The direct effect of the EU law

In this relevant case, concerning the direct effect of the community law (EU law), it was clarified by the European Court of Justice (ECJ) that National courts are required to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved, and that also applies in the case of unimplemented directives.

Thus, the duty of harmonious interpretation was not limited to legislation adopted specifically to implement a directive.

This decision gave entirely fulfilment to Article 5 of the EEC Treaty, which established that the Member States shall take all general or particular measures which are appropriate for ensuring the carrying out of the obligations of the Treaty.

The ECJ ruling extended the interpretation given by some previous similar cases, such as C-14/83, Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen and C-152/84, M. H. Marshall v Southampton.

Case Summary

The Juzgado de Primera Instancia e Instrucción No 1, Oviedo, Spain, referred the ECJ for a preliminary ruling in proceedings pending between Marleasing SA and La Comercial Internacional de Alimentación S.A. on the interpretation of Article 11 of the First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by the Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, to make such safeguards equivalent throughout the Community. 


Marleasing claimed that the founders’ contract that establish La Comercial is void on the ground that the establishment of the company lacked cause, was a sham transaction and was carried out to defraud the creditors, which is illegal under Spanish law. 


La Comercial, from its part, alleged that Article 11 of Directive 68/151, which lists exhaustively the cases in which the nullity of a company may be ordered, did not include lack of cause.


In this context, the national court asked the ECJ if Article 11 of Council Directive 68/151/EEC of 9 March 1968, is directly applicable even if it has not been implemented in the national law.


The ECJ ruled that a national court must interpret its national law in the light of the wording and the purpose of the community law, in this specific case following a directive even if it was not implemented in the national legal system. 


[1] Judgment of the Court of 13 November 1990. C-106/89, Marleasing SA v La Comercial Internacional de Alimentacion S.A, ECLI:EU:C:1990:395.


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Principle of direct effect of the EU law – Directives

This is a right of individuals to invoke before National Courts apply the European Union Law in their legal relations with public administrations or individuals, regardless of whether there are texts in national law.

In this relevant case, the European Court of Justice (ECJ) specified that Directives can have direct effect only when their implementation period has expired, so consequently, the unexpired directives could not have relied upon.

The objective of this clarification by the ECJ is to prevent a Member State from using its lack of implementation of a directive to continue making use of a previous national law that does not adopt the changes established in the Community law (EU law).

Case Summary

The Pretura Penale, Milan (Italy) referenced to the ECJ for a preliminary ruling in the action pending before that court between Pubblico Ministero (public prosecutor) and Tullio Ratti, on the interpretation of Council Directive NO 73/173/EEC of 4 June 1973, related to the classification, packaging and labelling of dangerous preparations (solvents) and Directive NO 77/728/EEC of 7 November 1977, related to the classification, packaging and labelling of paints, varnishes, printing-inks, adhesives and similar product. 


In the main case, Tullio, that sold solvents and varnishes, was prosecuted for failure to comply with an Italian law NO 245 of 5 March 1963 that require manufacturers of products containing benzene, toluene and xylene to affix to the containers of those products labels indicating, not only the fact that those substances are present, but also their total percentage and, separately, the percentage of benzene.


Tullio argued that his business complied with these two Directives, so he should not have to comply with that stricter Italian law. He also understood that the Italian law entered in conflict with these two Directives. 


He defended that the Italian government did not incorporate the Directive NO 73/173 of 4 June 1973 to its internal legal order within the mandatory established period, and that therefore, if it had been implemented, that would have meant the repeal of the Italian law, which he was charged with contravening. 


The ECJ ruled that a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its failure to perform the obligations which the directive entails, clarifying in this way that after the expiration of the period fixed for the implementation of a directive a Member State may not apply its internal law which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive. 


However, the ECJ specified that being the Directive NO 73/173 to which the term to incorporate it into the internal legal system has expired, is the only one the applicant can rely on and not in the Directive 73/173, since its term of incorporation had not expired yet. 


[1] Judgment of the Court of 5 April 1979, Tullio Ratti, Case 148/78, ECLI:EU:C:1979:110. Paragraph 22 and 24


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Conflict Of Law And The Supremacy Of EU Law

Amministrazione Delle Finanze Dello Stato V Simmenthal Spa C-106/77

Conflict of law and the supremacy of EU law

The supremacy of the European Union law is a fundamental and settled principle that means that in cases of conflicts between EU law and national law, the EU law should prevail.
In consequence of this principle, national law must protect EU law, and domestic law must apply EU law in its entirety and disregard national law that may conflict with it. The principle of primacy, therefore, seeks to ensure that citizens are uniformly protected by an EU law across all EU territories.

