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Belgium remained neutral throughout the American Civil War (1861–65).

Background

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Belgium gained its independence from the United Netherlands in the Belgian Revolution which broke out in August 1830. After a prolonged period of conflict, the country's independence was finally guaranteed on the condition of perpetual neutrality in the Treaty of London in 1839. According to the 1831 Constitution, Belgium was established as a parliamentary constitutional monarchy with relatively extensive guarantees for personal freedoms under King Leopold I. Throughout the period, Belgian politics was defined by the split between Liberal and Catholic political factions of which the former remained dominant throughout much of the 1850s and 1860s. Charles Rogier, a liberal statesman, was Prime Minister throughout the period of the American Civil War.

Foreign policy

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Confederate policies

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Union policies

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French intervention in Mexico

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Main article: Belgian Legion

Belgian emigrants in the United States

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Main article: Belgian immigrants in Wisconsin during the Civil War

Although comparatively small, the populations of Belgian Americans was heavily concentrated in the Door Peninsula in Wisconsin in which French or Walloon-speaking immigrants from Wallonia had begun to settle in the 1840s. The 1860 census showed a population of 20,273 inhabitants in Door, Brown, Kewaunee counties of whom 3,968, approximately one in five, were born in Belgium.[1] Aware that the region represented a major colony, Belgium established a consulate at Green Bay in 1859.[1] The civil war period saw growing prosperity among the established Belgian colonies in Wisconsin.[2]

From the start of the civil war, some 44 Belgians emigrants in Wisconsin enlisted voluntarily in the Union Army between May 1861 and September 1862 attracted, in particular, by the relatively high pay on offer. About half served with the French-speaking G Company of the 17th Wisconsin Infantry Regiment which was recruited predominantly among Irish emigrants and served with distinction at the Siege of Corinth in 1862.[3] Belgians also participated in the Siege of Vicksburg the following year.[4]

The introduction of conscription in July 1862 caused considerable unrest among the Belgian immigrant population. Avoiding service in the Belgian Army was a major reason for many to emigrate in the first place. The new measures also particularly targeted Catholic immigrant groups in Wisconsin from which voluntary enlistment had been relatively unproductive.[5] Belgian mobs gathered to protest against conscription in Kewaunee County and Brown County where it surrounded the house of the Republican Senator Timothy O. Howe in Green Bay before eventually dispersing.[6] At least 95 Belgians were conscripted in November and December 1862, serving with the largely German-American 34th Wisconsin Infantry Regiment. Although 26 deserted soon afterwards, the contingent was discharged in September 1863 without ever seeing front-line service.[7]

Although about 15 new volunteers enlisted in April 1864, there were three further conscription lotteries between 1863 and 1865 but without significant results. A substantial number of new recruits were either physically unable to serve or purchased insurance to pay for replacements. Even after the replacement policy was abandoned in July 1864, the percentage of conscripts who actually served was low with half going into hiding.[8] In total, at least 280 Belgians from the Door Peninsula served with the Union Army during the war of whom 17 died of disease, one died in combat, and one died in Confederate captivity.[8]

Further reading

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  • Balace, Francis (1969). "Leopold I et l'intervention européenne dans la guerre de Sécession (septembre 1862-janvier 1863)". Belgisch Tijdschrift voor Nieuwste Geschiedenis. 1: 132–160.
  • Balace, Francis (1978). L'Armurerie Liégeoise et la guerre de sécession 1861-1865. Liège: Commission comunale de l'histoire de l'ancien pays de Liège.
  • Sterken, C. (2020). Jean-Charles Houzeau's escape from Texas : a Belgian astronomer caught in the American Civil War. Cham: Springer. ISBN 978-3030465360.
  • La Guerre De Secession Et La Belgique: Documents D'Archives Americaines 1861-1865. By Francis Balace. (Louvain: Editions Nauwelaerts, 1969.)
  • Decat, Frank (2008). Vechten met Lincoln : de Belgen in de Amerikaanse Burgeroorlog 1861-1865. Tielt: Lannoo. ISBN 9789020976175.
  • Galle, H. (1974). La « Famine du Coton », 1861-1865. Effets de la guerre de Sécession sur l'industrie cotonnière gantoise. Brussels: Editions de l'Université de Bruxelles.
  • Dellisse, Daniel (2011). Les Belges du Wisconsin. L'odyssée des émigrants belges au Wisconsin au milieu du XIXe siècle. Brussels: Le Cri. ISBN 978-2-8710-6577-7.
Van Gend en Loos
European Court of Justice
Submitted 16 August 1962
Decided 5 February 1963
Full case nameNV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen
CaseC-26/62
CelexID61962CJ0026
ECLIECLI:EU:C:1963:1
ChamberFull court
Nationality of partiesNetherlands
Procedural historyTariefcommissie, decision of 14 August 1962 (8847/48 T)
Court composition
Judge-Rapporteur
Charles Léon Hammes
President
André Donner
Judges
Advocate General
Karl Roemer
Legislation affecting
Article 30 of the Treaty on the Functioning of the European Union (TFEU)[a]
Keywords
Direct effect

