Minister for Economic Affairs v SA Fromagerie Franco-Suisse 'Le Ski' [1972] CMLR 330; before the Belgian Cour de Cassation
[1] Under Article 12 of the EEC Treaty, the member states undertake to refrain from introducing as between themselves any new customs duties on imports and exports or taxes of equivalent effect; and from increasing those which they apply in their trade with one another.
[2] The special import duties, the refund of which, has been claimed by the respondent, were levied by the applicant in pursuance of arretes royaux and ministerial orders, which were all adopted after I January 1958, the date on which the Treaty came into force.'
[3] These arretes royaux were repealed by Article 13 of the arretes royaux of 28 December 1961 and by Article 1 of the arrete royal of 23 October 1965.
[4] Nevertheless the Law of 19 March 1968 ratified with retrospective effect the arretes subsequent to 1 January 1958, under which the special duties, of which the respondent has claimed the refund, were levied. The sole Article of this Law provides that the moneys paid in pursuance of this arrete constitute 'definitive payment' and that this payment is irrevocable and shall not give rise to any claim before any authority whatsoever
[5] The arretes, which imposed special duties on imports of some milk products after 1 January 1958, were contrary to Article 12 of the Treaty.
[6] In so far as the Law of 19 March consolidated the effects of these arretes, it too is contrary to that clause.
[7] Even if assent to a treaty, as required by Article 68 (2) of the Constitution, is given in the form of a statute, the legislative power, by giving this assent, is not carrying out a normative function. The conflict which exists between a legal norm established by an international treaty and a norm established by a subsequent statute, is not a conflict between two statutes.
[8] The rule that a statute repeals a previous statute in so far as there is a conflict between the two, does not apply in the case of a conflict between a treaty and a statute.
[9] In the event of a conflict between a norm of domestic law and a norm of international law which produces direct effects in the internal legal system, the rule established by the treaty shall prevail. The primacy of the treaty results from the very nature of international treaty law.
[10] This is a fortiori the case when a conflict exists, as in the present case, between a norm of internal law and a 'norm' of Community law. The reason is that the treaties which have created Community law have instituted a new legal system in whose favour the Member States have restricted the exercise of their sovereign powers in the areas determined by those treaties.
[11] Article 12 of the Treaty establishing the European Economic Community is immediately effective and confers on individual persons rights which national courts are bound to uphold.
[12] It follows from all these considerations that it was the duty of the judge to set aside the application of provisions of domestic law that are contrary to this Treaty provision.
[13] Having noted that in the present case the norms of Community law and the norms of domestic law were incompatible, the judgment under attack was able to decide, without infringing the legal provisions set out in the application to this Court, that the effects of the Law of 19 March 1968 had been 'stopped in so far as it was in conflict with a directly applicable provision of international treaty law'. In this respect, the grounds of appeal fail for want of a legal basis.
