C-13/68

JUDGMENT OF 19. 12. 1968 — CASE 13/68

produces the same effects and creates the Article 33 of the EEC Treaty, several same rights. solutions may be envisaged. Therefore (c) The abovementioned provisions re­ the Member States are left with some quire the authorities, and in particular discretion concerning their obligations the relevant courts of the Member States, relating to these concepts. to protect the interests of those persons Accordingly, the abovementioned provi­ subject to their jurisdiction who may be sions and the last sentence of Article 32 affected by any possible infringement of of the EEC Treaty do not apply in a the said provisions, by ensuring for them sufficiently precise way to be capable of direct and immediate protection of their producing direct effects on the relation­ interests. However, it is for the national ships between the Member States and legal system to determine which court of those subject to its jurisdiction. tribunal has jurisdiction to give this 5. The provisions of Articles 36, 224 and protection and, for this purpose, to 226 of the EEC Treaty deal with excep­ decide how the individual position thus tional cases which are clearly defined and protected is to be classified. which do not lend themselves to any wide 4. As regards the data for and the methods interpretation. They cannot therefore be of calculating 'global quotas', 'total relied upon so as to deny that Article 31 value' and 'national production' within of the Treaty is directly applicable in its the meaning of paragraph (1) and the effects. first subparagraph of paragraph (2) of

THE COURT

composed of: R. Lecourt, President, A. Trabucchi and J. Mertens de Wilmars, Presidents of Chambers, A. M. Donner, W. Strauß (Rapporteur), R. Monaco and P. Pescatore, Judges,

Advocate-General: J. Gand

Registrar: A.Van Houtte

gives the following

SALGOIL v ITALY

I — Facts and procedure Salgoil appealed against this judgment to the Corte d'Appello, Rome, arguing in According to the grounds of the order re particular that Articles 30 et seq. of the ferring the matter, the following facts are at EEC Treaty directly conferred subjective the basis of the action pending before the rights on nationals of Member States and Corte d'Appello, Rome: not mere legitimate interests. SpA Salgoil had bought a certain quantity of By order dated 9 July 1968 the Corte fuller's earth impregnated with fatty sub d'Appello decided to ask the Court of stances from the Rohimpag undertaking at Justice of the European Communities:

the State, acting as a public administra imports and changed them into a system of tion, to go against this interest, or imports under licence. The defendant whether, on the contrary, these provi ministry argued in its defence that as sions, in correlation in particular with regards imports the subjective position of an the provisions of Article 36,224 and 226 individual created a legitimate interest but of the Treaty, are only intended to grant not a subjective right and that therefore an immediate protection to the public ordinary law court had no jurisdiction.

no jurisdiction. As regards the EEC provi public interests of the State and not the sions cited, the Tribunale Civile took the view that these did not alter the situation private interests of individuals, that the provisions in question are directed only resulting from Italian law; in fact, it is only at the legal exercise of this power and occasionally and indirectly that they might not at its existence.' give rise to individual legal situations creating interests coinciding with the The request of the Corte d'Appello, Rome, essential interests of the States themselves. was received at the Court Registry on 11

July 1968. Salgoil, the Italian Ministry for respective dates of the signing and of the Foreign Trade and the Commission of the entry into force of the EEC Treaty. European Communities submitted written Furthermore the products in question observations pursuant to Article 20 of the should be considered as included in the Protocol on the Statute of the Court of list of liberalized products to be sup Justice of the EEC plied to the Commission pursuant to the At the hearing in open court on 24 October, second paragraph of Article 31 of the the parties to the main action, mentioned Treaty. above, and the Commission presented oral (c) While the contract was being carried out argument. the Ministerial Decree of 14 November Salgoil was represented by Filippo Biamon

By letter dated 23 May 1961 the Ministry gave a negative II —Summary of the observations reply, and at the same time refused to submitted under Article 20 of grant the import licence. the Statute B — The Italian Ministry for Foreign Trade, The observations presented under Article 20 for its part, sets out the facts of the case. of the Protocol on the Statute of the Court C — The Commission makes the following of Justice of the EEC may be summarized as observations in particular:

Nor would such im which the products grouped under a portation have been so restricted at the given tariff-heading have been succes-

sively subjected). From this it draws the the definition of the expression 'individual conclusion that: rights which national courts must protect'. — there cannot have been any infringe ment of Article 31 of the Treaty, be 3. On Question (a) cause the product in question does A — Salgoil is of the opinion that this not appear in the consolidated lists question must be answered in the affirma for which this Article provides; tive, mainly for the following reasons: — furthermore, since the Italian Gov In previous cases the Court has constantly ernment has opened a global quota stated, and it is the prevailing opinion, that equal to 3 % of the national produc the rules of the Treaty directly create rights tion of this product, the most Salgoil and obligations for individuals.

