Απόφαση Van Gend & Loos

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excluded from review by the Cour twhen hearing an application fo r apreliminary ruling. 1

3. The European Economic Communityconstitutes a new legal order ofin ternational la w for the benefi t ofwhich the states have l im ited theirsovereign rights, albeit within limitedfields, and the subjects of whichcomprise not only the Member Statesbut also their nationals.Independendy of the legislation ofMember States, Community la w notonly imposes obligations on individuals but is also in tended to conferupon them rights which become partof their legal heritage. These rightsarise not only where they are expressly granted by the Treaty butalso by reason of obligations whichthe Treaty imposes in a clearly def ined way upon individuals as wellas upon the M e m b e r States and uponthe inst i tut ions of the Commun i t y .

4. The fact that Art ic les 169 and 170of the E E C Treaty enable the Commission and the Member States tobring before the Court a State whichhas not fulfi l led its obligations doesnot depr ive individuals of the rightto plead the same obligations, should

the occasion arise, before a nationalcourt.

5. According to the spirit, the generalscheme and the wording of the E E CTreaty, Article 12 must be interpreted as producing direct effects andcreating individual rights which nationa l courts must protect.

6. It follows from the wording and thegeneral scheme of Article 12 of theTreaty that, in order to ascertainwhether customs duties and chargeshaving equivalent effect have beenincreased contrary to the prohibitioncontained in the said Article, regardmust be had to the customs dutiesand charges actual ly applied byM e m b e r States at the date of theentry into force of the Treaty . 2

7. Where, after the entry into force ofthe Treaty, the same product ischarged with a higher rate of duty,i r respective of whether this increasearises from an actual increase of therate of customs duty or from a rearrangement of the tariff resultingin the classification of the productunder a more highly taxed heading,such increase is illegal under Article12 of the E E C Treaty .

In Case 26/62

Reference to the Cour t under subparagraph (a) of the first paragraph andunder the third paragraph of Article 177 of the Treaty establ ishing theEuropean Economic Community by the Tariefcommissie, a Netherlandsadministrative tribunal having f inal jurisdiction in revenue cases, for aprel iminary ruling in the action pending before that court between

N.V. Algemene TRANSPORT en Expeditie Onderneming VAN GEND &Loos, having its registered office at Utrecht, represented by H .G. Stibbeand L.F .D. ter Kuile, both Advocates of Amsterdam, with an address for1 Cf. Paragraph No 4 of Summary of Judgment in Case 13/61, Rec. 1962., p. 94 .2 Cf. Paragraph No 1 of Summary of Judgment in Case 10/61, Rec. 1962., p. 5.

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service in Luxembourg at the Consulate-General of the K ingdom of theNetherlands

and

nederlandse ADMINISTRATIE der belastingen (netherlands inlandRevenue ADMINISTRATION ), represented by the Inspector of Customs andExcise at Zaandam, with an address fo r service in Luxembourg at theNetherlands Embassy,

on the following questions:

1. Whether Article 12. of the EEC Treaty has direct application within theterritory of a Member State, in other words, whether nationals of sucha State can, on the basis of the Article in quest ion, lay claim to indiv idualrights which the courts must protect ;

2. In the event of an affirmative reply, whether the application of an importduty of 8% to the import into the Nether lands by the applicant in themain action of ureaformaldehyde originating in the Federal Republ ic ofGermany represented an unlawful increase within the meaning of Article12 of the E E C Treaty or whether it was in this case a reasonable alteration of the duty applicable before 1 March 1960, an alteration which,although amount ing to an increase from the arithmetical point of v iew,is nevertheless not to be regarded as prohibited under the terms ofArticle 12;

THE C O U R T

composed of: A. M. Dormer, President, L. Delvaux and R. Rossi (Presidentsof Chambers), O. Riese, Ch. L. Hammes (Rapporteur), A. Trabucchi andR. Lecourt, Judges,

Advocate-General : K. RoemerRegistrar: A. Van Houtte

gives the following


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JUDGMENT

Issues of fact and of la w

I Facts and procedure

The facts and the procedure m ay besummarized as fo l lows:

1. O n 9 September 1960 the companyN. V. Algemene Transport- en Expedi t ieOnderneming van G e n d en Loos (hereinafter called 'Van Gend & Loos'),accord ing to a customs declarat ion of8 September on form D.5061, importedinto the Nether lands from the FederalRepubl ic of Germany a quantity ofureaformaldehyde, described in the import document as 'Harnstoffharz (U.F.resin) 70, aqueous emulsion of urea-formaldehyde'.

