Amministrazione dello Finanze della Stato v Simmenthal S.p.A. (Case 106/77)

• Jurisdiction: European Union
• Court: European Court of Justice
• Date: 09 March 1978

Court of Justice of the European Communities.

(Kutscher, President; Sørensen, Bosco, Donner, Pescatore, Lord Mackenzie Stuart, O'Keeffe, Judges; Reischl, Advocate-General)

Amministrazione Delle Finanze Dello Stato

and

Simmenthal SpA (No 2)

Relationship of international law and municipal law — Treaties — Effect in municipal law — European Economic Community Treaty, 1957 — Whether creating new legal order — Automatic incorporation of EEC provisions into national law — Direct applicability — Inconsistent national legislation — Supremacy of Community law — Conflict between EEC Treaty and subsequent national law — Whether national law a defence to breach of Community law — Whether duty of national court to give precedence to Community law — Whether national judge to wait for conflicting national legislation to be set aside by Constitutional Court — Conditions for recognition of national measures by the Court of Justice

Treaties — EEC Treaty, 1957 — Effect in municipal law — Whether that of ordinary international agreement — Direct applicability — Automatic incorporation of EEC provisions into national law — Subsequent inconsistent national legislation — Whether overriding directly applicable EEC provisions — Whether duty of national court to comply with municipal legislation —Whether national court must wait for EEC provision to be set aside by higher national court — The law of the European Economic Community

Summary: The facts:—On importing a quantity of beef from France into Italy the defendant company, Simmenthal SpA, was charged at the frontier for a veterinary and health inspection required by a 1970 Italian law. The defendant company objected to the fee on the ground that it was prescribed by a national law which, the company alleged, contravened Community law. The company argued that the Italian law infringed the European Economic Community Treaty, 1957 and regulations enacted by the Community in 1964 and 1968, since it constituted an obstacle to the free movement of goods.

In Simmenthal SpA v. Italian Minister of FinanceECAS1 the company brought an action against the Italian Minister of Finance before the Italian court, the Pretore di Susa, for the repayment of fees. A reference was made to the Court of Justice under Article 177 of the EEC Treaty in that case and the Court of Justice held that the inspection and the fees charged were contrary to EEC law. Following the ruling of the Court of Justice, the Italian court ordered that the fees should be repaid. The Amministrazione appealed against this decision, contending that the 1970 Italian law would bind the Italian courts until it was declared unconstitutional by the Italian Constitutional Court.

The Italian court suspended proceedings and sought another preliminary ruling under Article 177 of the EEC Treaty in respect of the following questions:

1. Since, in accordance with Article 189 of the EEC Treaty and the established case-law of the Court of Justice of the European Communities, directly applicable Community provisions must, notwithstanding any internal rule or practice whatsoever of the Member States have full, complete and uniform effect in their legal systems in order to protect subjective legal rights created in favour of individuals, is the scope of the said provisions to be interpreted to the effect that any subsequent national measures which conflict with those provisions must be forthwith disregarded without waiting until those measures have been eliminated by action on the part of the national legislature concerned (repeal) or of other constitutional authorities (declaration that they are unconstitutional) especially, in the case of the latter alternative, where, since the national law continues to be fully effective

pending such declaration, it is impossible to apply the Community provisions and, in consequence, to ensure that they are fully, completely and uniformly applied and to protect the legal rights created in favour of individuals?

2. Arising out of the previous question, in circumstances where Community law recognizes that the protection of subjective legal rights created as a result of ‘directly applicable’ Community provisions may be suspended until any conflicting national measures are actually repealed by the competent national authorities, is such repeal in all cases to have a wholly retroactive effect so as to avoid any adverse effects on those subjective legal rights?

Opinion of the Advocate-General:—In his submissions to the Court of Justice the Advocate-General stated that the impact of Community law could not be diminished by incompatible national legislation irrespective of whether that national legislation had been adopted prior or subsequent to the relevant EEC provisions. The fact that Italian law provided a means for the Constitutional Court to declare national legislation invalid did not relieve other Italian courts of the duty to apply those provisions of Community law which were directly applicable. All national courts had a duty to safeguard the rights of individuals under the EEC Treaty and Community legislation from the date at which the provisions of the Treaty or the Community legislation became effective. Conflicting national law was rendered inapplicable when it conflicted with directly applicable Community law. It did not, however, become void until declared unconstitutional by the Italian Constitutional Court.

Held:—Provisions of the EEC Treaty and of Community legislation which were directly applicable prevailed over national laws, irrespective of when the national laws were enacted. A national law in conflict with Community law was automatically and immediately rendered inapplicable before all the courts of the State concerned.

(1) The relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but, in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States, also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions (p. 72).

(2) Every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule (p. 73).

(3) The first question should therefore be answered to the effect that a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means (p. 73).

(4) It was unnecessary to answer the second question (p. 74).

The text of the judgment of the Court of Justice of the European Communities commences at p. 60. The following is the text of the relevant part of the opinion of Advocate-General Reischl delivered on 16 February 1978:

In July 1973 the defendant in the main action imported some beef for human consumption into Italy from France. At the frontier it underwent a veterinary and public health inspection in accordance with an Italian law dating back to 1934. Fees had to be paid for the inspection at the scale in force at the date of importation which had been laid down under a law of 30 December 1970.

The Simmenthal company takes the view that this is incompatible with Community provisions on the free movement of goods and for that reason has brought an action before the Pretore di Susa for repayment of the fees. During these proceedings an application was made for a preliminary ruling (Case 35/76, Simmenthal S.p.A. v Italian Minister for Finance [1976] ECR 1871 et seq.) and in the operative part of its judgment of 15 December 1976 the Court ruled as follows:

• ‘1. (a)—Veterinary and public health inspections at the frontier, whether carried out systematically or not, on the occasion of the importation of animals or meat intended for human consumption constitute measures having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty, which are prohibited by that provision, subject to the exceptions laid down by Community law and in particular by Article 36 of the Treaty.

  • (b) As far as concerns the products referred to in Regulations Nos 14/64 and 805/68 on the common organization of the market in beef and veal the prohibition of such measures, subject to the exceptions mentioned above, took effect on the date when the said regulations entered into force.

• 2. Although systematic veterinary and public health inspections at the frontier of the products mentioned in Directives Nos 64/432 and 64/433 are no longer necessary or, consequently, justified under Article 36 as from the latest dates specified in the directives for the entry into force of the national provisions which are necessary in order to comply with the said directives and although, in principle, a mere examination of the documents (health certificates) which are required to accompany the products should disclose whether the conditions with regard to health have been fulfilled, occasional veterinary or public health inspections are not ruled out, provided that they are not increased to such an extent as to constitute a disguised restriction on trade between Member States.

• ‘3. (a) Pecuniary charges imposed by reason of veterinary or public health inspections of...