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

Pursuant to the principle of precedence, the national, regulatory or legislative authorities are required to set aside a national rule recognized as incompatible with the Treaty and, if the circumstances so require, are under a duty to take all appropriate measures to enable European law to be fully applied . The principle of conformity prevents Member States from retaining, in the future, nationa …

Non-application or review of contrary national rules

Pursuant to the principle of precedence, the national, regulatory or legislative authorities are required to set aside a national rule recognized as incompatible with the Treaty and, if the circumstances so require, are under a duty to take all appropriate measures to enable European law to be fully applied . The principle of conformity prevents Member States from retaining, in the future, national legislative acts that are incompatible with European rules .

Thus, where a judgment of the Court of Justice finds that certain national legal provisions are incompatible with the Treaty, the legislative authorities are under a duty to amend the provisions in question so as to make them comply with the requirements of European law . National authorities may, further to a judgment of the Court of Justice, withdraw an administrative act that does not conform with European law , provided that i) the legal system of the authority concerned gives it the power to reopen a final decision, ii) the decision had become final as a result of a judgment of a national court ruling at final instance, iii) that judgment is, in the light of a decision given by the Court of Justice subsequent to it, based on a misinterpretation of European law which was adopted without a question being referred to the Court of Justice, iv) the parties concerned rely on that judgment immediately after becoming aware of it . The admissibility of the application for review is however not subject to the fact that the claimant has relied upon pleas based on European law already in the legal action under domestic law which he brought against that decision . Likewise, the principle of equivalence imposes on Member States an obligation to withdraw administrative acts that are contrary to European law where the internal rules of Member States require the withdrawal of an administrative act which does not comply with the national law .

Case 48/71 Commission v Italy [1972] ECR 529, LawLex200900001955JBJ; 314/81 Procureur de la République v Waterkeyn [1982] ECR 4337, LawLex200900002177JBJ; C-101/91 Commission v Italy [1993] ECR I-191, LawLex200900000306JBJ.

Case 106/77, Amministrazione delle finanze dello Stato v Simmenthal [1978] ECR 629, LawLex200700001337JBJ; Case C-1/96 The Queen v Minister of Agriculture, Fisheries and Food, ex parte Compassion in World Farming [1998] ECR I-1251, LawLex200900000283JBJ; Case C-18/95 Terhoeve [1999] ECR I-345, LawLex200700001817JBJ: although, in the absence of harmonization at EU level, it is for the legislation of each Member State to determine the conditions governing the right or duty to be insured with a social security scheme, the Member States must nevertheless comply with EU law when exercising that power; Case C-188/00 Kurz [2002] ECR I-10691, LawLex200900000759JBJ.

Case 314/81 Procureur de la République v Waterkeyn [1982] ECR 4337, LawLex200900002177JBJ; C-101/91 Commission v Italy [1993] ECR I-191, LawLex200900000306JBJ.

Case C-453/00 Kühne & Heitz [2004] ECR I-837, LawLex200900000886JBJ.

Case C-2/06, Kempter [2008] ECR I-411, LawLex200900001070JBJ.

Case C-392/04 i-21 Germany [2006] ECR I-8559, LawLex200900000652JBJ.

European Business Law

174. Non-application or review of contrary national rules

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

174. Non-application or review of contrary national rules

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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