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Interlocking Legal Orders in the European Union and Comparative Law

  • Koen Lenaerts

Extract

Even if an external observer who takes an interest in the case-law of the Court of Justice of the European Communities and of the Court of First Instance of the European Communities may not have such an impression at first sight, comparative law plays a central role in the activities of these courts. It means much more than simply looking at solutions given to certain problems in the legal orders of the Member States. As a former president of the Court of Justice rightly observed, recourse to comparative law is for the Court of Justice essentially a method of interpretation of Community law itself.1 For the Court of Justice and the CFI (below often referred to as ‘Community judge’ or ‘Community courts’), it is one method amongst other methods of interpretation of the law (such as literal, exegetic, historical, systematic interpretation) and it constitutes a tool for establishing the law.2

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1 Mertens de Wilmars, J, ‘Le droit comparé dans la jurisprudence de la Cour de justice des Communautés européennes’, Journal des Tribunaux (1991) 37.

2 Fennelly, N, ‘Legal interpretation at the European Court of Justice’, Fordham International Law Journal (1997) 656–79.

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;Hilf, 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;de 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.

4 On this issue, see Pescatore, , ‘International Law and Community Law—A Comparative Analysis’, Common Market Law Review (1969) 177; Hilf, op cit, 558–60; Kakouris, op cit, 271, 272, and 282.

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

6 Ibid, 55.

7 Ibid, 56.

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

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.

10 See Hilf, , op cit, 566–7.See also Van Calster, G, ‘The EU's Tower of Babel—The Interpretation by the European Court of Justice of Equally Authentic Texts Drafted in more than one Official Language’, Yearbook of European Law (1997) 363–93.

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

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.

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.

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

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

16 On these proceedings, see Lenaerts, K and Arts, D, Procedural Law of the European Union (London, Sweet & Maxwell, 1999), 1755.

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

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.

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

20 See Hilf, op cit, 550.

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.See 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.

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).

23 See Kakouris, op cit, 273 and 278.

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

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

26 Ibid, at 1146.

27 Ibid, at 1146–7.

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

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

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].’

32 Lenaerts, K, ‘Fundamental rights in the European Union’, European Law Review (2000), 578.

33 Pescatore, op cit, cited in n 3 above, 342–3;Fuss, 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.

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).

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

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

37 Joined Cases 7/56 and 3/57 to 7/57, Algera and Others v Common Assembly [1957] ECR 39, 55.

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).

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

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

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.

42 Term used by Hilf, op cit, 563–4; see also Pescatore, op cit, cited in n 3 above, 356 and 359.

43 See Van Gerven, W, op cit, 46–7.

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.

45 GBenos, op cit, 252.

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.

47 See, in particular, Kakouris, CN, ‘Do the Member States possess judicial procedural “autonomy”?’, Common Market Law Review (1997) 13891412; Lenaerts and Arts, op cit, 3–4;Strays, M, ‘Le droit communautaire et l' application des régies procédurales nationales’, Journal des tribunaux—Droit européen (2000) 4953.

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).

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

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).

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

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

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, 57108); See also, Lenaerts and Van Nuffel, op cit, 519.

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

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).

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

58 Paras 85–90 of the judgment.

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).

60 See Lenaerts, and De Smijter, , ‘A “bill of rights” for the European Union’, Common Market Law Review (2001) 273300.

61 Pescatore, op cit, cited in n 3 above, 341.

62 Galmot, op cit, 258.

63 See Pescatore, op cit, cited in n 3 above, 339–41, 344–6, 352–3; Benos, op cit, 248–50; Lenaerts and Van Nuffel, op cit, 534–6 and 539–50.

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

65 OJ L 39, 40.

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

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), 197212.

68 See, in particular, Galmot, op cit, 258. For an example in the case-law, see the Opinion of Advocate-General P Léger in Case C-353/99 P, Council v Hautala cited in n 12 above, para 119 as to the right of partial access to documents containing some confidential elements.

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

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.

71 Pescatore, op cit, cited in n 3 above, 342.

72 See Opinion of Advocate-General G Tesauro in Brasserie du Pêcheur and Factortame, cited in n 22 above, I–1081.

73 Case 5/71, Zuckerfabrik Schöppenstedt v Council [1971] ECR 975.

74 Opinion of Advocate-General K Roemer in Case 5/71, Zuckerfabrik Schöppenstedt v Council cited in n 73 above, 986, at 990. In his Opinion, the Advocate-General, on the basis of a study of comparative law prepared by the German Max-Planck Institute, considered it justified to recognise the liability of public authorities resulting from normative activity as a ‘part of Community law, because it is widely recognised [in the Member States] and in certain cases even includes formal laws’.

