JUDGMENT OF 5. 2.

1963

CASE 26/62

excluded
when

from

review

by

the

Court

the

occasion

arise, before

national

hearing

an
1

application

for

court.

preliminary

ruling.

5.

3. The European Economic

constitutes
a

According
scheme

to

the

spirit,

the

general

Community
order of of

and

the wording of
must

the

EEC

new

legal
the

Treaty, Article 12
ted

be

interpre
and
nat

international
which

law

for

benefit

the

states

have

limited

their

sovereign

rights,
the

albeit within
subjects

limited
which

as producing direct effects creating individual rights which ional courts must protect.

fields,
but

and

of

comprise not
also

only
of

the

Member States

6. It

follows from
scheme

the wording
of

and
of

the
the

their

nationals.

general
of not

Article
to

12

Independendy
Member
only imposes
uals upon of

the

legislation

Treaty
whether

that,

in

order

ascertain

States, Community law

obligations

customs

duties
effect

and

charges

on

individ

having

equivalent

have

been

but

is

also

intended

to

confer
part

them rights which

become These

increased contrary to contained in the said

must and

the

prohibition

Article,
customs

regard

their

legal heritage.
only
where

rights
ex

be

had

to

the

duties

arise

not

they

are

charges

pressly
also

granted

by

the

Treaty

but

Member

actually States at the

of

applied

by
the

date

of

the

by reason of obligations which Treaty imposes in a clearly de

way
upon

entry into force 7.

the

Treaty. 2
of

fined

individuals

as

well

as upon the

Member States
of

and upon

Where, after the Treaty,

charged
with

the

entry into force

same

the
a

product rate
of

is

the

institutions
that

the

Community.
169
and

higher
whether

duty,
of

irrespective
arises
rate

of

this

increase
the
re

4. The fact
of

Articles

170

from

an

actual

increase
or

the

EEC
and

Treaty
the the

enable

the

Com

of

customs of

duty
the

from
the

mission

Member Court
a

States

to

arrangement

tariff
of

resulting
product

bring
has
not

before

State

which

in

the
a

classification

not

fulfilled its

obligations of

does
right

under

more

highly

taxed

heading,
Article

deprive

individuals

the

such

increase is
the

illegal

under

to plead the same obligations,

should

12

of

EEC Treaty.

In Case 26/62

Reference to the Court

under

under
of

subparagraph

(a)

of

the

first

paragraph

and

the

third

paragraph

Article

177
the

European

Economic

administrative

tribunal

Community by having final

action

Treaty establishing the Tariefcommissie, a Netherlands

of

the

jurisdiction

in

revenue

cases,

for

preliminary ruling in the

pending before

that court

between

N.V.

Algemene

TRANSPORT

en

Expeditie

Onderneming

VAN

GEND

&

Loos, having its registered office at Utrecht, represented by H.G. Stibbe ter Kuile, both Advocates of Amsterdam, with an address for and L.F
.D.

Cf. Paragraph No 4 Cf. Paragraph No 1

of of

Summary Summary

of of

Judgment in Case 13/61, Rec. 1962., Judgment in Case 10/61, Rec. 1962.,

p.

94. 5.

p.

VAN GEND EN LOOS

NEDERLANDSE ADMINISTRATIS DER BELASTINGEN

service

in

Luxembourg

at

the

Consulate-General

of

the

Kingdom

of

the

Netherlands

and

nederlandse

ADMINISTRATIE

der

belastingen

(netherlands
of

inland
and

Revenue ADMINISTRATION ),
Excise
at

represented address

by

the

Inspector

Customs
at

Zaandam,

with

an

for

service

in

Luxembourg

the

Netherlands

Embassy,

on

the

following

questions:

1. Whether Article 12.

of

the

EEC in

Treaty has direct

other

application within nationals of

the

territory
a

of

Member
the

State,

words,

whether

such

State can,

on

basis

of the

Article in question,

lay

claim

to

individual

rights

which

the courts must protect;

2. In the

event of

an affirmative

reply,
the

whether

the application of an

import

duty
main

of

8%

to
of

the

import into

Netherlands

by

the

applicant

in

the

action

ureaformaldehyde
an unlawful

Germany
12
of the ation

represented

originating in the Federal Republic of increase within the meaning of Article

reasonable
alteration
alter

EEC

of

the

Treaty or whether it was in this case a duty applicable before 1 March 1960, an
an

which,

although

amounting to
not

increase from
regarded as

the

arithmetical

point

of

view,
of

is

nevertheless

to

be

prohibited

under

the

terms

Article 12;

THE COURT

composed of

of:

A. M.

Dormer, President, L. Delvaux

and

R. Rossi (Presidents
and

Chambers), O. Riese, Ch. L. Hammes (Rapporteur), A. Trabucchi

R.

Lecourt, Judges,
K. Roemer

Advocate-General: Registrar:

A. Van Houtte

gives

the

following
3

JUDGMENT OF 5. 2.

1963

CASE 26/62

JUDGMENT

Issues

of

fact

and

of

law

Facts

and

procedure

Duties
gen.

applicable spec.

The

facts

and as

the

procedure

may

be

1. Aminoplasts

summarized

follows:

in

aqueous

emulsions,

1.

On 9

September

1960

the

dispersions
company Expeditie
(here solutions

or

N. V. Algemene

Transport- en

10%
the
an

8%'

Onderneming
inafter
called

van

Gend

en

Loos &

4.