2. O n the date of importation, theproduct in question was classified inheading 39.01-a-1 of the tariff of importdut ies l isted in the 'Tariefbesluit' whichentered into force on 1 March 1960.The nomenclature of the 'Tariefbesluit'is taken from the protocol concludedbetween the Kingdom of Belgium, theGrand Duchy of Luxembourg and theKingdom of the Nether lands at Brusselson 25 July 1958, ratified in the Netherlands by the Law of 16 D ecember1959.

3. T he wording of heading 39.01-a-lwas as fo l lows:'Products of condensation, poly-condensation and poly-addition, whethermodified or not, polymerized, or l inear(phenoplasts, aminoplasts, alkyds, allylicpolyesters and other non-saturated polyesters, silicones etc. . . .):(a) Liquid or paste products, including

emulsions, dispersions and solutions:

Duties applicablegen. % spec. %

1. Aminop las tsin aqueousemulsions,dispersions orsolutions 10%

8%'

4. O n this basis, the Dutch revenueauthorit ies applied an ad valorem import duty of 8% to the importation inquestion.

5. O n 20 Sep tember 1960 V an Gend &Loos l odged an objection with theInspector of Cus toms and Excise atZaandam against the application of thisduty in the present case. The companyput forward in particular the following

a rg umen ts:O n 1 January 1958, the date on whichthe E E C Treaty entered into force,aminoplasts in emulsion were classifiedunder heading 279-a-2 of the tariff inthe 'Tariefbesluit' of 1947, and chargedwith an ad valorem import duty of 3%.In the 'Tariefbesluit' which entered intoforce on 1 March 1960, heading 279-a-2was replaced by heading 39.01-a.

Instead of applying, in res pec t

Instead of applying, in respect of intra-Community t rade, an import duty of3% uniformly to all products underthe old heading 279-a-2, a sub-divisionwas c reat ed: 39.01-a-l, which containedonly aminoplasts in aqueous emulsions,dispersions or solutions, and in respectof which import duty was f ixed at 8%.For the other products in heading39.01-a, which also had been includedin the old heading 279-a-2, the importduty of 3;% app lied on 1 January 1958was maintained.By thus increasing the import duty onthe product in question after the entry

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into force of the E E C Treaty, the DutchGovernment in f ringed Ar tic le 12 of thatTreaty, which provides that M e m b e rStates shall refrain from introducingbetween themselves any new customsduties on imports or exports or anycharges having equivalent effect, andfrom increasing those which they alreadyapply in their trade with each other.6. The objection of Van Gend & Looswas dismissed on 6 March 1961 by theInspector of Customs and Excise atZaandam on the ground of inadmissibility, because it was not directed againstthe actual application of the tariff butagainst the rate.

7. Van G end & Loos appealed againstthis decision to the Tariefcommissie,Amsterdam, on 4 April 1961.8. The case was heard by the Tariefcommissie on 21 May 1962. In supportof its application fo r the annulment ofthe contested decision V an Gend &Loos put forward the arguments alreadysubmitted in its objection of 20 September 1960. The Neder landse administratie d er be la stin ge n replied in particular that when the E E C Treaty entered into force the product in questionwas not charged under the heading279-a-2 with a duty of only 3% but,because of its composition and in tendedappl icat ion, was classified under heading332 bis ('synthetic and other adhesives,not stated or inc luded elsewhere') andcharged with a duty of 10% so thatthere had not in fact been any increase.9. The Tariefcommissie, without givinga formal decision on the questionwhether the product in question fellwithin heading 332 bis or heading279-a-2 of the 1947 'Tariefbesluit', tookthe view that the arguments of theparties raised a question concerning theinterpretat ion of the E E C Treaty. Ittherefore suspended the proceedingsand, in con formi ty with the third paragraph of Article 177 of the Treaty, referred to the Cour t of Justice on 16

