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Mr President, Recommendation 86/198/ECSC in Italian Members of the Court, law' 1 and referred to the Court for a preliminary ruling under Article 41 of the ECSC Treaty the three questions which are the subject of this Opinion. 1. On 13 May 1986 the Commission introduced Recommendation 86/198/ECSC on the establishment of preferential 4. Those three questions, for the exact treatment for debts in respect of levies on wording of which I refer to the Report for the production of coal and steel (Official the Hearing, concern in turn: Journal 1986, L 144, p. 40) which requires Member States to confer, not later than 1 January 1988 and in accordance with the (1) the 'direct and immediate effect' of, in detailed rules laid down therein, a pref- particular, Articles 1 and 2 of Recom- erential rank on debts arising from the mendation 86/198; application of the levies referred to in Articles 49 and 50 of the ECSC Treaty in all cases where national legislation provides (2) in the event that the recommendation for competition between creditors. does have such effect, its applicability to debts arising prior to the date of its introduction; 2. As Italy has not yet adopted the implementing measures necessary for it to (3) in the event that the recommendation meet that obligation, the European Coal does not have such effect, the and Steel Community, acting through the mandatory nature of the time-limit of 1 Commission, relied directly on that recom- January 1988 and the consequences in mendation in its claim, made in the context national law of the failure to observe of the decision of 3 February 1987 declaring that time-limit. Acciaierie e ferriere Busseni insolvent, that preferential treatment ought to be accorded to a number of debts owed to it under two 5. In the written observations which it decisions of 23 February 1982 and 5 submitted to the Court, the Commission September 1986. raised two prefatory questions, the first of which related to the admissibility of the third question which, in the Commission's view, concerns a problem exclusively of 3. That was the background against which national law, and the second, to the the tribunale civile e penale di Brescia admissibility of the other two questions (District Court, Brescia), to which the which, as they concern the interpretation, ECSC had appealed following the rejection rather than the validity, of an act of the of its claim by the official receiver in charge High Authority of the ECSC, appear to fall of the insolvency procedure, was called on outside the wording of Article 41 of the to consider 'the validity and effects of ECSC Treaty.

12. The judgment of the Court of 24 October 1985 in Case 239/84 Gerlach v I — The jurisdiction of the Court to give Minister for Economic Affairs [1985] ECR preliminary rulings on the interpretation of 3507, cannot, in my opinion, be regarded as the law of the ECSC having implicitly recognized the jurisdiction of the Court in that matter. Neither the first nor the third preliminary questions in that case related to problems exclusively of the interpretation of ECSC recommendations, 8. Anicle 41 of the ECSC Treaty provides as the Commission claims. The first sought that: to ascertain whether an EEC regulation also applied to products falling within the ambit of the ECSC Treaty and the third related to the validity of an ECSC recommendation of 'The Court shall have sole jurisdiction to the Commission. The fact that the Court, in give preliminary rulings on the validity of the reasons given in support of its answer to acts of the High Authority and of the those two questions, based itself on Council where such validity is in issue in secondary legal acts of the ECSC which it proceedings brought before a national court also interpreted, shows, at most, that the or tribunal.' examination of the validity of an act often implies the interpretation of that same act or of other acts.

9. The ECSC Treaty thus does not provide 2 — See, in that connection, Waelbroeck, Louis, Vignes, expressly for an optional or compulsory Dewost and Vandersanden: Le droit de la Communauté économique européenne. Vol. 10, Editions de l'université de preliminary reference on a matter of inter- Bruxelles, 1983, p. 179 and Joliét: Le droit institutionnel pretation, as do Article 177 of the EEC des Communautés européennes, le contentieux. Faculty of Law, Economies and Social Sciences of Liège, 1981, Treaty and Article 150 of the EAEC Treaty. p. 167.

