The Gazette 1972

the immediate effect of a given provision "excludes the application of all measures incompatible with this pro- vision". The Court of Justice leaves it to the judge of the State concerned to decide whether the relevant national provision is "void", "without effect", or "inapplicable". Community regulations The Court of Justice has not yet had an opportunity of expressing an opinion on the direct applicability of Community Regulations. In the light of present case law, regulations may have just as much immediate effect as the Treaty provisions. This follows from Article 189 of the EEC Treaty, which states that a regulation has general application, is binding in its entirety and takes direct effect not only on, but also in, every member State. On the other hand, there are difficulties with Direc- tives and Decisions. These two types of Community acts may be taken by the Council or by the Commission, within the limits of their existing powers. According to Article 189 of the EEC Treaty, the Directive is binding, as to the results to be achieved, on each member State to which it is addressed, but leaves to national auth- orities the choice of form and methods. A Decision is binding in its entirety on each member State to which it is addressed. Both these enactments must therefore be given full legal status. But can they confer rights on the citizen before they have been given this status? The Community Court's view on the imme- diate effect of Community law enacted by the Institu- tions was expressed in three almost identical judgments, on 6th October 1970, in Case 9/70; and on 21st October 1970, in Cases 20/70 and 23/70. National courts The facts and problems were similar in all three cases. In the proceedings before the national courts which asked for guidance from the Community Court, the point in dispute was whether Community law could be invoked to oppose a tax introduced in Germany in 1968 on commercial road transport services. The basis of a possible conflict was provided by the Council's decision of 13th May 1965 that all member States introduce the common Value-added Tax (VAT) system in place of any specific taxes levied on the transport of goods by rail, road and inland waterways, by the date on which the system had entered into force generally. Germany introduced VAT on 1st January 1968. The system was to be applied in all member States from 1st January 1972 in accordance with two Council direc- ties of 11th April 1967 (subsequently amended to let Belgium and Italy postpone the introduction of VAT). The Court of Justice has confirmed that the decision of 13th May 1965 contains, in addition to an obligation to act (i.e. to introduce the value-added tax by a given date in place of certain specific taxes), an implicit obli- gation to abstain (i.e. not to introduce or reintroduce these specific taxes, so that the common VAT turnover tax system in the transport sector does not overlap with similar and additional tax regulations). Germany, the only member State to participate in the proceedings before the Court of Justice, maintained that Decisions and Directives do not have the immediate effect of Treaty Provisions and Regulations. The Court of Justice, nevertheless, decided the opposite. The Court held that Article 189 of the EEC Treaty does not exclude this interpretation and that it would be incon- sistent with the binding effect which the Treaty acknowledged for decisions, Jf the principle were estab-

lished that persons concerned could not invoke the obligation imposed by a decision. Immediate effects The Court considered that each case must be exam- ined to see "whether the provision concerned is appro- priate in its legal form, structure and wording, to pro- duce immediate effects in the legal relations between the addressee'and third parties" (Case 9/70). Having laid down this principle, the Court of Justice scrutinised the provision in the Council decision of 13th May 1965 and decided that, taken together with the Directive on the introduction of the Value-added Tax (for which a time-limit was laid down), it "is sufficiently clear and exact to produce immediate effects in the legal relations between member States and individuals". The Court's opinion concerned only a provision con- tained in a Decision. It did not formally decide whether the same criteria also apply to Directives. Parts of the reasoning underlying the Court's findings, however, suggest that they do, and the judgment in Case 33/70, of 17th December 1970 also argues in favour of equating directives with decisions. In Case 9/70 the Court gave an opinion on an obli- gation to refrain and left open the question of obliga- tions to act. Case 33-70, however, seems to establish the principle that obligations to act can also have direct effects. This does not mean that all Council Directives on such important sectors as the right of establishment and freedom to supply services, harmonisation of laws, movement of capital, and harmonisation of taxes will now produce immediate effects that can be invoked by private persons. Each case must be examined to see whether the provision in question is, in its legal form, structure and wording, such that it can produce imme- diate effects. Often directives in these sectors will not lend themselves to such an interpretation. The subjective formula The Court of Justice has ruled that the Rome Treaty and Regulations prevail over national law. For Com- munity Decisions and Directives the question is still open. The Court in Case 9/70_ stated that the relevant provision in the Council's decision may "produce imme- diate effects in the legal relations between the member States to which the decision is addressed and indivi- duals, and may give the latter the right to invoke this provision before a court". This formula contains a strong subjective element in comparison with that which the Court of Justice had hitherto used for provi- sions of \ he Treaty : "Article X . . . produces immediate effects and creates individual rights which (national) courts must respect." By offering individuals the possibility of invoking Decisions and even Directives before National Courts, the Community Court strengthens the legal protection of the citizen and facilitates the quicker execution of Community Law. The protection of fundamental rights in the Community features in all member countries, but particularly in Italy and Germany : although the constitutions of all six member States guarantee a num- ber of fundamental rights, only Italy and Germany have Constitutional Courts. No catalogue of fundamental rights was included in the EEC Treaty, but some individual provisions reflect certain aspects of these rights, especially the principles of equality or non-discrimination (Articles 7, 85, 86, 119), and the principles of freedom, which are found in the Treaty in the form of freedom of movement for 54