À propos de l’effet direct et de la primauté du droit communautaire
Cour de Justice de l’Union européenne, Luxembourg (Crédit image)
Dans le cadre de la préparation d’un travail sur la Cour de Justice de l’Union Européenne (CJUE), je suis tombé sur le passage suivant (en anglais), qui explique de manière particulièrement claire l’affirmation insititutionnelle de la Cour de Justice de Luxembourg dans les années 1960, par le biais de deux arrêts fondateurs : Van Gend en Loos (1962) et Costa c./ Enel (1964). Tiré du chapitre écrit par Margaret McCown, intitulé “Judicial law-making and European integration. The European Court of Justice” (p. 171-185), l’extrait suivant s’inscrit dans un ouvrage très complet dirigé par Jeremy Richardson, titré European Union. Power and policy-making (Routledge, 2006, 3e édition).
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The Constitutionalisation of the Treaties
The treaties founding the EU were international law, binding on nation states and holding those states as their objects. Individuals and their rights under and vis-à-vis the European institutions were barely mentioned and not significantly developed. Although the treaties spoke of establishing a Parliament, majoritarian bodies were a long time in coming (Rittberger 2003). Similarly, the Court was essentially created in order to adjudicate disputes between member states, rather than citizens.
The sections of the treaties establishing the ECJ did, however, include a clause allowing national courts to send references to the European Court of Justice in order to ask for clarification about how to apply EU laws in cases pending before them (Article 234, TEU). This technocratic provision for harmonising the application of EU law turned out to be of pivotal importance once the ECJ began to interpret it in its decisions. In 1962, a case was referred to the ECJ by a national court reviewing a case between the Netherlands customs agency and a Dutch import firm, Van Gend en Loos (ECJ 26/62 Van Gend en Loos). The firm claimed that a Dutch law adjusting customs fees on imports actually increased them and was, thus, contrary to treaty provisions in Article 23 which prohibited member states from enacting new import taxes on goods once they had entered the customs union. What was novel about the case was that private actor claimed an EU law in their defence. The Belgian government, which along with the German government submitted observations to the case, argued that the appellant, Van Gend en Loos, could not claim rights from the treaties in court – that the law in the treaties was addresses only to states. The ECJ found, however, that Eu law ‘not only imposes obligations on individuals but also confers upon them rights’ and thereby, in a sentence, took the first step towards the ‘constitutionalisation’ of EU law (Weiler 1999). This was the point from which the ECJ began the transformation of the treaties into document that, like constitutions, granted rights to individual citizens which they could claim before their national courts and request to have referred to the ECJ. Lire la suite »



