The Gazette 1974

In Belgium, on the other hand, the Cour de Cassa- tion in its judgment in Minister for Economic Affairs v. S. A. Fromagerie Franco-Suisse 'Le Ski' has fullv accepted the primacy and direct effect of Community law. In France Article 55 of the Constitution provides that : "Treaties or agreements duly ratified or approved shall, upon their publication, have an authority superior to that of laws subject, for each agreement or treaty, to its application by the other party" and opinion appears divided whether or not this article can be invoked as regards Community law. Moreover opinion appears to vary between the Conseil d'Etat (in the well known Semoules case) and the Cour de Cassation. The position of Italy, Ireland and Britain In Italy the position has been greatly clarified by the recent decision of the Constitutional Court on refer- ences made to it by the Tribunals of Turin and Genoa. Italy has always had a dualist conception of inter- national obligation, that is to say that they could only become part of domestic law through domestic legisla- tion. This was exemplified by the Italian law of 1957 giving executory effect to Article 189 of the EEC Treaty. The question raised before the Constitutional Court was the compatibility of that law with the Italian Constitution. The Constitution Court, in a judgment of great lucidity and force, held that it was so compatible and, moreover, affirmed that regulations made under Article 189 were indeed directly applicable "that is to say immediately beinding upon both the Member States and their citizens without the necessity of any internal rule of adaptation or reception". As regards the new Member States, all three of which have been strongly dualist, Denmark in its Act of Accession adopted purely Community terminology : Section 3 of this Act provides that the provisions of the treaties shall take effect in Denmark to the extent that they are directly applicable in Denmark under Cominuniy law. Ireland has altered its Constitution to provide that : "No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities, or institutions thereof, from having the force of law in the State." The United Kingdom, which has no written con- stitution and is traditionally dualist in its approach to obligations incurred by treaty, passed the European Communities Act 1972, which by section 2 provides : "All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Trea- ties are without further enactment to be given legal effect or used in the United Kingdom shall be recognized and available in law, and enforced, allowed and followed accordingly." The only judicial comment which I have so far dis- covered on the relationship between Community law and national law comes from Mr. Justice Graham, who has said in Aero Zipp Fasteners v. Y.K.K. Fas- teners (U.K.) Ltd. : "This Act . . . to put it very shortly, enacted

munity rule but from the very nature of the aims and objects of the Community. The Costa Case (1964) CMLR 425 This has been realised from the beginning in the now famous passage of the judgment of the Court in Costa v. EN EL. I make no apology for citing it again: "The executive force of Community law cannot vary from one State to another in deference to sub- sequent domestic legislation without endangering the attainment of the aims of the Treaty; . . . the obligations assumed under the Treaty establishing the Community would not be unconditional, but merely presumptive, if they could be affected by subsequent legislative acts of the signatories; . . . the law stemming from the Treaty, an autonomous source of law, could not, by virtue of its specific original nature, be overridden by domestic legal provisions, however framed, without disregard for its character as Community law and without the legal basis of the Community itself being called into ques- tion; the transfer by the States from their domestic legal order to the Community legal order of the rights and obligations arising under the Treaty carries with it a clear limitation of their sovereign rights, against which a subsequent unilateral law in- compatible with the Community cannot prevail . . .". This reasoning has been the basis of many subsequent decisions of the Court of Justice, although there may be, as some writers have suggested, a variety of emphasis. As broad a formulation as any is to be found in Inter- nationale Handelsgesellschaft v. EVST, already men- tioned, where the Court in its judgment emphasised that : "The law created by the Treaty, the issue of an autonomous source, could not by its very nature have the courts opposing to it rules of national law of any nature whatever without losing its Community character and without the legal basis of the Com- munity itself being put in question." Increasingly this viewpoint has been understood and accepted by the judges of the courts of the original member states. Much has depended upon the particular constitution of the Member State. For example, Article 66 of the Netherlands Constitution provides : "Legislation enforced within the Kingdom shall not apply, if this application would be incompatible with provisions of agreements which are binding upon anyone and which have been entered into force be- fore or after the enactment of such legislation." A similar attitude is adopted in Luxembourg. It has thus been comparatively easy for the judges of these countries to accept the necessary primacy of Com- munity law. As regards Germany, the position is more complex and I cannot do better than quote my col- league Dr. Hans Kutscher. "The German Federal Constitutional Court has, however, recognised in its decisions the precedence of Community law—including secondary Community law—over earlier or later laws, and has also re- cognised the independence and the direct effect of Community law. This question has thus been settled , in a binding manner for all German courts. What has not yet been fully clarified by the decisions, on the other hand, is the relationship of Community law to the German Constitution, and in particular to its provisions dealing with basic rights.'

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