European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The principle of precedence applies to all European primary or secondary law rules where they are recognized as having a binding effect. This is the case for directly applicable measures of the institutions  or the Protocol on the privileges and immunities of the European Communities . 
Regulations which produce direct effects, by reason of their very nature and their function in the system of the …

EU rules

The principle of precedence applies to all European primary or secondary law rules where they are recognized as having a binding effect. This is the case for directly applicable measures of the institutions  or the Protocol on the privileges and immunities of the European Communities . 

Regulations which produce direct effects, by reason of their very nature and their function in the system of the sources of European law , European Directives, which contain unconditional and sufficiently precise obligations , in the light of which national law, whether adopted before or after the directive, must be interpreted  or Commission decisions which come into force immediately in the State concerned as soon as they are notified  prevent the implementation of any legislative measure incompatible with their provisions, even if enacted subsequently. This is also the case for EU Council proceedings which, contrary to Commission recommendations , have definite legal effects both on relations between the Union and the Member States and on the relationship between institutions, and Member States cannot act outside that framework .

The protection of fundamental rights, which is inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Union . A possible infringement of the fundamental rights by a measure of the Union institutions can only be judged in the light of European law and not under the constitutional principles specific to the Member State in question, under penalty of jeopardizing the cohesion of the Union . Thus, the European Court of Justice is required to take into consideration the international treaties concerning the protection of human rights on which the Member States have collaborated or to which they have acceded, as well as the constitutional traditions common to those States . When they implement European law, the Member States must comply with the requirements of the protection of fundamental rights in the European legal order . The freedom of expression, as embodied in Article 10 of the European Convention on Human Rights , the right to respect for private life and to the protection of medical confidentiality , equal treatment , non-discrimination , protection of the right to property , or legitimate expectations and legal certainty , to the extent that the Union has previously created a situation which can give rise to legal certainty , are general principles of law which prevail over national rules .

Lastly, precedence has been recognized to international agreements entered into by the Union, whose competence excludes that of Member States, since any steps taken outside the framework of the European institutions would be incompatible with the unity of the internal market and the uniform application of European law . The binding legal effect of the commitments provided by the General Agreement on Tariffs and Trade (GATT) must therefore be assessed as part of the jurisdiction to give preliminary ruling conferred upon the Court of Justice, which is in charge of ensuring the uniform interpretation of European law , by reference to the principles stemming from the European legal system and not those which gave them their previous force under the national legal systems . Likewise, the Member States cannot adopt rules which may hinder the full efficiency of the decisions of association councils which, taken in the context of association agreements concluded by the Union with non-member countries, form an integral part of the European legal system , even if they are matters of public policy . However, where only a national practice contrary to Article 34 TFEU is necessary to comply with obligations towards non-member countries laid down in agreements concluded prior to the entry into force of the Treaty or to accession, the Member States are not required to disapply that practice .

Case 106/77, Amministrazione delle finanze dello Stato v Simmenthal [1978] ECR 629, LawLex200700001337JBJ.

Case 260/86 Commission v Belgium [1988] ECR 955, LawLex200900001787JBJ.

Case 5/88 Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609, LawLex200900002340JBJ.

Case 5/88 Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609, LawLex200900002340JBJ; Case C-107/97 Rombi and Arkopharma [2000] ECR I-3369, LawLex200700001601JBJ: where national rules fall within the scope of application of EU law and reference is made to the Court of Justice for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the general principles the observance of which is ensured by the Court.

Case C-260/89 ERT v DEP [1991] ECR I-2925, LawLex200400002916JBJ.

Case C-62/90 Commission v Germany [1992] ECR I-2575, LawLex200900001085JBJ.

Case C-18/95 Terhoeve [1999] ECR I-345, LawLex200700001817JBJ: Although in principle the Member States retain the freedom to lay down the detailed rules for levying taxes and social security contributions by pursuing an objective of simplifying and coordinating those rules, the pursuit of that objective cannot justify undermining the rights which individuals derive from the TFEU provisions in which their fundamental freedoms, in particular the principle of equal treatment, are enshrined; Case C-309/06 Marks & Spencer [2008] ECR I-2283, LawLex200900001451JBJ: in accordance with the EU principle of equal treatment, the national court must set aside any discriminatory provision of national law, in particular in fiscal matters, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged group the same arrangements as those enjoyed by the persons in the favored category.

Case C-144/04 Mangold [2005] ECR I-9981, LawLex200900000570JBJ: the principle of non-discrimination in respect of age implies that any provision of national law which may conflict with it remains unapplied. 

Case C-2/92 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Dennis Clifford Bostock [1994] ECR I-955, LawLex200900002114JBJ: although the protection of the right to property is guaranteed by the EU legal order, it does not require Member States to introduce a scheme for the payment of compensation by a landlord to an outgoing tenant and does not confer a right to such compensation directly on the tenant.

Case C-396/98 Schloßstraße [2000] ECR I-4279, LawLex200700001645JBJ; Case C-383/06 Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and others [2008] ECR I-1561, LawLex200900000612JBJ: the principles of legitimate expectations and legal certainty may be taken into account by the national court to which a case is referred relating to the recovery of sums unduly paid under a regulation, and the court must assess them as they are understood within the EU meaning, i.e. precluding those principles from being relied upon where the recipient of the sums has committed a manifest infringement of the rules in force.

Case C-107/97 Rombi and Arkopharma [2000] ECR I-3369, LawLex200700001601JBJ.

These principles are now gathered in the Charter on Fundamental Rights, OJ C 83 of 30.03.2010.

Case 43/71 politi v Ministero delle finanze [1971] ECR 1039, LawLex200900001951JBJ; Case 84/71 Marimex v Ministero delle finanze [1972] ECR 89, LawLex200900001952JBJ.

Case 22/70 Commission v Council [1971] ECR 263, LawLex200900001673JBJ.

Case 267/81 Amministrazione delle finanze dello Stato v SPI and SAMI [1983] ECR 801, LawLex200900001794JBJ.

Case 38/75 Douaneagent der Nederlandse Spoorwegen v Inspecteur der Invoerrechten en Accijnzen [1975] ECR 1439, LawLex200900001974JBJ.

Case 30/88 Greece v Commission [1989] ECR 3711, LawLex200900002341JBJ.

Case C-188/00 Kurz [2002] ECR I-10691, LawLex200900000759JBJ.

Case C-324/93 The Queen v Secretary of State for the Home Department, ex parte Evans Medical and Madfarlan Smith [1995] ECR I-563, LawLex200900000291JBJ.

Case 158/80 Rewe v Hauptzollamt Kiel [1981] ECR 1805, LawLex200900002164JBJ.

Case C-106/89 Marleasing v Comercial Internacional de Alimentación [1990] ECR I-4135, LawLex200900000333JBJ.

Case 130/78 Salumificio di Cornuda [1979] ECR 867, LawLex200900001532JBJ: immediate application of the decision even where a contrary national provision has not been repealed yet; See also, regarding unfair competition and bonus offers, Case 249/85 Albako v BALM [1987] ECR 2345, LawLex200900001734JBJ.

Case C-322/88 Grimaldi v Fonds des maladies professionnelles [1989] ECR 4407, LawLex200900000272JBJ: Commission recommendations have no binding effects and do not prevail over internal law but must be taken into consideration by the national courts when they interpret national or EU law. 

Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125, LawLex200900001469JBJ.

Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727, LawLex200900002026JBJ.

European Business Law

162. EU rules

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

162. EU rules

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise