A Dutch company importing chemicals from Germany were forced to pay a higher tariff than article 12 of the EEC Treaty allowed. They appealed against payment of the tariff, on the basis that individuals could derive rights from EC treaties. The Dutch Court asked the ECJ whether the article had direct effect. The ECJ allowed the company’s appeal and held that this provision had direct effect.
ECJ: (1) The EC founded a new type of treaty in which individuals were the subjects of a treaty and therefore a different order was formed so that treaty articles could have direct effect. (2) Because there was no EC article prohibiting direct effect it must be presumed that individuals have direct effect. (3) The particular article (article 12 of EEC Treaty) was well suited to direct effect. (4) Just because public enforcement exists, doesn’t mean private enforcement can’t also exist (private enforcement will make treaties easier to enforce). Evidence for argument one is that the EEC treaty created a common market that directly affected individuals as well as government, evidence by the reference to “peoples” in the preamble of the treaty. Thus this great project confers obligations and rights on individuals, making a treaty directly applicable to ordinary people. This = a new order of treaty and thus direct effect is needed. Evidence for argument 3 is that it was enacted without the need for national legislation to enact it under national law. The reasoning throughout the ECJ’s judgement was “purposive”: it looked at the treaties and the aims for the EC as a whole and made its rulings in accordance with the political and economic aims of the Community. For a treaty article to be justiciable it should be negative, clear, unconditional, containing no reservation on part of MS, and should not be dependent on any implementing measure. The fact that the company could rely on treaty rights to avoid paying the higher import tax established by national law must lead to conclusion that EC law is supreme.