La obligación de derogar o modificar el derecho interno incompatible con el Derecho comunitario: evolución jurisprudencial

Abstract

The non-applicatión of domestic regulations that are incompatible wlth directly applicable Community regulations is an aspect of jurisprudence that has been often repeated and which has become consolidated by means of its acceptance into the doctrine and practice of the national courts. It largely expresses the essence of the principies of the primacy, direct application and autonomy of Communlty law. However, the very fact that the direct application of Community law has not always been ensured against contrary domestic law formally in force has led the Community Court of Justice to move from an initially hesitant jurisprudence (the cases of cocoa in 1970 and the Code Maritime ih 1974) to a firm and unequivocal affirmation since 1979: Community law is infringed by the very fact of maintaining unchanged domestic legislation or regulations contrary to Community law, even when practice follows Community law and domestic regulations are not applied. This antinomy always gives rise to ambiguity and legal insecurity for private individuals. The member State is thereby failing to fulfil the obligations incumbent upon it by virtue of Article 5 of the EEC treaty (192 EURATOM and 86 ECCS). What is more, the judgement to 15 Octobre 1986, the Commission v. Italy, adds a clear and categorical imperative: non-application is insufficient; there is an obligation to modify or repeal the domestic law contrary to directly applicable Community law. This adaptation cannot be made by means of administrative instructions or circulars. The modification or repeal must be carried out by means of an imperative legal ruling of the same legal status as the one it is intended to modify or repeal. The practical consequences of this jurisprudence, by demanding the repeal or modification of domestic law contrary to Community law by means of further acts of the legislative or the executive, as the case may be, may involve the member States in awkward problems (especially member States who have recently joined the European Communltles) and provoke mistrust of the principie of the primacy.