Augus t 1962, fo r a prel im inary rulingthe two questions set out above.10. The decision of the Tariefcommissie was notified on 23 Augus t 1962by the Registrar of the Cour t to theparties to the act ion, to the M em berStates and to the Commission of theEEC.11 . Pursuant to Article 20 of the Protocol on the Statute of the Cour t ofJustice of the E E C written observationswere submitted to the Cour t by theparties to the main act ion, by theGovernment of the Kingdom ofBelgium, the Government of the Federa lRepubl ic of Germany, the Commissionof the E E C and the Government ofthe Kingdom of the Netherlands.12 . At the public hearing the Court on29 November 1962, the oral submissions of the plaintiff in the main actionand of the Commission of the EECwere heard. At the same hearing ques-tions were put to them by the Court .Written replies to these were suppliedwithin the prescribed time.13 . T he Advocate-General gave hisreasoned oral opinion at the hearingon 12 December 1962, in which heproposed that the Court should in itsjudgment only answer the f irst questionreferred to it and hold that Article 12of the EE C Treaty imposes a duty onlyon Member States.II Arguments and obser-

vations

The arguments contained in the observations submitted in accordance withthe second paragraph of Article 20 ofthe Protoco l on the Statute of the Cour tof Justice of the European EconomicCommunity by the parties to the mainaction, the M e m b e r States and theCommission m ay be summarized as

follows:

AThe first questionAdmissibilityThe Netherlands Government, the


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Belgian Government and the Neder-landse administratie der belastingen(which in its statement of case declaredthat it was in complete agreement withthe observations submitted by theNetherlands Government) confirm thatthe main complaint of V an G e n d &Loos against tie Governments of theBenelux countries is that by the BrusselsProtocol of 25 July 1958 they infringedArticle 12 of the EEC Treaty by increasing after its entry into force acustoms duty applied in their trade withother Member States of the Communities.T he Netherlands Government disputeswhether an alleged infringement of theTreaty by a M e m b e r State can be submitted to the j udgment of the Courtby a procedure other than that laiddow n by Article 169 or 170, that is tosay on the initiative of another MemberState br of the Commiss ion . It maintains in particular that the matter cannot be brought before the Cour t bymeans of the procedure of referencefor a preliminary ruling under Article177.The Court, accord ing to the Netherlands Government, cannot, in the context of the present proceedings, decidea problem of this nature, since it doesnot relate to the interpretation but tothe application of the Treaty in aspecific case.The Belgian Government maintains thatthe first question is a reference to theCour t of a problem of constitutionallaw, which falls exclusively within thejurisdiction of the Netherlands court.That court is confronted with twoin ternational treaties both of which arepart of the national law. It must decideunder national lawassuming that theyare in fact contradictorywhich treatyprevails over the other or more exact lywhether a prior national la w of ratification prevails over a subsequent one.This is a typical question of nationalconstitutional la w which has nothing todo with the interpretation of an Article

of the E E C Treaty and is within theexclusive jurisdiction of the Nether landscourt, because it can only be answeredaccord ing to the constitutional principlesand jur isprudence of the national la wof the Nether lands.The Belgian Government also pointsout that a decision on the f irst questionreferred to the Court is not only unnecessary to enable the Tar ie fcommissieto give its jud gm ent but cannot evenhave any inf luence on the solution to theactual problem which it is asked toresolve.In fact, whatever answer the Cour tm ay give, the Tar ie fcommissie has tosolve the same problem : H as it theright to ignore the la w of 16 December1959 ratifying the Brussels Protocol,because it conflicts with an earlier la wof 5 D e c e m b e r 1957 ratifying the Treatyestablishing the E E C ?The question raised is not therefore anappropriate question for a preliminaryruling, since it s answer cannot enablethe court which has to adjudicate uponthe merits of the main action to make af inal decision in the proceedings pending before it.The Commission of the EEC, on theother hand, observes that the effect ofthe provisions of the Treaty on thenational la w of M e m b e r States cannotbe determined by the actual nationalla w of each of them but by the Treatyi tself. The problem is therefore withoutdoubt one of interpretat ion of theTreaty.Further the Commiss ion calls attentionto the fact that a finding of inadmissibility would have the paradoxical andshock ing result that the rights of individuals would be protected in all casesof in f r ingement of Community la w except in the case of an infringement bya M e m b e r State.

O n the substanceVan Gend & Loos answers in theaffirmative the question whether: theArticle has internal effect.

