The Gazette 1978

GAZETTE

JANUARY/FEBRUARY 1978

EEC law overrides subsequent national enactments Between the Italian Tax and Revenue Administration and S. A. Simmenthal, Monza (Italy) (referred for preliminary decision by the Pretore at Susa, Italy). Before the President, Judge H. Kutscher, and Judges M. Sorensen, G. Bosco, A. Donner, P. Pescatore, Lo rd Ma c k e n z ie S t u a r t , A. O ' K e e f f e , Advocate/General G. Reischl. (Week ended 10 March, 1978). Facts the consequences of direct applicability of Community Law whenever there arose a conflict between that law and national enactments of a later date. Direct applicability within this context means that Community Law rules shall be fully enforceable, in the same manner in all member states, from their entry into force until such time as they are properly repealed. Thus, these rules engender directly enforceable rights and obligations for all those they concern, be they member states or individuals who happen to be parties to legal process governed by Community Law.

The firm Simmenthal had imported into Italy a quantity of beef and had been subjected, on entry, to the payment of a health tax which the importer thought was not in keeping with the provisions of the EEC Treaty abolishing quantitative restrictions and taxes of equivalent effect. The health tax had been levied by virtue of Italian legislation. The importer had brought an action against the Italian Tax and Revenue Administration before the Pretore at Susa, who had referred the case to the European Court. By judgment on December 15, 1976, the Court had held that health taxes amounted to measures equivalent to quantitative restrictions and were consequently incompatible with the Treaty of Rome. Thereupon the Pretore at Susa had ordered the Italian Tax and Revenue to reimburse the tax with interest. The Tax and Revenue Administration had lodged an appeal against the decision, arguing that, by virtue of Article 11 of the Italian Constitution and following the case law of the Italian Constitutional Court, no Italian Court could pronounce itself on disputes of this sort until such time as the Italian Constitutional Court had ruled on the constitutionality, or otherwise, of the Italian Act of Parliament No. 1239/70. That law, which had been enacted after the accession of Italy to the European Communities, enjoined the Italian Constitutional Court to ensure the compatibility of all legal enactments and like measures with the Constitution. The Pretore at Susa had expressed the view that there appeared a conflict between Community Law and subsequent legislative enactments by the Italian state. In order to safeguard the uniform application of Community Law in all member states and in the interest of individually enforceable Community rules, it appeared necessary that the European Court be given the opportunity to pronounce itself on this conflict. Consequently by an order made on July 28th, 1977, the Pretore had referred to the European Court in substance the question: whether, in the light of Article 189 of the EEC Treaty and the well-established case law of the European Court, enforceable Community Law rules should not be upheld without awaiting prior repeal of obstructing national rules or a national court rule of non- constitutionality? Judgment The Court held that a National Court, called upon in the exercise of its jurisdiction to apply Community Law rules, shall ensure the unhampered application of those rules, if necessary, by leaving unapplied, on its own authority, any national law rule, even if enacted subsequently, which is contrary to Community Law, without requesting or awaiting prior repeal of such national law rules, by national legislative enactment or by any other national constitutional process. The question put by the Pretore was aimed at defining

This also applies to any national Court which, in the exercise of its jurisdiction, is called upon, as a Court of a member state, to safeguard and to enforce rights conferred upon individuals by Community Law. Furthermore, it follows from the very primacy of Community Law that enforceable Treaty rules and enforceable enactments by Community institutions not only supersede national law rules which run contrary thereto, but prevent valid subsequent enactment of national law rules running contrary to Community Law. Community Law rules are an integral part of national legal orders of member states, with priority over national enactments. Indeed, to admit that national enactments interfering with the jurisdiction of Community Law were legally effective would be tantamount to denying that obligations subscribed to unconditionally and irrevocably by member states under the Treaty could be enforced, and would thus sap the very foundations of the Community. This was also the idea underlying Article 177 of the EEC Treaty, according to which National Courts or Tribunals may request the Court of Justice to give a preliminary riding whenever they consider that a decision is necessary to enable them to give judgment. This rule would be deprived of its efficacy if a National Court were not in a position immediately to apply Community law in accordance with the decision or the Case Law of the Court of Justice. Therefore, any enactment or any legislative, administrative or judicial practice of member states resulting in diminishing the efficacy of Community Law by refusing to National Courts called upon to enforce Community Law power to put aside national obstacles to the full and unhampered enforcement of Community Law would be incompatible with the very nature of that law.

LOST WILL Rnv. Patrick/ otharwls* Paddy, Uada r, C.C., deceased, late of Clonakflty, Co. Cork. Anybody having knowledge of any W01 of the above named deceased, who died on die 8th February, 1978, is asked to please contact Messrs. Wolfe Collins OlCeeffe A Partners, 7 Rossa Street, ClonakOty, Co. Cork, immediately. Telephone 023/43332. 27