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.See, on this subject, Arnull, A, ‘Liability for Legislative Acts Under Art 215 (2) EC’, in The Action for Damages in Community Law, 129–53.

76 Joined Cases C-6/90 and C-9/90, Francovich and Others [1991] ECR I-5357.

77 Opinion of Advocate-General J Mischo in Francovich, cited in n 76 above, I-5370, at para 47.

78 Francovich judgment, cited in n 76 above, paras 35 and 37.

79 Ibid, para 71.

80 Zuckerfabrik Schöppenstedt, cited in n 73 above.

81 Francovich judgment, cited in n 76 above, paras 38–46.See, on this subject, Waelbroeck, DF, ‘Treaty Violations and Liability of Member States: The Effect of Francovich Case Law’, in The Action for Damages in Community Law, 311–39.

82 Brasserie du Pêcheur and Factortame, cited in n 22 above. Opinion of Advocate-General at I-1066.

83 For an analysis of this judgment see, in particular, Van Gerven, op cit, 36–9.

84 Cited in n 76 above.

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.

88 Ibid, paras 31 and 32.

89 Cited in n 22 above, para 60.

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.

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.

93 Brasserie du Pêcheur and Factortame, cited in n 22 above, para 85. See, also, Opinion of Advocate-General G Tesauro, cited in n 22 above, para 98.

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

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

96 Ibid, paras 76–9.

97 See, in particular, Bronkhorst, HJ, ‘The Valid Legislative Act as a Cause of Liability of the Communities’, in The Action for Damages in Community Law, 155–8.

98 Case C–237/98 P, Dorsch Consult v Council and Commission [2000] ECR I-4549.See also Lenaerts, K, ‘Le Tribunal de premiére instance des Communautés européennes: regard sur une décennie d'activités et sur l'apport du double degré d'instance au droit communautaire’, Cahiers de droit européen (2000) 379 and 380.

99 de Wilmars, Mertens, op cit, 39.

100 Hedley Lomas, cited in n 87 above.

101 Bergaderm and Goupil v Commission, cited in n 70 above.

102 Hedley Lomas, cited in n 87 above, para 28; Bergaderm and Goupil, cited in n 70 above, para 44. See also Case T-178/98, Fresh Marine v Commission, [2000] ECR II-3331, confirmed upon appeal, by the Court of Justice (Case C-472/00P, Judgment of 10 July 2003), not yet reported in ECR.

103 See, on this issue, van der Woude, MH, ‘Liability for Administrative Acts under Art 215 (2) EC’, in The Action for Damages in Community Law, 109–28, and Van Gerven, op cit, 4 2 and 43.

104 Case C-249/96, Grant [1998] ECR I-621.

105 Opinion of Advocate-General M Elmer in Grant, cited in n 104 above, I-623, I-635.

106 Grant judgment, cited in n 104 above, para 32.

107 Grant judgment, cited in n 104 above, para 35.

108 Ibid, para 36.

109 Case 11/70, Internationale Handelsgesellschaft, [1970] ECR 1125.See Koopmans, , ‘Comparative Law and the Courts’, op cit, 547;Usher, JA, General Principles of EC Law (London/New York, Longman, 1998), 3751.

110 Joined Cases 205 to 215/82, Deutsche Milchkontor [1983] ECR 2633.See, in particular, Belaich, F, ‘La répétition de l'indu en droit communautaire dans la jurisprudence de la Cour de justice des Communautés européennes’, Revue du Marché commun et de I'Union européenne (2000), 113–14; see also Usher, op cit, 52–64.

111 For other examples, see by Pescatore, op cit, cited in n 3 above, 346.

112 de Wilmars, Mertens, op cit, 38.

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

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

115 Council Regulation No 17 of 6 Feb 1962. First regulation implementing Arts 85 and 86 (now Arts 81 and 82) of the Treaty, OJ Special Edition [19591962], p 87.

