27
First working session — The judgment
is the critical step – its interpretation of Article 12 includes not only its capac-
ity to create direct effects and individual rights but also that this entails
as a
matter of Community law
that national courts must protect those rights. The
Court thus does not decide ‘according to the principles of national law’, which
would trespass on the role of national courts; rather, in deciding that a provi-
sion of Community law creates directly effective individual rights it holds that
Community law imposes (directly) an obligation on national courts to protect
those rights (
9
). In this case the constitution of the Netherlands allowed in any
event for the direct applicability of self-executing provisions of international
law, so this element of the decision (taking the choice out of the hands of the
national court) was perhaps less immediately obvious in its implications; but
the Court conspicuously does not rely on this constitutional provision, and in
its language lays the foundation for the principle of primacy that it developed
later in
Costa
v
ENEL
(
10
).
The framing of the legal issues in a case is of course one of the key func-
tions, and tools, of a court. The Court of Justice in
Van Gend en Loos
adopted
an approach with which we have since become familiar. It resists any tempta-
tion to frame the question in terms of competing international norms or the
response of national constitutional law and defines its task, in relation to that
of the national court, carefully. However having chosen its ground and de-
fined its territory, it is not afraid to move within that frame from the technical
nature and wording of Article 12 itself to the spirit and the general scheme
of the Treaty as a whole and to make bold statements as to the nature of the
Community system which the Treaty embodied. It leaves the national court
in no doubt of its duty to protect rights derived from Community law. In thus
framing this supposedly simple question of interpretation the Court laid the
foundation not only for its own doctrines of individual rights and direct effect
but also opened the way for the creative use in the future of the preliminary
ruling procedure to develop Community law through the ‘vigilance of indi-
viduals’.
(
9
) Although the phrasing of the judgment allows for the possibility – later developed by the
Court – of separating direct effect from the creation of individual rights, the creation of
individual rights is itself necessarily connected to the duty of national courts to protect
those rights.
(
10
) Case 6-64
Costa
v
E.N.E.L.
[1964] ECR 585.
