Applicability
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Administrative Judge, European Directives, Direct Applicability, Council of State, EU Law, Case Law Notes
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Abstract
This document explores the relationship between the administrative judge and European directives, highlighting key case law and the evolution of direct applicability in domestic law. From the Council of State's initial reservations to the recent Nicolo Judgment, discover how directives are being interpreted and controlled by the administrative judge. A must-read for those interested in EU law and its application.
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[...] Firstly, it was considered that 'the authorities of the State cannot rely on the provisions of a directive that have not been transposed' » : CE June 1995, SA Lilly France. Subsequently, the Council of State considered that these same authorities cannot 'also invoke the provisions of a directive that they have not implemented'it iss l'expiration des délais impartis, nor shall any regulatory provisions remain in force that would no longer be compatible with the objectives defined by the directives in question, nor shall any regulatory provisions be issued that would be contrary to these objectives »: CE Alitalia. [...]
[...] Conversely, if there is, it will be up to the administrative judge to investigate whether the directive that this decree transposes is consistent with the rule or principle of Community law. In this case, the Council of State considers that the directive of 13 October 2003 is not contrary to the right to property and the freedom to undertake, which are general principles of Community law. Scope : In line with the Sarran jurisprudence of 30 October 1998, a positive response seemed the most logical. [...]
[...] Hook : The Council of State, by its opinion of 21 March 2011, revisits the question of the invocability of an untransposed directive, in support of an appeal against an administrative act not of a regulatory nature. Procedure/Facts : The Council of State was seized by the Montreuil administrative court with the question of whether the directive of 16 December 2008, known as the 'return directive', which was not transposed into French law within the timeframe it set, can be directly invoked by foreigners contesting the measure of removal to the border that they are subject to. The Council of State therefore rendered an opinion on 21 March 2011. [...]
[...] Problem : Can the administrative judge assess the compatibility of a Community directive with a law subsequent to it? Solution : The Council of State responds positively and has estimated Computerétent to exercise a contr"le de compatibilityis between a Community directive and a later law and concluded that the lack of compatibility deprives the decrees of legal basis,appliesinterpretation of the law. It is in this way that in the present case, the Council of State considers that the provisions of the law of May are incompatible with the objectives defined by the 1972 directive, which is why the Council annuls the implicit decisions of rejection by the Minister of Finance, Economy and Budget. [...]
[...] The Conseil d'État accepts to control the compatibility of a law with a European directive and thus integrates the directives into the block of conventionality in the same way as it had done for the Treaties in the Nicolo judgment. By the same token, it consecrates for the first time the superiority of directives over laws, even subsequent ones. This judgment rendered before the Mme Perreux judgment is a first step towards abandoning the Cohn Bendit case law where the Conseil d'État refused to recognize any direct effect of the directives. [...]