116 AM & S, cited in n 18 above, paras 19 and 20.

117 AM & S, cited in n 18 above, para 21.

118 M & S, cited in n 18 above, para 22.

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

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

121 Council Regulation No 1612/68 of 15 Oct 1968 on freedom of movement for workers within the Community (OJ, Special Edition, 1968 (II), 475).

122 Reed, cited in n 120 above, para 13.

123 Opinion of Advocate-General CO Lenz in Reed, cited in n 120 above, I-1284, I-1294.

124 Reed, cited in n 120 above, para 15; See also the judgment of the Court of 31 May 2001 in Joined Cases C-122/99 P and C-125/99 P, D and Sweden v Council [2001] ECR I-4319, in which an appeal lodged against the judgment of the CFI of 28 Jan 1999 in Case T264/97, D v Council [ECR-SC I-A-1 and II-1] was dismissed. The CFI had itself dismissed an action lodged by a Swedish official of the European Communities, who had a registered partnership under Swedish law with another Swedish national of the same sex, against the Council decision refusing him the benefit of the household allowance provided for in the Staff Regulations for ‘married’ officials. The Court of Justice first recalled that ‘according to the definition generally accepted by the Member States, the term ‘marriage’ means a union between two persons of the opposite sex’ (para 34). It then considered that even if, since 1989, an increasing number of Member States have introduced statutory arrangements granting legal recognition to various forms of union between partners of the same sex or of the opposite sex (such as the registered partnership), such arrangements not previously recognised in law are regarded in the Member States concerned as being distinct from marriage (paras 35 and 36). In such circumstances, the Court of Justice concludes that it cannot interpret the Staff Regulations in such a way that legal situations distinct from marriage are treated in the same way as marriage. The intention of the legislature was indeed to grant the benefit only to married couples (para 37).

125 de Wilmars, Mertens, op cit, 39.

126 See, on this subject, Pescatore, op cit, cited in n 3 above, 354.See also Dehousse, R, ‘Comparing National and EC Law: The Problem of the Level of Analysis’, Working Paper of the European University Institute at Firenze (1994/1993), 2.

127 Darmon, M, ‘La prise en compte des droits fondamentaux par la Cour de justice des Communautés européennes’, Revue de science criminelle et de droit pénal comparé (1995) 29.

128 Case C-126/97, Eco Swiss [1999] ECR I-3055.

129 Ibid, para 45.

130 Ibid, para 46.

131 Ibid, paras 47 and 48.

132 Opinion of Advocate-General A Saggio in Case C-126/97, Eco Swiss [1999] ECR I-3055, I-3057, para 48.

133 Case 106/77, Simmenthal [1978] ECR 629.

134 Case 35/76, Simmenthal [1976] ECR 1871.

135 Simmenthal II, cited in n 133 above, para 22.

136 Ibid, para 24.

137 Ibid.

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

139 Ibid, para 18.

140 Ibid, para 19.

141 Ibid, paras 18–21.

142 Ibid, para 23.

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

144 Struys, M, op cit, 49.

145 See, eg, Case 33/76, Rewe [1976] ECR 1989, and Case 45/76, Comet [1976] ECR 2043.

146 See case law referred to by Struys, M, op cit, 50.With respect to the difficulties of putting these principles into operation, see Hoskins, M, ‘Tilting the Balance: Supremacy and National Procedural Rules’, European Law Review (1996) 365–77.

147 Joined Cases C-430/93 and C-431/93, Van Schijndel and Van Veen [1995] [ECR] I-4705.

148 Ibid, para 10.

149 Ibid, para 13.

150 Ibid, para 14.

151 Ibid, para 15.

152 Ibid, para 20.

153 Ibid, para 21.

154 Joined Cases C-430/93 and C-431/93, Van Schijndel and Van Veen [1995] [ECR] I-4705, para 22.

155 Case C-72/95, Kraaijeveld and Others [1996] ECR I-5403.

156 Ibid, para 60.

157 See Struys, M, op cit, 50;Szyszczak, E and Delicostopoulos, J, ‘Intrusions into National Procedural Autonomy: The French Paradigm’, European Law Review (1997) 141–9.

158 Eco Swiss, cited in n 132 above.

159 Cited in n 147 above.

160 Ibid, para 35.

161 Ibid, paras 36 and 37.

* Judge of the Court of Justice of the European Communities and Professor of European Law at the University of Leuven. All opinions expressed are personal to the author.

Interlocking Legal Orders in the European Union and Comparative Law

  • Koen Lenaerts

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