Committee Reports > List of Committees > Joint > 1975 > Committee on the Secondary Legislation of the European Communities > Report No. 11 - Directives, Implementation and Direct Applicability)

APPENDIX

Cases decided by the European Court of Justice relevant to question of direct applicability of Directives.

Franz Grad v. Finansami-Traunstein (Case 9/70)

Transports Lesage v. Hauptzollant Freilburg (Case 20/70) [1971]

Haselporst v. Finanzant Dusseldorf-Altstadt (Case 23/70) C.M.L.R.I.

Article 4 of Council’s Decision of 13 May, 1965 provided that as soon as a common turnover tax system had been determined by the Council and brought into force by the Member States it should be applied to freight transport and replace specific taxes imposed on such transport instead of turnover tax.

Article 1 of Council Directive of 11 April, 1967 obliged Member States to replace their turnover tax systems by a common added value tax system and to promulgate national statutes effecting the replacement by 1st January, 1970. A second Directive extended the date to 1st January, 1972. In the German Federal Republic a statute was enacted introducing the added value tax with effect from 1st January, 1968, extending it to transport services and repealing taxes imposed on those services in 1955.

A subsequent German statute imposed for the year 1970 another tax on the transportation of goods in international and long distance road haulage within the Federal Republic. The plaintiffs in the three cases having been assessed for this tax sought in a German Court to establish the incompatibility of the statute with EEC law.

The German Court submitted to the European Court of Justice a number of questions to enable it to arrive at a decision. One of these was whether Article 4 of the Council Decision in conjunction with Article 1 of the Council Directive had a direct effect on the legal relations between Member States and individuals and whether they vested rights in individuals to which the Courts of the Member States must give effect.

The Court answered this question in the affirmative. The fact that Article 189 of the EEC Treaty states that Regulations are directly applicable does not mean that other acts can never be. It would be incompatible with the binding nature of a Decision to exclude individuals in principle from invoking it particularly if to do so would weaken the useful effect of the measure. By Article 177 National Courts are empowered to submit questions on validity and interpretation of measures without distinction and this presupposes that individuals may invoke such measures without in the National Courts. Therefore it is necessary to examine the legal nature, layout and wording of each provision to see if it is directly applicable. The Council having wide powers under Article 75 to implement a common transport policy had chosen to impose obligations in unconditional, clear and precise terms. The provisions in question were accordingly directly applicable.

Sace v. Italian Ministry of Finance (Case 33/70) [1973] C.M.L.R. 123

An Italian Statute passed in 1950 imposed a charge for administrative services on the importation of goods amounting to 0.5 per cent of value. Under Article 13 (2) of the EEC Treaty, Member States were required to abolish charges having an effect equivalent to customs duties on imports during the transitional period, the timetable for such abolition to be fixed by Directive. By Council Decision 66/532 of 26/7/1966 the final cut-off date for removing all intra-Community charges was brought forward to 1st July, 1968. On the basis of this decision the Commission issued Directive 68/31 of 22nd December, 1967 to the Italian Government requiring it to abolish certain administrative charges by 1st July, 1968. In proceedings brought by the Commission in 1970 the European Court of Justice held that Italy was in breach of Article 13 (2) by failing to repeal the 1950 statute.

The plaintiffs sued the Italian Ministry of Finance in an Italian Court for repayment of administrative charges imposed on them after 1st July, 1968. The Court asked the European Court whether following on the issue of Directive 68/31 the provisions of Article 13 (2) or else the provisions of the Directive itself became directly applicable in the Italian legal system.

The European Court treated the question as referring in reality to the combined effect of Articles 9 and 13 (2) of the Treaty, Decision 66/532 and Directive 68/31. The combined effect of Articles 9 and 13 (2) was clearly to impose a prohibition on certain charges after the transitional period which by its nature was directly applicable. In considering the effect of the Directive it was necessary to consider not only the form of the measure but also its substance and its function in the system of the Treaty. Decision 66/532 did not modify the nature of the obligation imposed on Member States and the obligation was therefore capable of producing direct effects before as well as at the end of the transitional period. Directive 68/31 imposed a final date for the performance of the obligation which was itself directly applicable by virtue of Articles 9 and 13 (2) of the Treaty and therefore could be invoked by individuals in the National Court.

Van Duyn v. Home Office (Case 23/70) [1975] C.M.L.R.I.

The case concerned a Dutch national, Miss Van Duyn, who was refused leave to enter the United Kingdom to take up employment as a secretary with the Church of Scientology. The reason given was the Secretary of State considered it undesirable to give anyone leave to enter the country on the business or in the employment of the Church of Scientology. He was acting under discretionary powers given to him in the Immigration Act, 1971.

Miss Van Duyn brought proceedings in the English High Court relying on Article 48 of the EEC Treaty relating to the free movement of workers and Article 3 of Directive 64/221 which reads as follows:

“Measures taken on the grounds of public policy or of public security shall be based on the personal conduct of the individual.”

The High Court sought from the European Court of Justice a preliminary ruling as to whether Article 48 of the Treaty and Directive 64/221 were directly applicable so as to confer on individuals rights enforceable by them in the Courts of a Member State.

Having ruled that Article 48 of the Treaty was directly applicable, the Court went on to hold that Article 3 (1) of Directive 64/221 was also directly applicable. The relevant portion of the judgement reads:

“[13] By providing that measures taken on grounds of public policy shall be based exclusively on the personal conduct of the individual concerned, Article 3 (1) of Directive 64/221 is intended to limit the discretionary power which national laws generally confer on the authorities responsible for the entry and expulsion of foreign nationals. First, the provision lays down an obligation which is not subject to any exception or condition and which by its very nature, does not require the intervention of any act on the part either of the institutions of the Community or of Member-States. Secondly, because Member States are thereby obliged, in implementing a clause which derogates from one of the fundamental principles of the Treaty in favour of individuals, not to take account of factors extraneous to personal conduct, legal certainty for the persons concerned requires that they should be able to rely on this obligation even though it has been laid down in a legislative act which has no automatic direct effect in its entirety.”