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³ On this issue, see Pescatore, P, ‘Le recours, dans la jurisprudence de la Cour de justice des Communautés européennes, à des normes déduites de la comparaison des droits des États membres’, Revue Internationale de droit comparé (1980) 352;Google ScholarHilf, M, ‘The role of comparative law in the jurisprudence of the Court of Justice of the European Communities’, in The Limitation of Human Rights in Comparative Constitutional Law (Cowansville, Les Éditions Yvon Blais, 1986), 558;Google Scholarde Wilmars, Mertens, op cit, 38; CN Kakouris, ‘Use of the comparative method by the Court of Justice of the European Communities’, Pace International Law Review (1994) 282.Google Scholar

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⁵ Joined Cases 7/56 and 3/57 to 7/57, Algera and Others v Common Assembly [1957] ECR 39.Google Scholar

⁶ Ibid, 55.

⁷ Ibid, 56.

⁸ Pescatore, op cit, cited in n 3 above, 358.Google Scholar

⁹ On the influence of the different legal cultures in the case law of the Court of Justice, see Koopmans, T, ‘The Birth of European Law at the Crossroads of Legal Traditions’, American Journal of Comparative Law (1991) 500–5.Google Scholar

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¹¹ See, eg, Case 283/81, CILFIT [1982] ECR 3415, paras 16–19.Google Scholar

¹² For examples, see hereinafter, throughout the text as well as the particularly important Opinion of Advocate-General P Léger in Case C-353/99 P, Council v Hautala [2001] ECR I-9565, in which the laws of all fifteen Member States relating to the right of access to information held by public authorities are analysed.Google Scholar

¹³ See Pescatore, op cit, cited in n 3 above, 346 and 347. See, eg, Opinion of Advocate-General J Mischo in Joined Cases 46/87 and 227/88, Hoechst v Commission [1989] ECR 2859, paras 49–96 of Opinion.Google Scholar

¹⁴ See, eg, Case 108/81, Amylum v Council [1982] ECR 3107.Google Scholar

¹⁵ Art 45 of the Rules of procedure of the Court of Justice and Art 65 of the Rules of procedure of the CFI.Google Scholar

¹⁶ On these proceedings, see Lenaerts, K and Arts, D, Procedural Law of the European Union (London, Sweet & Maxwell, 1999), 17–55.Google Scholar

¹⁷ See, eg, Case 155/78, M v Commission [1980] ECR 1797.Google Scholar

¹⁸ See Case 155/79, AM & S v Commission [1982] ECR 1575, paras 19–22. On this issue, see Koopmans, T, ‘Comparative Law and the Courts’ (1996) ICLQ 547–8.Google Scholar

¹⁹ Pescatore, op cit, cited in n 3 above, 349; Mertens de Wilmars, op cit, 37.Google Scholar

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²¹ See Galmot, Y, ‘Réflexions sur le recours au droit comparé par la Cour de justice des Communautés européennes’, Revue française de droit administratif (1990) 261.Google ScholarSee also Van Gerven, W, ‘Taking Art 215 (2) EC Treaty Seriously’, in Beatson, J and Tridimas, T (eds), New Directions in European Public Law (Oxford, Hart Publishing, 1998), 45, and the n at 46.Google Scholar

²² Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur and Factortame [1996] ECR I-1029, para 27 (for the substance of this case, see hereinafter at nn 82–93 and accompanying text).Google Scholar

²³ See Kakouris, op cit, 273 and 278.Google Scholar

²⁴ Schwarze, J, ‘Tendances vers un droit administratif commun en Europe’, Revue trimestrielle de droit européen (1993), 235–45;Google ScholarLenaerts, K and Van Nuffel, P, Constitutional Law of the European Union (London: Sweet & Maxwell, 1999), 534.Google Scholar

²⁵ Opinion of Advocate-General A Dutheillet de Lamothe in Case 11/70, Internationale Handelsgesellschaft [1970] ECR 1125, 1140.Google Scholar

²⁶ Ibid, at 1146.

²⁷ Ibid, at 1146–7.

²⁸ Case 11/70, Internationale Handelsgesellschaft [1970] ECR 1125, para 4.Google Scholar

²⁹ Case 4/73, Nold v Commission [1974] ECR 491.Google Scholar

³⁰ Ibid, para 13.