Finally, the the opinion that: jurisdiction given to the Court by Articles 173, 175 and 177 of the Treaty confirms this — for certain reasons of principle (below, interpretation. (a)), the Court has no jurisdiction to More particularly, Articles 30 and 31 of the answer the first of the questions put; Treaty have an undeniable effect on the — furthermore for certain special reasons interests of individuals. Furthermore, the (below, (b)), the Court cannot answer the intention behind them is indistinguishable second question. from the objectives of other provisions (a) The questions raised by the Corte already held by the Court to have direct d'Appello, Rome, are not relevant to the effect (Articles 12 and 95). Moreover, this main action, because the products in ques unity is shown by Article 3(a). tion did not originate within the Commun In its judgment in Case 7/61 of 19 December

acting. No action on the part of the 'legitimate interests' comes within that of national legislature is required for its im administrative courts. plementation. Thus the provision lends Therefore, in asking the Court to consider itself perfectly to the creating of direct the nature' of any protection thus granted effects. Member States have, it is said, no to individuals the Corte d'Appello has jurisdiction, whether discretionary or bind raised a question of national law. Moreover, ing, to adopt measures contrary to Article this follows from the fact that Question (b) 31. This approach is confirmed by Articles refers to categories depending on the 224 and 226, which exclude all unilateral concept of 'legitimate interests'. measures on the part of a State.

munity institutions is necessary for their ization' and 'national production' are implementation. Thus the proposition that objective in nature. However, experience individuals can invoke them before this has shown, as the Commission expounds in intervention has taken place is unaccept detail, that since the initial data and the able. methods to be used for calculating these The answer would be no different if Articles figures are not made sufficiently clear, the 30 and 31 were considered alone: Treaty leaves a certain margin of discretion — Article 30 only applies without prejudice to the Member States.

On Question (b) given its ruling. A — (a) Salgoil first attempts to elucidate C — The Commission argues in particular the question and to analyse the situation in as follows: Italian Law (cf. supra 2, B, (b)). (a) As to Article 30 (b) As to the substance, it repeats certain arguments already used concerning Ques This provision is of a general nature, and is tion (a); furthermore it argues in particular only given concrete form by Article 31 et as follows: seq.; thus it cannot have any direct effect. Articles 30 and 31 create subjective rights in (b) As to Article 31 favour of Italian citizens.

It would be illogical to say that an individual is directly protected and (c) As to Article 33 at the same time allow the State to have a (1) Paragraphs (4) et seq. of this article discretionary power over the implementa cannot have direct effect, because their tion of the system laid down by the Treaty application is subject to the intervention of as regards the same individual. the Community or of the Member States. The above considerations cannot be (2) As regards paragraphs (1) to (3), the weakened by Articles 36,224 and 226 of the second paragraph of Article 33(2), which Treaty, for these provisions deal with provides for a decision by the Commission, exceptional cases and do not apply to the obviously cannot have direct effect.

SALGOIL v ITALY

that, even supposing that individuals were the Court of 3 April 1968 (Case 28/67, entitled to rely on the articles at issue before Molkerei-Zentrale, [1968] E.C.R.), accord­ the national court, in Italy they could only ing to which: do so before an administrative court. In — arguments 'based on rules of national fact the said articles, which make provision law cannot prevail over the rules of law for the merging of markets, are addressed laid down by the Treaty'; mainly to the States. Therefore the most — the Treaty does not restrict the powers of that they can give an individual under competent national courts to apply, Italian law is a 'legitimate interest'. from among the various procedures C — The Commission argues in particular available under national law, those as follows: which are appropriate for the purpose of protecting individual rights conferred by Since the Court has approved the proposi­ Community law'. tion that individual rights can arise both under provisions laying down a duty to act After proceeding to an analysis of Articles and under provisions laying down a duty to 36, 224 and 226 of the Treaty, the Commis­ refrain from acting, the Commission con­ sion concludes that these provisions ap­ cludes that the distinction between 'legitim­ prove exceptions which are to be strictly ate interest' and 'subjective right' is alien to construed, and that therefore they cannot Community law. be used to deny the direct effect of the rule to The Commission refers to the judgment of which they make exceptions.

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

JUDGMENT OF 19. 12. 1968 — CASE 13/68

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 de­ termine 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'.

Once these lists have been supplied, or at the latest once the time-limt 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 reserva­ tion 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 relation-

SALGOIL v ITALY

ships 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 provisions lends itself of its very nature to producing identical effects on the legal relationships between Member States and those subject to their jurisdiction.

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 logal protection

JUDGMENT OF 19. 12. 1968 — CASE 13/68

The argument cannot be accepted, since the present question calls for an inter­ pretation 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

SALGOIL v ITALY

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.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties to the main action and of the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 30, 31, 32, 33, 36, 177, 224 and 226; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

OPINION OF MR GAND — CASE 13/68

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.

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL GAND DELIVERED ON 14 NOVEMBER 1968 1

Mr President, 30 et seq. of the EEC Treaty on the elimina­ Members of the Court, tion of quantitative restrictions between Member States. In an action between an Italian company and the Italian Ministry for Foreign Trade, I which is an action for compensation for damage allegedly caused by a refusal to Although of course you have no jurisdic­ grant an import licence, the Corte d'Appel­ tion under Article 177 to give judgment on lo, Rome, is asking you to interpret Articles the substance of the case, it is neither pos-

1 — Translated from the French.