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GAZETTE
JANUARY/FEBRUARY 1978
EEC law overrides subsequent national enactments
Between the Italian Tax and Revenue Administration and
S. A. Simmenthal, Monza (Italy) (referred for
preliminary decision by the Pretore at Susa, Italy).
Before the President, Judge H. Kutscher, and Judges
M. Sorensen, G. Bosco, A. Donner, P. Pescatore,
Lo rd Ma c k e n z ie S t u a r t , A. O ' K e e f f e ,
Advocate/General G. Reischl. (Week ended 10 March,
1978).
Facts
The firm Simmenthal had imported into Italy a
quantity of beef and had been subjected, on entry, to the
payment of a health tax which the importer thought was
not in keeping with the provisions of the EEC Treaty
abolishing quantitative restrictions and taxes of equivalent
effect. The health tax had been levied by virtue of Italian
legislation. The importer had brought an action against
the Italian Tax and Revenue Administration before the
Pretore at Susa, who had referred the case to the
European Court.
By judgment on December 15, 1976, the Court had
held that health taxes amounted to measures equivalent to
quantitative restrictions and were consequently
incompatible with the Treaty of Rome.
Thereupon the Pretore at Susa had ordered the Italian
Tax and Revenue to reimburse the tax with interest.
The Tax and Revenue Administration had lodged an
appeal against the decision, arguing that, by virtue of
Article 11 of the Italian Constitution and following the
case law of the Italian Constitutional Court, no Italian
Court could pronounce itself on disputes of this sort until
such time as the Italian Constitutional Court had ruled on
the constitutionality, or otherwise, of the Italian Act of
Parliament No. 1239/70. That law, which had been
enacted after the accession of Italy to the European
Communities, enjoined the Italian Constitutional Court to
ensure the compatibility of all legal enactments and like
measures with the Constitution.
The Pretore at Susa had expressed the view that there
appeared a conflict between Community Law and
subsequent legislative enactments by the Italian state. In
order to safeguard the uniform application of Community
Law in all member states and in the interest of
individually enforceable Community rules, it appeared
necessary that the European Court be given the
opportunity to pronounce itself on this conflict.
Consequently by an order made on July 28th, 1977, the
Pretore had referred to the European Court in substance
the question: whether, in the light of Article 189 of the
EEC Treaty and the well-established case law of the
European Court, enforceable Community Law rules
should not be upheld without awaiting prior repeal of
obstructing national rules or a national court rule of non-
constitutionality?
Judgment
The Court held that a National Court, called upon in
the exercise of its jurisdiction to apply Community Law
rules, shall ensure the unhampered application of those
rules, if necessary, by leaving unapplied, on its own
authority, any national law rule, even if enacted
subsequently, which is contrary to Community Law,
without requesting or awaiting prior repeal of such
national law rules, by national legislative enactment or by
any other national constitutional process.
The question put by the Pretore was aimed at defining
the consequences of direct applicability of Community
Law whenever there arose a conflict between that law and
national enactments of a later date.
Direct applicability within this context means that
Community Law rules shall be fully enforceable, in the
same manner in all member states, from their entry into
force until such time as they are properly repealed.
Thus, these rules engender directly enforceable rights
and obligations for all those they concern, be they
member states or individuals who happen to be parties to
legal process governed by Community Law.
This also applies to any national Court which, in the
exercise of its jurisdiction, is called upon, as a Court of a
member state, to safeguard and to enforce rights
conferred upon individuals by Community Law.
Furthermore, it follows from the very primacy of
Community Law that enforceable Treaty rules and
enforceable enactments by Community institutions not
only supersede national law rules which run contrary
thereto, but prevent valid subsequent enactment of
national law rules running contrary to Community Law.
Community Law rules are an integral part of national
legal orders of member states, with priority over national
enactments.
Indeed, to admit that national enactments interfering
with the jurisdiction of Community Law were legally
effective would be tantamount to denying that obligations
subscribed to unconditionally and irrevocably by member
states under the Treaty could be enforced, and would thus
sap the very foundations of the Community.
This was also the idea underlying Article 177 of the
EEC Treaty, according to which National Courts or
Tribunals may request the Court of Justice to give a
preliminary riding whenever they consider that a decision
is necessary to enable them to give judgment.
This rule would be deprived of its efficacy if a National
Court were not in a position immediately to apply
Community law in accordance with the decision or the
Case Law of the Court of Justice.
Therefore, any enactment or any legislative,
administrative or judicial practice of member states
resulting in diminishing the efficacy of Community Law
by refusing to National Courts called upon to enforce
Community Law power to put aside national obstacles to
the full and unhampered enforcement of Community Law
would be incompatible with the very nature of that law.
LOST WILL
Rnv.
Patrick/ otharwls* Paddy, Uada r, C.C.,
deceased,
late of Clonakflty, Co. Cork. Anybody having knowledge of any
W01 of the above named deceased, who died on die 8th February,
1978, is asked to please contact Messrs. Wolfe Collins OlCeeffe A
Partners, 7 Rossa Street, ClonakOty, Co. Cork, immediately.
Telephone 023/43332.
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