³¹ As stated by Pescatore, op cit, cited in n 3 above, 341. In a joint declaration of 5 Apr 1977 (OJ C 103, 1), the European Parlement, the Council and the Commission have endorsed this case law in stressing the ‘prime importance’ they attach to the protection of fundamental rights ‘as derived in particular from the constitutions of the Member States and the [ECHR].’Google Scholar

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³³ Pescatore, op cit, cited in n 3 above, 342–3;Google ScholarFuss, EW, ‘Die Allgemeinen Rechtsgrundsätze über die ausservertragliche Haftung der europäischen Gemeinschaften’, Festschrift filr Raschhofer (Kallmünz: Verlag Michael Laβleben, 1977) 43 to 57; Hilf, op cit, 556; Galmot, op cit, 256; Kakouris, op cit, 270–1; Van Gerven, op cit, 44–6.Google Scholar

³⁴ Brasserie du Pêcheur and Factortame, cited in n 22 above, paras 28–30 and 41 (see further hereinafter at nn 82–93 and accompanying text).Google Scholar

³⁵ Case 110/75, Mills v EIB [1976] ECR 955, para 25; Case T192/99, Dunnett and Others v EIB [2001] ECR II–817.Google Scholar

³⁶ Benos, G, ‘The Practical Debt of Community Law to Comparative Law’, Revue hellénique de droit international (1984) 251; Hilf, op cit, 566.Google Scholar

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³⁸ ‘The most appropriate rule’ [Kakouris, op cit, 279; Drobnig, U, ‘The Use of Comparative Law by Courts: General Report’, in Drobnig, U and Van Erp, S (eds), The Use of Comparative Law by Courts, (The Hague/London/Boston, Kluwer Law International, 1999), 7]; ‘the solution which best suits’, the ‘best solution’, or the ‘optimum standard’ (Hilf, op cit, 562–3).Google Scholar

³⁹ Case 294/83, Les Verts v Parliament [1986] ECR 1339, para 23.Google Scholar

⁴⁰ Zweigert, K and Kötz, H, An Introduction to Comparative Law, vol 1 (Oxford: Clarendon Press, 1987), 12.Google Scholar

⁴¹ Kakouris, CN, ‘L'utilisation de la méthode comparative par la Cour de Justice des Communautés européennes’, in Drobnig, U and Van Erp, S (eds), The Use of Comparative Law by Courts (The Hague/London/Boston: Kluwer Law International, 1999), 99.Google Scholar

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⁴⁴ The recent case law of the Bundesverfassungsgericht (German Constitutional Court) shows that the Community legal order, since it draws its inspiration from the constitutional traditions common to the Member States, is considered to confer upon the individual a high level of judicial protection. Thus, by order of 7 June 2000, the Bundesverfassungsgericht dismissed as inadmissible a reference for a preliminary ruling made by the Administrative Court of Frankfurt/Main concerning the compatibility of a Community scheme relating to the imports of bananas with the German Basic Law. At the moment the Administrative court made its referral to the Bundesverfassungsgericht, the Court of Justice had already ruled in its Atlanta judgment of 9 Nov 1995 (Case C-466/93, Atlanta [1995] ECR 1–3799) that the Community scheme in question was valid. The Bundesverfassungsgericht ruled that a reference for a preliminary ruling concerning the constitutionality of an act of secondary Community legislation is inadmissible if the reasons set forth in the referral do not clearly explain why Community law, including the case law of the Court of Justice, no longer affords an acceptable level of protection of fundamental rights.Google Scholar

