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the choice of form and methods. However the case of
Grad v Hauptzollamt
Traunstein
(1971) CMLR 1,
has shown that this is not always the case.
Article 75 of the Treaty empowers the Council to
make appropriate provisions to implement a common
transport policy. The Council in pursuance of this
article issued a Decision which imposed two obligations
on member states :
(1) to apply the Common Turnover tax system to
freight transport by road rail and water not later
than by a certain date and
(2) to remove existing specific taxes on such transport
by this date.
The case was concerned with this second obligation.
The Court held that such an obligation was uncondi
tional and sufficiently clear and precise to be capable
of creating direct effects in the legal relations between
the Member States and individuals. It required only a
date to complete it. This was provided by a Council
Directive on the harmonization of the legal provisions
relating to Turnover tax which laid down the date by
which the common system of V.A.T. had to be intro-
duced.
The obligation created by the decision was therefore
completed by the first directive and the obligation from
that date could give rise to rights; i.e. specific taxes
still existing would not be payable, and if paid could
he claimed back.
In its judgment the Court had this to say :
"It would be incompatible with the binding effect
attributed to decisions by Article 189 to exclude in
principle the possibility that persons affected might
invoke the obligation imposed by a decision. Parti-
cularly in cases where, for example, the Community
organs impose an obligation on a Member State or all
the Member States by decision to undertake certain
conduct, the useful effect of such a measure would
be weakened if the nationals of this State could not
invoke it in the Courts and the National Courts could
not take it into consideration as part of Community
law. Although the effects of a decision may be
different from those of a provision contained in a
regulation this difference does not prevent the end-
result, namely the right of the individual to invoke
the measure in the Courts, from being the same in a
given case as that in the case of a directly applicable
provision of a regulation."
Incompatibility of national law with Community law
From time to time a national judge will be faced
with a provision of national law which appears to
differ from a provision of Community law covering
the same terrain. This difficulty is sometimes expressed
in terms of conflict, sometimes in terms of the supre-
macy of Community law but this may be to over-
dramatize the situation. There has been much theore-
tical discussion of the problem of the effect to be given
by a national judge to a law deliberately promulgated
by a presumably secessionist Member State subsequent
to and in direct opposition to a Community regulation
or, indeed, to the Treaty itself. I do not propose to
deal with such an improbable situation, striking as it
would at the political basis of the Treaty. Should it
arise, whatever political solution might have to be
found, it would still be the task of the national judge
to cope with it, since the problem would arise before
him.
In practice, however, where discrepancies have arisen,
the cause has been either inadvertence or, more
frequently, the inability of the national legislative
machinery to ensure that differences between Com-
munity law and older domestic law are eliminated.
When such a difference arises it is for the national
judge, in the first place, to see whether the apparent
difference is real. That is to say it is for him to construe
his national law, if he reasonably can, so that it is
compatible. If the meaning of the Community rule is
in doubt then there may be a reference under Article
177 and, indeed, there have been a number of such
references in such circumstances, of which
SpA Mari-
mex
v.
Ministerio delle Finanze
is a recent example.
The Marimex Case (1972) CMLR 907
The Marimex company imported into Italy various
consignments of beef both from Member States and
from non member states. For each consignment they
were required by Italian law to pay certain adminis-
trative charges. One of these charges was imposed by
Presidential decree later in date than the relevant
Community regulation. Marimex sued before the Tri-
bunal of Turin for the sums paid, alleging that the
charges were contrary to certain relevant Community
regulations prohibiting the levying of customs duties or
taxes having equivalent effect. A reference was made
to the Court of Justice asking, in effect, whether the
prohibition against taxes having equivalent effect were
directly applicable and created rights which the
national court was required to protect. In the course
of its judgment the Court of Justice of the European
Communities made it plain that the effect given to a
regulation by Article 189 prevents the application of all
legislative measures, even later in date, which are in-
compatible with its terms.
In practice, however, such conflicts are relatively rare
and form an exception to the normal pattern where
the Community legal order and the national legal order
complement and reinforce one another. The rarity of
such conflicts is in part due to the fact that where
potential conflict is foreseen the national legislature has
normally taken the necessary steps in time. In part also,
much of Community legislation is so novel in its con-
tent that there is only limited room for divergent rules
on the same topic.
None the less it must be affirmed that when true
conflict has been identified it is essential for the Com-
munity solution to prevail. Sometimes this is referred
to as the supremacy of Community law but, for my
own part, "supremacy" has pejorative undertones.
Community judges are, of course, omniverous in their
reading, and I recently learnt from a pamphlet printed
and published in the People's Republic of China that,
in the New Year celebrations, "Local Party, govern-
ment and army leaders led participants in singing the
song 'The Three Main Rules of Discipline and the Right
Points for Attention'." To judge from some commen-
tators the suggestion is more than implicit that the
Community political and administrative institutions
aided and abetted by the Court of Justice are seeking
to substitute such a song for Beethoven's Ode to Joy
as the anthem of the enlarged Community. Nothing of
course is further from the case. The reason why the
Community solution must be adopted arises not from
the existence, real or pretended, of a supra-national
hierarchy; not from any intrinsic merit of the Com-
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