On

this

basis,
applied

Dutch
ad

revenue

'Van
a

Gend

Loos'),
of

authorities port

valorem

im

according to 8 September

customs

declaration

duty

of

8%

to

the

importation in

on

form D.5061, imported

the

question.

into the Netherlands from Republic

of

Federal

Germany

5. On 20 September 1960 Van Gend &

of

quantity

im ureaformaldehyde, described in the 'Harnstoffharz (U.F. as port document

Loos

lodged
of

an

objection

with

the
at

Inspector Zaandam

Customs
the

and

Excise
of

resin)

70,

aqueous

emulsion

of

urea-

against

application

this

formaldehyde'.
2. On

duty
put

in

the

present

case.

The company
the

forward in
arguments:

particular

following

the

date

of

importation,
was classified

the

product

in

question
of

in

On 1
the

heading
entered

39.01-a-1 into

the tariff of

import
which

EEC

January 1958, the date on which Treaty entered into force,

in
emulsion

duties listed in The

'Tariefbesluit'

aminoplasts

the
on
of

were of

classified

force
the

March

1960.

under

heading

279-a-2
of

the
and

tariff

in

nomenclature

the

'Tariefbesluit'

the

'Tariefbesluit'

1947,
which

charged of

is

taken

from

with
protocol

an

ad valorem

import

concluded

duty

3%.
into

between the Grand

Kingdom
of

of

Belgium,
and at

the
the

In

the

'Tariefbesluit'

entered

Duchy
of

Luxembourg
in 16
the

force
was

on
Instead

1 March
of applying,

Kingdom
on

the

Netherlands

Brussels
Nether

replaced of

1960, heading 279-a-2 by heading 39.01-a.

in respect

25

lands

July 1958, ratified by the Law of

Instead

applying, in

respect

of

intra-

December

1959.

Community trade, an import duty of 3% uniformly to all products under the old heading 279-a-2, a sub-division
was

created:

3.

The
as

wording

of

heading

39.01-a-l only
poly-con

39.01-a-l,
in

which contained

aminoplasts or

aqueous and

was

follows:
of and or

emulsions,

dispersions
condensation,
poly-addition, polymerized,
of which
whether

solutions,

in

respect

'Products densation
modified

import
other
which

duty

was

fixed in

at

8%.

For

the

products

heading

not,

or

linear
allylic
poly

39.01-a,
in
the

also

had been included

(phenoplasts,
polyesters

aminoplasts, alkyds,
other
etc.

old

and

non-saturated
. . .):

duty
was

of

heading 279-a-2, the import 3;% applied on 1 January 1958

esters,

silicones

maintained.

(a) Liquid

or

paste

products,

including
solutions:

By
the

thus

increasing
in

the

import
after

duty

on

emulsions, dispersions and

product

question

the

entry

VAN GEND EN LOOS

NEDERLANDSE ADMINISTRATIS DER BELASTINGEN

into force

of the

EEC

Treaty,
that

the

Dutch
of that

August
the

1962, for
questions

preliminary
out

ruling

Government infringed Article 12

two

set

above.
Tariefcom

Treaty,
States duties
charges

which

provides

Member

10.

The
was

decision
notified

of
on

the

shall

refrain

from any
or

introducing
customs or

missie

23 August 1962

between

themselves

new

by

the

Registrar
to
and

of

the to

Court
the

to

the

on

imports

exports

any

parties

the

action,
the

Member
of

from

having equivalent effect, and increasing those which they already

their trade with each other.
of objection

States

to

Commission

the

EEC.
11. Pursuant
col on

apply in 6. The
was

to

Article 20
of

of the Proto

Van Gend & Loos

the
of

Statute EEC
to

the

Court

of

dismissed
of

on

6 March 1961
and

by

the
at

Justice
were

the

written

observations

Inspector

Customs

Excise

submitted

the

Court
action,

Zaandam

inadmissibil on the ground of was

not

parties

to

the
of

main

by by

the
the
of

ity, because it
the
actual against

directed
of

against

Government

the

Kingdom
of the

application
rate.

the

tariff

but

Belgium,
Republic
of

the
of

Government

Federal

the

Germany,
and
of

the

Commission
of

the

EEC

the

Government

7. Van Gend & Loos

this

appealed

against

the

Kingdom

decision

the

Netherlands.
the
oral

to

the

Tariefcommissie,

Amsterdam,
8. The
its
case

on

4 April 1961.

12. At the

public

hearing
the

Court

on

29
was

November
of
of

1962,

submis

heard

by

the

Tarief
support of

sions and
were

the plaintiff the

in

the main action

of

commissie
of

on

21

May

1962. In
Van

Commission
the
same

the

EEC
ques

application

for the

annulment

heard. At
were

the

contested
put

decision

Gend

&

tions

put

to
to

them these

hearing by the Court.

were

Loos

forward in its The

the arguments

already

Written
within

replies

supplied

submitted

objection of

20

Septem
adminis

the

prescribed

time.
gave

ber
tratie

1960.

Nederlandse
replied

13.

