94
Bruno De Witte
Deuxième séance de travail — Les retombées
own views or national habits on the matter. 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 have primacy over national law, only some norms have direct ef-
fect. Indeed, 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; and on later occasions, it confirmed that other norms, contained in the
EEC Treaty, in a Directive or even in a Regulation (
2
) did not
have direct ef-
fect. This distinction made much impression at first. In a book-length analysis
published in 1970, Leontin-Jean Constantinesco referred to it as the
summa
divisio
in Community law (
3
). 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 itself had imme-
diately made clear that a norm could have direct effect even though it neither
contained the word ‘right’ nor the word ‘individual’. In other words, there
were no obvious signposts in the words of a legal provision that could indicate
its direct effect. So, the judgment created the need for national courts to keep
referring preliminary questions to the Court of Justice about whether a par-
ticular EC/EU law norm has direct effect in the national legal orders, or not.
In
Van Gend en Loos
, the European Court mentioned, in a famous phrase,
the beneficial impact of its new direct effect doctrine on the European inte-
gration process as a whole: ‘(t)he vigilance of individuals concerned to protect
their rights amounts to an effective supervision in addition to the supervi-
sion entrusted by Articles 169 and 170 to the diligence of the Commission
and of the Member States’. The Court was prescient. We now know that this
prediction became true, and that many ‘individuals’ (which, in actual fact,
were often business firms) used the direct effect doctrine in order to attack
protectionist trading rules and, later, other national rules that they considered
to be incompatible with Community law. They thus contributed to making
the rules of Community law stick. As Pierre Pescatore put it, ‘we would see
… that the preliminary reference … will effectively become the infringement
(
2
) Contrary to popular wisdom, EC Regulations do not always and entirely have direct effect.
For a case in which the ECJ, quite reasonably, found that a provision of a regulation lacked
direct effect, see Case C-403/98,
Monte Arcosu
[2001] ECR I-103.
(
3
) L. J. Constantinesco,
L’applicabilité directe dans le droit de la CEE
(Paris, LGDJ, 1970), first
chapter. The book was re-edited in 2006 (Bruxelles, Bruylant).