Van Gend en Loos v Nederlandse Administratie der Belastingen (Case C-26/62) is a landmark legal judgment of the European Court of Justice (ECJ). It established that European primary law (treaty articles) were capable of creating legal rights which could be enforced by natural and legal persons before national courts in the then-European Economic Community (EEC). As such, it created the legal concept of "direct effect". Van Gend en Loos is generally considered to be one of the most important developments in European Union law and the ECJ's "most famous" ruling.[9]

The case emerged from a dispute over customs duties which had been raised in the Netherlands in apparently violation a standstill commitment made in the Treaty of Rome. The appellant company argued that they could rely on the relevant treaty article in a Dutch national court because it was capable of having "direct effect" within member-states. The ECJ agreed that, subject to several conditions, this was indeed the case.

Van Gend en Loos represented the first development in the ECJ's doctrine of direct effect. It established that certain provisions of European law are automatically part of national legal orders (direct applicability) and may be invoked, in certain circumstances, may be invoked by individuals against states (direct effect).[10]

Background

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Facts

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Van Gend & Loos was a Dutch postal and transportation company which imported a quantity of the chemical resin urea-formaldehyde from West Germany into the Netherlands on 9 September 1960. Both were Member States of the European Economic Community (EEC) established in 1958.

At the border, the Dutch customs authorities categorised the chemical according to a Dutch tariff ordinance (Tariefbesluit) of 1960 and levied a tariff of eight percent. Van Gend en Loos paid, although an earlier ordinance of 1947 had enforced a tariff of just three percent.[11][12]

National proceedings

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A Van Gend & Loos lorry from 1969

On 20 September 1960, Van Gend en Loos filed a written objection at the Inspector of Customs and Excise at Zaandam. They claimed that the earlier three percent tariff should have been applied, because this was the level in force in 1958 when the Netherlands had entered the EEC by signing the Treaty Establishing the European Economic Community (TEEC).

It argued that the Tariff Ordinance of 1960 violated Article 12 TEEC;[a][12] a "standstill clause" in relation to customs duties on trade in goods between Member States. At the time, it read:

Member States shall refrain from introducing between themselves any new customs duties on imports and exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other.[10]

The objection was rejected for reasons of jurisdiction. Instead, Van Gend en Loos filed a second appeal at the Dutch Tariff Commission (Tariefcommissie), an administrative tribunal, at Amsterdam. On 21 May 1962, the Tariff Commission heard oral arguments from both Van Gend en Loos and the Dutch Tax Authorities (Nederlandse Administratie der Belastingen). Since Van Gend en Loos had raised a question of European law, the Tariff Commission suspended the proceedings pending a preliminary ruling from the European Court of Justice (ECJ).[11][12]

Questions referred by the national court

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The court requested a preliminary ruling on two questions of European law, namely:

