The Gazette 1972

[EUROPEAN SECTION

Recent Developments in Community Law ,Ro,lf Wa·eg:enl,bau,r (,Official iin the, C,omm,issilQn's Legal 'Smvice,)

National courts may submit to the Community Court of Justice issues concerning Community law, under a procedure ~et out in Article 177, in cases where a court In ~ x.nember State has to decide on the interpretation or vahdlty of Community law. In such cases National Courts may (and, in certain circumstances, must) apply to ~he Community Court of Justice for a "preliminary" ruhng. Decisive for the establishment of this procedure Was .the fact that Community law must be applied by all Institutions of the member states, including the C?urts. This meant, however, that there was a serious fIsk that the provisions of Community law-which are, ?f course, the same for all six member States-might be Interpreted differently in Rome, Paris, The Hague and Frankfurt, for example. It was therefore essential to have a procedure which woul.d maintain unity in the interpretation of the Com– lUuntty Treaties and the validity of subsequent enact– lllents of the Community institutions under those Treaties. In order to achieve this, the authors of the Rome Treaty did not provide for a cumbersome court of appeal, but simply established a system of prior consultation by which the Community Court of Justice can be asked for general rulings on the interpretation of o~ the validity of subsequent enactments. Any Court or tnbunal in the member states-even at the lowest level -rn~y submit such questions to the Court of Justice for ~ ruhng, if it considers this nece-sary to enable it to give Judgment. Those national courts or tribunals against whc;>se judgments there is no further appeal under ~abonal law not only may but must submit such ques– bons for a ruling. This, of course, includes the courts of final appeal in all the I:lcmber States. Validity The procedure of Article 177 is very simple. It is sUfficient for the national court to convey to the Court of J~stice the substance of the problem. The Co~rt of JhUsbce informs all the member States, the CouncIl and t e Commission, and the parties to the initial dispute, and they may all express their views on the matter. The COurt pronounces its judgment after written and oral ~roceedings. The time taken for the whole procedure Oe not usually exceed five to six months. C After initial hesitations on the part of many national f Ourts, the procedure of preliminary rulings is today uhlIy accepted in the legal sector of the Community. By t e end of 1970, the Court of Justice had in this way ~uled in 87 cases on the interpretation or validity of IIllPOrtant provisions of Community law, thereby giving a lead to all national Courb. f C.ertain provisions of Community law-cartel law, .Or .I~stance-create obligations and rights for firms and IndIVI~uals. Other provisions are expressly and directly 53

aimed at the member States-and the member States only~req,!iring them .to do, or to refrain from doing, certam thmgs. Accordmg to the Treaty it is primarily the Commission that has to ensure th~t the member ~tates fulfil these obligations. If necessary, the Commis– sIon-and even another member State, in certain cir– cumstances-may bring an action before the Court of Justice for infringement of the Treaty. But private per– sons (i.e. firms and individuals) may also be concerned that the member States should comply with Community law. Member States are, for example, forbidden to introduce new quotas or measures with equivalent effect, or new restrictions on the right of establishment accorded to the nationals of other member States. As was to be expected, private persons have pleaded before the Courts and tribunals of their countries that certain internal regulations did not acco~d with Community law. In some cases, the Commumty Court of Justice was asked, under Article 177 of the EEC Treaty whether certain provisions of the Treaty had "internai effect"-in other words, whether "citizens of the mem– ber States can enforce individual rights which the Courts of the member State should protect" (as formu– lated in the first case of this kind, Case 26/62 Van Gen.d an~ Loos,. jud~ment ?f 2nd February '1963). Behmd thIS questIon Ires the Issue whether, in case of conflict, Community law prevails over national law. In that case the Community Court had to deal with the Treaty provision preventing member States from introducing new customs duties. According to classical international law, it would be hardly conceivable for a private person to base an action on such a provision which, according to the terms used, binds only the member States. However, the Court of Justice found in the Community law itself and its objectives the neces– sary basis for the ruling that "not only the member States b'lt also their nationals" are subject to the Com– munity legal system. Fol!owing the c~se-Jaw establis~ed in that dispute, the Court of JustIce later establIshed that neither a member State nor the Commic;sion could interfere with the execution or effect of such an obligation to abstain from action, or to act. The obligation was therefore "complete in itself, legally perfect and consequently capa?le of producing immediate effect as regards the relatIOns between member States and their subjects" (Case 6/64). , In several of its judgments the Court of Justice has proclaimed the priority of Community law: "The autho– rities and especially the .competent judicial authorities in member States" are bound to safeguard the interests of their nationals who may be affected by any violation of (immediately effective) provisions (Case 13/68). In another dispute (Case 34/67), the Court indicated that