Keywords

Summary



Keywords

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1 . PROCEDURE - PRELIMINARY RULING - JURISDICTION OF THE COURT - INTERPRETATION ( EEC TREATY, ARTICLE 177 )

2 . PROCEDURE - PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY, ARTICLE 177 )

3 . EUROPEAN ECONOMIC COMMUNITY - COMMUNITY LEGAL SYSTEM - SPECIAL CHARACTER - POSITION IN RELATION TO NATIONAL LEGAL SYSTEMS - PRECEDENCE OF COMMUNITY LAW - PERMANENT LIMITATION OF THE SOVEREIGN RIGHTS OF MEMBER STATES

4 . MEMBER STATES OF THE EEC - OBLIGATIONS TO THE COMMUNITY BINDING THEM AS STATES - COMMISSION'S DUTY OF SUPERVISION - IMPOSSIBILITY FOR INDIVIDUALS TO ALLEGE EITHER FAILURE BY THE STATE CONCERNED TO FULFIL ANY OF ITS OBLIGATIONS OR BREACH OF DUTY BY THE COMMISSION

5 . APPROXIMATION OF LAWS - AVOIDANCE OF DISTORTION - PROCEDURE - NO CREATION OF INDIVIDUAL RIGHTS

( EEC TREATY, ARTICLE 102 )

6 . AID GRANTED BY STATES - ELIMINATION - PROCEDURE - NO CREATION OF INDIVIDUAL RIGHTS

( EEC TREATY, ARTICLES 92 AND 93 )

7 . MEMBER STATES OF THE EEC - ABSOLUTE OBLIGATION IMPOSED BY THE TREATY - CONCEPT - RIGHTS OF INDIVIDUALS - PROTECTION OF THOSE RIGHTS BY NATIONAL COURTS

8 . RIGHT OF ESTABLISHMENT - RESTRICTIONS - ELIMINATION - PROHIBITION ON THE INTRODUCTION OF NEW RESTRICTIONS - NATURE OF THAT PROHIBITION - CONSEQUENCES - INDIVIDUAL RIGHTS - PROTECTION OF THOSE RIGHTS BY NATIONAL COURTS

( EEC TREATY, ARTICLES 52 AND 53 )

9 . RIGHT OF ESTABLISHMENT - RESTRICTIONS - ELIMINATION - PROHIBITION ON THE INTRODUCTION OF NEW RESTRICTIONS - OBSERVANCE OF SUCH OBLIGATION

( EEC TREATY, ARTICLE 53 )

10 . QUANTITATIVE RESTRICTIONS - ELIMINATION - STATE MONOPOLIES OF A COMMERCIAL CHARACTER - PROHIBITION ON THE INTRODUCTION OF NEW RESTRICTIONS - RIGHTS OF INDIVIDUALS - PROTECTION OF THOSE RIGHTS BY NATIONAL COURTS

( EEC TREATY, ARTICLE 37 )

11 . QUANTITATIVE RESTRICTIONS - ELIMINATION - MONOPOLIES OF A COMMERCIAL CHARACTER - PROHIBITION - PURPOSE - REVIEW BY THE COURT

( EEC TREATY, ARTICLE 37 )

Summary

1 . IN THE CONTEXT OF REQUESTS FOR PRELIMINARY RULINGS, THE COURT HAS NO JURISDICTION EITHER TO APPLY THE TREATY TO A SPECIFIC CASE OR TO DECIDE UPON THE VALIDITY OF A PROVISION OF DOMESTIC LAW IN RELATION TO THE TREATY, AS IT WOULD BE POSSIBLE FOR IT TO DO UNDER ARTICLE 169 . NEVERTHELESS, THE COURT HAS POWER TO EXTRACT FROM A QUESTION IMPERFECTLY FORMULATED BY THE NATIONAL COURT THOSE QUESTIONS WHICH ALONE PERTAIN TO THE INTERPRETATION OF THE TREATY .

2 . ARTICLE 177 IS BASED UPON A CLEAR SEPARATION OF FUNCTIONS BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE AND CANNOT EMPOWER THE LATTER EITHER TO INVESTIGATE THE FACTS OF THE CASE OR TO CRITICIZE THE GROUNDS AND PURPOSE OF THE REQUEST FOR INTERPRETATION .

3 . BY CONTRAST WITH ORDINARY INTERNATIONAL TREATIES, THE EEC TREATY HAS CREATED ITS OWN LEGAL SYSTEM WHICH, ON THE ENTRY INTO FORCE OF THE TREATY, BECAME AN INTEGRAL PART OF THE LEGAL SYSTEMS OF THE MEMBER STATES AND WHICH THEIR COURTS ARE BOUND TO APPLY .

BY CREATING A COMMUNITY OF UNLIMITED DURATION, HAVING ITS OWN INSTITUTIONS, ITS OWN PERSONALITY, ITS OWN LEGAL CAPACITY AND CAPACITY OF REPRESENTATION ON THE INTERNATIONAL PLANE AND, MORE PARTICULARLY, REAL POWERS STEMMING FROM A LIMITATION OF SOVEREIGNTY OR A TRANSFER OF POWERS FROM THE STATES TO THE COMMUNITY, THE MEMBER STATES HAVE LIMITED THEIR SOVEREIGN RIGHTS AND HAVE THUS CREATED A BODY OF LAW WHICH BINDS BOTH THEIR NATIONALS AND THEMSELVES .

