Joachim Steffensen.
Date: 2003-04-10
38.  As the Court has consistently held, whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (see,   inter alia  , Case C-62/00   Marks  & Spencer   [2002] ECR I-6325, paragraph 25 and the case-law cited).
60.  As the German Government submitted, it follows from the settled case-law of the Court that, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, provided that such rules are not less favourable than those governing similar domestic actions (the principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness) (see,   inter alia  , Case C-453/99   Courage and Crehan   [2001] ECR I-6297, paragraph 29, and Case C-255/00   Grundig Italiana   [2002] ECR I-8003, paragraph 33).
66.  With respect to the principle of effectiveness, the Court observes that each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances and that, in the light of that analysis, the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration (see Case C-312/93   Peterbroeck   [1995] ECR I-4599, paragraph 14).
69.  Second, according to settled case-law, fundamental rights form an integral part of the general principles of law whose observance the Court ensures (see,   inter alia  , Case 5/88   Wachauf   [1989] ECR 2609, paragraph 17; Case C-274/99 P   Connolly   v   Commission   [2001] ECR I-1611, paragraph 37; and Case C-94/00   Roquette Frères   [2002] ECR I-9011, paragraph 23).
70.  According to the Court's case-law, where national legislation falls within the field of application of Community law, the Court, in a reference for a preliminary ruling, must give the national court all the guidance as to interpretation necessary to enable it to assess the compatibility of that legislation with the fundamental rights ─ as laid down, in particular, in the European Convention for the Protection of Human Rights and Fundamental Freedoms ( "the ECHR"  ) ─ whose observance the Court ensures (see,   inter alia  , Case C-299/95   Kremzow   [1997] ECR I-2629, paragraph 15; and   Roquette Frères  , cited above, paragraph 25).
76.  However, according to the same case-law, the review carried out by the European Court of Human Rights under Article 6(1) of the ECHR of the fairness of a hearing ─ which requires essentially that the parties be given an adequate opportunity to participate in the proceedings before the court ─ relates to the proceedings considered as a whole, including the way in which evidence was taken.
80.  In view of all of the above considerations, the answer to the second question must be that it is for the national court before which an action such as that at issue in the main proceedings has been brought to assess, in the light of all the factual and legal evidence available to it, whether or not the results of analyses of samples of a manufacturer's products are to be admitted as evidence that the manufacturer has infringed a Member State's national rules on foodstuffs where the manufacturer has been unable to exercise his right to a second opinion under the second subparagraph of Article 7(1) of the Directive. In that regard, the national court must verify that the national rules on the taking of evidence applicable to such an action are not less favourable than those governing similar domestic actions (the principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness). In addition, the national court must consider whether such evidence must be excluded in order to avoid measures incompatible with compliance with fundamental rights, in particular the right to a fair hearing before a tribunal as laid down in Article 6(1) of the ECHR.