Case 106/77 Simmenthal [1978] ECR 629

Key point

National law can be effectively disapplied by any national court applying EC law without further declaration by a national constitutional court or repeal by national parliament

Italy imposed a public health inspection fee for the meat crossing the frontier under Italian Law
Simmental brought action for repayment of fees he paid before Italian court
Preliminary reference was made to the ECJ, which held that the fees violated the free movement of goods under EC law
The Italian court then ordered repayment by the government which against appealed against the order
The Italian government argued that a law can only be declared unconstitutional by the Italian Constitutional Court based on Italian law
Furthermore, declarations by the Italian Constitutional Court only has prospective effect, thus does not make good retroactively the governments infringements of EC law
A new preliminary reference was made for the question of whether a national law remains in place until declared unconstitutional by constitutional authorities or through legislative repeal

A national court called upon to apply EC law can disapply national law without requesting or awaiting the prior setting aside of national law by legislative or other constitutional means

Under the principle of supremacy all national laws prior or subsequent to the community rule that is incompatible are autonomically invalid
The effectiveness of the preliminary reference provision in the Treaty is impaired if the national court is prevented from applying EC law in accordance with the CJEU ruling
Any national law withholding jurisdiction of the national court to set aside national laws which conflict with EC law are incompatible with requirements ‘which are the essence’ of EC law
One such impediment is reserving discretion to resolve conflict of EC and national law to a court other than the one called upon to apply EC law

Here the Court sought to ensure that rules of jurisdiction do not hamper national courts from enforcing the primacy of EC law over national laws