24
Marise Cremona
Première séance de travail — L’arrêt
The case is normally presented in terms of the relationship between
Community law and national law, or rather the legal effect of Community law
in creating individual rights enforceable in the national legal order. Relying
on the formulation of the question by the Amsterdam Tariefcommissie, which
correctly and wisely focussed on Article 12 EEC, the case was indeed framed
in this way by the Court itself: ‘the Court … is asked … only to interpret the
scope of Article 12 of the said Treaty within the context of Community law
and with reference to its effect on individuals.’ This formulation, with appar-
ent simplicity and straightforwardness, manages to keep the judgment within
the confines of the Court’s jurisdiction under Article 177 EEC [now Article
267 TFEU]. In a move which could be said to foreshadow its much later judg-
ment in
Kadi
(
2
), the Court puts the focus on ‘the context of Community law’,
while handing down a judgment which has important implications for both
the other international law obligations of its Member States and for national
constitutional law.
The Dutch tariff under discussion was in fact determined by the Benelux
customs union and the case therefore raised the question of a possible conflict
within the legal order of the Netherlands between Article 12 EEC and another
binding international obligation, the 1958 Brussels Protocol, ratified by the
Netherlands by a law of 16 December 1959 and which established a revised
customs tariff for the Benelux customs union applicable from 1 March 1960.
The Netherlands and Belgian governments and the Nederlandse administra-
tie der belastingen (Netherlands Inland Revenue Administration), in their
submissions as summarised in the report, agreed that the main complaint of
Van Gend en Loos against the Benelux governments was ‘that by the Brussels
Protocol of 25 July 1958 they infringed Article 12 of the EEC Treaty’. Under
Article 66 of the Dutch constitution international commitments had force of
law and insofar as they are self-executing would take precedence over national
law. In its submissions, Belgium argued that this question of a possible conflict
between two international obligations was both the central issue before the
Tariefcommissie and a constitutional issue which could only be resolved by
a national court. In its view, therefore, the interpretation of Article 12 EEC
given by the Court of Justice would not affect the outcome of the case in the
Dutch court, which would depend on the national court’s answer to the ques-
tion, ‘Has it the right to ignore the law of 16 December 1959 ratifying the
(
2
) Joined Cases C-402/05 P and C-415/05 P,
Kadi and Al Barakaat International Foundation
v
Council and Commission
[2008] ECR I-6351.
