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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