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It maintains in particular that:Article 12 is applicable without anypreliminary incorporat ion in the na-tional legislation of M e m b e r States,since it only imposes a negativeobligation;it has direct effect without any furthermeasures of implementation underCommunity legislation, as all thecustoms duties applied by MemberStates in their trade with each otherwere bound on 1 January 1957(Article 14 of the Treaty);although the Article does not directlyrefer to the nationals of MemberStates but to the national authorities,in fr inge m ent of it adversely affectsthe fundamenta l principles of theCommunity, and individuals as wellas the Community must be protectedagainst such infringements;i t is particularly well adapted fordirect application by the nationalcourt w hich must set aside the application of customs duties in t roducedor increased in breach of its provisions.

The Commiss ion emphasizes the importance of the Court 's answer to thefirst question. It will have an effect notonly on the interpretation of the provision at issue in a specific case andon the effect which will be attributed toit in the legal systems of M e m b e r Statesbut also on certain other provisions ofthe Treaty which are as clear and complete as Article 12.According to the Commiss ion an analysis of the legal structure of the Treatyand of the legal system which it establ ishes shows on the one hand that theM e m b e r States did not only intend toundertake mutual commitments bu t toestablish a system of Community law,and on the other hand that they didnot wish to withdraw the applicationof this la w from the ord inary jurisdiction of the national courts of law.However, Community la w must beeffect ively and uniformly applied

throughout the whole of the Com-munity.The result is first that the effect ofCommunity law on the internal la w ofMember States cannot be determinedby this in ternal la w bu t only by Community law, fur ther that the nationalcourts are bound to apply directly therules of Community law and finally thatthe national court is bound to ensurethat the rules of Community la w prevailover confl icting national laws even ifthey are passed later.The Commiss ion observes in this context that the fact that a Communityrule is, as regards it s form, directed tothe states does not of itself take awayfrom individuals who have an interestin it the right to require it to be appliedin the national courts.As regards more particularly the ques-tion referred to the Court, the Commission is of the opinion that Article12 contains a rule of la w capable ofbeing effect ively applied by the nationalcourt.It is a provision which is perfectly clearin the sense that it creates for MemberStates a specific unambiguous obligationrelating to the extension of their internalla w in a matter which directly affectstheir nationals and it is not affected orqualified by any other provision of theTreaty.It is also a complete and self-sufficientprovision in that it does not require ona Community level any new measure togive concrete form to the obligationwhich it defines.The Netherlands Government draws adistinction between the question of theinternal effect and that of the directeffect (or direct applicability), the first,accord ing to it , being a pre-conditionof the second.It considers that the question whethera particular provision of the Treaty hasan in ternal effect can only be answeredin the aff irmative, if all the essentialelements , namely the intention of thecontract ing parties and the material

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terms of the provision under considerat ion, allows such a conclusion.With regard to the intention of theparties to the Treaty the Nether landsGovernment maintains that an examination of the actual wording is sufficientto establish that Article 12 only placesan obligation on M e m b e r States, whoare free to decide how they in tend tofulfil this obligation. A comparison withother provisions of the Treaty confirmsthis finding.As Article 12 does not have internaleffect it cannot, a fortiori, have directeffect.Even if the fact that Article 12 placesan obligation on Member States wereto be considered as an in terna l effect,it cannot have direct effect in the sensethat it permits the nationals of MemberStates to assert subjective rights whichthe courts must protect.Alternatively the Netherlands Government argues that, so far as the necessaryconditions for its direct application areconcerned, the E E C Treaty does notdiffer f rom a standard internationaltreaty. The conclusive factors in thisrespect are the intention of the partiesand the provisions of the Treaty.However the question whether underNetherlands constitutional la w Article12 is directly applicable is one concerning the in terpretat ion of Nether landsla w and does not come within the jurisdiction of the Court of Justice.Finally the Nether lands Governmentindicates what the effect would be, inits view, of an affirmative answer to thefirst question put by the Tariefcommissie :

it would upset the system which theauthors of the Treaty in tended toestablish;it would create, with regard to themany provisions in Community regulations which expressly impose obligations on M e m b e r States, an uncer-tainty in the la w of a kind whichcould call in question the readiness

of these States to cooperate in thefuture;it would put in issue the responsibilityof States by means of a procedurewhich was not designed for thispurpose.

