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[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