Memorandum by the Department of the Environment, Transport
and the Regions
1997 (S.I. 1997/2329)
1. By a letter from its Clerk dated 12 November 1997 the
Committee requested a memorandum on the following point:
Regulation 2(2) states that these Regulations [made under
section 2(2) of the European Communities Act 1972] are to have
effect for the purpose of making such provisions as is necessary
to comply with the Directive and are to be construed accordingly.
Explain the purpose of each proposition, indicating, as to the
second, which expressions used in the Regulations are given a
meaning in the Directive.
2. The first proposition is to inform the reader of the purpose
of making the Regulations. It is declaratory but looks forward
to the second proposition, which is intended to ensure that, in
the event of any dispute as the meaning of the Regulations, such
dispute should be resolved by reference to the Directive, either
by referring to the terms specifically defined in the Directive
or by considering other expressions used in the Directive whose
meaning can be ascertained by the context in which they are used.
Into the former category fall "technical specification "
and "Eurocontrol standard" and into the latter falls
"general documents or specifications".
3. The Department included this wording partly to incorporate
definitions found in the directive into the Regulations and also
state explicitly the principle of consistent interpretation with
the Directive. The Department noted that a similar provision was
used in section 1(1) of the Consumer Protection Act 1987. In a
recent case the European Court of Justice was asked to consider
whether a provision had been correctly implemented in that Act
and the Court noted both that there was no evidence that courts
in the UK would interpret the provision in question in a way which
was not consistent with the Directive and also that the wording
of section 1(1) expressly obliged them to do so.
4. On further reflection the Department acknowledges that
the provision is unnecessary to the extent that it states the
existing law and that an alternative means of incorporating the
definitions used in the Directive would have been more appropriate.
17th November 1997
2 Commission v United Kingdom. Case No. C300/95.
Decided 29 May 1997. Not yet reported in full. Back