The
12

Advocate-General
oral

his
he

der
that

belastingen
when

in

par

reasoned
en

opinion

at

the

ticular tered
was

the

EEC

Treaty
in

hearing
in its

on

December
that the

into force
not

1962, in
Court

which

the product
under of

question

proposed

should

charged
with a

the

heading
3% but,
intended

279-a-2

duty

only
and

judgment only answer the first question referred to it and hold that Article 12
of the

because

of

its

composition

EEC

application, was classified under heading 332 bis ('synthetic and other adhesives,
not

Treaty

imposes

duty

only

on

Member States. Arguments

vations

stated

or

included elsewhere')
a

and

II

and

obser

charged

with not

duty

of

10%

so

that

there

had

in fact been any increase.

without

The

arguments

contained

in

the

obser

9. The
a

Tariefcommissie,
decision
product
on

giving
fell

vations

submitted

in

accordance
of

with of

formal

the

question

the
the
of

second

paragraph

Article 20
of the

whether

the

in bis

question or

Protocol

on the

Statute

Court

within

heading
of the

332

heading
took
of

Justice

of

the the

European
parties

Economic
the
and
main

279-a-2
the

1947
the

'Tariefbesluit',
arguments

Community by
action,
the

to

view

that
a

the
the

Member may

States

the
as

parties

raised

question

interpretation
therefore

of

the

concerning EEC Treaty.

the

Commission
folows:

be

summarized

It
A

suspended

proceedings
para

The first

question

and, in conformity
graph of

with

the third the

Article 177
the

of

Treaty,
on

re

Admissibility
The

ferred

to

Court

of

Justice

16

Netherlands

Government,

the

JUDGMENT OF 5. 2.

1963

CASE 26/62

Belgian
landse
it

Government
administratie

and

the

Neder

of

the

EEC

Treaty
can

and
of

is

within

the

der

belastingen
declared
with

exclusive

jurisdiction

the

Netherlands
answered

(which in its
that the
was

statement complete

of case

court,

because it

only be
the

in

agreement

according
and
of

to the constitutional principles

of
national

observations

submitted

by
Gend
of

the that

jurisprudence
Netherlands.

law

Netherlands
the
main

Government)
of

confirm

the

complaint

Van

&
the

The
out

Belgian
that
a

Government
on

also

points

Loos

against

tie

Governments
is
that

decision

the

first

question
un

Benelux
Protocol

countries of

by

the

Brussels

25
of

July
the

Article
creasing
customs
other

12

1958 they infringed EEC Treaty by in entry into force a in their trade with
of

to the Court is not only necessary to enable the Tariefcommissie to give its judgment but cannot even
referred

after

its

have any influence

actual
resolve. problem

on the solution to the

duty

applied

which

it

is

asked

to

Member

States

the

Com

munities.

In

fact,
give,
the

whatever

answer

the

Court has
it
to
the

The

Netherlands
an
a

Government
can

disputes
of

may
solve
right

the
same

Tariefcommissie
problem :

whether

alleged

infringement

the

Has

Treaty by
mitted

Member State

be

sub

to

ignore

the

law

of

16 December

to

the

judgment
other

of

the

Court laid

1959

ratifying

the

Brussels
with

Protocol,
law
the

by
say

procedure

than

that that

because it
of

conflicts

an

earlier

down

by
br
in

Article

169

or

170,

is

to

on the

initiative
the

of another

Member

5 December 1957 ratifying establishing the EEC?

question

Treaty
an

State
tains
not

of

Commission.
that the

It

main

The

raised

is

not a

therefore

particular

matter

can

appropriate

question

for

preliminary
enable

be

brought
of

before

the
of

Court

by

ruling,
the

since

its

answer

cannot

means

the

procedure

reference

court

which

has

to adjudicate upon

for 177.
The

preliminary

ruling

under

Article
Nether

the merits of the main action to make a

final decision in

the

proceedings

pend

Court, according to the lands Government, cannot, in

text
a of

ing before
The
other

it.

the

con

Commission

of

the
that

EEC,
the

on

the
of

the

present of

proceedings, nature,
since

decide it does

hand,
law

observes of

effect on

problem

this the

the

provisions

the

Treaty
States
actual

the

not

relate

to

interpretation
of

but
in

to
a

national

of

Member

cannot
national

the

application

the

Treaty

be law

determined
of
each of

by

the

specific

case.
maintains

them

but

by

the

Treaty
of

The Belgian Government

the

that

itself. The
doubt Treaty. Further
to
one

problem

is

therefore without the

first
of

question

is

reference

to

the

of

interpretation

Court

problem

of

constitutional within

law,
That

which

falls
of

exclusively
confronted

the

the

Commission
that
a

calls
of

attention

jurisdiction
court

the

Netherlands
both law. It
of

court.

the

fact

finding
the the

inadmis
and

is

with which

two
are

sibility

would

have be
of

paradoxical

international
part of

treaties

shocking

result would

that

rights

of

in

the

national

must

decide

dividuals
of

protected

in

all cases

under

national

lawassuming
other or

that

they

infringement
in
the
case

Community
an

law

ex

are

in fact
over

contradictorywhich

treaty
exactly

cept

of

infringement

by

prevails

the

more of

Member State.
the
substance

whether

prior

national

law

ratifica

tion

prevails

over

subsequent of

one. national

On

This do

is

typical

question
which

Van

Gend

&
the

Loos

answers

in

the the

constitutional
with

the

has nothing to interpretation of an Article

law

affirmative

question

whether:

Article has internal

effect.