The Belgian Government maintains thatArticle 12 is not one of the provisions

which are the exception in the Treatyhaving direct internal effect.

Article 12 does not constitute a rule ofla w of general application providing thatany introduction of a new customsduty or any increase in an existingduty is automatical ly without effect oris absolutely void. It mere ly obligesMember States to refrain from takingsuch measures.It does not create therefore a directlyapplicable right which nationals couldinvoke and enforce. It requires fromGovernments action at a later date toattain the objective f ixed by the Treaty.A national court cannot be asked toenforce compliance with this obligation.T he German Government is also of theopinion that Article 12 of the E E CTreaty does not constitute a legal provision which is directly applicable inall M e m b e r States. It imposes on theman in ternational obligation (in the fieldof customs policy) w hich must be implemented by national authorities en-dowed with legislative powers.C usto ms d uties applicable to a citizenof a Member State of the Community,at least during the transitional period,thus do not derive from the EECTreaty or the legal measures taken bythe institutions, bu t from legal measuresenacted by M e m b e r States. Article 12only lays down the provisions withwhich they must comply in their cus-toms legislation.Moreover the obligation laid down onlyapplies to the other contract ing M e m b e rStates.In G e r m a n law a l ega l provision whichlaid down a customs duty contrary tothe provisions of Article 12 would beperfect ly valid.

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Within the f ramework of the E E CTreaty the legal protection of nationalsof M e m b e r States is secured , by pro-visions derogating from their nationalconstitutional system, only in respect ofthose measures taken by the institutionsof the Community which are of directand individual concern to such nationals.

BThe second question

Admissibility

The Netherlands and Belgian Govern-ments are of the opinion that thesecond as well as the f irst question isinadmissib le .According to them the answer to thequestion whether in fact the BrusselsPro toco l of 1958 represents a fai lure bythose states who are signatories to fulfilthe obligations laid dow n in Article 12of the EEC Treaty cannot be given inthe context of a preliminary ruling,because the issue is the application ofthe Treaty and not its in terpretat ion.Moreover such an answer presupposesa careful study and a specific evaluationof the facts and circumstances peculiarto a given situation, and this is alsoinadm issib le under Article 177.The Neth erla nd s Gove rnmen t emphas izes, furthermore, that if a failure bya state to fulfil it s Community obligations could be brought before the Courtby a procedure other than those underArt ic les 169 and 170 the legal protectionof that state would be considerablydimin ished.The German Government, withoutmaking a fo rmal objection of inadmissibility, maintains that Article 12 onlyimposes an internat ional obligation onstates and that the question whethernational rules enacted fo r its implementation do not comply with this obligation cannot depend upon a decision ofthe Cour t under Article 177 since it

does not involve the in terpretat ion ofthe Trea ty .Van Gend & Loos also considers thatdirect form of the second questionwould necessitate an examination of thefacts for which the Cour t has no jurisdict ion when it makes a ruling underArticle 177. The real question forin terpretat ion accord ing to it could beworded as follows:Is it possible for a derogation from therules applied before 1 March 1960(o r more accurately, before 1 January1958) not to be in the nature of anincrease prohibited by Article 12 of theTreaty, even though this derogat ionarithmetically represents an increase?

O n the substance

Van Gend & Loos repeats in detai l thehistory of the classification of aminoplasts in the successive tariffs to showthat the c ompany was charged with aduty of 8% instead of 3% intentionallyand not because of the inevi table effectof adapting the old tariff to the new.The Netherlands Government was there-fore in breach of Article 12 of theE E C Treaty when it increased a customsduty applied in its trade with otherMember States.T he Netherlands and Belgian Govern-ments reply that, before the modification of the Benelux Tariff of 1958,ureaformaldehyde was not subject to animport duty of 3 % laid down for heading 279-a-2 of the 'Tariefbesluit' of1947, but to an import duty of 10%laid dow n fo r heading 332 bis (ad-hesives).In fact experience showed that the goodsin question were usually used as glueand that as a general rule they couldbe used as such. Therefore the ministries concerned decided that the productin question was always to be taxed asglue and was to be inc luded underheading 332 bis.Although, when the intended appli-

