LMA The Dutch customs authorities had introduced an import charge in breach of Art.12 [Art.25] EC. This Article prohibits MS from introducing between themselves any new customs duties on imports or exports or any charges having an equivalent effect’. Van Gend challenged the action of the Dutch authorities before an administrative tribunal. The tribunal, in a reference under Art.177 [Art.234] EC, asked the question ‘whether the Art.12 [Art.25] EC had an internal effect . . in other words, whether the nationals of MS may, on the basis of the Article in question, enforce rights which the judge should protect’. The Dutch authorities argued that the obligations in Art.12EC were addressed to MS and intended to govern rights and obligations between States. Such obligations were not normally enforceable at the suit of individuals (i.e. not directly effective).
Held: ‘the Treaty is more than an agreement creating only mutual obligations between the contracting parties . . Community law . . not only imposes obligations on individuals but also confers on them legal rights’
‘If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. ‘If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.’ and ‘The wording of Article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of the states which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between Member States and their subjects.’
ECJ 1. In order to confer jurisdiction on the court to give a preliminary ruling it is necessary only that the question raised should clearly be concerned with the interpretation of the treaty.
2. The considerations which may have led a national court to its choice of questions as well as the relevance which it attributes to such questions in the context of a case before it are excluded from review by the court when hearing an application for a preliminary ruling.
3. The European Economic Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the member states but also their nationals.
Independently of the legislation of member states, community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the community.
4. The fact that articles 169 and 170 of the EEC Treaty enable the commission and the member states to bring before the court a state which has not fulfilled its obligations does not deprive individuals of the right to plead the same obligations, should the occasion arise, before a national court.
5. According to the spirit, the general scheme and the wording of the EEC Treaty, article 12 must be interpreted as producing direct effects and creating individual rights which national courts must protect.
6. It follows from the wording and the general scheme of article 12 of the treaty that, in order to ascertain whether customs duties and charges having equivalent effect have been increased contrary to the prohibition contained in the said article, regard must be had to the customs duties and charges actually applied by member states at the date of the entry into force of the treaty.
7. Where, after the entry into force of the treaty, the same product is charged with a higher rate of duty, irrespective of whether this increase arises from an actual increase of the rate of customs duty or from a rearrangement of the tariff resulting in the classification of the product under a more highly taxed heading, such increase is illegal under article 12 of the EEC Treaty.
C-26/62, [1963] ECR 1, [1963] EUECJ R-26/62, (1963) 2 CMLR 128
Bailii
European
Cited by:
Cited – Regina v Chief Constable of Sussex, ex Parte International Trader’s Ferry Limited HL 2-Apr-1998
Chief Constable has a Wide Discretion on Resources
Protesters sought to prevent the appellant’s lawful trade exporting live animals. The police provided assistance, but then restricted it, pleading lack of resources. The appellants complained that this infringed their freedom of exports under . .
See Also – Van Gend and Loos v Commission ECJ 13-Nov-1984
ECJ 1. Recognition of a case of force majeure presupposes that the external cause relied upon has irresistible and inevitable consequences to the point of making it objectively impossible for the persons . .
See Also – Van Gend and Loos Nv v Inspecteur Der Invoerrechten En Accijnzen, A Enschede ECJ 7-Mar-1985
ECJ Common customs tariff – tariff headings – ‘sails’ within the meaning of heading 62.04 – sails for sailboards imported separately from the boards – included
The words ‘sails’ in tariff heading 62.04 of . .
Cited – HP Bulmer Ltd and Another v J Bollinger Sa and others CA 22-May-1974
Necessity for Reference to ECJ
Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Cited – Emerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .
Lists of cited by and citing cases may be incomplete.
Customs and Excise, Constitutional
Leading Case
Updated: 01 November 2021; Ref: scu.131662