VAN GEND EN LOOS

NEDERLANDSE ADMINISTRATIE DER BELASTINGEN

It

maintains

in is

particular

that:
without

throughout
munity.

the

whole

of

the

Com-

Article

any na preliminary incorporation in the tional legislation of Member States,

since

12

applicable

The

result

is

first
on

that the

the

effect

of

Community law
Member States

internal law

of

it

only

imposes

negative

cannot

be

determined

obligation;

by
effect without of

this

it has direct
measures

any further implementation under

as all

munity
courts
rules of

internal law but only by Com law, further that the national
are

bound

to

Community
customs

legislation,
applied

the

Community
court

apply directly law and finally

the that

duties
their

by

Member
other

the

national

is

bound

to

ensure
prevail

States in
were

trade
on

that the rules of

over

with

each

Community law

bound
of

January
not
of

1957

(Article 14
although
refer

the

Treaty);

conflicting national laws even they are passed later. The Commission observes in this
text
rule

if

con

the the

Article does
nationals

directly
Member

that

the

fact

that

to

Community

States but

is,

as

regards

to

the
of

national

authorities,
affects
of

the

states

does

not

infringement
the

it

adversely

from individuals
in it

its form, directed to of itself take away have an interest who it to be

applied

fundamental
and

principles

the
well

the right to require

national courts.

Community,
as

individuals
must

as

in the As
tion

the

Community
such

be

protected

regards

more

against

infringements;
well

particularly
the

the
the

ques

referred

to

Court,
of

Com

it

is

particularly
application
which

adapted

for

mission

is

of
a

the

opinion

that

Article
of

direct
court

by
set

the
aside

national

12

contains

rule

law

capable

must

the

ap

being
court.

effectively

applied

by

the

national

plication of customs or

duties introduced
of

increased

in

breach

its

pro

It is

a provision which sense a

visions.

in
emphasizes

the

that

it

creates

is perfectly clear for Member

obligation

The first
only

Commission
of

the

im the
not
pro

States

specific

unambiguous

portance

the

Court's
will

answer

to

question. on

It

have

an
of

effect

relating law in
their

to the extension of their

a
matter
which

internal
affects or

directly
not
provision

the

interpretation

the
case

nationals

and

it is

affected
of

vision

at

issue

in

specific

and

qualified

by
a

any

other

the

on the effect

which

will

be

attributed

to

Treaty. It is
also
complete

it in the legal but

the
also
on

systems of

Member States
provisions of

and

self-sufficient require measure on

certain

other

provision a

in that it does level any form to

not

Treaty
as

which

are

as

clear

and

com

Community
concrete

new

to

plete

Article 12.
to the

give

the

obligation

According
sis
of

Commission
of

an

analy

which

it defines.

the the

legal

structure
system

the

Treaty
estab

The

Netherlands
effect

Government
the that
of

draws
of

and

of

legal
on

which

it

distinction between
internal
effect and

question the

the

lishes

shows

the

one
not

hand that
only

the

direct

Member
undertake

States

did

intend but

to to

(or direct applicability), the

to

first,

mutual a

commitments

according
of

it, being
that the

pre-condition

establish and
not on

system
other

of

Community law,
that the

the

second.
question of the
whether

the

hand

they

did

It
a

considers particular

wish

to

withdraw

application

provision

Treaty

has

of

this

law from
the

the

tion of

national

ordinary courts of law.

jurisdic

an

internal
the

effect

can

only be
all

answered essential

in

affirmative, namely
parties

if
the

the

However,
effectively

Community
and

law

must

be

elements,

intention
the

of

the

uniformly

applied

contracting

and

material

JUDGMENT OF 5.

2.

1963

CASE 26/62

terms

of

the provision under

such a

considera

of

these

States

to

cooperate

in

the

tion,
With

allows

conclusion. intention of

future;
the

regard

to

the

it
of

would put

in issue
means

the
of

responsibility
a
procedure

parties

to

the

Treaty

the

Netherlands
examina

States

by

Government
tion to
an
are of

maintains actual

that an

which

was

not

designed

for

this

the

establish

wording is sufficient that Article 12 only places

on

purpose.

The Belgian Government Article

12 is
not
one of

maintains

that

obligation

Member

States,

who

the

provisions

fulfil

free to decide how they intend to this obligation. A comparison with

provisions
of

which

are the exception

in

the

Treaty
rule

having
Article

direct internal
not

effect.
a

other

the

Treaty
have

confirms

12 does

constitute

of

this

finding. Article it
12

law
does
a
not

of general application

providing
new

that

As

internal

any

introduction
or

of

customs

effect

cannot,
the

fortiori, have
Article 12

direct

effect.

duty duty
is

any

increase It

in

an

existing
effect
or obliges

is

automatically

without

Even if
an

fact
on

that

places

obligation

Member
as an

States in

were

absolutely void. Member States to

such

merely

refrain

from taking
a

to

be it

considered

internal

effect,

measures.
not

it

cannot

have direct

effect

the sense

It

does

create

therefore

directly
could

that

permits

the nationals of
subjective protect.

Member
which

applicable

right

which

nationals requires
a

States
the

to

assert
must

rights

invoke

and

enforce.