13. Thus, the question of the jurisdiction of 17. In its judgment of 11 November 1981 in the Court still awaits an answer and along the IBM case, 4the Court had already given with the Commission I believe that that a broad interpretation to the concept of answer should be in the affirmative. measures liable to actions for annulment under Article 173 of the [EEC] Treaty by reasoning that 14. Article 31 of the ECSC Treaty, which is the counterpart of Article 164 of the EEC Treaty, provides that: 'that remedy is available in order to ensure, as required by Article 164, that in the inter- 'The Court shall ensure that in the interpre- pretation and application of the Treaty the tation and application of this Treaty, and of law is observed, and it would be inconsistent rules laid down for the implementation with that objective to interpret restrictively thereof, the law is observed.' the conditions under which the action is admissible by limiting its scope merely to the categories of measures referred to in 15. While those articles do not in them- Article 189' (paragraph 8). selves constitute a basis for jurisdiction, they do define the task which devolves upon the Court under the two treaties and on that ground form part of the backbone of the 18. In its judgment of 4 October 1983 in judicial system of the European the Fediol case, 5the Court also referred to Communities. 'the spirit of the principles which lie behind Articles 164 and 173 of the Treaty' in order to acknowledge that complainant under- 16. It was for that reason that the Court takings in anti-dumping proceedings had referred in particular to Article 164 of the EEC Treaty in the reasoning which led it to hold, in its judgment of 23 April 1986 in 'the right to avail themselves . . . of a review 'Les Verts', 3that an action for annulment by the Court appropriate to the nature of may also lie against measures of the the powers reserved to the Community European Parliament which are intended to institutions on the subject' (paragraph 29). have legal effects vis-à-vis third parties, even though Article 173 of the EEC Treaty, unlike Article 38 of the ECSC Treaty, expressly mentions only acts of the Council 19. Finally, in its judgment of 22 October and the Commission. In the words of the 1987 in the Foto-Frost case, 6 the Court Court, affirmed its exclusive jurisdiction to declare acts of the Community institutions invalid on the basis of the need for a uniform 'an interpretation of Article 173 of the application of Community law and coherence Treaty which excluded measures adopted by in the system of judicial protection instituted the European Parliament from those which by the EEC Treaty, as well as on the fact could be contested would lead to a result that it is itself in the best position to rule on contrary both to the spirit of the Treaty as expressed in Article 164 and to its system' 4 — Judgment of 11 November 1981 in Case 60/81 IBM v (paragraph 25). Commission [1981] ECR 2639. 5 — Judgment of 4 October 1983 in Case 191/82 Fediol v Commission [1983] ECR 2913. 3 — Judgment of 23 April 1986 in Case 294/83 Parti écologiste 6 — Judgment of 22 October 1987 in Case 314/85 Foto-Frost v 'Les Verts'v European Parliament [1986] ECR 1339. Hauptzollamt Lübeck-Ost [1987]ECR 4199.

24. Secondly, in the same way as the 21. In my opinion nothing ought to prevent application of the law cannot be divorced the Court from following the same course from its interpretation (Article 164 of the of action in the present case and from EEC Treaty and Article 31 of the ECSC affirming, with reference to Article 31 of the Treaty stress that point), no examination of ECSC Treaty, its jurisdiction to deliver the validity of an act can be made without preliminary rulings also on the interpre- an interpretation of the act itself or of the tation of the law of the ECSC. That is a law in relation to which its validity is view which I base essentially on the brought into question. We have seen that following reasons. the Gerlach judgment, already cited, provides an example in this respect. Mr Advocate General Verloren van Themaat, in his Opinion delivered on 2 March 1983 in 22. In the first place, to the extent — albeit Case 168/82 ECSC v Fernere Sant'Anna limited — to which national authorities are [1983] ECR 1681, at p. 1701, had expressed called on to implement the law of the ECSC the same view in endorsing an observation and national courts are required to apply it, made by the Commission that the need for a uniform application of Community law is every bit as vital as in the case of the EEC Treaty. In its judgment of 16 January 1974 in the Rheinmühlen case, 7 the Court affirmed emphatically that the system of references for preliminary rulings ' . . . it is not possible to appraise the validity is of a decision without at the same time inter- preting the provisions of the Treaty from 7 — Judgment of 16 January 1974 in Case 166/73 which the Commission derived the power to Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1974] ECR 33. adopt that decision' (see the section 'Facts

