New Issues, Theories and Methods
Edited by Bruno de Witte, Juan A. Mayoral, Urszula Jaremba, Marlene Wind and Karolina Podstawa
Chapter 2: The preliminary ruling dialogue: three types of questions posed by national courts
The Van Gend en Loos judgment delivered by the Court of Justice in 1963 has become widely regarded as the point in the history of European Community (EEC) law when the doctrine of the direct effect of EEC law was born. The judgment’s novelty did not stem from the finding that EEC law could have direct effect. An understanding of this potential pre-dated the judgment: indeed, the reason why the referring Dutch court (the Tariefcommissie) sent a request for interpretation to Luxembourg was that the Dutch Constitution specified that treaty provisions could, depending on their terms, be self-executing within the Dutch legal order. The Dutch court wanted to hear from the European Court of Justice whether Article 12 EEC was one such treaty provision. More broadly, too, many other monist legal systems recognized the possibility for national courts to directly enforce international treaty norms, despite the fact that these courts rarely did so in practice (this was true both within Europe and beyond it in prominent systems such as the USA’s since Foster and Elam v Neilson in 1829). Thus, given this context, the crucial contribution of the 1963 judgment was that henceforth questions as to whether specific provisions of the EEC Treaty (or, later, secondary Community law) had direct effect were to be decided centrally by the European Court of Justice instead of by the various national courts according to their own views or national habits on these matters. Thereby, the Court encouraged the national courts to engage in a new kind of interaction with it. Van Gend en Loos created a distinction between two types of European Community norms: those with and without direct effect. Whereas all norms of EC law were deemed to have primacy over national law, only some norms were said to have direct effect. Notably here, in Van Gend en Loos the Court did not say that ‘Community law’ had direct effect, but rather that Article 12 of the EEC Treaty had direct effect. On later occasions, the Court confirmed that other norms contained in the EEC Treaty, in a Directive, or even in a Regulation did not have direct effect. This distinction made a significant impression at first. In a book-length analysis published in 1970, Leontin-Jean Constantinesco referred to it as the summa divisio in Community law. The problem, though, is that the distinction between the two categories is not immediately apparent from the language of the provisions themselves. The Van Gend en Loos judgment has made it enduringly clear that a norm may have direct effect even though it neither contains the word ‘right’ nor the word ‘individual’. In other words, there are no obvious signposts in the wording of a legal provision that can indicate its direct effect. So, the judgment has created the need for national courts to keep referring preliminary questions to the Court of Justice about whether or not a particular EC/EU law norm has direct effect in the national legal orders.
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