By Andreas Joseph
- Journalist
- Former Director of the Press Office of the President of the Republic
- Holder of a Master’s Degree in EU Law
The European Commission is calling on Cyprus and 15 other member states to fully transpose the Directive on consumer credit agreements into their national laws, as we’ve read in the news over the past few days. This isn’t the first time that member states have risked being brought before the Court of Justice of the European Union because they either have not or have delayed transposing into their national law a Union directive on matters decided in Brussels—matters on which Member States are obligated to transpose into their national law and apply them within their territory.
ΣΧΕΤΙΚΑ ΑΡΘΡΑ
A claim by Member States that a Union act conflicts with their domestic law is not acceptable and is rejected outright, since European law takes precedence over anynational legislation of the Member States. Directives are a distinctive feature of Union law. They may be addressed to a single Member State, several Member States, or even all Member States of the Union. A directive is binding on all its addressees. Equally binding in terms of its effect is the deadline for its transposition into the national law of its addressees. The deadline granted to Member States is intended to provide them with sufficient time to better prepare for the transposition of the Directive into their domestic law. The deadline for transposing a directive into the domestic law of the Member States is usually set uniformly for all Member States. However, there may be exceptions, in which case it is agreed to grant a longer period to one or more Member States when difficulties are anticipated domestically during the transposition of the Directive.
Since the Directive is addressed to the Member States, they are expected to comply with the objective pursued by the Directive, and indeed within the deadline explicitly provided for in thetext. The implementation of a Directive’s binding effect does not concern the legislative, executive, or judicial branch of a state, but the Member State as a whole is obligated to respect Union law.
The case law of the Court of Justice of the European Union provides that Member States are obligated both by Article 288 of the Treaty on the Functioning of the EU as well as by the relevant Directive, to choose, within the prescribed time limit, the form and means that will best ensure the practical effectiveness of the Directive.
The objective of a directive is not achieved solely through its standard transposition into domestic law. It is subsequently necessary for this legislation to be properly implemented, particularly by the national administration.
It should be noted that it is not permissible to review the constitutionality of the acts transposing the Directive into the domestic law of each country, if such a review would, by extension, lead to a challenge to the Directive itself and the result it seeks to achieve. The failure of Member States to comply in a timely and proper manner with the binding provisions of Directives constitutes the most common violation of Union law. Failure to transpose a Directive into a Member State’s domestic law results in inconsistencies in the application of Union law, and citizens or legal entities are not treated equally. The burden of proof regarding the facts underlying the alleged infringement of EU law rests primarily with the European Commission, while the Member State must present and substantiate its arguments aimed at refuting the alleged infringement.
The action is not considered admissible unless three distinct stages have been completed, beginning with the letter of formal notice, followed by the reasoned opinion, and finally culminating in the action.
The reasoned opinion sent by the Commission in this case grants Cyprus a further two-month extension to take the necessary measures and restore compliance. Otherwise, the Commission may decide to refer the cases to the Court of Justice of the European Union and seek the imposition of financial penalties. A Member State’s compliance after the expiration of the deadline set by the Commission does not affect the course of its legal action. The Directive differs from the Regulation in terms of its binding nature. The Regulation is binding in its entirety, whereas the Directive is binding on Member States only as to the result to be achieved.