It
at

from
to

courts

Governments
Govern attain

action

later
the

date

Alternatively
ment argues conditions

the

Netherlands

the objective
court

fixed

by

Treaty.
to

that, so far as the necessary for its direct application are

the
a

national

cannot

be

asked

enforce compliance with this obligation.

concerned,

EEC

Treaty

does
in

not

The German Government is

opinion

also of the

differ
treaty.
respect

from
The

standard

international
this

that

Article
not

12

of a

the

EEC
pro

conclusive

factors
of

Treaty
vision

does
which

constitute

legal

are the

intention
of

the

parties

is

directly
obligation
which

applicable

in

and

the

provisions

the

Treaty.
under

all an of

Member States. It imposes international

customs

on

them

However
12 is

the

question

whether

(in

the

field
im
en

Netherlands

constitutional

law
one

Article

policy)

must

be

directly
the

applicable

is
of

concern

plemented

by

national

authorities

ing
law

interpretation does
the
not come

Netherlands

dowed

with

legislative State
the

powers.

and

within the juris

Customs
of at
a

duties

applicable of

to

citizen

diction

of

Court

of

Justice. Government
would
answer

Member

the

Community,
period,
the

Finally
indicates

the

Netherlands
the
effect

least do

during
not

transitional

what

be,

in

thus

derive

from

EEC

its view, of an first question

missie :

affirmative

to the

put

by

the

Tariefcom

Treaty or the legal measures taken by the institutions, but from legal measures enacted by Member States. Article 12
only
which

it

would

upset
of

the

system

which

the

lays

down

the

provisions

with
cus

authors

the

Treaty
with

intended

to toms

they must comply in legislation.

the obligation

their

establish;

Moreover
create,
regard

it

would

to

the

applies

to the other

many

provisions
which

in

laid down only contracting Member

provision
which

Community
impose

regu

States.
In German law
a

lations
gations

expressly

obli

legal

on

tainty
could

in
call

Member States, an kind the law of a in

question

uncer

laid
the

down

customs
of

duty

which

provisions
valid.

Article

contrary to 12 would be

the

readiness

perfectly

VAN GEND EN LOOS

NEDERLANDSE ADMINISTRATIS DER BELASTINGEN

Within

the the

framework legal
States is

of
of

the

EEC

does
the

not

involve

the

interpretation

of

Treaty
of visions

protection

nationals

Treaty.
also
considers

Member

secured,
their

by

pro

Van Gend & Loos

that

derogating

from

national of

direct
would

form

of

the

second

question

constitutional

system, only in
taken

respect

necessitate which

an examination

of

the

those measures
of

by

the

institutions
of

facts for diction

Article

the

Court has
a

no

juris
under

the

Community

which

are

direct
na

when

it

makes

ruling

and

individual

concern

to

such

177.

The

real

question

for be

tionals.

interpretation
worded

as

according follows:

to

it

could

Is it
B

possible

for

derogation from 1 March

the

The

second

question

rules

applied

before

1960

(or

more not

accurately,
to

before
the

January
of of

Admissibility
The

1958)

be

in

nature

an

increase

prohibited
even

by

Article 12
this
an

the

Treaty,
Netherlands
are as
of

though
represents

derogation
increase?

and

Belgian

Govern
that

arithmetically

ments
second

the
as

opinion

the

well

the

first

question

is On
the
substance

inadmissible.

According
question

to

them

the

answer

to

the

whether

in

fact

the
a

Brussels

Van Gend & Loos

repeats

in detail
of

the

Protocol
those
the
of

of

1958
who

represents

failure
to

by

history
plasts

of

the

classification

amino

states

are

signatories

fulfil

in

the

successive

tariffs
charged

to

show a

obligations

laid down in Article 12

cannot

that

the
of
not

the

EEC

Treaty
of
a

be

given

in

duty
and
of

company was 8% instead of

with

3% intentionally
inevitable
effect

the

context

preliminary

ruling,
of

because

of

the

because
the

the

issue
and

is
not

the

application

Treaty

its

interpretation.
presupposes

adapting the old tariff to the new. The Netherlands Government was there

Moreover
a of careful

such

an

answer

fore

in

breach

of

Article

12

of

the

study and a specific evaluation the facts and circumstances peculiar

a
given

EEC Treaty

when

it increased its
trade

a customs

duty
The

applied

in

with

other

to

situation,
under

and

this

is

also

Member

States.
and

inadmissible

Article 177.

Netherlands
reply
of

Belgian

Govern
modifi

The
sizes,
a

Netherlands

Government
that

empha

ments
cation

furthermore,
to

if

failure
the

by

the

that, before the Benelux Tariff of

was

1958,
to an
head
of

state

fulfil its

Community
than those

obliga

ureaformaldehyde

not

subject

tions

could

be brought before
other

Court
under

import

duty

of

% laid down for

the

by
of

procedure and

ing
laid

279-a-2
to

'Tariefbesluit'

of
an

Articles 169
that

170

the

legal

protection

1947, but
down hesives).

import

duty
332

of

10%
(ad-

state

would

be

considerably

for

heading

bis

diminished. The

German
a

Government,
objection of

without

In fact
in

experience showed that the goods

were a

making
sibility,

formal

inadmis

question

usually

used

as

glue

maintains
an

that

Article

12

only
on

and

that
used

as as

general

rule

they

could
minis

imposes
states

international
that

obligation

be
in

such.

Therefore the

and

the

question

whether

tries concerned
question

decided
always

that the product

national

rules

enacted

for its
with

implemen

was

to

be taxed

as

tation tion the

do

not

comply

this

obliga

glue

and

was

to

be
the

included intended

under

cannot

depend
under

upon

decision
since

of

Court

Article

177

it

heading 332 bis. Although, when

appli-

JUDGMENT OF 5. 2.

