25
First working session — The judgment
Brussels Protocol, because it conflicts with an earlier law of 5 December 1957
ratifying the Treaty establishing the EEC?’
Although Advocate General Roemer refers from time to time in his opin-
ion to the possible conflict between the Brussels Protocol and the EEC Treaty,
the Court of Justice effectively ignores this issue, basing itself simply on the
question in the form posed by the Tariefcommissie on the interpretation of
Article 12 EEC, including the possibility of its direct application by national
courts. In this way, while not directly pronouncing on Dutch constitutional
law or on the respective status of the two treaties, it gave the national court
a clear answer – from a Community law perspective – of what the outcome
should be. This solution is in line with Article 233 EEC [now Article 350
TFEU], cited by the Advocate General but not by the Court, which allows
for the continuance of the Benelux customs union. AG Roemer argued that
Article 233 EEC permits the Benelux States ‘to accelerate and intensify their
regional integration independently of the Treaty’ but ‘cannot be used to justify
a breach of the primary and basic provisions of the Community Treaty which
are imposed in the same way on all Member States’ (
3
).
The Court had already, the year before and again in the context of Article
12 EEC, decided that as between the Member States the EEC Treaty should
prevail over an
earlier
international obligation. In Case 10/61
Commission of
the EEC
v
Italy
(
4
), the Court held that ‘in matters governed by the EEC Treaty,
that Treaty takes precedence over agreements concluded between Member
States before its entry into force, including agreements made within the frame-
work of GATT’. Now with a simple phrase – ‘It is of little importance how the
increase in customs duties occurred’ – the court makes it clear that between
the Member States the Treaty should prevail also over a
later
international
obligation. Neither earlier nor later mutual international agreements would be
allowed to reverse the tariff liberalisation provided for under the EEC Treaty.
We have here then the first step in the development of the Court’s thinking
on the relationship between Community law and international agreements
(
3
) At the time of the case the Community’s customs union was not yet in place. Once the
customs union became part of the Community’s exclusive competence (see Case 41/76
Donckerwolcke
[1976] ECR 1921; and now Article 3(1)(a) TFEU) the Member States would
not be entitled to enter into international agreements – between themselves or with third
countries – concerning the customs union.
(
4
) Judgment of 27 February 1962, [1962] ECR English Special Edition p. 1.
