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Abstract

Article 10 of the European Community Treaty has gradually given rise to a large body of case law on a wide variety of subjects, including several profoundly important constitutional principles of Community law: the duty of national courts to give effective protection to rights given by Community law, the duty to give direct effect to directives against the State, the duty to interpret national law so as to be compatible with Community law, and the right to judicial review. These principles are the foundation of the constitutional structure that the Court of Justice has built, in which national courts ensure the rule of Community law in most of the circumstances in which it applies. This Article describes the development of the case law of the Court of Justice, divided for convenience, somewhat arbitrarily, into three periods. The periods are 1952 to 1990, 1990 to 2000, and 2000 to date. As will be seen, much of the elaboration of the case law occurred between 1990 and 2000, although several basic principles had been established before that. Before tracing this development, one feature of the Community legal system needs to be explained, since it is fundamental, and very different from other legal systems such as the U.S. legal system. The rules of European Community (“EC”) law, and now of European Union (“EU”) law, are primarily applied and enforced by national courts and authorities, and not by the Community institutions. The national law and Community law spheres are not separate bodies of law applied by separate institutions. There is no line of demarcation between the two. This fact makes Article 10 much more important than it would otherwise be. It also explains why the case law on Article 10 developed gradually, and is still developing.

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