However, under (6), it becomes clear that community law can give nationals
rights (and impose duties upon them),independently of national legislation. More-
over, in case this were not sufficiently clear, the CJEU adds that these rights do not
only arise where they are expressly granted by the Treaty but also arise by reason of
obligations that the Treaty imposes in a clearly defined way upon individuals, as
well as upon the Member States and upon the institutions of the European commu-
nity. In other words, the transfer of sovereignty does not even have to be explicit; it
has taken place by creating a community with a particular purpose. If rights follow
by reason ofobligations imposed by the Treaty, they also exist. The EEC Treaty has
had a bigger impact than the parties may have had in mind. According to the CJEU,
they may have “transferred” more sovereignty than they first realized.
10.6.4.2 Costa Versus ENEL
As if the CJEU decision in theVan Gend & Looscase were not revolutionary
enough, the CJEU added to it in its decision in the case between Flaminio Costa and
ENEL (CJEU Case C-6/64). In this case, the question arose whether EU (EEC) law
could be set aside by later national legislation.
In this connection, the CJEU wrote the following (numbers added):
- By contrast with ordinary international treaties, the EEC Treaty has created its own legal
system which, on the entry into force of the treaty, became an integral part of the legal
systems of the Member States, and which their courts are bound to apply.
By creating a community of unlimited duration having its own institutions, its own
personality, its own legal capacity and capacity of representation on the international plane
and, more particularly, real powers stemming from a limitation of sovereignty or a transfer
of powers from the states to the community, the Member States have limited their sovereign
rights (albeit within limited fields). They have thus created a body of law which binds both
their nationals and themselves.
2. The integration into the laws of each Member State of provisions which derive from
the community, and more generally the terms and the spirit of the treaty, make it impossible
for the states, as a corollary, to accord precedence to a unilateral and subsequent measure
over a legal system accepted by them on a basis of reciprocity. Such a measure cannot
therefore be inconsistent with that legal system. The executive force of community law
cannot vary from one state to another in deference to subsequent domestic laws, without
jeopardizing the attainment of the objectives of the treaty.
The obligations undertaken within the framework of the treaty establishing the commu-
nity would not be unconditional, but merely contingent, if they could be called in question
by subsequent legislative acts of the signatories.
It follows from all these observations that the law stemming from the treaty – an
independent source of law – could not, because of its special and original nature, be
overridden by domestic legal provisions, however framed, without being deprived of its
character as community law, and without the legal basis of the community itself being
called into question.
Under (1), the CJEU restates its position in theVan Gend & Loosdecision. It
adds that the legal system created by the EEC Treaty became an integral partof the
legal systems of the Member States, which their courts are bound to apply. This
seems to be a step backwards. It is difficult to combine this with the view set out in
234 J. Hage