Page 193 - Секретаријат за законодавство

Guidelines for the national legislator
Although Article 288 TFUE leaves Member States a margin of dis-
cretion as to the choice of form and means designed to achieve the
aim pursued by a directive, Member States must transpose directives
taking into consideration the following circumstances.

Taking account of the principle of legal security, transposition of di-
rectives must be carried out in acts of a binding character. It is not ac-
ceptable to transpose directives by issuing administrative instructions
or guidelines. The principle of legal security requires Member States
to make sure that individuals have clarity with regard to the rights and
obligations resulting from the directive.

“It should be remembered, in that regard, that according to the consistent
case-law of the Court, each Member State must implement directives in a
manner which fully meets the requirement of legal certainty and must con-
sequently transpose their terms into national law as binding provisions”. 25
Existing administrative practice or adjusting such practice for the pur-
pose of transposition of the directive is not sufÞcient:

“It is therefore essential in this regard that each Member State should
implement the directives in question in a way which fully meets the
requirements of clarity and certainty in legal situations which directives
seek for the beneÞt of manufacturers established in other Member States.
Mere administrative practices, which by their nature can be changed as
and when the authorities please and which are not publicized widely
enough cannot in these circumstances be regarded as a proper fulÞlment
of the obligation imposed by Article 189 [currently Article 288 TFEU]
on Member States to which the directives are addressed”. 26

In certain circumstances transposition of directives can be ensured by
the so called legal context, i.e. the legislation already in force in the
Member State, provided that the existing legal context guarantees full
achievement of the goal set out in the directive.

“…it must be recalled that it is settled law that transposing a directive

25 Commission v Kingdom of Belgium (Case 239/85) [1986] ECR 3645.
26 Commission v Kingdom of Belgium (Case 102/79) [1980] ECR 1473.

26