THE INTEGRATION INTO THE LAWS OF EACH MEMBER STATE OF PROVISIONS WHICH DERIVE FROM THE COMMUNITY AND MORE GENERALLY THE TERMS AND THE SPIRIT OF THE TREATY, MAKE IT IMPOSSIBLE FOR THE STATES, AS A COROLLARY, TO ACCORD PRECEDENCE TO A UNILATERAL AND SUBSEQUENT MEASURE OVER A LEGAL SYSTEM ACCEPTED BY THEM ON A BASIS OF RECIPROCITY . SUCH A MEASURE CANNOT THEREFORE BE INCONSISTENT WITH THAT LEGAL SYSTEM . THE LAW STEMMING FROM THE TREATY, AN INDEPENDENT SOURCE OF LAW, COULD NOT BECAUSE OF ITS SPECIAL AND ORIGINAL NATURE, BE OVERRIDDEN BY DOMESTIC LEGAL PROVISIONS, HOWEVER FRAMED, WITHOUT BEING DEPRIVED OF ITS CHARACTER AS COMMUNITY LAW AND WITHOUT THE LEGAL BASIS OF THE COMMUNITY ITSELF BEING CALLED INTO QUESTION .

THE TRANSFER BY THE STATES FROM THEIR DOMESTIC LEGAL SYSTEM TO THE COMMUNITY LEGAL SYSTEM OF THE RIGHTS AND OBLIGATIONS ARISING UNDER THE TREATY CARRIES WITH IT A PERMANENT LIMITATION OF THEIR SOVEREIGN RIGHTS .

4 . THE COMMISSION HAS THE DUTY OF SEEING THAT THE MEMBER STATES RESPECT THOSE OBLIGATIONS WHICH HAVE BEEN IMPOSED UPON THEM BY THE TREATY AND WHICH BIND THEM AS STATES WITHOUT CREATING INDIVIDUAL RIGHTS, BUT THIS OBLIGATION ON THE PART OF THE COMMISSION DOES NOT GIVE INDIVIDUALS THE RIGHT TO ALLEGE, IN COMMUNITY LAW OR UNDER ARTICLE 177, EITHER FAILURE BY THE STATE CONCERNED TO FULFIL ANY OF ITS OBLIGATIONS OR BREACH OF DUTY ON THE PART OF THE COMMISSION .

5 . ARTICLE 102 OF THE EEC TREATY CONTAINS NO PROVISIONS WHICH ARE CAPABLE OF CREATING INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT .

6 . ARTICLE 93 OF THE EEC TREATY CONTAINS NO PROVISIONS WHICH ARE CAPABLE OF CREATING INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT .

7 . A MEMBER STATE'S OBLIGATION UNDER THE EEC TREATY, WHICH IS NEITHER SUBJECT TO ANY CONDITIONS NOR, AS REGARDS ITS EXECUTION OR EFFECT, TO THE ADOPTION OF ANY MEASURE EITHER BY THE STATES OR BY THE COMMISSION, IS LEGALLY COMPLETE AND CONSEQUENTLY CAPABLE OF PRODUCING DIRECT EFFECTS ON THE RELATIONS BETWEEN MEMBER STATES AND INDIVIDUALS . SUCH AN OBLIGATION BECOMES AN INTEGRAL PART OF THE LEGAL SYSTEM OF THE MEMBER STATES, AND THUS FORMS PART OF THEIR OWN LAW, AND DIRECTLY CONCERNS THEIR NATIONALS IN WHOSE FAVOUR IT HAS CREATED INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT .

8 . ARTICLE 53 OF THE EEC TREATY CONSTITUTES A COMMUNITY RULE CAPABLE OF CREATING INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT .

9 . ARTICLE 53 OF THE EEC TREATY IS SATISFIED SO LONG AS NO NEW MEASURE SUBJECTS THE ESTABLISHMENT OF NATIONALS OF OTHER MEMBER STATES TO MORE SEVERE RULES THAN THOSE PRESCRIBED FOR NATIONALS OF THE COUNTRY OF ESTABLISHMENT, WHATEVER THE LEGAL SYSTEM GOVERNING THE UNDERTAKINGS .

10 . ARTICLE 37 ( 2 ) OF THE EEC TREATY CONSTITUTES IN ALL ITS PROVISIONS A RULE OF COMMUNITY LAW CAPABLE OF CREATING INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT .

11 . THE PROVISIONS OF ARTICLE 37 ( 2 ) OF THE EEC TREATY HAVE AS THEIR OBJECT THE PROHIBITION OF ANY NEW MEASURE CONTRARY TO THE PRINCIPLES OF ARTICLE 37 ( 1 ), THAT IS ANY MEASURE HAVING AS ITS OBJECT OR EFFECT A NEW DISCRIMINATION BETWEEN NATIONALS OF MEMBER STATES REGARDING THE CONDITIONS IN WHICH GOODS ARE PROCURED AND MARKETED, BY MEANS OF MONOPOLIES OR BODIES WICH MUST, FIRST, HAVE AS THEIR OBJECT TRANSACTIONS REGARDING A COMMERCIAL PRODUCT CAPABLE OF BEING THE SUBJECT OF COMPETITION AND TRADE BETWEEN MEMBER STATES, AND SECONDLY MUST PLAY AN EFFECTIVE PART IN SUCH TRADE .

IT IS A MATTER FOR THE COURT DEALING WITH THE MAIN ACTION TO ASSESS IN EACH CASE WHETHER THE ECONOMIC ACTIVITY UNDER REVIEW RELATES TO SUCH A PRODUCT WHICH, BY VIRTUE OF ITS NATURE AND THE TECHNICAL OR INTERNATIONAL CONDITIONS TO WHICH IT IS SUBJECT, IS CAPABLE OF PLAYING SUCH A PART IN IMPORTS OR EXPORTS BETWEEN NATIONALS OF THE MEMBER STATES .