1963

CASE 26/62

cation of the product

in dispute
the

was

not

by

the

various

Member States in
but It

their

sufficiently in certain sie

specified,
cases

Tariefcommis

relations with each other

also relates allows

no

classified

it

under

to each

individual
even

product.

heading 279-a-2,
Benelux
port

the

authorities

of an
of

the

exception

partial

or

provisional.

States
of

charged

it

with

im

The
in

Commission

then

points

out

that,

duty

10% from
of the put an

the

date

the

the context of

Article 12,

regard must

entry into force

clature,
possible
which

Brussels
end

nomen

be

had

to

the

duty
from

to

any

when

the

Treaty
results

entered

actually applied into force.

argument.

This

duty

the whole of the

practice
of

There
this

can

be
of
a

no an

question, therefore, in

provisions

and

case,
or

increase

of

customs

administrative

customary law.

duty
Van

of
of

derogation from
of

the

pro

However,

an

isolated

classification under

visions

Article 12

the

Treaty.
that

another tariff

heading

is in itself
of

insuffi
charge

Gend
fillers

&
or

Loos
of

replies

only
to

cient proof that the able

under

duty

10%
is

aqueous
which

solutions

aminoplasts

heading
to

332

bis

not

in

binders had been

required make an

added

fact
In
a

applied case of

aminoplasts.

and
of a

which

only
to

the

addition
ad

this

hardener
that

effective

concept

it is necessary to recognize prima facie legality: when

interpretation
and

hesive,
could

is

to

say,
as

solutions raw

which

there

is in

an

official

by

the

be be

considered
classified

materials,

competent

administration
with

instruc

could

under

heading

332

tions

conformity

this to

interpre
executive
rules

bis.
The Commission of the EEC is of first that the prohibition opinion Article
are
of

tation the
officers

have
to
a

been
fix
the

given

detailed
is
the
of

for
ap

in

levying
plied'

duty,
the

that

'duty

12

relates of

to

all

goods subject

which

within
of

meaning

Article 12

capable

being
which

the

matter

the

Treaty. therefore,
the
considers applied

trade

between
to

Member
such

States

(to

The
the the

Commission,
of

the to

extent

trade

relates
con

duty

10%

as

duty

on

products of

ditions
Article

complying Article 9(2)).

not

with

the

entry into force of the Treaty. There has not therefore been in this case any

12

only

aims

at

the

general

increase

contrary

to

Article

12.

maintenance

of

customs

duties

applied

Grounds
I

of

judgment

Procedure
objection

No

has
the

been
Court

raised
under

concerning

the
of

procedural

validity

of

the
the

reference

to

Article

177

the

EEC

Treaty by
of

Tariefcommissie, a court or tribunal within Further, no grounds exist for the Court to
motion.

the

meaning
the

that
of

Article.

raise

matter

its

own

II

The

first

question

Jurisdiction of the Court

of the

The Government
the to

Netherlands
on

and

the

Belgian Government
that the
the
reference

challenge
not

jurisdiction

of

the

Court
to

the

ground
of

relates

the

interpretation but

the

application

Treaty

in

the

context

of

10

VAN GEND EN LOOS

NEDERLANDSE ADMINISTRATIS DER BELASTINGEN

the

constitutional no

law
to

of

the

Netherlands,
over

and

that

in

particular

the

Court

has
of

jurisdiction
EEC

decide,
into

should the occasion

arise,

whether the provisions or over

other

the

Treaty

prevail

Netherlands

legislation

agreements
national

entered

by
the

the

Netherlands

and

incorporated into Dutch

within

law. The

solution of such a
of

problem, it is claimed, falls

courts,
subject

the

exclusive

jurisdiction
with

national

to

an

application

in
the

accordance

the

provisions

laid down

by

Articles 169

and

170

of

Treaty.

However in
of

this case the

Court is
to

not asked

to adjudicate upon the application

of

Treaty according Netherlands, which remains

the

the

principles

the

national

law

of

the

the concern of the

national

courts, but is asked,

in conformity
the

with

subparagraph

(a)

of the

first

paragraph of

Article 177
said

of

Treaty,
the

only

to

interpret

the

scope

of

Article
with

12

of

the to

Treaty
on

within

context

of

Community
has

law

and

reference

its

effect

individuals. This

argument

therefore no

legal foundation.

The Belgian Government further

on

argues which

that the the

Court has
could
on

no

jurisdiction
to the

the

ground

that

no

answer

Court

give

first

question of the
proceedings

Tariefcommissie

would

have any

bearing

the result of the

brought in

that court.

However, in
the

order

to

confer

jurisdiction

on

the

Court in

the

present

case

it is necessary only that the

question raised should

clearly be
which
well

concerned with

interpretation
court

of

the

Treaty. The

considerations of questions

may have led

as

national

or

tribunal to

its

choice

as

the

relevance

which

it

attributes

to

such

questions

in

the

context

of

case

before it

are

excluded

from

review

by

the

Court

of

Justice.

It

appears

from

the

wording

of the

questions

referred that

interpretation
answer

of

the

Treaty.

The Court

therefore

has

the

they relate to the jurisdiction to

them.

This argument, too, is

therefore unfounded.

On the
first

substance

of the Case
the

The

question

of

Tariefcommissie in
national of this

is

whether

Article
that

12

of

the
of

Treaty

has direct

application
on

law in

the

sense

nationals

Member States may

national court
must

the

basis

Article

lay

claim to rights which the

protect.

11

JUDGMENT

OF 5.

2.

