C-20/64

JUDGMENT OF THE COURT 4 FEBRUARY 1965 1

S.A R.L. Albatros

v Société des Petroles et des Combustibles liquides (Sopéco) 2

Case 20/64

Summary

1. Procedure — Preliminary ruling — Jurisdiction of the Court — Interpretation (EEC Treaty, Article 177) 2. Procedure — Preliminary ruling — Jurisdiction of the Court — Limits (EEC Treaty, Article 177) 3. Elimination of quantitative restrictions — Process

defendant,

1 -Language of the Case: Italian. 2 -CMLR.

JUDGMENT OF 4. 2. 1965—CASE 20/64

THE COURT

composed of: Ch. L. Hammes, President, A. M. Donner (Rapporteur) and R. Lecourt, Presidents of Chambers, L. Delvaux, A. Trabucchi, W. Strauß and R. Monaco, Judges,

Advocate-General: J. Gand Registrar: A. Van Houtte

By a contract made on 9 March 1959, should be ordered to perform the con­ the company Albatros undertook to tract or that the contract should be ter­ supply to the company Sopeco an minated, and in any event claimed annual quantity of 6 000 metric tons of damages for the loss suffered. Sopéco petrol to be imported into France. On submitted that the contract should be 28 April next, Sopeco informed Albatros annulled on the ground of a funda­ that it had not been able to obtain from mental mistake of law, or else that its the competent French authority the obligation should be declared exting­ authorization necessary for the importa­ uished by reason of force majeure, or, tion of the petrol, and that consequently alternatively, that the claim made by it was not able to carry out the contract. Albatros should be declared unfounded It explained in subsequent notes of 20 in fact. May and of 29 November that the Before the Tribunale Civile of Rome, abovementioned refusal of authorization the parties requested that the proceed­ was based upon the French law of 30 ings be suspended, and the file sent to March 1928 ('petroleum import system'), the Court of Justice of the European a law which, in its opinion, conflicted Communities, in so far as the dispute with the provisions of the Treaty raised questions of interpretation of the establishing the European Economic EEC Treaty. The Tribunale Civile of (Community and which should therefore Rome found that the following questions be considered as abrogated by the latter. required a preliminary ruling: Albatros commenced proceedings against A. Must Article 30 of the Treaty, read Sopeco before the Tribunale Civile of together with Article 3 and Articles Rome for failure to perform the con­ 31, 32 and 35, be interpreted as hav­ tract, claiming on the basis of the above- ing or not having the effect of abro­ mentioned facts that Sopéco's arguments gating the previous provisions of the invoking force majeure should be reject­ French Regulations concerning the ed. Albatros refused to admit that the petroleum import system, and in decision of the French authorities, taken particular the provisions of the law in violation of the EEC Treaty, was a of 30 March 1928 (JO of 31 March factor which exonerated Sopéco from its 1928) and the Decree-Laws of 8 obligation, and asked that the latter August and 1 February 1950, should

these conflict with the above- objective of which is the elimination of mentioned provisions of the Treaty? quantitative restrictions between Member B. Must Articles 31 and 32 of the States. They do not establish any clear Treaty, read together with Article 5, distinction between (1) quantitative be interpreted as constituting or not restrictions on importation, (2) measures a source of rules overriding Ordon­ having equivalent effect, and (3) nance No 58 892 of 24 September measures relating to State trading. The 1958, promulgated by the French three categories of measures are not Government after the entry into governed by their own rules which are force of the same Treaty (1 January distinct from one another and mutually 1958), an ordonnance which supple­ exclusive. There is thus no reason to mented and modified the above- consider to which of the types mention­ mentioned law of 30 March 1928? ed above the French system of importa­ C. In the event of the Court's answer­ tion of petroleum belongs. In any case ing the above questions in the nega­ this system is incompatible with the tive, must Article 33 of the Treaty, EEC Treaty to the extent that the read together with Article 5, be so measures which it includes: interpreted that the French rules (a) were taken after the entry into derived from the whole of the said force of the Treaty and make the provisions of the national law are to situation in respect of imports more be regarded as subsequently render­ restrictive than it had been pre­ ed void, or not, af ter the date of the viously; entry into force of the said Treaty (b) or, in comparison with the situa­ (1 January 1958)? tion existing at the date when the D. Must Article 37 of the Treaty, read Treaty entered into force, restrict together with Article 5, be inter­ the importation of petroleum pro­ preted as involving the progressive ducts from other Member States to abolition of any public monopoly a smaller quantity than that envis­ operating in compliance with the aged by Article 33 of The Treaty. French legislation governing the Albatros claims that the Court should importation of petroleum? rule: By an order of 18 January 1964, which (a) on the interpretation of Articles 30, was not received and entered in the 31, 32, 33 and 37 in respect of the Register of the Court of Justice until 19 French legislation concerning May 1964, the Tribunale Civile of petroleum, as applied, and accord­ Rome ordered the file to be sent to the ing to which only organizations or said Court and suspended the proceed­ persons already in possession of ings until a preliminary ruling has been special authorizations in accordance given by the latter. with the law of 30 March 1928 Under Article 20 of the Protocol on the can obtain a licence to import Statute of the Court, the parties to the main action, the Governments of the petroleum and its derivatives; Kingdom of Belgium, of the French (b) on the question whether or not Republic and of the Kingdom of the these Articles 30, 31, 32, 33 and Netherlands and the Commission of the 37 are calculated to produce direct EEC submitted their observations. effects in the legal systems of the The Government of the Netherlands various Member States and

