26
Marise Cremona
Première séance de travail — L’arrêt
between the Member States (
5
). In the absence of exclusive Community com-
petence over the field in question or pre-emptive Community legislation, such
agreements may be maintained or concluded, and are subject to the require-
ment of compatibility with Community (and now Union) law (
6
). Indeed in
some cases they were expressly foreseen (
7
).
The Court, helped by the fact that the Dutch constitution grants prior-
ity to self-executing international obligations, also side-steps national con-
stitutional law in dealing with the interpretation and legal effect of Article 12
EEC, while handing down a judgment that was of course to have profound
constitutional implications for the Member States. The question of direct ap-
plication of a treaty provision in a national legal system can be said to contain
two elements: (i) whether the provision itself is capable of direct applicability,
given its wording and its context and the intention of the parties (requiring an
interpretation of the treaty itself); and (ii) the legal effect and status granted to
provisions of international treaties by national constitutional law. As has been
rightly said (
8
), the significance of the judgment lay not so much in the finding
that Article 12 was directly applicable, since self-executing treaty norms were
a recognised category; rather it lay in the claim of the Court to determine itself
the legal effect of the EEC Treaty within national legal systems.
The Commission, the Advocate General and the Court all agreed that the
first of these questions was for the Court of Justice to decide, as a question
of Treaty interpretation under Article 177 EEC, although disagreeing as to
the answer they thought the Court should give. The Advocate General then
directly addressed the second of these issues, arguing that the Court of Justice
should be careful to avoid entering into questions of national constitution-
al law which are outside its jurisdiction under Article 177 EEC. The Court
agreed that it is for the national courts ‘to adjudicate upon the application of
the Treaty according to the principles of the national law’. However – and this
(
5
) B. de Witte, ‘Old-fashioned Flexibility: International Agreements between Member States
of the European Union’ in G. de Búrca and J. Scott (eds),
Constitutional Change in the EU –
From Uniformity to Flexibility?,
Oxford, Hart Publishing, 2000.
(
6
) For example Case 235/87
Matteucci
[1988] ECR 5589; Case C-3/91
Exportur
v
LOR and
Confiserie du Tech
[1992] ECR I-5529; Case C-55/00
Gottardo
[2002] ECR I-413; and most
recently Case C-370/12
Pringle
, judgment of 27 November 2012.
(
7
) Under what was Article 220 EEC, for example; c.f. also Article 273 TFEU.
(
8
) B. de Witte, ‘
The Constitutional Significance of Van Gen en Loos
’ in M. Poiares Maduro and
L. Azoulai (eds)
The Past and Future of EU Law – The Classics of EU Law Revisited on the
50
th
Anniversary of the Rome Treaty
, Hart Publishing, 2010.
