CJEC, December 19, 1968, No 13-68

THE COURT

By order of 9 July 1968, which reached the registry of the Court of Justice on 11 July 1968, the Corte d'appello, Rome, referred, under Article 177 of the Treaty establishing the EEC, two questions on the interpretation of Articles 30 et seq. of the said Treaty.

I - The jurisdiction of the Court

The Italian Ministry for foreign trade, the defendant in the main action, alleges that since the Court making the reference did not state that the main action concerns trade between Member States, the questions referred are inadmissible as a whole: the said action in fact concerns products originating in third countries.

Article 177 is based on a distinct separation of functions between national Courts and tribunals on the one hand and the Court of Justice on the other, and it does not give the Court jurisdiction to take cognizance of the facts of the case, or to criticize the reasons for the reference. Therefore, when a national Court or tribunal refers a provision of Community law for interpretation, it is to be supposed that the said Court or tribunal considers this interpretation necessary to enable it to give judgment in the action. Thus the Court cannot require the national Court or tribunal to state expressly that the provision which appears to that Court or tribunal to call for an interpretation is applicable. In so far as the quotation of the provision in question is not incorrect on the face of it, there is a valid reference to the Court. The Court of Justice has no jurisdiction to decide whether one or other of the provisions referred for an interpretation is applicable to the case at issue; this is a matter for the Court making the reference.

Thus the objection raised cannot be upheld.

II - The first question

In its first question the Corte d'appello, Rome, asks the Court of justice 'to determine whether the provisions of Article 30 et seq. of the Treaty, especially Article 31, also produce effects on the relationship between a Member State and its nationals'.

In view of the information supplied by the Court making the reference, it seems that this question asks only for an interpretation of Articles 30 and 31, the first paragraph and the second sentence of the second paragraph of Article 32, and paragraph(1) and the first subparagraph of paragraph(2) of Article 33.

(a) Article 30 lays down a general prohibition on quantitative restrictions and measures having equivalent effect but states that this is 'without prejudice to the following provisions'.

Amongst these provisions Articles 31, 32 and 33 define the scope of the abovementioned prohibition on a transitional basis. Since the present case relates to a period during which the said provisions were applicable, there is no need to examine the scope of the prohibition laid down by Article 30 after the expiry of the effects of the Articles mentioned.

(b) The first paragraph of Article 31 provides: 'Member States shall refrain from introducing between themselves any new quantitative restrictions or measures having equivalent effect'. The second paragraph of the same Article defines the degree of liberalization with reference to which the expression 'new restrictions' must be understood and in so doing it refers to 'decisions of the Council of the organization for European economic cooperation of 14 January 1955'. Furthermore, the said paragraph states that: 'Member States shall supply the Commission, not later than six months after the entry into force of this Treaty, with lists of the products liberalized by them in pursuance of these decisions' and provides that: 'these lists shall be consolidated between Member States'.

Once these lists have been supplied, or at the latest once the time-limit for supplying them has expired, Article 31 contains a clear prohibition, constituting not a duty to act but a duty to refrain from acting. This duty is not accompanied by any reservation whereby its operation depends on a positive measure of national law or on an intervention by the institutions of the Community. The prohibition in Article 31 of its very nature lends itself perfectly to producing direct effects on the legal relationships between Member States and those subject to their jurisdiction. Thus Article 31 creates rights which national Courts must protect.

(c) The first paragraph of Article 32 provides: 'in their trade with one another Member States shall refrain from making more restrictive the quotas and measures having equivalent effect existing at the date of the entry into force of this Treaty'.

For reasons analogous to those which have just been set out as regards Article 31, this provision lends itself of its very nature to producing identical effects on the legal relationships between Member States and those subject to their jurisdiction.

(d) The provisions of the last sentence of Article 32 and those of paragraph(1) and the first subparagraph of paragraph(2) of Article 33 are directed at the progressive abolition, during the transitional period, of the quotas and the measures having equivalent effect existing at the date of the entry into force of the Treaty. The last sentence of Article 32 states the principle and Article 33 lays down rules for its application. Therefore the abovementioned provisions should be looked at as a whole. By Article 33(1) Member States were required, one year after the entry into force of the Treaty, to convert 'any bilateral quotas open to any other Member States into global quotas open without discrimination to all other Member States'. Article 33(1) also states that the Member States must progressively increase the aggregate of the global quotas at given dates and at a specified rate. Finally the first paragraph of Article 33(2) specifies, in accordance with analogous criteria, the rate at which the quota for 'a product which has not been liberalized' and for which 'the global quota does not amount to 3 per cent of the national production of the state concerned' is to be raised.

