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

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Christian Pennera
extent, directives. When this principle first appeared in the case-law of the ECSC
Court, it applied to the Member States ; but now, with the advent of the Van Gend
& Loos judgment, it applied directly to individuals.
Individuals, therefore, may not only rely directly on Community rules against
other private individuals with regard, for example, to agreements, employment and
free movement, but may also plead subjective rights deriving from Community
rules and which have henceforth become "part of their legal heritage", as the Court
put it, against the Member States of which they are nationals.
Henceforth, and this is the second major contribution from this body of caselaw,
the national judge was to become, as it were, the common law judge for Community
matters with instructions to address the Court of Justice whenever interpretation
was called for.
None other than President Lecourt, an ardent defender of the principle of direct
effect, was to sum up the consequences of the judgment of February 1963 and,
indeed, who could have done so better? Here is what he says in his book "L'Europe
des juges":
"The mechanism of direct effect thus played a primordial role in the execution of the
Treaty. It is because individuals put it into effect before their judges, that Community
law implanted itself in such record time. If there existed a Community Order of
Merit it ought to be awarded to such individuals (...).
When a private individual goes to court for recognition of the rights accruing to him
under the treaties, it is not only in his own interest ; he becomes as it were a kind of
auxiliary servant of the Community. In taking up the common rule and calling upon
his judge to apply it to him, he is giving the judge the opportunity to introduce the
rule into the domestic legal order.
(...)
In opening up the courts to individuals, direct effect has been a key factor for legal
interpenetration throughout all the Member States.
However, what is more, this principle has also demonstrated its effectiveness as a
kind of supplementary instrument for the implementation of the Treaties by the
Member States themselves. If the Community had had to wait for judgments of the
Court for failure on the part of the Member States to fulfil their obligations, where
would the Community stand today?" 40
This judgment was to be followed a year later by another milestone of Community
case-law, likewise the fruit of an application for a preliminary ruling.
An Italian consumer, Mr Costa, contested a bill drawn up by an electricity company
which had recently been nationalized, namely, ENEL. Before the Italian
judge, Mr Costa claimed that there was a conflict between the nationalization law
and the Treaty of Rome. In the face of Italy's argument to the effect that the Italian
judge was bound to apply domestic law without reference to Community law, the
Court of Justice, to which the case had been submitted for interpretation, replied:
40. R. LECOURT, L'Europe des juges, Brussels 1976, 322 pp., here pp. 260 to 262. See also the same
author's retrospective view "Quel eût été le droit des Communautés sans les arrêts de 1963 et 1964?"
in L'Europe et le droit, Mélanges en l’honneur de Jean Boulouis, Paris 1991, 556 pp., p. 349.