The Gazette 1974

munity rule but from the very nature of the aims and

objects of the Community.

The Costa Case (1964) CMLR 425

This has been realised from the beginning in the

now famous passage of the judgment of the Court in

Costa

EN EL.

I make no apology for citing it again:

"The executive force of Community law cannot

vary from one State to another in deference to sub-

sequent domestic legislation without endangering

the attainment of the aims of the Treaty; . . . the

obligations assumed under the Treaty establishing

the Community would not be unconditional, but

merely presumptive, if they could be affected by

subsequent legislative acts of the signatories; . . . the

law stemming from the Treaty, an autonomous

source of law, could not, by virtue of its specific

original nature, be overridden by domestic legal

provisions, however framed, without disregard for its

character as Community law and without the legal

basis of the Community itself being called into ques-

tion; the transfer by the States from their domestic

legal order to the Community legal order of the

rights and obligations arising under the Treaty

carries with it a clear limitation of their sovereign

rights, against which a subsequent unilateral law in-

compatible with the Community cannot prevail . . .".

This reasoning has been the basis of many subsequent

decisions of the Court of Justice, although there may be,

as some writers have suggested, a variety of emphasis.

As broad a formulation as any is to be found in

Inter-

nationale Handelsgesellschaft

EVST,

already men-

tioned, where the Court in its judgment emphasised

that :

"The law created by the Treaty, the issue of an

autonomous source, could not by its very nature have

the courts opposing to it rules of national law of any

nature whatever without losing its Community

character and without the legal basis of the Com-

munity itself being put in question."

Increasingly this viewpoint has been understood and

accepted by the judges of the courts of the original

member states.

Much has depended upon the particular constitution

of the Member State. For example, Article 66 of the

Netherlands Constitution provides :

"Legislation enforced within the Kingdom shall not

apply, if this application would be incompatible with

provisions of agreements which are binding upon

anyone and which have been entered into force be-

fore or after the enactment of such legislation."

A similar attitude is adopted in Luxembourg. It has

thus been comparatively easy for the judges of these

countries to accept the necessary primacy of Com-

munity law. As regards Germany, the position is more

complex and I cannot do better than quote my col-

league Dr. Hans Kutscher.

"The German Federal Constitutional Court has,

however, recognised in its decisions the precedence

of Community law—including secondary Community

law—over earlier or later laws, and has also re-

cognised the independence and the direct effect of

Community law. This question has thus been settled ,

in a binding manner for all German courts. What

has not yet been fully clarified by the decisions, on

the other hand, is the relationship of Community

law to the German Constitution, and in particular to

its provisions dealing with basic rights.'

In Belgium, on the other hand, the Cour de Cassa-

tion in its judgment in

Minister for Economic

Affairs

S. A. Fromagerie Franco-Suisse 'Le Ski'

has fullv

accepted the primacy and direct effect of Community

law. In France Article 55 of the Constitution provides

that :

"Treaties or agreements duly ratified or approved

shall, upon their publication, have an authority

superior to that of laws subject, for each agreement

or treaty, to its application by the other party"

and opinion appears divided whether or not this

article can be invoked as regards Community law.

Moreover opinion appears to vary between the Conseil

d'Etat (in the well known

Semoules

case) and the

Cour de Cassation.

The position of Italy, Ireland and Britain

In Italy the position has been greatly clarified by the

recent decision of the Constitutional Court on refer-

ences made to it by the Tribunals of Turin and

Genoa.

Italy has always had a dualist conception of inter-

national obligation, that is to say that they could only

become part of domestic law through domestic legisla-

tion. This was exemplified by the Italian law of 1957

giving executory effect to Article 189 of the EEC

Treaty. The question raised before the Constitutional

Court was the compatibility of that law with the

Italian Constitution. The Constitution Court, in a

judgment of great lucidity and force, held that it was

so compatible and, moreover, affirmed that regulations

made under Article 189 were indeed directly applicable

"that is to say immediately beinding upon both the

Member States and their citizens without the necessity

of any internal rule of adaptation or reception".

As regards the new Member States, all three of which

have been strongly dualist, Denmark in its Act of

Accession adopted purely Community terminology :

Section 3 of this Act provides that the provisions of

the treaties shall take effect in Denmark to the extent

that they are directly applicable in Denmark under

Cominuniy law.

Ireland has altered its Constitution to provide that :

"No provision of this Constitution invalidates laws

enacted, acts done or measures adopted by the State

necessitated by the obligations of membership of the

Communities, or institutions thereof, from having

the force of law in the State."

The United Kingdom, which has no written con-

stitution and is traditionally dualist in its approach to

obligations incurred by treaty, passed the European

Communities Act 1972, which by section 2 provides :

"All such rights, powers, liabilities, obligations and

restrictions from time to time created or arising by

or under the Treaties, and all such remedies and

procedures from time to time provided for by or

under the Treaties, as in accordance with the Trea-

ties are without further enactment to be given legal

effect or used in the United Kingdom shall be

recognized and available in law, and enforced,

allowed and followed accordingly."

The only judicial comment which I have so far dis-

covered on the relationship between Community law

and national law comes from Mr. Justice Graham,

who has said in

Aero Zipp Fasteners

Y.K.K.

Fas-

teners (U.K.) Ltd. :

"This Act . . . to put it very shortly, enacted

271