In this relevant case, regarding the supremacy of The Community law, the European Court of Justice (ECJ) clarified that the primacy of EU law must be applied to all national acts, whether they were adopted before or after the EU act in question and that Domestic law must apply EU law in its entirety and disregard national law that may conflict with it.

Case Summary

The Pretoria di Susa ( Italy ) reference the European Court of Justice (ECJ) for a preliminary ruling in the case pending between Amministrazione delle Finanze Sello Stato (Italian Finance Administration) and Simmenthal S.P.A, where Simmenthal brought an action against the Amministrazione delle Finanze dello Stato claiming the repayment of fees it had been charged for the medical inspection of meat, which it had imported into Italy from France, imposed by an Italian law from 1970. 


Simmenthal alleged that Italian law No. 1239 of 30 December 1970, was incompatible with the free movement of goods (article 30 of the ECC Treaty) and thus, in conflict with the Community law, in particular with the Regulation (EEC) No. 805/68 of the Council of 27 June 1968 on the Common Organization of the Market in Beef and Veal. 


From the other part, the importer argued that Italian Law was passed after EU provisions came into force and that, therefore, it prevails over Community Regulations. 


The question then from the national Courts was if the Italian law even if it is contrary to Community law, but since it was subsequent, it should be applied or not until it is declared invalid. 


In this respect, the national court asked about the interpretation of article 189 of the EEC Treaty concerning the effects of the direct applicability of a community law if it conflicts with any provisions of national law. 


The ECJ clarified that the principle of the precedence of Community law (supremacy of EU law), means not only that the entry into force render automatically inapplicable any conflicting provision of current national law but also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with community provisions.


In consequence, the ECJ ruled that these charges were incompatible with EU law and contrary to the Treaty. 


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Free movement of goods and the elimination of quantitative restrictions as between Member States

Article 34 of the TFEU (ex-Article 30 of the EC Treaty) established that all quantitative restrictions on importation and all measures with equivalent effect are prohibited between the Member States.

Due to this landmark case, further protection to the freedom of movement of goods was granted since the European Court of Justice understood that Article 30 of the EC Treaty requires the Member States not merely themselves to abstain from adopting measures or engaging in conduct liable to constitute an obstacle to trade but also, when read with Article 5 of the Treaty, to take all necessary and appropriate measures to ensure that that fundamental freedom is respected on their territory.

In addition, it was clarified that the fact that a Member State abstains from taking action or, as the case may be, fails to adopt adequate measures to prevent obstacles to the free movement of goods that are created, in particular, by actions by private individuals on its territory aimed at products originating in the other Member States is just as likely to obstruct intra-Community trade as is a positive act.

Case Summary

The Commission of the European Communities brought an action for failure to fulfil obligations against the French Republic, asking the Court of Justice to declare that by failing to take all necessary and proportionate measures in order to prevent the free movement of fruit and vegetables from being obstructed by actions by private individuals, the French Republic has failed to fulfil its obligations under the common organization of the markets in agricultural products and Article 30 in conjunction with Article 5 of the EC Treaty.


The French authorities are especially denounced for their passivity and lack of action in the face of acts of violence committed by individuals and by protest movements of French farmers against agricultural products from other Member States, such as Spain, the United Kingdom, Denmark, among others.


The court of justice has concluded that France has indeed breached its obligations to protect the free movement of goods and in consequence, it violates Article 30 of the EC Treaty, concerning the elimination of all barriers, whether direct or indirect, actual or potential, to flows of imports in intra-Community trade, because this Article does not prohibit solely measures emanating from the State which, in themselves, create restrictions on trade between Member States, but also applies where a Member State abstains from adopting the measures required in order to deal with obstacles to the free movement of goods which are not caused by the State.


Furthermore, the Court has rejected the allegations of the French state, considering that the economic grounds can never serve as justification for barriers prohibited by Article 30 of the Treaty and that a Member State may not unilaterally adopt protective measures or conduct itself in such a way as to obviate any breach by another Member State of rules of Community law.


