The definition of a Directive relies upon its effect upon a Member State as opposed to individuals unless so designed, and yet on this occasion, the criminal acts of a café were punished under the powers of an as yet transposed Directive, thus prompting the District Court to seek a preliminary ruling.

In July 1980 the European Council passed Directive Directive 80/777/EEC in relation to the sourcing and sale of mineral water, which explained that:

“[O]nly waters extracted from the ground of a Member State and recognized by the responsible authority of that Member State as natural mineral waters satisfying the provisions of Annex I, Section I, of the Directive may be marketed as natural mineral waters.”

And while the transposition period was four years from the date of the Directive implementation, the Member State in question failed to adopt it into their national laws; and so, on 7th August 1984, the defendant Kolpinghuis Nijmegen BV was found stocking and selling mineral water that in fact, consisted of nothing more than tap water and carbon dioxide.

Indicted by the Keuringsdienst van Waren (Goods Inspectorate) the defendant was charged under article 2 of the Keuringsverodening (Inspection Regulation) for the sale of goods of unsound composition, and levied a fine of HFL 501; however, with consideration of the fact that the Directive was not implemented into national law until 8th August 1985 the Officer van Justitie was of the opinion that the Directive was already legally enforceable, and so sought a preliminary ruling under article 177 EC in order to ask:

1. Can a Member State rely upon the powers of a Directive as yet unadopted into national law?

2. Where a Directive has not yet been transposed, can a national court give direct effect to its provisions despite the individual standing to gain no benefit from such an act?

3. Where a national court has the option to follow national law, should it follow the powers of an applicable Directive?

4. Should any weight be given to the first three points when the adoption threshold for the Directive was still open?

Referring to a number of similar cases such as Marshall v Southampton and South West Hampshire Area Health Authority and Von Colson and Kamann v Land Nordrhein-Westfalen, the Court relied upon Pretore di Salo v X to illustrate how:

“[A] Directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggra­vating the liability in criminal law of persons who act in contravention of the provisions of that Directive.”

This translated that while the powers contained within a Directive can indirectly assist in the enforcement of both national and local laws, it could not serve as direct source of adjudication when determining individual liability, while the Court also noted that the date upon which hearing had occurred bore no relevance to the issues in questions 1-3, as the transposition window had yet to close, thus in closing the Court reminded the parties that:

“A national authority may not rely, as against an individual, upon a provision of a directive whose necessary implementation in national law has not yet taken place.”


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