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Second working session — The impact
such as that at issue in the main proceedings’. Isn’t this another way of doing
precisely what the Court declared that it could not do, namely to determine
the compatibility of national law with EU law? It is, in fact, that operational
part of the judgment which indicates most clearly whether the reference fits in
the category of ‘citizen’s infringement’. The key words almost invariably used
by the Court, in this respect, are that ‘[EU law norm X] must be interpreted
as precluding/not precluding [national rules of the sort applicable to the case
at hand]’.
The preliminary sentence of
Vandoorne
, or similar formulas expressing
the (allegedly!) modest function performed played by the Court of Justice, is
mostly used – it seems – in high-profile cases. One recent example is the
Pringle
judgment of 27 November 2012, about the European Stability Mechanism.
The Irish Supreme Court asked, in one of its questions: ‘Is a Member State of
the European Union whose currency is the euro, having regard to …. [a large
number of provisions of primary EU law] … entitled to enter into and ratify
an international agreement such as the ESM Treaty?’ (
9
). The Court replied
that it might not give a direct answer to that question, but that ‘the Court has
jurisdiction to provide the national court with all the criteria for the inter-
pretation of European Union law which may enable it to assess whether the
provisions of the ESM Treaty are compatible with European Union law’ (
10
).
This circumlocutory sentence cannot hide the fact that what the Court is do-
ing, in all such cases, is indeed to examine the compatibility of national law
with EU law. Everybody knows this, but it seems better not to say it with so
many words.
3.
Questions about Remedies
On several occasions, the direct effect doctrine inaugurated by
Van Gend
en Loos
was said to be approaching its natural end. In a famous article written
in 1983, former ECJ judge Pescatore (who had been very active in the expan-
sion of the doctrine in the late 1970s) called the direct effect doctrine ‘an in-
fant disease’ that would soon cease to be of importance, once the Community
(
9
) Case C-370/12,
Pringle
, judgment of 27 November 2012. Note that the ‘citizens’
infringement’ does not relate, here, to the act of one single Member State, but to a combined
act of 17 Member States who had concluded the international treaty setting up the European
Stability Mechanism.
(
10
)
Pringle
judgment, paragraph 80 (with reference to the
Vandoorne
case).
