The Gazette 1974

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. 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 Individual rights under Community Law (a) The Treaty

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