Articles which courts are obliged cretion which the provisions of to protect. Article 37 (1) leave to the Member According to Albatros, Articles 30 et States concerning the choice of means seq., although certainly envisaging the to achieve the progressive abolition progressive elimination of quotas, require of the discriminations in question, that however the immediate abolition of all they are not self-executing before the restrictive measures of a different char expiration of the transitional period. acter, such as the grant to a restricted The French Government points out first circle of specific persons of special im of all that questions submitted by the

The second The Commission of the EEC submits question is irrelevant, since the Ordon that: nance of 24 September 1958 applies to — as to the first question, Article 30 of the treatment of what is deemed to be the Treaty is a provision of a general national crude oil and was not therefore nature the application of which is employed by the French administration achieved in accordance with the against Sopéco. The position is the same means provided for in Articles 31 to with the last question, since the concept 37, in accordance with the conditions of 'progressive adjustment' contained in and the limits laid down by these Article 37 of the Treaty clearly cannot Articles, and cannot therefore be re have any bearing upon a dispute which garded as self-executing; originated at the beginning of 1959. — as to the second question, Articles 31 Lastly, the questions put to the Court of and 32, instituting a 'standstill' Justice cannot in any way assist in the obligation, have a self-executing resolution of the dispute pending before character, but Ordonnance No 58 892 the Rome court, since it is not for an of 4 September 1958 is not the basis Italian court to pronounce upon the of the refusal of authorization of legality of a measure taken by the which Sopéco complains; this refusal French public authorities.

ALBATROS v SOPÉCO

Article 30 has made inapplicable, that is The Advocate-General delivered his to say, 'incontestable', a national law opinion at the hearing on 2 December which includes quantitative restrictions 1964.

Grounds of judgment As to the jurisdiction of the Court

It is objected that the questions submitted to the Court are likely to lead, through the use of Article 177, to a decision on the conformity of laws and administrative measures of a Member State with the Treaty.

JUDGMENT OF 4. 2. 1965—CASE 20/64

This Article provides that national courts or tribunals may make a reference to the Court for a preliminary ruling on the 'interpretation of the Treaty' when such a question is raised before them. However, on the basis of this provision the Court can neither apply the Treaty to a given case nor give judgment on the validity of a measure of national law with regard to it, as it is required to do under Articles 169 and 170. It may, nonetheless, extract from the wording of the reference submitted to it by a national court or tribunal the questions arising as a preliminary matter concerning the inter­ pretation of the Treaty. In the present case it must therefore not give judg­ ment on the validity with regard to the Treaty of the French legislation concerning the importation of petroleum, but only interpret the provisions of the said Treaty in the light of the legal particulars provided by the Rome court.

It is objected that the latter has requested, especially in questions B and D, an interpretation of the Treaty which was not necessary to the resolution of the proceedings before it.

For the purposes of this case, an answer must be sought to the question whether, during the transitional period, and especially in the year 1959, in which the alleged fundamental mistake of law and the impossibility of performance occurred, the Treaty brought about the abrogation ipso jure of the legislation of the Member States referred to in one or other of the pro­ visions of the Chapter relating to the elimination of the quantitative restric­ tions between Member States, mentioned in the order making the reference. The said Chapter contains two groups of provisions relevant to this case.

One group, appearing not only in the first paragraph of both Article 31 and Article 32 but also in Article 37 (2) of the Treaty, and prohibiting any intensification of the restrictions, discriminations or measures having equiva­ lent effect existing at the time when the Treaty entered into force, can, by their very nature, be applied only to national measures subsequent to that date.

Other provisions appear either in the second paragraph of Article 32 and in Article 33, which provide for the progressive abolition according to a certain timetable during the transitional period of the quantitative restrictions refer­ red to by the said Articles, or in Article 37 (1) and (3), which prescribe the progressive adjustment of State monopolies according to a timetable harmonized with that for the same products provided for in Article 30 to 34.

Finally, there is no need to enquire in the present case which provisions mentioned by the court are directly applicable to interested parties in the Member States.

Consequently, it is necessary only to answer, in reply to the questions put, that none of the Articles of the Treaty mentioned in those questions implies the abrogation ipso jure, at the date of the entry into force of the Treaty, of the quantitative restrictions, discriminations or measures having equivalent effect which existed at that date, or requires the States to abolish them completely as from 1959.

Costs

The costs incurred by the Commission of the EEC and the Netherlands, French and Belgian Governments, which submitted their observations to the Court, are not recoverable. These proceedings are, in so far as the parties to the action pending before the Tribunale Civile of Rome are concerned, a step in the action pending before that court.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the submissions of the parties to the main action and the observations of the Commission of the European Economic Community and the Netherlands, French and Belgian Governments;

Hammes Donner Lecourt

Delvaux Trabucchi Strauß Monaco

Delivered in open court in Luxembourg on 4 February 1965.

A. Van Houtte Ch. L. Hammes

Registrar President

OPINION OF MR ADVOCATE-GENERAL GAND DELIVERED ON 2 DECEMBER 1964 1