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C – 55/94

Reinhard Gebhard V Consiglio Dell'Ordine degli Avvocati E Procuratori Di Milano C-55/94

Freedom of establishment for lawyers to provide services within the EU

Any restrictions on the freedom of establishment nationals of a Member State in the territory of another Member State are prohibited. Every national of a Member State who provides a service have the right to temporarily pursue his activity in other Member State where the service is provided, under the same conditions as are imposed by that State on its nationals and also the right to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin. Thanks to this landmark case, those are rights that we take for granted.

This historical judgment helped consolidate the freedom of establishment and imposed restrictions for the domestic law of the Member States to limit the right to the establishment.

The ECJ held that the freedom of establishment could only be subject to national rules that apply to exercise those services within the member state. They are proportionate, necessary, justified and non-discriminatory. So, only in this way can the national law be considered compatible with Community law.

Case Summary

The Consiglio Nazionale Forense (a national court of Italy) referred a reference for a preliminary ruling to the European Court of Justice on the interpretation of Council Directive 77/249/EEC of March 22, 1977, a relative of freedom of lawyers to provide services, to give a judgment in the main proceedings pending between Reinhard Gebhard and Consiglio dell’ Ordine degli Avvocati e Procurator di Milano.


Mr Gebhard, a German national, authorized to practise as a Rechtsanwalt in Germany and a member of the Bar of Stuttgart, was accused of contravening his obligations under Law No 31 of February 9, 1982, on freedom for lawyers who are nationals of a Member State of the European Community to provide services, because he was pursuing professional work in Italy as an advocate in his chambers in Milan, but his main customers were German.


Some Italian lawyers reported him to the Milan Bar Council, which gave him a disciplinary sanction, prohibited him from using the title avvocato and denied his request for registration in the list of lawyers in that Bar Council. So that, Gebhard challenged the compatibility of Italian domestic law with Community law.


Article 2 of Italian Law No. 31 of February 9, 1982, which implemented the Directive of Council Directive 77/249 / EEC of March 22, 1977, allowed nationals of other Member States to practice as lawyers in that State, as long as it is temporary.


The national court asked the CJEU if opening an establishment to practice already implies that it is not temporary and should be understood by quick activities.


The ECJ understood that the two chapters (freedom to provide services and freedom of establishment) are mutually exclusive since the Chapter on Services applies where the provider of services moves to another Member State to pursue his activity temporarily, while the right of establishment refers to the right to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit from that place.


The ECJ held that a national lawyer of any other Member State should have the right to establish on the territory of other State and pursue the activity there, due to the freedom of establishment. That right can be only limited if there are national measures, but only as long as those rules are proportional, necessary, justified by general interest and applied in a non-discriminatory manner.


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C – 415/93


Freedom of movement of workers and Freedom of associations

Article 45 of the Treaty of Functioning of the European Union (TFEU) establishes that “Freedom of movement for workers shall be secured within the Union. 26.10.2012 Official EN Journal of the European Union C 326/65 2. Such Freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment”.


This landmark case, relative to the free movement of workers and the transfers of professional footballers, helped create a single football market and meant that the sports sector was affected and regulated by the Treaties of the European Communities.


The European Court of Justice (ECJ) ruled in this judgment that footballers have the right to a free transfer at the expiration of their contracts, as long as they are transferred between different clubs within EU associations. Furthermore, it considered that transfer fee was incompatible with the right of free movement of persons guaranteed under Article 48 EEC Treaty (now Article 45 TFEU) and that restrictions on foreign players could not be applied in a way that constituted discrimination on the grounds of nationality between citizens of EU member states.


This historical judgment prohibited foreign EU players within national leagues and allowed players in the EU to move to another club at the end of a contract without a transfer fee being paid.

Case Summary

The Cour d’Appel (Appeal Court), Liège, referred to the ECJ for a preliminary ruling a set of questions on the interpretation of Articles 48, 85 and 86 of the EEC Treaty, to rule in the main proceedings, where Mr Bosman, a professional footballer of Belgian nationality, that was employed from 1988 by RC Liège brought an action against RC Liège, as well as against the Belgian Football Association and UEFA, for understanding that his Freedom of the contract was hampered, that the transfer rules and nationality clauses did not apply to him and for suffering the loss of profit due to the regulations relating to transfers.