⁴⁵ GBenos, op cit, 252.Google Scholar

⁴⁶ The case law concerning the direct effect of Community directives illustrates particularly well the importance the Court of Justice attaches to national sensitivities in its quest to find a Community law solution for a novel issue. In this respect, it should be recalled that Art 249 EC (ex-Art 189 of the EC Treaty) makes a distinction between regulations and directives. A regulation is directly applicable in all the Member States. By contrast, a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and method. A directive prescribes a time period during which the Member States have to implement its provisions into their national legal orders. In its Van Duyn judgment of 4 Dec 1974 (Case 41/74, van Duyn [1974] ECR 1337) the Court of Justice ruled that provisions of a directive which impose a precise and unconditional obligation on the Member States have direct effect in the national legal orders, just like the provisions of a regulation. This case law was not well received in some legal orders. Thus, in its ‘Cohn-Bendit’ judgment of 22 Dec 1978, the French Conseil d'État ruled that it follows clearly from Art 249 EC (which constitutes an ‘acte clair’) that whatever the degree of precision the provisions of a directive may have, such provisions cannot be relied upon before the national courts against an administrative act of a Member State. Aware of the fact that a too ambitious position with respect to the question of direct effect of Community directives could undermine the credibility of its judgments, the Court of Justice later ‘specified’ its van Duyn case-law. Thus, in its judgment of 5 Apr 1979 in the Ratti case (Case 148/78, Ratti [1979] ECR 1629) the Court of Justice based the direct effect no longer on a broad interpretation of Art 249 EC but on a general principle of law common to the Member States, namely the principle ‘nemo auditur qui suam propriam turpitudinem allegat’ or the ‘estoppel’ principle. On this basis the Court of Justice ruled that a Member State, which has not adopted the implementing measures required by a directive in the prescribed period, may not rely, as against individuals, on its own failure to respect Art 249 EC. In other words, if in litigation opposing an individual and a ‘failing’ Member State, the individual requests the national court not to apply a provision of national law incompatible with the directive, that court must uphold such request if the provision of the directive is unconditional and sufficiently precise. The Court, however, stressed that as long as the period prescribed for the Member States to incorporate the provisions of a directive into their national legal orders has not yet expired, the directive cannot have direct effect. This readjustment of the Court's case-law was confirmed in the Faccini Dori judgment of 14 July 1994 (Case C91/92, Faccini Dore [1994] ECR I-3325). In this case the Court of Justice reiterated that the possibility of relying on directives against State entities is based on the binding character of directives under Art 249 EC. The direct effect thus aims at avoiding that a Member State takes advantage of its own breach of Community law constituted by the fact that it has failed to implement the directive in its national legal order within the time limit stated. However, in contrast to what Advocate-General CO Lenz had proposed in this case, the Court of Justice ruled that, even in such circumstances, directives do not have direct effect as between individuals (horizontal direct effect), such effect being reserved as their distinctive feature to regulations. Without any doubt, the position expressed by many governments against such horizontal direct effect in the course of the proceedings influenced the Court's choice. The Court clearly preferred to play it prudently instead of imposing a solution which would have been more in the interest of Community law but which risked to be unacceptable in the Member States. See also the judgment of the Bundesfinanzhof of 16 July 1981 (Europarecht, 1981, 442–4) which expresses resistance within the German legal order against the direct effect of tax directives.Google Scholar

⁴⁷ See, in particular, Kakouris, CN, ‘Do the Member States possess judicial procedural “autonomy”?’, Common Market Law Review (1997) 1389–1412; Lenaerts and Arts, op cit, 3–4;CrossRefGoogle ScholarStrays, M, ‘Le droit communautaire et l' application des régies procédurales nationales’, Journal des tribunaux—Droit européen (2000) 49–53.Google Scholar

⁴⁸ This obligation of sincere cooperation imposed on the national authorities (notably judicial authorities) is, in fact, the counterpart of the ‘federal loyalty’ obligation which the Community authorities have under Art 10 EC vis-à-vis the national legal orders (see order of the Court of Justice of 13 July 1990, in Case C-2/88 Imm, Zwartveld and Others [1990] ECR 13365, paras 16–18).Google Scholar

⁴⁹ See on this subject Lenaerts and Van Nuffel, op cit, 518.Google Scholar

⁵⁰ See judgment of the Bundesverfassungsgericht of 29 05 1974 (English version published in Common Market Law Reports (1974), vol 2, 540–69; also called ‘Solange I’ judgment).Google Scholar

⁵¹ See, eg, Case 44/79, Hauer [1979] ECR 3727, para 15.Google Scholar

⁵² ‘Solange II’ judgment; English version published in Common Market Law Reports (1987) vol 3, 225–65.Google Scholar

⁵³ The Bundesverfassungsgericht confirmed its ‘conditional acceptance’ of the primacy of Community law in its judgment of 12 10 1993 concerning the constitutionality of the Maastricht Treaty (see, for the English version of this judgment, Common Market Law Reports (1994) vol 1, 57–108); See also, Lenaerts and Van Nuffel, op cit, 519.Google Scholar

⁵⁴ Case 25/70, Köster [1970] ECR 1161.Google Scholar

⁵⁵ Ibid, para 6.

