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Judicial Interplay within the Community

Published online by Cambridge University Press:  21 May 2009

B.H. ter Kuile
B.H. ter Kuile
Affiliation:
Professor of Law, Erasmus University, Rotterdam; Attorney at Law in The Hague, The Netherlands.
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Extract

(1.1) Cooperation and coordination within the legal order of the Community between the European Court of Justice and the national courts and tribunals are primarily based upon Article 177 of the Treaty of Rome. This provides for the possibility of a preliminary ruling by which a national court may request the European Court to give a ruling upon the interpretation of the Treaty itself or upon the validity and interpretation of acts of the institutions of the Community, such as the Council or the Commission.

Type
Research Article
Information
Netherlands International Law Review , Volume 39 , Special Issue S1: Law and Reality , October 1992 , pp. 187 - 198
Copyright
Copyright © T.M.C. Asser Press 1991

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References

1. See Nederlands Economisch Instituut, ‘Grenseffecten van de accijnsverhoging op benzineprijzen per 1-11-90’ [Border effects on petrol prices of higher excise duty at 1-11-1990] (Rotterdam 1990) p. 2.Google Scholar

2. Art 101 of the Treaty of Rome reads as follows:

‘Where the Commission finds that a difference between the provisions laid down by law, regulation or administrative action in Member States is distorting the conditions of competition in the Common Market and that the resultant distortion needs to be eliminated, it shall consult the Member States concerned. If such consultation does not result in an agreement eliminating the distortion in question, the Council shall, on a proposal from the Commission, acting unanimously during the first stage and by a qualified majority thereafter, issue the necessary directives. The Commission and the Council may take any other appropriate measures provided for in this Treaty.’

Art. 102 of the Treaty of Rome reads as follows:

‘1. Where there is reason to fear that the adoption or amendment of a provision laid down by law, regulation or administrative action may cause distortion within the meaning of Article 101, a Member State desiring to proceed therewith shall consult the Commission. After consulting the Member States, the Commission shall recommend to the States concerned such measures as may be appropriate to avoid the distortion in question.

2. If a State desiring to introduce or amend its own provisions does not comply with the recommendation addressed to it by the Commission, other Member States shall not be required, in pursuance of Article 101, to amend their own provisions in order to eliminate such distortion if the Member State which has ignored the recommendation of the Commission causes distortion detrimental only to itself, the provisions of Article 101 shall not apply.’

3. See Costa v. ENEL, [1964] ECR 585 at 595.

4. In the sixties the Commission acted only a few times on the powers given by Art 101. In only three cases it came to a recommendation; 10th General Report 1966–67, p. 137, OJ No. 198/10 of 17.8.1967 en OJ No.L 18/3 of 24.1.1969. None has led to a directive of the Council under Art 101.

5. With the exception of two directives on tobacco excise duties; OJ No. L 303/1 of 31.12.1972, OJ No. L 10/3 of 16.1.1979.

6. See Answer of Delors to a written question by MEP De Vries (OJ No. C 276/25 of 30.10.1989); see also F. Schockweiler, ‘Le régime de laresponsabilité extra-contractuelle du fait d'actes juridiques dans la Communauté Europeénne’ [Non-contractual Liability for Legal Acts in the European Community] RTDE 1990, p. 27 et seq.

7. Cf., Commission Proposals concerning mineral oil excise duties: (as to the structure) COM 90/434, OJ No. C 332/8 of 31.12.1990 and COM 92/4 fin., OJ No. C 42/3 of 17.2.1992; (as to the rates) COM 87/327, OJ No. C 262 of 1.10.1987 and COM 92/3 fin., OJ No. C 48/13 of 22.2.1992.

8. See supra, n. 3.

9. Arts. 101 and 102 will not be altered by the Treaty on European Union either.

10. See supra, n. 3.

11. See Art 102.

12. Commission v. Italy, [1987] ECR 2717 at 2737, para. 6.

13. Cf., VNO v. Inspecteur der Invoerrechten en Accijnzen, [1977] ECR 113 at 128, para. 27 et seq.

14. Joint Cases 6 and 9/90, Francovich and Bonifaci of 19 11 1991Google Scholar, not yet reported.

15. These conditions for liability of a Member State under Community law would be borrowed from those applied by the European Court of Justice under Art. 215 of the Treaty of Rome with respect to Community liability.

16. See Art. 162, Book 6 Nieuw Burgerlijk Wetboek [New Civil Code], formerly Art. 1401 Burgerlijk Wetboek [Civil Code]; see supra, n. 6.

17. OJ No. L 225/10 of 20.8.1990.

18. OJ No. C 301/4 of 21.12.1976; see also Answer of the Commission to a written question by MEP Welsh (OJ No. C 118/22 of 10.5.1982) referring to another answer on the same subject (OJ No. C 134/37 of 4.6.1981).

19. United Kingdom v. Council, [1988] ECR 905 at 933, para. 29.

20. Commission v. Council, [1987] ECR 1493 at 1519 et seq., paras. 5, 11.

21. See Art. 220 of the Treaty of Rome.