Mr Bosman refused to sign a new contract for RC Liège and was put on the transfer list. Since no club showed an interest in a compulsory transfer, Mr Bosman made contact with US Dunkerque. On 27 July 1990, a contract was concluded between RC Liège and US Dunkerque for the temporary transfer of Mr Bosman for one year, against payment by US Dunkerque to RC Liège of a compensation fee of BFR 1 200 000 payable on receipt by the Fédération Française de Football (“FFF”) of the transfer certificate issued by URBSFA. The contract gave US Dunkerque an irrevocable option for the complete transfer of the player for BFR 4 800 000. However, both contracts were subject to the suspensive condition that the transfer certificate must be sent by URBSFA to FFF in time for the first match of the season, which was to be held on 2 August 1990.

RC Liège, which had doubts about US Dunkerque’s solvency, did not ask URBSFA to send the said certificate to FFF. As a result, neither contract took effect.
On 31 July 1990, RC Liège also suspended Mr Bosman, preventing him from playing for the entire season.

The exact questions referred to the Court of Justice in the preliminary ruling were if Articles 48, 85 and 86 of the EEC Treaty should be interpreted as prohibiting a football club from requiring and receiving payment of a sum of money upon the engagement of one of its players who has come to the end of his contract by a new employing club and as prohibiting the national and international sporting associations or federations from including in their respective regulations provisions restricting access of foreign players from the European Community to the competitions which they organize.

The ECJ in response held that Article 48 of the EEC Treaty precludes the application of rules laid down by sporting associations, under which a professional footballer who is a national of one Member State may not, on the expiry of his contract with a club, be employed by a club of another Member State unless the latter club has paid to the former club a transfer, training or development fee. It also opposes the application of rules laid down by sporting associations under which, in matches in competitions they organize, football clubs may field only a limited number of professional players who are nationals of other Member States.
Therefore, the CJEU considered transfer compensation and foreigner quotas illegal when applied to citizens of the European Union.


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The supremacy of European Community law over the domestic laws of a Member State in the event of a conflict

In the incident of incompatibility between domestic and EC legislation, the EC law shall have the supremacy.


The principle of priority of Community law allows the inapplicability of national law when it is incompatible with Community law because only in this way the obligation to apply Union lawfully is fulfilled. Consequently, federal courts are allowed to exclude a domestic law inconsistent with EU law.


This historical case law was the first to recognise that the courts had the power to restrict the application of an act of the Parliament pending trial. Furthermore, due to this judgment, a law considered contrary to the Community law was repealed.


The European Court of Justice understood that the full effectiveness of Community law would be impaired if a rule of national law could prevent a court from granting interim relief to ensure the full significance of the judgment to be given on the existence of the rights claimed under Community law.

Case Summary

In this preliminary ruling, the European Court of Justice was asked questions concerning the interpretation of Community law relating to the extent of the power of national courts to grant interim relief where rights claimed under Community law are at issue.


In the main proceedings, the Secretary of State for Transport by Factortame Ltd and other companies incorporated under the laws of the United Kingdom, and also the directors and shareholders of those companies, most of whom are Spanish, were affected by a British legislative change (Section 14 of the Merchant Shipping Act 1988 and the Merchant Shipping) that supposed the creation of a new Register in which only British fishing vessels could register and as long as most of its owners are of British nationality.


The Spanish fishing company argued that the United Kingdom had violated European Community law since this legislation required that the owners of the vessels should be British to be registered in the United Kingdom.


Those vessels were about to be deprived of the right to engage in fishing from 1 April 1989. For this reason, the companies in question challenged the compatibility of Part II of the 1988 Act with Community law. They applied for interim relief until final judgment was given on their application for judicial review.


The Divisional Court of the Queen’s Bench Division) ordered the provisional suspension of the application of Part II of the 1988 Act and the 1988 Regulations. However, the Secretary of State for Transport appealed against this order holding that under national law, the courts had no power to suspend the application of Acts of Parliament by way of interim relief.


In response, the ECJ ruled that Community law must be interpreted as meaning that a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of federal law must set aside that rule, and that, therefore, it is up to the national courts, in the application of the principle of cooperation established in Article 5 of the EEC Treaty, to guarantee the legal protection that people derive from the direct effect of the provisions of Community law.



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Hellmut Marschall V Land Nordrhein-Westfalen C-409/95

Measures of positive action to promote equality of opportunity between men and women

Positive action is a measure that brings advantages to specific groups of people, such as women, who are traditionally discriminated against, intending to create a more egalitarian society.


It is a strategy used to guarantee equal opportunities using measures that help counteract and sometimes correct widespread discrimination in society.


