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Flaminio Costa v ENEL (1964) Case 6/64 was a landmark decision of the European Court of Justice which established the primacy of European Union law (then Community law) over the laws of its member states (Hilf, 2012).

The case was brought about because Mr Costa was an Italian citizen opposed to the nationalising of energy companies. Because he had shares in a private corporation subsumed by the nationalised company, ENEL, he refused to pay his electricity bill in protest. In the subsequent suit brought to Italian courts by ENEL, he argued that nationalisation infringed EC law on the State distorting the market.

The Italian Constitution Court gave judgement in March 1964, ruling that while the Italian Constitution allowed for the limitation of sovereignty for international organisation like the European Economic Community, it did not upset that normal rule of statutory interpretation that where two statutes conflict the subsequent one prevails (lex posterior derogat legi anteriori/priori). As a result the Treaty of Rome which was incorporated into Italian law in 1958 could not prevail over the electricity nationalisation law which was enacted in 1962.

The European Court of Justice ruled in favour of the government, because the relevant Treaty rule on an undistorted market was one on which the Commission alone could challenge the Italian government. As an individual, Mr Costa had no standing to challenge the decision, because that Treaty provision had no direct effect. But on the logically prior issue of Mr Costa's ability to raise a point of EC law against a national government in legal proceeding before the courts in that member state the ECJ disagreed with the Italian government.

I am confused with the ultimate outcome of this case. What did this mean for Mr Costa's case? Not paying his electricity bill aside, did nationalisation infringe EC law on the State distorting the market?

References

Hilf, M. (2012). Costa v. ENEL case, in Wolfrum, Rüdiger (ed.): The Max Planck Encyclopedia of Public International Law. Oxford: Oxford University Press, p. 824.

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    It doesn't sound like a ruling was made on whether or not nationalisation was illegal under EC law in that case, it sounds like the ECJ simply said that Costa couldn't use that specific rule (due to it being restricted for use by the commission alone, and not any third party) but the concept of using EC law against a member state government was sound. Costa lost the case on the basis that his argument had a bedrock that he could not use, not that the nationalisation was ruled to be lawful or unlawful. I may be very wrong there tho, hence a comment and not an answer. – user4210 Jun 21 '19 at 8:38
  • Costa would have had to have brought a second case with a different argument to have the actual issue of nationalisation examined - did he? – user4210 Jun 21 '19 at 8:39
  • @Moo - I have not found any reference to any new cases brought to court after that one. Seeing as this case ruled that he had no authority to challenge the Italian Government as the authority was with the EC, I also cannot see his case even being heard if he did take it up again. – Chris Rogers Jun 21 '19 at 8:48
  • As I said Chris, he would have had to have found a different argument - the ECJ didn't rule that the entire concept of nationalisation was under the sole purview of the EC, just the specific rule that Costa was arguing under. He could have challenged the nationalisation on other grounds. It sounds like he didn't pursue it tho. – user4210 Jun 21 '19 at 8:54
  • @Moo I can’t speak for civil law but at common law Costa could not have brought a case on the same facts. In the interest of finality, a plaintiff must bring to bear all their arguments at the one time. – Dale M Jun 21 '19 at 9:22

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