Van Gend en Loos at 50

vangendenloosChristopher Brown

It is 50 years to the day since the CJEU gave judgment in the seminal van Gend en Loos case.  So important is that case that the Court of Justice announced today that it is itself organising a special conference dedicated to the judgment. 

Why is van Gend so special?  Here are a few quick reasons:

  1. Perhaps most obviously, because the CJEU dared to read the concept of ‘direct effect’ into Community law.  (More accurately, as Bruno de Witte has pointed out, the Court decided that the question whether specific provisions of Community law had direct effect was to be decided centrally by the Court itself rather than by the various national courts according to their own views (“Direct Effect, Supremacy, and the Nature of the Legal Order” in Craig & De Burca (eds) The Evolution of EU Law (OUP, 1998), 177, 181).)  In the face of strenuous arguments to the contrary by the only two Governments to intervene (the Netherlands and Belgium), and against the advice of its Advocate General (Roemer), the Court held that the Community constituted “a new legal order of international law, for the benefit of which the states have limited their sovereign rights” and whose subjects comprised not only the Member States but also their nationals; Community law therefore not only imposed obligations on the contracting states but was also “intended to confer upon [individuals] rights which become part of their legal heritage”.  This conclusion was based on just two paragraphs of teleological reasoning and without reference to any of the travaux préparatoires which, one might expect, would have some light on the founders’ true intentions – pretty remarkable parsimony even by the Court’s standards, considering what was at stake.
  2. The ‘discovery’ of direct effect led to a similar ‘discovery’ of a number of other key principles of EU law, including supremacy and Member State liability in damages for breach of EU law; in other words, it was the cornerstone of the rule of (EU) law. The Court was right to say in van Gend that “The vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted…to the diligence of the Commission and of the Member States”: realistically, it would be impossible for the Commission, as guardian of the Treaties, to ensure compliance with all of the various Member States’ obligations under EU law.
  3. In related vein, it led to an explosion of litigation around the EU, which continues to this day, in which individuals and companies sought and seek to vindicate their EU law rights.  From the perspective of us EU lawyers, that litigation, some of which has spawned references to the CJEU under Article 267 TFEU (as it now is) for preliminary rulings on the interpretation of EU law, has helped immensely to shape and develop the substantive law.

 Bottom line for us EU lawyers: thank you, van Gend en Loos, for giving us a living…

 

One thought on “Van Gend en Loos at 50

  1. Correction: as my colleague Maurice Sheridan has kindly pointed out, the travaux preparatoires (TP) were not actually available to the Court of Justice when it decided Van Gend. In 1959 they had been declared by the Committee of Permanent Representatives to be inadmissible; only in 1994 were they declared to be open (see Pratter, ‘À la Recherche des Travaux Préparatoires: An Approach to Researching the Drafting History of International Agreements’, available at http://www.nyulawglobal.org/globalex/travaux_preparatoires1.htm#_edn17, which also contains a link to the Historical Archives of the EU where the TP can be found).

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