Equality between women and men is one of the objectives of the European Union. This fundamental principle has been consolidated by legislation and thanks to jurisprudence that has contributed to its correct interpretation and application in the EU.


This historical case law played an important role in promoting equality between men and women in the EU. It helped to clarify that a national rule that requires that the promotion of female candidates be given priority in cases where there were fewer women than men in a specific sector (positive discrimination) was not excluded by Community law, on condition that the advantage was not automatic and that male applicants were guaranteed consideration and were not excluded a priori from the application.

The Case Summary

The Verwaltungsgericht Gelsenkirchen (Germany) asked the European Court of Justice (ECJ) in a reference for a preliminary ruling about the interpretation of Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, to judge in a proceeding pending between Hellmut Marschalland Land Nordrhein-Westfalen, where Marschall denounced that even meeting the exact requirements as a female candidate to be promoted in his job as a teacher qualified for teaching in a first-grade secondary school.

The Bezirksregierung (District Authority) Arnsberg did not grant him that position because they wanted to appoint a female candidate for that position.

That decision was taken following the national legislation (Law on Civil Servants of the Land), where one of its provisions provided that “Where, in the sector of the authority responsible for promotion, there are fewer women than men in the particular higher grade post in the career bracket, women are to be given priority for promotion in the event of equal suitability, competence and professional performance, unless reasons specific to an individual [male] candidate tilt the balance in his favour.”

The national court Verwaltungsgericht Gelsenkirchen (Germany) considered that to resolve that controversy, it was necessary to check the compatibility of that provision with paragraphs 1 and 4 of Article 2 of the mentioned Directive.

The ECJ, in answer to the question, referred to it by the Verwaltungsgericht Gelsenkirchen held that the rule in question was compatible with EU law and that positive action was also lawful. It ruled that “a national convention which, in a case where there are fewer women than men at the level of the relevant post in a sector of the public service and both female and male candidates for the position are equally qualified in terms of their suitability, competence and professional performance, requires that priority be given to the promotion of female candidates unless reasons specific to an individual male candidate tilt the balance in his favour is not precluded by Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976, on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, as long as:

– in each case, the rule provides for male candidates who are equally as qualified as the female candidates a guarantee that the candidatures will be the subject of an objective assessment which will take account of all criteria specific to the candidates and will override the priority accorded to female candidates where one or more of those criteria tilts the balance in favour of the male candidate, and

– such criteria are not such as to discriminate against the female candidates”.


Établissements Consten S.À.R.L. And Grundig-Verkaufs-Gmbh V Commission Of The European Economic Community. Joined Cases 56 And 58-64

Rules on competition applying to undertakings

Article 101 of the TFEU (ex Article 85 of the EEC Treaty) lays down the prohibited and incompatible practices with the internal market, and it’s number 2 provides that “Any agreements or decisions prohibited pursuant to this Article shall be automatically void”. 


Due to this historical case law, where the European Court of Justice held that that the prohibition of this article applies not only to horizontal agreements but also to vertical agreements, it was clarified that the agreements prohibited according to this article should be automatically void only to those parts of the deal which are subject to the prohibition, or to the agreement as a whole if those parts do not appear to be severable from the contract itself. 


In this case law, only specific clauses of the agreement between Grundig and Constant, mainly those concerning absolute territorial protection, were incompatible with Article 85(1) of the EEC Treaty. Therefore, the contract was not annulled in its entirety.


Now accordingly, nullity under Article 101(2) TFEU only applies to the parts of the agreement which are subject to the prohibition or to the agreement as a whole if those parts do not appear to be severable from the contract itself. 


Case Summary

In the case Établissements Consten S.à.R.L. and Grundig-Verkaufs-GmbH v Commission of the European Economic Community, the applicants brought an action for annulment of the Decision of the Commission of 23 September 1964, where the Commission of the European Economic Community decided that Consent and Grundig had infringed European competition rules under Article 85 of the Treaty.

In the main dispute, Grundig held an exclusive distribution agreement with, Constant which was appointed as the sole representative to distribute only Grundig’s products and only in France, while the Grundig will only deliver them the Content, including the prohibition on Consten to export the products. However, UNEF company bought electrical appliances from German distributors who offered them despite the export ban, and UNEF resold them in France. As a reply, Constant filed actions against the UNEF, but the Commission of the European Economic Community decided that Consten and Grundig were the ones that had infringed European competition rules.