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cation of the product in dispute was notsuff iciently specified, the Tariefcommissie in certain cases classified it underheading 279-a-2, the authorities of theBenelux States charged it with an import duty of 10% from the date of theentry into force of the Brussels nomenclature, which put an end to anypossible argument.There can be no question, therefore, inthis case, of an increase of a customsduty or of a derogat ion from the provisions of Article 12 of the Treaty .Van Gend & Loos replies that onlyaqueous solutions of aminoplasts towhich fi l lers or binders had been addedand which only required the additionof a hardener to make an effective adhesive, that is to say, solutions whichcould be considered as raw materials,could be classified under heading 332bis.The Commission of the EEC is of theopinion first that the prohibition inArticle 12 relates to all goods whichare capable of being the subject matterof trade between M e m b e r States (tothe extent to which such trade relatesto products comply ing with the condit ions of Article 9(2)) .Article 12 not only aims at the generalmaintenance of customs duties applied

by the various M e m b e r States in theirrelations with each other but also relatesto each individual product. It allows noexception even p artia l or provisional.The Commiss ion then points out that,in the context of Article 12, regard mustbe had to the duty actual ly appliedwhen the Treaty entered into force.This duty results from the whole of theprovisions and customary practice ofadministrative law.However, an isolated classification underanother tariff heading is in itself insufficient proof that the duty of 10% chargeable under heading 332 bis is not infact applied to aminoplasts.In this case it is necessary to recognizea concept of prima facie legality: whenthere is an official interpretation by thecompetent adminis tration and instructions in conformity with this interpretation have been given to executiveofficers to fix the detailed rules forlevying a duty, that is the 'duty applied' within the meaning of Article 12of the Treaty.The Commission, therefore, considersthe duty of 10% as the duty applied onthe entry into force of the Treaty. Therehas not therefore been in this case anyincrease contrary to Article 12.

Grounds of judgmentI ProcedureN o objection has been raised concerning the procedural validity of thereference to the Cour t under Article 177 of the E E C Treaty by theTariefcommissie, a court or tribunal within the mean ing of that Article.Further, no grounds exist for the Cour t to raise the matter of its ownmotion.

II The first questionAJurisdiction of the Cour t

The Government of the Netherlands and the Belgian Gove rnm en t challengethe jurisdiction of the Cour t on the ground that the reference relates notto the interpretation but to the application of the Treaty in the context of10


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the constitutional la w of the Netherlands, and that in particular the Courthas no jurisdiction to decide, should the occasion arise, whether the provisionsof the EEC Treaty prevail over Netherlands legislation or over otheragreements entered into by the Netherlands and incorporated into Dutchnational law. The solution of such a problem, it is c la imed, falls within theexclusive jurisdiction of the national courts, subject to an application inaccordance with the provisions laid down by Articles 169 and 170 of theTreaty.

However in this case the Cour t is not asked to adjudicate upon the applicationof the Treaty according to the principles of the national law of theNetherlands, which remains the concern of the national courts, bu t is asked,in conformity with subparagraph (a) of the f irst paragraph of Article 177 ofthe Treaty, only to interpret the scope of Article 12 of the said Treatywithin the context of Community law and with reference to its effect onindividuals. This argument has therefore no legal foundation.

The Belgian Government fur ther argues that the Cour t has no jurisdictionon the ground that no answer which the Court could give to the f irstquestion of the Tariefcommissie would have any bearing on the result of theproceedings brought in that court.

However, in order to confer jurisdiction on the Cour t in the present caseit is necessary only that the question raised should clearly be concerned withthe interpretation of the Treaty. The considerations which m ay have led anational court or tribunal to its choice of questions as well as the relevancewhich it attributes to such questions in the context of a case before it areexcluded from review by the Court of Justice.It appears from the word ing of the questions referred that they relate to theinterpretation of the Treaty. The Cour t therefore has the jurisdiction toanswer them.

This argument , too, is therefore unfounded.

BOn the substance of th e Case

The first question of the Tariefcommissie is whether Article 12 of theTreaty has direct application in national la w in the sense that nationals ofM e m b e r States may on the basis of this Article lay claim to rights which thenational court must protect.


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To ascertain whether the provisions of an international treaty extend so farin their effects it is necessary to consider the spirit, the general scheme andthe wording of those provisions.

