If a national regulation is made with a procedural ‘defect’ by virtue of failing to comply with procedure set out in directive (here failure to notify commission) then the national court should not apply it, even in the context of a contract between private parties. It is up to the national courts to determine the consequences for the contract, using the nation rules on contract law.
ECJ: This may lead to nullity of the contract, depending what the country’s own rules are. “That conclusion is, however, subject to the condition that the applicable rules of national law are not less favourable than those governing similar domestic actions and are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law.”
AG Jacobs (different to ECJ): Again, he argued that the national measure should not be rendered inapplicable by virtue of failure to notify (This shows that he was being disingenuous above when he said there was a difference between failure to notify and failure to observe standstill clause). Reiterates same argument as before.