The applicants submit in action for annulment that the prohibition in Article 85(1) applies only to so-called horizontal agreements and maintained that the Commission has relied on a mistaken interpretation of the concept of an agreement which may affect trade between member states and has not shown that such work would have been more significant without the agreement in dispute.


The European Court of Justice had to decide whether the contested Decision duly applied the prohibition in Article 85(1) to the agreement at issue because of the restriction of competition which entailed solely concerning the distribution of Grundig product.

The applicant Grundig argued that the Commission did not properly exclude from the prohibition those clauses of the contract in respect of which there was found no effect capable of restricting competition and that it thereby failed to define the infringement.

The ECJ clarified the provision in article 85(2 ) that agreements prohibited according to Article 85 shall be automatically void applies only to those parts of the deal which are subject to the prohibition or the agreement as a whole if those parts do not appear to be severable from the contract itself.

Consequently, the ECJ ruled that Article 1 of the contested decision must be annulled so far as it renders void, without any valid reason, all the agreement clauses under Article 85(2).



The principle of parallelism between internal and external powers

The implicit powers theory assert that competence in external matters derives from explicit internal competence. The Treaties assign direct powers to the EU in a particular area, such as transport, the subject of this case law, must also have similar powers to conclude agreements with non-EU countries in the same field.


The EU can act internationally on its own behalf; it can conclude or be a party to international agreements with third countries. This can only be done to achieve objectives in areas where the EU has competence under the Treaties, as expressly stated in TITLE V about International Agreements of the TFEU.


In this case law, it has been stated that the Community has the competence to enter into international obligations that can result in not only from explicit provisions of Treatyeaty but may also derive implicitly from measures adopted, within the framework of provisions, by the community institutions. The CJUE provided that Community law had conferred on the institutions of the Community powers at an internal level to achieve a particular objective; the Community was entitled to enter into the international obligations necessary to attain that objective, even if there was no express provision to that effect.


There is another principle that was deduced from this historical and essential jurisprudence. The interpretation given by the CJEU regarding article 173 of the ECC Treaty, in which Council based to prove that the agreement cannot be challenged, was that “since the only matters excluded from the scope of the action for annulment open to the member states and the institutions are” recommendations or opinions” – which by the final paragraph of article 189 are declared to have no binding force – article 173 treats as acts open to review by the court all measures adopted by the institutions which are intended to have legal force”. So, an action for annulment must be available in all measures adopted by the institutions, whatever their nature or form, intended to have legal effects.

Case Law Summary

The Commission of the European Communities brought an action for annulment against the Council’s Proceedings of 20 March 1970 regarding the Negotiation and conclusion by the Member States of the Community, within the framework of the UN Economic Commission for Europe, of the European Agreement concerning the work of drivers of vehicles engaged in international road transport (AETR).



The Commission considered that Article 75 of the ECC Treaty, which conferred on the community powers to lay down the appropriate provisions to implement the standard transport policy, must apply to external relations just as much as to domestic measures in the sphere envisaged, so the AETR had to be concluded and negotiated through the procedure established by the EEC in Article 228 that set down that such agreements should be arranged by the Commission and completed by the Council, infringing Articles 75, 228 and 235 concerning the distribution of powers between the Council and the Commission, and consequently the rights which it was the commission’ s duty to exercise in the negotiations on the AETR.


The CJUE states that in the absence of specific provisions in Treatyeaty applicable to the Negotiation and implementation of the agreement under discussion, the appropriate rules must be inferred from the general tenor of Articles 75, 228 and 116 Treatyeaty, which relate to the negotiations undertaken on the AETR. From those Articles, read in conjunction, the CJEU understood that wherever a matter forms the subject of a standard policy, the Member States are bound in every case to collaborate in defence of the Community’s interests. Therefore, the Council did not fail to fulfil its obligations under Articles 75 and 228 and that the right to conclude the agreement was vested in the Council. Moreover, the Commission made no proper use of the right to submit proposals open to it under articles 75 and 116, and it did not demand the simple application of article 228 regarding its ownership of Negotiation. As a consequence of all the above, the CJEU dismissed the application.


The CJEU in this case law also deducted from Council consideration that the proceedings of 20 march 1970 do not constitute an act against which an appeal can be lodged since it was only coordination of policies amongst the Member States within the framework of the Council and not a Regulation, Directive or Decision, that “an action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature of form, which are intended to have legal effects”.


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