1963

CASE 26/62

To in

ascertain

whether

the

provisions

of

an

international treaty

extend

so

far

their

effects

it is necessary

to

consider

the spirit, the general scheme and

the wording of those provisions.

The
the

objective

of

the
of

EEC

Treaty,
is
of

which

is

to establish a
to

Common

Market,
in
the

functioning
mutual

which

direct is

concern

interested

parties

Community, implies
creates

that this

Treaty
between
to

more than an agreement which

obligations

the

contracting
which

states. refers

This
not

merely is view
to
the
of

confirmed

by

the

preamble peoples.

the
also

Treaty
with

only

governments establishment
which affects

but to
of

It is

confirmed

more

specifically it

by
must

institutions

endowed and

sovereign

rights, the

exercise

Member States

also their citizens.

Furthermore,
in
the

be
are

noted that the nationals of the

called upon

states

brought

together
of this

to cooperate
of

in

the

functioning
Parliament

Community Community through

Economic
and

the

intermediary
Committee.

the

European

and

the

Social

In

addition

the task assigned to the

Court

of

Justice

under

Article

177,

the

object of which courts and

is

to secure uniform
confirms

interpretation
states

of the

Treaty by

national

tribunals,
an

that

the
can

have

acknowledged

that

Com

munity law has

authority

which

be invoked

by

their nationals

before

those courts and tribunals.

The
new

conclusion

to
of

be drawn from

this

is

that

the

Community
of

constitutes states

legal

order

international law for

rights,
albeit

the

benefit

which

the

have

limited
of

their

sovereign

within

limited fields, but

also

and

the

subjects

which

comprise of the

not

only

Member
of

States

their

nationals.

Independently
not
upon

legislation

Member

States, Community law

also

therefore to
confer

only imposes
them
not

obligations
which

on

individuals but is
part of

intended

rights

become
are

their

legal heritage.

These

rights

arise

only

where

they

expressly

granted

by
a

the

Treaty,

but

also

by

reason of obligations which

the the

Treaty imposes
Member States

in

clearly defined way

upon

upon

individuals
the

as

well

as

upon

and

the institutions of

Community.

With duties

regard

to

the

general

scheme

of

the

Treaty
must

as

it

relates

to

customs

and charges

9,
is

which

bases

the

having equivalent Community upon

of

effect

it

be

emphasized that

Article

a customs

provision

the prohibition of these customs

at

union, includes as an essential duties and charges. This provision

the

found

the

beginning

the

part

of

Treaty

which

defines

the

'Foundations

of the

Community'. It is

applied and explained

by

Article 12.

12

VAN GEND EN LOOS

NEDERLANDSE ADMINISTRATIS DER BELASTINGEN

which

The wording of Article 12 contains is not a positive but a negative

not

clear

and

unconditional

prohibition

obligation.

This obligation, moreover, legislative

is

qualified

by
law.

any

reservation on
upon a

the part of states which would make

positive measure
enacted

its implementation
under

conditional

national

adapted

to produce

The very nature of this prohibition makes it ideally direct effects in the legal relationship between Member

States

and

their subjects.

The implementation
on

of

Article 12 does

not require

any legislative intervention Article it is the Member does

not

the part of the states.

who are
made

The fact
subject

that under this

States

the

of

the negative obligation

this obligation.

imply

that their nationals cannot

benefit from

In

addition

the argument the three

based

on

Articles 169

and

170

of

the

Treaty
that

put

forward

by
of

Governments
of

which

have

submitted observations to the

Court

in

their

statements

case

is

misconceived.

The

fact

these

Articles

the the

Treaty
Court

enable a

the

Commission has
not

and

the

Member
obligations

States
does

to

bring
mean

before
that

State

which

fulfilled its

not

individuals
a
national of

cannot

plead

these

obligations,

should

the

occasion places

arise, before
at

court, any more than the fact that the

ways of

Treaty

the

disposal
those

the

Commission

ensuring that

obligations

imposed in

upon

subject

to the

Treaty

are

observed,

precludes

the possibility,

actions
of

between individuals before

a national

court,

of

pleading infringements

these obligations.

restriction

of

the

guarantees procedures of

against
under

an

infringement
and

of

Article
would

12

by

Member States to the

all

Article 169
rights
under

170

remove

direct legal
the

protection
recourse

the

individual
procedure

of

their nationals.

There

is

risk

that

to

the

these

Articles

would

be

ineffective if it
taken

were

to occur after the

implementation
Treaty.

of a national

decision

contrary to

the provisions of the

The
an

vigilance

of

individuals in

concerned

to

protect

their

rights

amounts

to

effective

supervision

addition
of the

to the

supervision

entrusted

by

Articles

169

and

170

to the

diligence

Commission

and of the

Member States.

It follows from

the

foregoing
effects

considerations

that, according

to the spirit, the

general scheme and the

as

wording

of the

Treaty, Article 12

must

be interpreted
national

producing direct
must
protect.

and

creating individual

rights

which

courts

13

JUDGMENT OF 5. 2.

1963

CASE 26/62

III

The

second

question

The jurisdiction of the Court

to the observations of the
of

According
the
an

Belgian
to

and

Netherlands
can

Governments,
be answered,

wording

this

question

appears

require, before it

examination

by

the

Court

of

the
a

tariff classification of
on which

ureaformaldehyde

imported into
and
with
call

the

Netherlands,
Customs

classification

Van Gend & Loos

opinions

the Inspector of
regard

and

Excise
of

at

Zaandam hold different

question

to

the

'Tariefbesluit'

1947. The but

clearly does
application

not

for

an

interpretation
customs

of

the to

Treaty
the

concerns

the

of

Netherlands

legislation

classification upon

of

aminoplasts,
of

which

is

outside

the

jurisdiction

conferred

the

Court
the

Justice

of

the
of

European Article

Communities

by

subparagraph

(a)

of

first

paragraph

177.

