4.

The Treaty, like the case-law of the Court of Justice, therefore lays down the fundamental rule — a corollary of the principle of legality — that, whilst the demands of public order may be allowed to modify the scope of judicial review, they cannot override the actual right to obtain a judicial determination. Therefore, a provision of national law, purportedly based on considerations of public order, which excluded the very possibility of such review, would, in my opinion, be incompatible with the Community legal order. By removing measures taken by the Member States from the ambit of Community law — primary, secondary or such as implemented by national laws — such a provision would in fact allow the national authorities to create a ‘no-go area for the law’ as and when they saw fit, thus calling in question the very foundations of that legal order. As far as concerns more particularly the equal treatment of men and women in matters of employment, Article 6 of Directive No 76/207 states that: ‘Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities.’ In its judgment of 10 April 1984 in Case 14/83 (Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891) the Court held that ‘by granting applicants for a post who have been discriminated against recourse to the courts, (Article 6) acknowledges that those candidates have rights of which they may avail themselves before the courts’ (paragraph 22, at p. 1908). The Court went on to conclude that as an authority of a Member State a national court which is confronted by a provision of national legislation compromising the effectiveness of an obligation arising under a directive (in that case Directive No 76/207) and which has a ‘duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation’ (paragraph 26, at p. 1909) must ‘interpret and apply the legislation... in conformity with the requirements of Community law’ (paragraph 28, at p. 1909). It follows that a national court cannot, without infringing Article 5 of the Treaty and the directive, hold itself bound by a provision of national law which purports to exclude on the grounds of public order all judicial review of the implementation of Community legislation. That duty of the national court is even more categorical where, as in this case, it is acting as an ordinary court responsible for applying Community law, in which regard it must be borne in mind that the provisions of Article 6, which are unconditional and sufficiently clear, unquestionably have direct effect. Consequently, the right of recourse to the courts for which Article 6 provides may be invoked by individuals in order to challenge any conflicting provision of national law; in this regard, the authority of the Chief Constable cannot be separated from that of the State which confers it upon him. That having been stated, I consider that, for reasons similar to those on which the Court based its decision with regard to a regulation at issue in the Simmenthal case (judgment of 9 March 1978 in Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629), ‘any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent Community rules from having full force and effect are incompatible with those requirements which are the very essence of Community law’ (paragraph 22, at p. 644). I therefore consider that a Member State may not be allowed for reasons of public order to exclude all review by the courts of the legality of a national measure with regard to the provisions of Community law. Consequently, in such a situation a national court must‘give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation’ (operative part of the Simmenthal judgment).