Van Gend En Loos Memorandum
Submitted By DanielaMya
To: Professor Charlotte Leskinen
From: Group 5, International Business Law LLM (Daniela Pacino, Laura Kuenlen, Dima Al-
Wazani, Enrique Adrien, Nghi Lam and Marina Miranda)
Re: Analysis of Van Gen den Loos case
Facts The case concerned Van Gend en Loos, a Dutch postal transportation company that imported a chemical product – ureaformldehyde - from West Germany to the Netherlands. The Dutch customs authorities charged them a tariff on the import, so Van Gen den Loos objected it violated the principle of the free movement and argued so that the tariff was contrary to the law of the Treaties. For instance, the company reported an infringement of Article 12 of the Treaty of Rome 12 – now Article 30 TFEU post-Lisbon -, which precisely banned the introduction of new custom duties and the increase of existing duties on the market. Van Gend en Loos therefore brought an action against the Dutch customs authorities and claimed reimbursement of the sum before the Tariefcommissie in Amsterdam, which is the highest court concerning taxes in the Netherlands. The Dutch Court however had doubt about the direct application of the mentioned article within the territory of a Member State, so decided to turn to the CJEU to obtain a preliminary ruling, in order to discover whether Article 12 could assist a private litigant before a national court. Issues * Whether a citizen of a Member State may invoke (art. 12) before national court/tribunal, in the sense that nationals of Member States may on its basis lay claim to rights which the national courts must protect; * And whether reclassifying the object imported and the application of a higher customs duty constituted a violation of (art. 12) Community law before national courts?
Holding * Yes. Article 12 EEC produces Direct Effects between states and their subjects. * Yes. A higher tariff has been imposed, implying a breach of Treaty’s obligations.
The case of Van Gend en Loos affirms for the first time that Community law is a separate legal system, distinct from, though closely linked to, both international law and the legal system of the Member States.
Analysing the dispute the CJEU firmly claims that Article 12 EEC is capable of creating personal rights for Van Gen den Loos. Essentially the Court gives guidance as to when a treaty article would be directly effective and holds that, in ascertain whether the norms of the Treaty has direct effect, it is necessary to take into account the “spirit, general scheme, and wording of those provisions”.
It states, then, for its objective of the Treaty of Rome is more than an agreement, which merely creates mutual obligations between the contracting member states and underlines that it aims at creating a common market, for the benefits of individuals. The Treaty also contains establishments of institutions that are endowed with sovereign rights, the exercise of which affects both the States and their citizens. This view is confirmed indeed by the preamble to the Treaty, which not only addresses to government, but also to people.
Therefore, it follows that, the Community constitutes a new legal order of international law for the benefit of which Member States have limited their sovereign rights and the subject of which compromise not only them, but also their nationals. EU Law not only does set mutual duties between the signatory states, but it is able to grant the citizens rights before the national courts: it in fact not only imposes obligations on individuals, but is also intends to concede them rights, which become “part of their legal heritage”.
Moreover, analyzing the wording of Art. 12, the judges consider that its content establishes a negative obligation, which is a clear and unconditional prohibition, and that is not associated with any reservation on the part of the states, which would make its implementation conditional upon a positive legislative measure enacted under international law: this nature of the norm makes it “ideally adapted to produce direct effects”.
Still, the Court considers that the mere fact that each failure of a member states to fulfill the obligations included in the treaties can be supervised, does not imply that individuals are deprived of the possibility to act as enforcers in national courts. Undoubtedly, in spite of the existence of enforcement actions, which may be taken by the Commission or even another member state - articles 169 and 170of the Treaty-, a restriction of the guarantees against a transgression risks to make the defense of individual rights ineffective.
The ruling is based mainly on two reasons. First, following the mentioned premises, it is recognized that a denial of the direct effect theory can produce a gap in the safeguard system of individual’s rights; second, it emerges clearly the will of creating a policy of legal protection, for instance “vigilance of individuals to protect their rights amounts to a more effective supervision”. The enforcement of a supervisory mechanism then will produce a dual vigilance system, capable to better to secure the observance of the directives of the European Union within each member state.
According to this model of protection, the Court opens two routes for guaranteeing all the rights arising under EU law. The first one at a European level, i.e. the procedures for infringement established by articles 169 and 170 (now 258 and 259 TFEU) was marked out in the treaties; and the second one at a national level, a system of control result of creative jurisprudence. On the second question of the tariff on urea-formaldehyde, the Court first denies its power to consider the reference made by the Tariefcommissie, but recognises its jurisdiction on an interpretation of a treaty’s provision. It concludes that the Netherlands has imposed a higher tariff, through a reclassification of a product into a higher-rated category, which it could not, but transmits the question of the proper tariff to the national court.