T he objective of the EEC Treaty, which is to establish a C o m m o n Market,the functioning of which is of direct concern to interested parties in theCommunity, imp l ies that this Treaty is more than an agreement which mere lycreates mutual obligations between the contracting states. This view isconfirmed by the preamble to the Treaty which refers not only togovernments but to peoples. It is also confirmed more specif ical ly by theestablishment of insti tutions endowed with sovereign rights, the exercise ofwhich affects Member States and also their citizens. Furthermore, it must benoted that the nationals of the states brough t together in the Community arecalled upon to cooperate in the functioning of this Community through theintermediary of the European Par l iament and the Economic and SocialCommit tee.

In addition the task assigned to the Cour t of Justice under Article 177, theobject of which is to secure uniform interpretat ion of the Treaty by nationalcourts and tr ibunals, confirms that the states have acknowledged that Communi ty la w has an authority which can be invoked by their nationals beforethose courts and tribunals.

The conclusion to be drawn from this is that the Community constitutes anew legal order of in ternat ional law fo r the benef i t of which the states havelimited their sovereign rights, albeit within limited fields, and the subjectsof which comprise not only Member States bu t also their nationals.Independently of the legislat ion of Member States, Community la w thereforenot only imposes obligations on individuals bu t is also in tended to conferupon them rights which become part of their le ga l h erita ge . These rightsarise not only where they are express ly granted by the Treaty, but also byreason of obligations which the Treaty imposes in a clearly defined w ay uponindividuals as well as upon the Member States and upon the institutions ofthe Community.

With regard to the general scheme of the Treaty as it relates to customsduties and charges having equivalent effect it must be emphasized that Article9, which bases the Community upon a customs union, includes as an essentialprovision the prohibition of these customs duties and charges. This provisionis found at the beginning of the part of the Treaty which defines the'Foundat ions of the Communi ty ' . It is applied and explained by Article 12.12


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The word ing of Article 12 contains a clear and unconditional prohibitionwhich is not a positive bu t a negative obligation. This obligation, moreover ,is not qualified by any reservation on the part of states which would makeits implementation conditional upon a positive legislative measure enactedunder national law. The very nature of this prohibition makes it ideallyadapted to produce direct effects in the legal relationship between M e m b e rStates and their subjects.

The implementation of Article 12 does not require any legislative interventionon the part of the states. The fact that under this Article it is the MemberStates who are made the subject of the negative obligation does not implythat their nationals cannot benefi t from this obligation.

In addition the argument based on Articles 169 and 170 of the Treaty putforward by the three Governments which have submitted observations to theCourt in their statements of case is misconceived. The fact that theseArticles of the Treaty enable the Commission and the M e m b e r States tobring before the Cour t a State which has not fulfi l led its obligations does notmean that individuals cannot plead these obligations, should the occasionarise, before a national court , any more than the fact that the Treaty placesat the disposal of the Commission ways of ensuring that obligations imposedupon those subject to the Treaty are observed, precludes the possibi l i ty, inactions between individuals before a national court, of pleading infringementsof these obligations.

A restriction of the guarantees against an infr ingement of Artic le 12 byM e m b e r States to the procedures under Article 169 and 170 would removeall direct legal protection of the indiv idual rights of their nationals. Thereis the risk that recourse to the procedure under these Articles would beineffective if it were to occur after the implementation of a national decisiontaken contrary to the provisions of the Treaty.

The vigilance of individuals concerned to protect their rights amounts toan effective supervision in addition to the supervision entrusted by Articles169 and 170 to the di l igence of the Commission and of the Member States.

It follows from the foregoing considerations that, according to the spirit, thegeneral scheme and the word ing of the Treaty, Article 12 must be interpretedas producing direct effects and creating indiv idual rights which nationalcourts must protect.


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JUDGMENT OF 5 . 2. 1963 CASE 26/62

III The second questionA The jurisdict ion of the Cour t

According to the observations of the Belgian and Nether lands Governments,the wording of this question appears to require, before it can be answered,an examination by the Cour t of the tariff classification of ureaformaldehydeimported into the Netherlands, a classification on which V an Gend & Loosand the Inspector of Customs and Excise at Z aandam h o ld d iffe re n t opinionswith regard to the 'Tariefbesluit' of 1947. The question clearly does notcall for an interpretation of the Treaty but concerns the application ofNether lands customs legislation to the classification of aminoplasts, whichis outside the jur isdict ion conferred upon the Court of Justice of theEuropean Communi t ies by subparagraph (a) of the first paragraph ofArticle 177.

