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tions. "Community law, therefore, . . . not only confers
on them legal rights" and this "apart from legislation
by the Member States".
Finally in this passage we find recognition of the fact
that by the Treaty the Member States have accepted
Community law as an authority capable of being in-
voked by a citizen before the Courts of his own country.
It is this latter aspect which is sometimes described as
the "direct effect" or "direct applicability" of Commu-
nity law. These terms can, however, be a source of
confusion. In one sense all provisions of all treaties have
direct effect upon their signatories; all provisions of the
Treaties instituting the Community are binding accor-
ding to their terms and thus may be said to be directly
applicable.
From the point of view of the national Judge, how-
ever, this view of direct applicability is of little assis-
tance. The question for him must always be "Has Com-
munity law given a party in a case pending before me a
right or interest which I must recognise and vindicate?"
Alternatively, to use a phrase consistently to be found
in judgments of the Court of Justice, is there a relevant
rule of Community law "apt to confer on the individual
rights which the national Courts have an obligation to
protect?" (See for example case 93/71
Leonesio
1972
Rec. 287; (1973) C.M.L.R. 343).
Sources of Community Law
The sources of Community law are, of course, the
Treaties, the Regulations, Directives and Decisions of
the Council or the Commission according to their
respective competences, and what has been described as
"the unwritten general legal principles which are part
of the Community legal order" (Judge Hans Kutscher,
"Community Law and the National Judge",
Law Quar-
terly Review,
October 1973). The exact limits of the
latter have not been defined, and are probably not
capable of exact definition, but they are those funda-
mental principles which, in the words of the late Advo-
cate General, Dutheillet de Lamothe (Case 11/70
Inter-
nationale Handelsgesellschaft,
1970 Rec. 1125 (1972)
C.M.L.R. at 271) :
"Contribute to forming that philosophical, political
and legal substratum common to the Member States
from which emerges through the case law an un-
written Community law, one of the essential aims of
which is precisely to ensure the respect for the
fundamental rights of the individual."
This source of Community law is a theme in itself and
the Community Judge must, therefore, in addition to
the Treaty and to the acts of the Institutions, have
regard to those fundamental principles as he finds them
expressed in the case law of the Court of Justice or of
the Member States. However, in the normal situation it
will be the Treaty itself or the Regulations, Directives
or Decisions made under it which will concern the
national Judge in his search for those rights which it is
his duty to protect.
Individual rights under Community Law
(a)
The Treaty
In the Treaty itself no rights are expressly given to
individuals, but there are a number of provisions pro-
hibiting certain types of conduct with varying degrees
of peremptoriness. Typical instances are Article 12 :
"Member States shall refrain from introducing between
themselves any new customs duties on imports"; or
Article 53 : "Member States shall not introduce any
new restrictions on the right of establishment in their
territories on nationals of other Member States." That
is to say "standstill" provisions and where the prohi-
bition is addressed to Member States. In two articles,
85, which prohibits agreements and concerted practices
restricting or distorting competition within the Common
Market, and 86, which prohibits the abuse of a domi-
nant position, the person addressed is not defined and
in one article only, 85, are we told, in terms, what the
effect of the prohibition is to be. The prohibited agree-
ment "shall be automatically void".
Where, however, there has been a prohibition clearly
and precisely worded and which is not coupled with
any power reserved to a Member State to subordinate
its operation to an act of internal law or which requires
the intervention by one of the Community institutions,
the Court of Justice has had no difficulty in so inter-
preting it as giving to an individual a right which the
national Court must protect (see e.g. Case 33/70
S.A.C.E. v Italian Finance Minister
1970 Rec. at 1223).
The leading case on standstill provisions is that of
Van Gend en Loos.
The facts of the case were as follows.
The plaintiff, a Dutch company, imported a quantity
of fertiliser into the Netherlands from Germany and
was required to pay customs duty at the rate of 8 per
cent
ad valorem.
It later claimed back the duty paid
before the Dutch Tarifcomissie, arguing that the imposi-
tion of 8 per cent infringed Article 12, since before the
date of the entry into force of the Treaty the import
duty on fertiliser from Germany was 3 per cent.
It was common ground that this infringement could
have been the subject of an action by the Commission
against the Netherlands under the relatively elaborate
procedure of Article 69. Could Article 12 be invoked by
the affected company? The European Court held that
it could. It is worth quoting its reasoning on this point:
"The wording of Article 12 contains a clear and
unconditional prohibition which is not a positive, but
a negative obligation. This obligation, moreover, is
not qualified by any reservation on the part of States
which would make its implementation conditional
upon a positive legislative measure enacted under
national law. The very nature of this prohibition
makes it ideally adapted to produce direct effects in
the legal relationship between Member States and
their subjects.
"The implementation of Article 12 does not re-
quire any legislative intervention on the part of the
States. The fact that under this Article it is the
Member States who are made the subject of the
negative obligation does not imply that their nationals
cannot benefit from this obligation."
The Lutticke case
It is, however, not only provisions which prohibit a
State from certain courses of conduct which can be
invoked by an individual before his national Court.
Provisions which require a State to do a particular act
by a particular time and which leave the State no dis-
cretion may similarly be prayed in aid. One such exam-
ple is to be found in
Lutticke
(Case 57/65
Firma
Alfonse Lutticke
GmbH
v Hauptzollamt
Sarrelouis,
1966 Rec. 293).
The defendant, the customs authority of Sarrelouis,
levied German turnover equalisation tax from the plain-
tiff on the importation into Germany from Luxembourg
of milk powder. German turnover equalisation tax was
imposed on imported goods in order to compensate for
197