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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
    1. Van Gend en Loos v Nederlandse Tariefcommissie (case 26/62) [1963] ECR 1.
    2. Costa v ENEL (case 6/64) [1964] ECR 585 - ECJ
    3. Costa v ENEL (case 6/64) [1964] ECR 585 - Italian Constitutional Court
    4. Franz Grad v Finanzamt Traunstein (case 9/70) [1970] ECR 825
    5. Politi SAS. v Ministry for Finance of the Italian Republic (Case 43-71) [1971] ECR 1039.
    6. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Case 11/70) [1970] ECR 1125; before the ECJ
    7. Syndicat Generale des Fabricants de Semoules [1970] CMLR 395 - (French Conseil d'Etat)
    8. Internationale Handelsgesellchaft mbH v Einfuhr- & Vorratsstelle fur Getreide & Futtermittel (Solange I) [1974] 2 CMLR; (German Federal Constitutional Court)
    9. Minister for Economic Affairs v SA Fromagerie Franco-Suisse 'Le Ski' [1972] CMLR 330; before the Belgian Cour de Cassation
    10. Administration des Dounaes v Societe Cafes Jacques Vebre Jacques Vabres [1975] 2 CMLR 336 - before the French Cour de Cassation
    11. Frontini v Minister delle Finanze [1974] 2 CMLR 372 (Italian Constitutional Court)
    12. Blackburn v Attorney-General [1971] 2 All ER 1380
    13. European Communities Act 1972
    14. Van Duyn v The Home Office (case 41/74) [1974] ECR 1337.
    15. Walrave v Koch (case 36/74) [1974] ECR 1405
    16. DeFrenne v Sabeena (case 43/75) [1976] ECR 455
    17. Administrazione Dealla Finanze dello Stato v Simmenthal (case 106/77) [1978] ECR 629
    18. Minister of the Interior v Daniel Cohn-Bendit [1980] 1 CMLR 543; (before the French Conseil D'Etat)
    19. Macarthys Ltd v Smith [1979] 3 All ER 325
    20. Garland v British Rail Engineering Ltd [1982] 2 All ER 402
    21. Marshall v Southampton Area Health Authority (case 152/84) [1986] ECR 723; [1986] 1 CMLR 688.
    22. Von Colson and Kamann v Land Nordrhein-Westfalen (case 14/83) [1984] ECR 1891
    23. On the Application of Wunsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 225; before the German Federal Constitutional Court
    24. Marleasing SA v La Commercial Internacional de Alimentacion SA (case C-106/89) [1990] ECR I-4135
    25. Francovich and Bonifaci v Italy (cases 6/90 and 9/90) [1991] ECR I-5357; [1993] 2 CMLR 66
    26. Duke v GEC Reliance Ltd [1988] 1 All ER 626
    27. Litster and others v Forth Dry Dock and Engineering Co Ltd and another [1989] 1 All ER 1134
    28. Factortame Ltd and others v Secretary of State for Transport [1989] 2 All ER 692
    29. Factortame Ltd and others v Secretary of State for Transport (No 2) (Case C-213/89) [1991] 1 All ER 70
    30. R v Secretary of State for Transport, ex parte Factortame (no.2) [1991] 1 All ER 70 (House of Lords)
    31. Thoburn v Sunderland City Council and other appeals [2002] EWHC 195 Admin; [2003] QB 151; [2002] 4 All ER 156
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Administration des Dounaes v Societe Cafes Jacques Vebre Jacques Vabres [1975] 2 CMLR 336 - before the French Cour de Cassation

On the first ground, both parts

[1] It follows from the judgment under appeal that from 5 January 1967 to 5 July 1971 the Soc. Cafés Jacques Vabre imported from Holland, a member-State of the European Economic Community, certain quantities of soluble coffee with a view to their consumption in France. Clearance of these goods through customs was carried out by the Soc. J. Weigel et Cie. customs agent. On the occasion of each of these importations the Soc. Weigel paid to the Customs Administration the internal consumption tax laid down for such goods by head Ex. 21.02 of Table A of section 265 of the Customs Code.

Claiming that in violation of Article 95 of the Treaty of 25 March 1957 instituting the European Economic Community the said goods had thus been subjected to tax greater than that which was applied to soluble coffee manufactured in France from green coffee for consumption in that country, the two companies sued the Customs Administration for repayment of the amount of the tax levied (the Soc. Weigel) and compensation for the damage allegedly suffered through being deprived of the money paid as such tax (the Soc. Vabre).

[2] It is complained that the Cour d'Appel admitted these claims on principle, whereas, according to the appellant's claim, the jurisdiction of the courts as regards customs duties is limited to disputes concerning their legal existence, the determination of the tax basis and recovery of the duty; it cannot be extended to disputes concerning the alleged protectionist nature of the duty, which would involve an appreciation of the tax from the point of view of the regulation of external trade, which falls within the exclusive jurisdiction of the administrative courts. And, it is argued, Article 95 of the Treaty of 25 March 1957, invoked by the appellants, does not refer to any particular taxes but characterises the discriminatory regime in the light of the whole of the 'internal taxation of any kind', postulating, thereby, an appreciation of the economic effect of the totality of fiscal and parafiscal charges capable of imposition on the product in question, the which clearly exceeds the jurisdiction of the civil courts.

[3] But the lack of jurisdiction of the ordinary courts, in favour of the administrative courts, was not raised before the first instance judges. Under section 14 of the decree of 20 July 1972 the parties may only raise pleas to the jurisdiction before all other pleas and defences. That applies even when the rules of jurisdiction are a matter of public policy (ordre public). From which it follows that this ground is inadmissible in both parts.

On the second ground

[4] It is also complained against the judgment that it held illegal the internal consumption tax laid down by section 265 of the Customs Code as a consequence of its incompatibility with the provisions of Article 95 of the Treaty of 25 March 1957 on the ground that by virtue of Article 55 of the Constitution the latter has an authority higher than that of internal statute, even if the statute be later in time; whereas, according to the appeal, it is for the fiscal court to judge the legality of regulations laying down a tax which is challenged, but it could not without exceeding its powers discard the application of an internal statute on the pretext that it is unconstitutional. The provisions of section 265 of the Customs Code taken together were enacted by the Act of 14 December 1966 which conferred on them the absolute authority which belongs to legislative provisions and which are binding on all French courts.

[5] But the Treaty of 25 March 1957, which by virtue of the abovementioned Article of the Constitution has an authority greater than that of statutes, institutes a separate legal order integrated with that of the member-States. Because of that separateness, the legal order which it has created is directly applicable to the nationals of those States and is binding on their courts. Therefore the Cour d'Appel was correct and did not exceed its powers in deciding that Article 95 of the Treaty was to be applied in the instant case, and not section 265 of the Customs Code, even though the latter was later in date. Whence it follows that the ground must be dismissed.

On the third ground

[6] It is also complained that the judgment applied Article 95 of the Treaty of 25 March 1957 when, according to the appeal, Article 55 of the Constitution expressly subjects the authority which it gives to treaties ratified by France to the condition that they should be applied by the other party. The judge at first instance was not therefore able validly to apply this constitutional provision without investigating whether the State (Holland) from which the product in question was imported has met this condition of reciprocity.

[7] But in the Community legal order the failings of a member-State of the European Economic Community to comply with the obligations falling on it by virtue of the Treaty of 25 March 1957 are subject to the procedure laid down by Article 170 of that Treaty and so the plea of lack of reciprocity cannot be made before the national courts. Whence it follows that this ground must be dismissed.