The Gazette 1974

In practice, however, where discrepancies have arisen, the cause has been either inadvertence or, more frequently, the inability of the national legislative machinery to ensure that differences between Com- munity law and older domestic law are eliminated. When such a difference arises it is for the national judge, in the first place, to see whether the apparent difference is real. That is to say it is for him to construe his national law, if he reasonably can, so that it is compatible. If the meaning of the Community rule is in doubt then there may be a reference under Article 177 and, indeed, there have been a number of such references in such circumstances, of which SpA Mari- mex v. Ministerio delle Finanze is a recent example. The Marimex Case (1972) CMLR 907 The Marimex company imported into Italy various consignments of beef both from Member States and from non member states. For each consignment they were required by Italian law to pay certain adminis- trative charges. One of these charges was imposed by Presidential decree later in date than the relevant Community regulation. Marimex sued before the Tri- bunal of Turin for the sums paid, alleging that the charges were contrary to certain relevant Community regulations prohibiting the levying of customs duties or taxes having equivalent effect. A reference was made to the Court of Justice asking, in effect, whether the prohibition against taxes having equivalent effect were directly applicable and created rights which the national court was required to protect. In the course of its judgment the Court of Justice of the European Communities made it plain that the effect given to a regulation by Article 189 prevents the application of all legislative measures, even later in date, which are in- compatible with its terms. In practice, however, such conflicts are relatively rare and form an exception to the normal pattern where the Community legal order and the national legal order complement and reinforce one another. The rarity of such conflicts is in part due to the fact that where potential conflict is foreseen the national legislature has normally taken the necessary steps in time. In part also, much of Community legislation is so novel in its con- tent that there is only limited room for divergent rules on the same topic. None the less it must be affirmed that when true conflict has been identified it is essential for the Com- munity solution to prevail. Sometimes this is referred to as the supremacy of Community law but, for my own part, "supremacy" has pejorative undertones. Community judges are, of course, omniverous in their reading, and I recently learnt from a pamphlet printed and published in the People's Republic of China that, in the New Year celebrations, "Local Party, govern- ment and army leaders led participants in singing the song 'The Three Main Rules of Discipline and the Right Points for Attention'." To judge from some commen- tators the suggestion is more than implicit that the Community political and administrative institutions aided and abetted by the Court of Justice are seeking to substitute such a song for Beethoven's Ode to Joy as the anthem of the enlarged Community. Nothing of course is further from the case. The reason why the Community solution must be adopted arises not from the existence, real or pretended, of a supra-national hierarchy; not from any intrinsic merit of the Com- 270

the choice of form and methods. However the case of Grad v Hauptzollamt Traunstein (1971) CMLR 1, has shown that this is not always the case. Article 75 of the Treaty empowers the Council to make appropriate provisions to implement a common transport policy. The Council in pursuance of this article issued a Decision which imposed two obligations on member states : (1) to apply the Common Turnover tax system to freight transport by road rail and water not later than by a certain date and (2) to remove existing specific taxes on such transport by this date. The case was concerned with this second obligation. The Court held that such an obligation was uncondi tional and sufficiently clear and precise to be capable of creating direct effects in the legal relations between the Member States and individuals. It required only a date to complete it. This was provided by a Council Directive on the harmonization of the legal provisions relating to Turnover tax which laid down the date by which the common system of V.A.T. had to be intro- duced. The obligation created by the decision was therefore completed by the first directive and the obligation from that date could give rise to rights; i.e. specific taxes still existing would not be payable, and if paid could he claimed back. In its judgment the Court had this to say : "It would be incompatible with the binding effect attributed to decisions by Article 189 to exclude in principle the possibility that persons affected might invoke the obligation imposed by a decision. Parti- cularly in cases where, for example, the Community organs impose an obligation on a Member State or all the Member States by decision to undertake certain conduct, the useful effect of such a measure would be weakened if the nationals of this State could not invoke it in the Courts and the National Courts could not take it into consideration as part of Community law. Although the effects of a decision may be different from those of a provision contained in a regulation this difference does not prevent the end- result, namely the right of the individual to invoke the measure in the Courts, from being the same in a given case as that in the case of a directly applicable provision of a regulation." Incompatibility of national law with Community law From time to time a national judge will be faced with a provision of national law which appears to differ from a provision of Community law covering the same terrain. This difficulty is sometimes expressed in terms of conflict, sometimes in terms of the supre- macy of Community law but this may be to over- dramatize the situation. There has been much theore- tical discussion of the problem of the effect to be given by a national judge to a law deliberately promulgated by a presumably secessionist Member State subsequent to and in direct opposition to a Community regulation or, indeed, to the Treaty itself. I do not propose to deal with such an improbable situation, striking as it would at the political basis of the Treaty. Should it arise, whatever political solution might have to be found, it would still be the task of the national judge to cope with it, since the problem would arise before him.