and Issues' of the judgment of the Court that the Court, which has the jurisdiction to of 17 May 1983 [1983] ECR 1681, at deliver preliminary rulings on the validity of p. 1689). 8 acts of the institutions of the ECSC, must equally have jurisdiction to rule on their interpretation, and indeed also on the inter- 25. In its judgment of 21 March 1985 in the pretation of the Treaty. 10 Celestri case, 9 the Court itself declared, admittedly in the context of the separation of functions between national courts and

It thereby 26. The judgment of the Court of 17 remedied a lacuna in the EEC Treaty November 1983 in Case 292/82 Merck v which, on the face of it, could not have Hauptzollamt Hamburg-Jonas [1983] ECR been due to a simple omission, bearing in 3781, which was delivered pursuant to mind that the authors of the EEC Treaty Article 177 of the EEC Treaty, is a case in had before them as a model Article 41 of

27. In the circumstances I have no hesi- Since it has already interpreted Articles 173 tation in agreeing with those who believe and 177 of the EEC Treaty in accordance with the requirements of both Articles 38 8 — See also the Opinion delivered by Advocate General Sir and 41 of the ECSC Treaty, I believe that Gordon Slynn on 27 March 1984 in Case 36/83 Mabanafi the Court may, a fortiori, draw guidance y Hauptzollamt Emmerich [1984] ECR 2528, at p. 2530: 'It is, in my opinion, clear that, if the validity of an act is in from Article 177 of the EEC Treaty in its Question, the first task almost inevitably is to ask what is the nature of the act in question. That involves, where the act is in a document, interpreting the words used.

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interpretation of Article 41 of the ECSC December 1960 in the Humblet case, 11 the Treaty. Court took the view that Article 171 of the EEC Treaty and Article 143 of the EAEC Treaty confirmed the limits to the juris- diction which it exercised under Article 16 29. It is not necessary in the present case to of the Protocol on the Privileges and determine the conditions governing the Immunities of the ECSC to rule on the exercise of the interpretative jurisdiction interpretation or application of that which must thus be recognized as vested in Protocol. In its judgment of 21 January the Court under the ECSC Treaty, nor to 1965 in the Merlini case, 12 the Court decide whether it is necessary to observe the implicitly transposed the provision in the distinctions laid down in the second and final paragraph of Article 192 of the EEC third paragraphs of Article 177 of the EEC Treaty, which reserves to the courts of Treaty. Since the tribunale civile e penale di the Member State concerned jurisdiction to Brescia has referred to the Court the review measures enforcing decisions preliminary questions under consideration, imposing pecuniary obligations, to Article it is immaterial, for the purpose of estab- 92 of the ECSC Treaty, which is silent on lishing the Court's jurisdiction in the matter, the matter. whether it did so by its own option or because it was required so to do.

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Member State to the tax debts owed to that court, exists only in relation to "each Member State' (final recital in the recom- Member State to which it is addressed". It mendation). follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied 40. It is clear that those articles do not upon as such against such a person' create new types of preferential treatment (paragraph 48). for which Member States must introduce rules, nor do they oblige Member States which do not already confer a preferential rank on tax debts owed to them to 45. In the judgment of 8 October 1987 in introduce legal provisions for that purpose. Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, the Court drew the consequence that

41. To the extent to which they apply to 'new' proceedings involving competition between creditors, Articles 1 and 2 of ' . . . a national authority may not rely, as Recommendation 86/198 are certainly against an individual, upon a provision of a unconditional and sufficiently precise for directive whose necessary implementation in individuals to rely upon them directly. national law has not yet taken place' (paragraph 10).

