The provisions of the Treaty of Rome and the derived acts (such as the Regulations of the Council of the European Union) apply within the Member States and force themselves upon the national legislations.
Article 189 of the Treaty of Rome defines the means which are at the disposal of the Council of the European Union, the Parliament and the Commission in order to standardize the right in the European States : the Regulations, the Directives, the Decisions and the Advices.
* A regulation (for example the Regulation relating to the community mark) is directly applicable ;
* A directive (for example the Council directive 89/104/EEC of December 21, 1988 to approximate the laws of the Member States relating to marks) has to be transposed in each Member State in its national legislation. Thus, in France, the Directive 89/104/EEC has been integrated by the new law of marks of January 4, 1991.
However, the national legislations do not take up textually the directives again. In fact, the directives give to the Member States only the aim to be reached leaving to them the choice of the means. While a directive cannot be referred to directly, it must however always serve to national judges for interpreting the national legislation. A national judge can refer to the European Justice Court in order to have the applicability of a directive defined more accurately.
The EJC has thus declared in the Silhouette matter :
"according to settled case-law of the Court, a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual.
[...] when applying domestic law, whether adopted before or after the directive, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the Treaty of Rome"
Thus, when a national right does not comply with a directive, the judge is bound to rely on the directive.
* A decision binds only the designated recipients for the defined elements.
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