number 1 - Centre d'études et de recherches européennes Robert ...

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Christian Pennera
quickly realized that in reality the EEC Treaty, despite the advantageous form of
words it employed, actually restricted access to the courts by individuals 38 .
The action for failure to act (Article 35 of the ECSC Treaty) was reinforced and
slightly modified from the point of view of the technique used under Article 175 of
the EEC Treaty, the same being true of the action for damages enshrined in Article
178 of the EEC Treaty.
Two types of action, the embryo of which existed already in the ECSC Treaty,
were taken a lot further with the intention of strengthening the authority of Community
law in national legal systems. They were soon to prove of redoubtable
effectiveness in the hands of the judges of the single Court.
The ECSC Treaty had dealt only in its tailpiece (namely, Article 88 in the General
Provisions) with failure on the part of a Member State to fulfil its obligations.
The EEC Treaty brought this action to the forefront of the judicial arsenal, in Articles
169 and 170. Under the ECSC rules the High Authority had been the sole party
to take the initiative of noting that there had been a failure to fulfil obligations.
From now on, however, it was up to the Court to do so at the request either of
the Commission or of another Member State, while the Member State at fault was
obliged to remedy matters.
The other development, whose potential had probably not been suspected by the
authors of the Treaty, concerned requests for interpretation, known as preliminary
rulings, under Article 177 of the EEC Treaty. Article 41 of the ECSC Treaty already
contained the embryo of this mechanism, and the Community court developed its
scope in a decisive way, as we shall now see.
Famous Decisions of the early Sixties
In substance, what Article 177 of the EEC Treaty does is to lay down that when a
national court is confronted with a question of interpretation of Community law, it
shall suspend judgment and ask the Court of Justice of the Communities to provide
the solution. The latter Court then pronounces an interpretative judgment which it
sends to the national judge, who is obliged to take account of it in his judgment on
the actual case. This is referred to as proceedings for a preliminary ruling.
It was by means of this same procedure that in February 1963 and July 1964 the
Court of Justice was to pronounce two of its most celebrated judgments which laid
down the fundamental rules for the further development of European integration.
A Dutch manufacturer of glue, the firm of Van Gend & Loos, had imported chemical
products from Germany. Whereas on 1 January 1958, the date when the
Treaty came into force, the customs duty had still been three percent, it had subsequently
been raised to eight per cent. The Dutch courts, to whom the litigation had
38. Cases 16 and 17/62, 14 December 1962, [1962] ECR 471. The authors of the Treaty thus took it on
themselves to put an end to the very broad interpretation which the ECSC judges had given to
actions by private persons, examples of which have been given above.