The Court has

the

therefore

no

jurisdiction

to

consider

the

reference

made

by

Tariefcommissie.

However,
product as

the

real

meaning

of

the

question

put

by

the

Tariefcommissie is
charged a
on

whether, in

law,
a

an

effective not

increase in increase in
of

customs

duties but
of

given

result

of an

the

rate

new classification
contravenes

of the product
prohibition

arising from in Article 12 of

a change

its

tariff

description

the

the

Treaty. interpretation

Viewed in
this

this

way the
of

question
and

put

is

concerned

with

an

of

provision

the
to

Treaty

more

should

be

given

the

concept

of

particularly of the meaning which duties applied before the Treaty entered

into force.
Therefore the Court has jurisdiction to

give a

ruling

on this question.

On the

substance

It follows from the wording and the general scheme of Article 12 Treaty that, in order to ascertain whether customs duties or charges
equivalent

of

the

having

effect

in the

said

have been increased contrary to the prohibition contained Article, regard must be had to the customs duties and charges
the

actually

applied at

date

of

the entry

into force

of the

Treaty.

Further,

with

regard

to the prohibition

in Article 12

of the

Treaty,

such

an

illegal increase may

14

arise

from

re-arrangement of the tariff

resulting in

the

VAN GEND

EN LOOS

NEDERLANDSE ADMINISTRATE DER BELASTINGEN

classification of the product under a more actual

highly

taxed

heading

and

from

an

increase in

the rate of customs

duty.

It is
after

of

little importance how

the

increase in

customs

duties in the

occurred

when,

the
was

Treaty

entered

into

force,

the same product

same

Member

State

subjected to a

higher

rate of

duty.

The

application

of

Article

12, in

accordance

with

the

interpretation

given

above,

comes within

the jurisdiction

of the national court which must enquire

whether

the

dutiable product, in this

of

case

ureaformaldehyde under

originating in
measures

the

Federal Republic

Germany,
1

is

charged with
an

the customs

brought into force in

with which

the

Netherlands

import

duty

higher

than that

it

was charged on

January

1958.

The Court has

on

no

jurisdiction

to check the validity of the conflicting views

submitted to

this subject which

have been

it

during

the proceedings

but

must

leave

them to

be deterrnined

by

the national courts.

IV

Costs

The

costs

incurred

by

the

Commission

of

the

EEC

and the are

Member States
not

which

have

submitted

their

observations

to

the

Court

recoverable,

and

as

these proceedings are,

a

in

so

far

as

the parties to the main action are

concerned,

step in

the

action

decision

as

to costs

is

a matter

pending before for that court.

the

Tariefcommissie,

the

On

those

grounds,

Upon reading Upon Upon

the pleadings:

hearing hearing

the

report of

the

Judge-Rapporteur;
Advocate-General;

the parties;
the opinion of the to

Upon hearing

Having Having

regard

Articles

9, 12,

14, 169, 170

and

177

of

the

Treaty
of

establishing the European Economic

regard to the

Community;
Statute
of the

Protocol

on the

Court

of

Justice

the

European Economic

Community;
Rules
of

Having

regard

to

the

Procedure

of

the

Court

of

Justice

of

the

European Communities;

15

OPINION OF MR ROEMER

CASE 26/62

THE COURT

in

answer

to

the

questions

referred
of

to

it for

preliminary ruling
rules:

by

the

Tariefcornmissie

by
12

decision

16 August

1962, hereby
the

I.

Article

of

the

Treaty
direct
must

establishing
effects and

European

Economic
rights

Community
which

produces courts

creates

individual

national

protect.

2.

In

order

to

ascertain

whether

customs

duties

or

charges

having
the

equivalent

effect

have been increased contrary to

12
of

the

prohibition

contained

in Article

the

Treaty,

regard

must

be had to

duties
at

and charges

actually

applied

by

the

Member State in

question

the

date

of the

entry into force

can

of the a

Treaty.
re-arrangement of

Such

an

increase

arise

both from
of

the tariff

resulting in the
taxed

classification

the

product

under rate
of

more

heading

and

from

an

increase in

the

customs

highly duty

applied.

3.

The decision

as

to

costs

in

these

proceedings

is

matter

for

the

Tariefcommissie.

Dormer

Delvaux

Rossi

Riese

Hammes

Trabucchi

Lecourt

Delivered in

open

court

in

Luxembourg

on

February

1963.

A. Van Houtte
Registrar

A. M. Donner
President

OPINION OF MR ADVOCATE-GENERAL KARL ROEMER DELIVERED ON 12 DECEMBER 1962

1

Mr President,
Members of the Court,
The
present proceedings originate

the

Nederlandse

administratie

der
1961

belas

tingen (the Netherlands Inland Revenue

Administration)
in
an
a

of

6 March
of

con

cerning
customs

the

application

particular

action

before

the

Tariefcommissie,
court. of a

duty

to

the the

import

of

urea-

Dutch is

administrative

This

action of

formaldehyde from
of

Federal Republic
on

for

the

annulment

decision

Germany. The decision is based

Translated from the German.

16