These provisions lay down obligations which are not subject, either as regards their execution or their effects, to the adoption of any measure of the institutions of the Community. However, since they consist of positive obligations, consideration should be given to the question whether the Member States may in performing them exercise any discretion such as to exclude the abovementioned effects wholly or in part. Some discretion does fall to be exercised by the Member States from the obligation to 'convert any bilateral quotas... into global quotas' and from the concepts of 'total value' and 'national production'. In fact, since the Treaty gives no indication as to the data on which these figures must be calculated or as to the methods applicable, several solutions may be envisaged. Therefore the last sentence of Article 32 and Article 33 do not apply in a sufficiently precise way for it to be acknowledged that they have the abovementioned direct effect.

III - The second question

In its question the Corte d'appello, Rome, asks the Court of Justice:

'If the answer is in the affirmative, to consider the nature of this legal protection thus granted to the subjective position of an individual as regards the State; that is to say, to consider whether the legislative provisions in question grant direct and immediate protection to the private interests of an individual, excluding all discretion on the part of the State, acting as a public administration, to go against this interest, or whether, on the contrary, these provisions, in correlation in particular with the provisions of Articles 36, 224 and 226 of the Treaty, are only intended to grant immediate protection to the public interests of the Member States with reference to Community law and whether, therefore, they are intended to ensure, primarily, directly and solely that their administrative activity is in line with these interests, so that it must be recognized that, on the one hand, each Member State retains the power as regards its nationals to introduce restrictions on imports and, on the other hand, still taking into consideration the public interests of the State and not the private interests of individuals, that the provisions in question are directed only at the legal exercise of this power and not at its existence.'

Since this question is only put in case the answer to the first question is in the affirmative, it is to be considered only as regards those provisions which have just been held to have direct effect.

1. The jurisdiction of the Court

The Italian Ministry for foreign trade, the defendant in the main action, argues that this question is inadmissible. It says that in asking the Court of Justice 'to consider the nature' of this legal protection which may be granted to individuals, the Corte d'appello, Rome, has raised a question which depends on an interpretation of national law.

The argument cannot be accepted, since the present question calls for an interpretation of Community law. It supplements the first question because it seeks information as to the nature and scope of the effects which the Treaty attributes to the provisions in question.

2. Substance

It follows from the fundamental principles of the Treaty and from the objectives which it seeks to attain that the provisions of Article 31 and of the first paragraph of Article 32 have entered into the national legal order and are directly applicable therein. The complexity of certain situations in a state cannot alter the legal nature of a Community provision which is directly applicable, and this is particularly the case considering that the Community rule must have the same binding force in all Member States.

The provisions of Articles 31 and 32 require the authorities, and in particular the relevant Courts of the Member States, to protect the interests of those persons subject to their jurisdiction who may be affected by any possible infringement of the said provisions, by ensuring for them direct and immediate protection of their interests no matter what the existing relationship may be under national law between those interests and the public interest to which the question refers.

It is for the national legal system to determine which Court or tribunal has jurisdiction to give this protection and, for this purpose, to decide how the individual position thus protected is to be classified.

No argument to the contrary can be based on Articles 36, 224 or 226 of the Treaty. In fact, although these provisions attach particular importance to the interests of Member States, it must be observed that they deal with exceptional cases which are clearly defined and which do not lend themselves to any wide interpretation.

Thus the answer to be given to the present question is that, in so far as the provisions in question confer on persons subject to the jurisdiction rights which national Courts must protect, those Courts must ensure that the said rights are indeed protected, but that it is for the legal system of each Member State to decide which Court has jurisdiction and, for this purpose to classify those rights with reference to the criteria of national law.

The costs incurred by the Commission of the European Communities, which has presented its observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties appearing before the Corte d'appello, Rome, are concerned, a step in the action pending before that Court, the decision as to costs is a matter for the Corte d'appello.

The Court

In answer to the questions referred to it by the Corte d'appello, Rome, by judgment of that Court dated 9 July 1968, hereby rules:

1. Once the lists of liberalized products have been supplied, or at the latest once the time - limit laid down in the second paragraph of Article 31 of the EEC Treaty for the supply of these lists has expired, Article 31 produces direct effects on the relationships between a Member State and those subject to its jurisdiction and creates rights in favour of the latter, which national Courts must protect.

2. The first paragraph of Article 32 produces the same effects and creates the same rights.

3. National Courts must protect the rights conferred by the Articles mentioned above, but it is for the legal system of each Member State to determine which Court has jurisdiction, and for this purpose to classify those rights according to the criteria of national law.

And declares:

4. It is for the Corte d'appello, Rome to decide as to the costs in the present proceedings.