imposes in a clearly defined way upon individuals, as well as upon the Member States
and upon the institutions of the community.The CJEU actually interprets the first question as two questions:
a. whether nationals of Member States derive rights from Article 12 of the EEC
Treaty and, in case this first question is answered in the affirmative,
b. whether national courts of the Member States must protect these rights.
Apparently, the CJEU takes it that an affirmative answer to the first question
automatically leads to an affirmative answer to the second one.
Under (2), the CJEU takes a crucial step. It assumes that it is not only the
wording of international treaties—and therefore also of the EEC Treaty—that
determines whether nationals can derive rights from them but also the “spirit”
and the “general scheme.”
Under (3), the CJEU continues by identifying the objective of the EEC Treaty.
This objective is to establish a common market, the functioning of which is of
“direct concern to interested parties in the community.” By mentioning these
parties, the CJEU creates room to make Article 12 of the EEC directly applicable.
According to the Court, the objective of the EEC Treaty would become apparent
from the preamble to the treaty, from the fact that the institutions of the EEC were
endowed with “sovereign rights,” and from the fact that the Treaty calls upon the
nationals to cooperate in the functioning of the community. This last point is meant
to clarify the fact that the EEC Treaty does not only address the Member States but
also address their nationals. In other words, this Treaty is not just an agreement
between states but something that concerns both statesandtheir nationals.
Under (4), the CJEU first draws the intermediate conclusion that “the States have
acknowledged that community law has an authority which can be invoked by their
nationals before those courts and tribunals.”
To draw this intermediate conclusion, the Court adduces still another premise,
namely that the task assigned to the Court of Justice—the object of which is to
secure uniform interpretation of the treaty by national courts and tribunals—
confirms that the states have acknowledged that community law has an authority
that can be invoked by their nationals before those courts and tribunals. This
premise implicitly answers question (b) above, about whether national courts
must protect rights derived from the EEC Treaty, in the affirmative.
Under (5), the CJEU takes a decisive step. It states that the community
constitutes a new legal order of international lawfor the benefit of which the states
have limited their sovereign rights, and the subjects of which comprise not only
Member States but also their nationals.
With this step, the CJEU states that nationals of the Member States do not derive
their rights from national law, as the Member States assumed; they derive their
rights immediately from the EU law. The states have themselves limited their
sovereign rights for the benefit of this new legal order. The EU legal system exists,
thanks to the willingness of the states to give up a little of their sovereignty.
10 The Law of Europe 233