  1. Whether Article 12 of the EEC Treaty has direct application within the territory of a Member State, in other words, whether nationals of such a State can, on the basis of the Article in question, lay claim to individual rights which the courts must protect;
  2. In the event of an affirmative reply, whether the application of an import duty of 8% to the import into the Netherlands by the applicant in the main action of ureaformaldehyde [sic] originating in the Federal Republic of Germany represented an unlawful increase within the meaning of Article 12 of the EEC Treaty or whether it was in this case a reasonable alteration of the duty applicable before 1 March 1960, an alteration which, although amounting to an increase from the arithmetical point of view, is nevertheless not to be regarded as prohibited under the terms of Article 12.[13]

European Court of Justice

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Advocate General's opinion and Member State submissions

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Karl Roemer, a West German jurist, was the advocate general commenting on the case. He argued that European law could, in principle, have direct effect because the treaties represented more than a purely contractual relationship between Member States. However, he did not believe that this could apply to Article 12 TEEC.[14]

The Dutch, Belgian and West German governments also submitted observations. Belgium and the Netherlands argued the ECJ did not have jurisdiction to consider the question because it did not concern the interpretation of European law. Both states were implicated in because the Tariff Ordonnance of 1960 had been adopted as a measure mandated by the Benelux Economic Union.[15] Belgium argued that the question concerned whether a national law ratifying an international treaty would prevail over another law, and thus a question of Dutch constitutional law on which the court could not comment.[16][17] The Netherlands also argued that the treaty was not different from any other and that it would be contrary to the intentions of its designers to allow direct effect.[16] They also argued that the existence of provisions in the TEEC allowing the European Commission or another Member State to bring an enforcement action in the ECJ against a Member State accused of violating its treaty obligations precluded individuals from being able to invoke European law in national courts.[18] The European Commission also submitted its own representations.

ECJ Judgment

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The ECJ considered the case and gave its judgement on 5 February 1963. Rejecting the argument that it did not have jurisdiction, the ECJ ruled for Van Gend on the first question and declined to answer the second.[17] It held that the treaties could establish broadly applicable rules which could have direct effect and that Article 12 TEEC met the necessary criteria for this to apply.[17]

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In its reasoning behind the decision, the ECJ adopted a teleological interpretation of European law.[19] It emphasised the objectives expressed with the treaty, particularly the Common Market, and argued that direct effect would be necessary to achieve this:

The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states.[20]

In support of this argument, the Court the reference to "peoples" rather than "governments" in the recitals in the TEEC as well as the fact that the TEEC had led to the "establishment of institutions endowed with sovereign rights" in the form of the EEC.

Importantly, the ECJ argued that the signing of the treaty had created a "new legal order" separate from the ordinary rules of private international law:

The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community.[20]

Academics Paul Craig and Grainne de Búrca discern three arguments in the ECJ's judgement. First, they argued that the preliminary reference system in Article 177 TEEC[b] implied that European law should be applied in national courts. Second, they point to the "vision of the kind of legal community that the Treaties seemed designed to create". Thirdly, that it was not precluded by the existence of a system of enforcement actions by the Commission or other member-states in the treaties (Articles 169-170 TEEC)[c] as the member-state submissions had argued.[18]

A similar argument would subsequently be adopted in the ECJ decision in Costa v ENEL (C-6/64) which established the "primacy" or "supremacy" of European law.

Direct effect

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The ECJ emphasised that it would be possible for certain treaty articles to have direct effect if they met certain conditions. Specifically, it held that Article 12 TEEC was directly effective, because:

The wording of Article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between Member States and their subjects [...] Article 12 produces direct effects and creates individual rights which national courts must protect.[21]

As a result, any treaty article that meets three conditions can be directly effective: it must be "clear and unconditional", impose a negative obligation, and not be dependent on national implementing measures.[17]

Analysis

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Modern-day view of the Côte d'Eich, Luxembourg City where the ECJ was situated between 1959 and 1972

Van Gend en Loos has widely been hailed as a landmark in the development of European law. Together with the Court's judgment in Costa v ENEL, which established the concept of primacy, it marked a significant shift in the status of European law and in the relationship between European and national legal systems.[17] A consequence of this was a shift in the relationship between citizens and the State by empowering private individuals to enforce rights conferred by European law in national courts without the direct involvement of their national legislatures.[15]

