Lost in the Nacional Parliament’s Hallways: The Directive 2005/36/EC and the difficult path until its proper application in Portugal

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by Rita de Sousa Costa, law student at UMinho
and Tiago Sérgio Cabral, law student at UMinho

The precedence of EU law over the law of the Member States is one of the fundamental principles of the Union. The Member States must comply with the European dispositions and shall not issue legislation contradicting EU law. To do so would be a breach of the principle of loyalty (art. 4(3) TEU). However, the states do not always legislate with the proper rigour and responsibility and when this occurs the principle of direct effect is key to assure a uniform application of the European Law and the protection of the European citizens.  In this short essay we shall study how the Portuguese legislator after correctly implementing the Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (through the Law n. 9/2009, of 4th March) proceeded to change the Portuguese legal framework (through the Law n. 31/2009, of 3rd July[i]) putting our law in direct contradiction with the Directive and how the solution, still in force, came in the form of the direct application of the Directive’s provisions.

Introduction – The Legal Framework

The Directive establishes the rules  “according to which a Member State which makes access to or pursuit of a regulated profession in its territory contingent upon possession of specific professional qualifications (…) shall recognise professional qualifications obtained in one or more other Member States (referred to hereinafter as the home Member State) and which allow the holder of the said qualifications to pursue the same profession there, for access to and pursuit of that profession”.

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Summary of Van Gend en Loos – Case 26/62

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: direct effect; tax; legal order; common market; particular

Court: CJEU | Date: Feb. 5th 1963 | Case: 26/62 | Applicants: Van Gend en Loos v. Netherlands Inland Revenue Administration

Summary: The transport company Van Gend en Loos imported a certain quantity of urea-methanal, which belonged to a specific category in the tariff of import duties list (implies 10% tax). After that, the transport company introduced an objection against the application of this duty, with the argument that the urea-methanal was in another category duties (only implies 3% tax) when the EEC treaty entered in force in 1958. Therefore, the Dutch Government infringed the 12 article of EEC Treaty, which provides Member States to change or introduced any new customs duties.

Thus, the Inspector of Customs and Excise at Zaandam dismissed the objection of Van Gend because it was “not directed against the actual application of the tariff but against the rate”. Furthermore, Nederlandes administratie der belastingen stated that when the EEC Treaty entered into force, this product was incorporated in another category, which had the same tax (10%) as the new category, so it wasn’t raised any rate. The national court suspended the proceedings and referred two questions to the CJEU about this matter:

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