The C ourt has therefore no jurisdiction to consider the reference made bythe Tariefcommissie.

However, the real mean ing of the question put by the Tar iefcommissie iswhether, in law, an effective increase in customs duties charged on a givenproduct as a resu lt not of an increase in the rate but of a new classificationof the product arising from a change of its tariff descript ion contravenes theprohibition in Article 12 of the Treaty.

Viewed in this w ay the question put is concerned with an interpretat ion ofthis provision of the Treaty and more particularly of the meaning whichshould be given to the concept of duties applied before the Treaty enteredinto force.

Therefore the Court has jurisdiction to give a ruling on this question.

BOn the substance

It fo l lows from the word ing and the general scheme of Article 12 of theTreaty that, in order to ascertain whether customs duties or charges havingequivalent effect have been increased contrary to the prohibition containedin the said Article, regard must be had to the customs duties and chargesactual ly applied at the date of the entry into force of the Treaty.Further, with regard to the prohibition in Article 12 of the Treaty, such anillegal increase m ay arise from a re-arrangement of the tariff result ing in the

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VAN GEND EN L O O S v NEDERLANDSE ADMINISTRATE DER BELASTINGEN

classification of the product under a more highly taxed heading and from anactual increase in the rate of customs duty.

It is of little importance how the increase in customs duties occurred when,after the Treaty entered into force, the same product in the same MemberState was subjected to a higher rate of duty.

The application of Article 12, in accordance with the interpretation givenabove, comes within the jur isdiction of the national court which must enquirewhether the dutiable product , in this case ureaformaldehyde originating inthe Federal Republ ic of Germany, is charged under the customs measuresbrought into force in the Netherlands with an impor t duty higher than thatwith which it was charged on 1 January 1958.

The Court has no jurisdiction to check the validity of the conf l ict ing viewson this subject which have been submitted to it during the proceedings bu tmust leave them to be deterrnined by the national courts.

IV Costs

The costs incurred by the Commission of the EEC and the Member Stateswhich have submitted their observations to the Court are not recoverable,and as these proceedings are, in so fa r as the parties to the main action areconcerned, a step in the action pending before the Tariefcommissie, thedecision as to costs is a matter for that court.

O n those grounds,

Upon reading the pleadings:Upon hearing th e report of the Judge-Rapporteur;Upon hearing the part ies;Upon hearing the opinion of the Advocate-General;Having regard to Articles 9, 12, 14, 169, 170 and 177 of the Treatyestabl ishing the European Economic Community;Having regard to the Protocol on the Statute of the Court of Justice of theEuropean Economic Community;Having regard to the Rules of Procedure of the Court of Justice of theEuropean Communities;


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OPINION OF MR ROEMER C A S E 26/62

THE COURT

in answer to the questions referred to it for a prel im inary ruling by theTariefcornmissie by decision of 16 August 1962, hereby rules:

I. Article 12 of the Treaty establ ishing the European EconomicCommunity produces direct effects and creates individual rightswhich national courts must protect.

2. In order to ascertain whether customs duties or charges havingequivalent effect have been increased contrary to the prohibitioncontained in Article 12 of the Treaty, regard must be had to theduties and charges actually applied by the Member State in questionat the date of the entry into force of the Treaty.Such an increase can arise both from a re-arrangement of the tariffresulting in the classification of the product under a more highlytaxed heading and from an increase in the rate of customs dutyapplied.

3. The decision as to costs in these proceedings is a matter for theTariefcommissie.

Dormer Delvaux Rossi

Riese H a m m e s Trabucchi Lecour t

Del ivered in open court in Luxembourg on 5 February 1963.A . Van Hout teRegistrar

A . M. DonnerPresident

OPINION OF MR ADVOCATE-GENERAL KARL ROEMERDELIVERED ON 12 DECEMBER 1962 1

Mr President,Members of the Court,The present proceedings originate in anaction before the Tariefcommissie, aDutch administrative court. This actionis for the annulment of a decision of

the Nederlandse administratie der belast ingen (the Nether lands Inland RevenueAdministration) of 6 March 1961 concern ing the application of a particularcustoms duty to the import of urea-formaldehyde from the Federa l Republ icof Germany. T he decision is based on

1 Translated from the German.

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Απόφαση Van Gend & Loos

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