- New Approach directives are total harmonization directives: the provisions of these directives supersede all corresponding national provisions.
- New Approach directives are addressed to the Member States, which have an obligation to transpose them into their national legislation as appropriate.
- National laws, regulations or administrative provisions, which transpose the directive, shall contain a reference to the directive in question or shall be accompanied by such a reference on the occasion of their official publication.
- National laws, regulations or administrative provisions, which are adopted and published in order to transpose a directive, must be communicated to the Commission.
New Approach directives approximate the laws of Member States in order to remove barriers to trade. Since New Approach directives are total harmonization directives, Member States must repeal all contradictory national legislation. Further, Member States are, as a general rule, not allowed to maintain or introduce more stringent measures than foreseen in the directive, as is the case for directives adopted according to Article 138 of the EC Treaty (directives aiming to improve the health and safety of workers, especially, in the working environment).
Directives are, according to Article 249 of the EC Treaty, binding on the Member States as to the result to be achieved, but the choice of form and method is their own. Case law of the European Court of Justice has clarified the contents of this obligation and the possible measures to be taken where a non-compliance can be established.
It is up to the Member States to decide which measures should be adopted and published in order to comply with a directive. However, Member States must take appropriate implementing measures to transpose the directive in a way that fully meets the requirements of clarity and certainty in legal situations, which directives seek for the benefit of traders established in other Member States. This may not necessarily require legislative action in each case as regards all the provisions of a directive.
Failure to take measures, or the correct measures, to transpose a directive in order to achieve the results it prescribes, within the period laid down for that purpose, constitutes a breach of Community law. According to Article 226 of the EC Treaty, the Commission may take action against a Member State, which has failed to fulfill an obligation under the Treaty. Further, according to Article 228, Member States are required to take necessary measures to comply with the judgment of the Court of Justice.
Member States are obliged to make reparation for damages that result from breaching Community law. This obligation exists where three conditions are fulfilled: the rule of law infringed is intended to confer rights on individuals; the breach is sufficiently serious; and there is a direct causal link between the breach of the obligation resting on the Member State and the damage sustained by the injured party. Failure to take any of the necessary measures to transpose a directive within the period laid down by the directive will amount to a sufficiently serious breach.
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