EU law update:February 3rd was the 50th anniversary of the judgment of the European Court of Justice (ECJ) in the landmark case of Van Gend en Loos. The narrow point at issue in the case was whether the provisions of the then EEC Treaty precluded Dutch authorities from increasing tariffs applicable to imports from other member states ahead of the eventual abolition of such tariffs.

The ECJ found that it did. However, the importance of the case is its recognition that private individuals and businesses (Van Gend en Loos was a Dutch distribution company) could directly rely on the terms of the treaty when litigating disputes before their national courts.

Core principle

This concept (referred to as the direct effect of treaty provisions) is now recognised as a core principle of EU law. However, at the time it marked a very significant departure insofar as traditional international treaties had created legal obligations between signatory states. The question of whether such treaties created rights for the individual citizens of those states was a matter to be determined by national law.

The ECJ’s finding that the EEC constituted “a new legal order of international law for the benefit of which states have limited their sovereign rights ... and the subjects of which comprise not only member-states but their nationals” may well have come as news to the authorities of some of those member states, two of which (Belgium and the Netherlands) had argued before the ECJ that the treaty had no such effect.

It is not unusual for superior courts to interpret the founding documents of states in ways which might have surprised those who originally drafted and adopted them. The ruling of the US Supreme Court in Brown v Board of Education that segregated schools were a breach of a constitution adopted over 70 years prior to emancipation is unlikely to have been anticipated by its drafters.

Similarly, the Irish Supreme Court’s 1973 decision in McGee that the constitution provided for a right to marital privacy, including a right to use contraception, might have surprised many of those who voted for its adoption in 1937.

Remarkably, Van Gend en Loos’ revelation that the treaty was of an entirely different legal nature to those governed by the standard principles of international law came a mere six years following its signing.

Whether one celebrates the decision for establishing that the European project was based not only on law but also on the rights of individuals, or mourns it as an early example of a European institution overreaching at the cost of state sovereignty, it remains a significant milestone.

* Donogh Hardiman is chairman of the Irish Society for European Law