⁵⁶ See, in the meantime, Art 202, third indent, EC (ex-Art 145, third indent, of the EC Treaty), introduced into the Treaty by the Single European Act (1986).Google Scholar

⁵⁷ Dunnett and Others v EIB, cited in n 35 above.Google Scholar

⁵⁸ Paras 85–90 of the judgment.Google Scholar

⁵⁹ See Case C-173/99, BECTU, [2001] ECR I-4881, Opinion of Advocate-General A Tizzano of 8 Feb 2001, paras 26–8. See also Case C-353/99 P, Council v Hautala Opinion of Advocate-General P Léger of 10 July 2001, cited in note 12 above, paras 80–3. In order to regard the principle of access to documents as a fundamental right, the Advocate-General emphasises the ‘convergence of national laws’ which in his view ‘constitutes a decisive reason for recognising the existence of a fundamental principle of a right of access to information held by Community institutions’ (para 55). Art 42 of the Charter of Fundamental Rights of the European Union merely confirms the existence of such fundamental right in the Community legal order. In the light of all of this, ‘it appears natural to [the Advocate-General] to accept that there exists a principle of access to infomation held by the national public authorities and that that principle is such that it would engender an equivalent principle at Community level’ (para 59).Google Scholar

⁶⁰ See Lenaerts, and De Smijter, , ‘A “bill of rights” for the European Union’, Common Market Law Review (2001) 273–300.Google Scholar

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⁶⁴ Case 222/84, Johnston [1986] ECR 1651.Google Scholar

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⁶⁶ Johnston, cited in n 64 above, paras 17 and 18.Google Scholar

⁶⁷ Ibid, paras 19–20. See also Jacobs, FG, ‘Access to justice as a fundamental right in European law’, Mélanges en hommage à Fernand Schockweiler (Baden-Baden: Nomos Verlagsgesellschaft, 1999), 197–212.Google Scholar

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⁶⁹ Opinion of Advocate-General G Tesauro in Brasserie du Pêcheur and Factortame, cited in n 22 above, I-1066, para 12.Google Scholar

⁷⁰ Joined Cases 83 and 94/76, 4, 15 and 40/77, HNL and Others v Council and Commission [1978] ECR 1209, para 5. See also Brasserie du Pêcheur and Factortame, cited in n 22 above, para 45, and the Opinion of Advocate-General N Fennelly in Case C352/98 P, Bergaderm and Goupil v Commission, 2000 ‘ECR‘ I-5291, I-5294, para 29.Google Scholar

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⁷⁵ Zuckerfabrik Schoppenstedt judgment, cited in n 73 above, para 11. In Brasserie du Pêcheur and Factortame (cited in n 22 above), the Court held that the decisive test for considering a breach of Community law sufficiently serious is ‘whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion’ (para 55). See also Bergaderm and Goupil v Commission, cited in n 70 above, para 43.Google ScholarSee, on this subject, Arnull, A, ‘Liability for Legislative Acts Under Art 215 (2) EC’, in The Action for Damages in Community Law, 129–53.Google Scholar

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⁸⁴ Cited in n 76 above.Google Scholar

⁸⁵ Ibid, para 29.

⁸⁶ Ibid, para 30.

⁸⁷ See, on this issue, Opinion of Advocate-General P Léger in Case C-5/94, Hedley Lomas [1996] ECR I-2553, I-2556, paras 98–100.Google Scholar

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⁹⁰ Brasserie du Pêcheur and Factortame, cited in n 22 above, paras 47–55. In both cases the Court found that such a violation of Community law was established.Google Scholar

⁹¹ Ibid, cited in n 22 above, para 80.

⁹² Ibid, cited in n 22 above, paras 82 and 87. For a state of comparative law on these issues, see, eg, Edward, D and Robinson, W, ‘Is There a Place for Private Law Principles in Community Law?’, in The Action for Damages in Community Law, 347.Google Scholar

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⁹⁴ Case T-184/95, Dorsch Consult v Council and Commission [1998[ ECR II-667.Google Scholar

⁹⁵ Ibid, para 80. These conditions were not met in Dorsch Consult.

⁹⁶ Ibid, paras 76–9.

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¹¹³ AM & S v Commission, cited in n 18 above.Google Scholar

¹¹⁴ Arts 81 and 82 EC (ex-Arts 85 and 86 of the EC Treaty).Google Scholar

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¹¹⁹ See, on this judgment, Galmot, op cit, p 256–7.Google Scholar

¹²⁰ Case 59/85, Reed [1986] ECR 1283.Google Scholar

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¹³⁶ Ibid, para 24.

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¹³⁸ Case C-213/89, Factortame and Others [1990] ECR I-2433.Google Scholar

¹³⁹ Ibid, para 18.

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¹⁴³ Opinion of Advocate-General G Tesauro in Factortame, cited in n 138 above, I-2450, para 23 of Opinion.Google Scholar

¹⁴⁴ Struys, M, op cit, 49.Google Scholar

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¹⁵⁰ Ibid, para 14.

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¹⁵⁹ Cited in n 147 above.Google Scholar

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