At a theoretical level, Van Gend en Loos is seen as a rejection of the conventions of ordinary public international law. This included the convention that parties to a contract or treaty can determine its meaning. Instead, Van Gend en Loos allowed the ECJ "to create a clean slate, conceptually and methodologically detached" from the pre-existing legal order.[22] However, Judge David Edward also considers that Van Gend built on legal precedents already created in the EEC and European Coal and Steel Community (ECSC). This included an "objective-based interpretation" of the treaties, the acknowledgement that treaty articles were directly effective, the principle of effet utile and the primacy of European law.[23]

  • Opposition of three members (half of then-members) suggested widespread opposition to the principle.[18]
  • Rejected public international law convention that both parties can determine a contract's meaning.[17] Intended to depart from these norms entirely, "to create a clean slate, conceptually and methodologically detached".[22]
  • Costa v ENEL established primacy.[17] Together, both judgments created a shift in the place of European law.[17]
  • It has been widely suspected that the court's judges did not realise the magnitude of the departure.[22]
  • Wanted to impose a single interpretation of the six member states had different approaches to the place of international law, from monism to dualism.[22]
    • However, most member states would probably have approved of this vision of integration.[22]
  • David Edward, ECJ judge, argued that Van Gend en Loos was established on legal precedent by the Court of Justice and the ECSC. This included an "objective-based interpretation" of the treaties, the acknowledgement that treaty articles were directly effective, the principle of effet utile and the primacy of European law.[23]
  • Relationship between citizens and member states changed as a result of the judgement, giving new rights to citizens to prosecute in (independent) national courts without the involvement of the nation state.[15]
  • Dutch Constitution, as amended in 1953, established automatic primacy for international treaties over Dutch law.[24]

Aftermath

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Subsequent development of Direct Effect

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Wider effects in EU law

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  • Case of Da Costa en Schaake v Nederlandse Belastingadministratie (C-28-30/62) in March 1963 was legally identical to the facts in Van Gend en Loos. The court considered the duties to refer in Art 267 TFEU and refered the parties to its earlier judgment in Van Gend en Loos, thus contributing to the emergence of a doctrine of precedent in EU law. The idea of a doctrine of acte éclairé was later created in the case of CILFIT v Ministry of Health (1982).

Notes

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  1. ^ a b Article 12 TEEC has subsequently become Article 30 of the Treaty on the Functioning of the European Union (TFEU).
  2. ^ The preliminary reference procedure in Article 177 TEEC is now Article 267 TFEU.
  3. ^ The actions for infringement procedure in Articles 169-170 TEEC is now Articles 258-259 TFEU.

References

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  1. ^ a b Dellisse 2011, pp. 128.
  2. ^ Dellisse 2011, pp. 136–9.
  3. ^ Dellisse 2011, p. 133.
  4. ^ Dellisse 2011, p. 134.
  5. ^ Dellisse 2011, p. 137.
  6. ^ Dellisse 2011, pp. 136–8.
  7. ^ Dellisse 2011, pp. 138–9.
  8. ^ a b Dellisse 2011, p. 140.
  9. ^ Craig & de Búrca 2015, p. 187.
  10. ^ a b Mayer 2010, p. 17.
  11. ^ a b Van Gend en Loos judgment 1963, pp. 4–5.
  12. ^ a b c Mayer 2010, pp. 16–7.
  13. ^ Van Gend en Loos judgment 1963, p. 3.
  14. ^ Mayer 2010, pp. 17–8.
  15. ^ a b c Benvenisti & Downs 2014, p. 87.
  16. ^ a b Craig & de Búrca 2015, p. 188.
  17. ^ a b c d e f g h Mayer 2010, p. 18.
  18. ^ a b c Craig & de Búrca 2015, p. 189.
  19. ^ Benvenisti & Downs 2014, p. 86.
  20. ^ a b Van Gend en Loos judgement 1963, p. 12.
  21. ^ Van Gend en Loos judgment 1963, p. 2.
  22. ^ a b c d e Mayer 2010, p. 21.
  23. ^ a b Rassmussen 2014, p. 139.
  24. ^ Benvenisti & Downs 2014, p. 88.

Bibliography

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Further reading

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