When can or should a regulation be implemented?

This article analyses when, and under what conditions, the principle that a regulation neither can nor should be implemented must be dispensed with, either because the regulation requires direct measures for implementation or because it permits (“enables”) implementation measures, especially if the regulation grants the states discretionary powers for which they can design rules, e.g. in the form of numerical standards. The conclusions are: (1) In principle, all regulations are binding in their entirety and directly applicable in every member state, and the member states neither can nor should introduce national implementation measures. There are, however, two major exceptions to this principle. (2) The first exception is that regulatory provisions in some instances explicitly require implementation measures. This applies e.g. where a competent national authority must be designated, or where a regulation contains gaps which the regulation itself provides the member states with guidelines for filling. (3) The second exception is that a regulation may indirectly grant the national authorities a degree of discretionary power, the exercise of which they can decide to regulate via implementation measures. (4) Such discretion must be exercised within the parameters of the regulation’s objective. If the regulation has a main objective and one or more secondary objectives and these are pulling in different directions, any implementation measures must (A) comply with the main objective such that the measures are appropriate for attaining that objective and do not exceed what is necessary, but they must also (B) avoid disproportionate interference with the secondary objective. (5) The implementation measures must primarily be worded in compliance with all relevant Community legal background material. If these do not provide an answer to the question, consideration must be given to the implementation measures adopted in the other member states. This comparative investigation must be made by the court submitting the preliminary question, but it would be appropriate for such an investigation to be made by the national legislator as early as in connection with the implementation act.