Flaminio Costa v ENEL (Procedure): ECJ 15 Jul 1964

‘The transfer by the states from their domestic legal system to the Community legal system of their rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail . .’
ECJ 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.
LMA The case involved a conflict between a number of Treaty provisions, and an Italian statute nationalising the electricity company of which Signor Costa was a shareholder. But here the Italian law was later in time. On being brought before the Milan tribunal for refusing to pay his bill (about andpound;110p.) Signor Costa argued that the company was in breach of EC Law. The company argued ‘lex posterior’ the Italian Act nationalising the electricity company was later in time than the Italian Ratification Act, the act incorporating EC law therefore it took priority. The Italian Court referred this question of priorities to the ECJ. The principle of supremacy of EC law was clearly affirmed by the ECJ. The Court went on to say ‘The transfer, by MS, from their national orders in favour of the Community order of rights and obligations arising from the Treaty, carries a clear limitation of their sovereign right upon which a subsequent unilateral law, incompatible with the aims of the Community cannot prevail’

C-6/64, (1964) CMLR 425, [1964] ECR 585, R-6/64, [1964] EUECJ R-6/64, [1964] EUECJ C-6/64
Bailii, Bailii
OrderCosta v ENEL (Order) ECJ 3-Jun-1964
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Cited by:
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Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 31 October 2021; Ref: scu.214025