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such a result would run contrary to the 59. For all those reasons, therefore, my intentions of those who drafted the Treaty. view is that the Commission, acting as the High Authority of the ECSC, cannot rely on Articles 1 and 2 of Recommendation 86/198 as such, that is to say, before their implementation in national law, as against 57. The objection may be raised that the individual creditors of an insolvent under- Court has, in some cases, implicitly taking in proceedings before national courts acknowledged that a directive which has not or authorities of a Member State charged been properly implemented may still have with the administration of cases of bank- negative consequences for individuals. I am ruptcy and insolvency. referring in that respect to a number of judgments 14 dealing with Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (Official 60. Even if the Court does not share that Journal, English Special Edition 1971 (II), view, I believe that it ought none the less to p. 682). In those cases, individuals conclude that the recommendation, as such, contested before national courts decisions of cannot be relied upon as against private the 'adjudicating authority' rejecting their creditors in the context of proceedings for tender by relying on the fact that those recovery which are already in progress at decisions were based on national legislation the date of its implementation. which did not comply with the directive.

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' . . . the Member States should consequently directive or an ECSC recommendation is a ensure, by means of appropriate transitional concept of Community law. A provision, in measures, adequate legal safeguards for the respect of its content, is either unconditional rights of other creditors of the undertaking or it is not. In the case before us, it is not. liable to levies, particularly in respect of means of redress against the ranking of debts carried out following the implemen- tation of this Recommendation'. 67. Moreover, it is neither clear nor specific because there is a great deal of uncertainty as to the nature of the 'appropriate transi- tional measures' and their possible effect. 63. The first conclusion which may be Was the Commission thinking of a means of drawn from those two texts is that the redress with the sole purpose of obtaining Member States do not have the option, as judicial confirmation that the liquidator had the Commission suggests, to introduce tran- correctly conferred the necessary rank on sitional measures, but are in fact obliged to debts owed to the ECSC? do so.

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71. Nevertheless, cases might arise in which In the present case, the State is affected in no individual holds a debt of a rank lower its capacity as the creditor of an insolvent than or equal to that of the ECSC and in undertaking. which only the preferential status of the ECSC and that of the State are in compe- tition. Let us suppose for example that LIT 500 million remain to be distributed and that the two debts mentioned above 74. With some reservations I would even go each amount to LIT 500 million. My view a step further and observe that, even if there is that in such a case the national authorities are creditors other than the State and the would be correct in dividing the available ECSC, the competent national authorities assets in equal amounts between the State are entitled, without affecting the rights of and the ECSC, because the State itself those other creditors, to divide the amount would thereby be obliged to make a direct normally reserved for the State between it sacrifice for the benefit of the ECSC. The and the ECSC on a pro rata basis in position would be the same where the total accordance with their respective claims. assets still available were, in any case, sufficient only to meet debts owed to the State and where no individual was entitled to a portion of the assets.

75. I do not, however, believe that one should go further and allow the ECSC to set the full amount which it would have 72 Since the application of Articles 1 and 2 received (if the recommendation had been of Recommendation 86/198 in those implemented) against that of the State, potential situations entails consequences as because that would amount in practice to against the State alone, I believe that those granting to debts owed to the ECSC, not provisions should be capable of being relied the same rank as that reserved for tax debts on directly by an individual, in this case the owed to the State, as envisaged by the ECSC itself. recommendation, but rather a higher rank.

III — The question of the application of between creditors provided for by their Recommendation 86/198 to debts arising national laws’ (Article 1), including, under prior to its adoption the conditions laid down in the second part of the second paragraph of Article 4, ‘proceedings in progress on the date of [its] actual implementation’. Moreover, it follows 78. In its second preliminary question, to be expressly from the seventh recital in the considered if Recommendation 86/198 does preamble to the recommendation that its have 'direct and immediate effect', the application to proceedings in progress is national court asks if the recommendation intended to ‘ensure the most extensive applies not only to debts arising after its possible recovery of debts arising from the adoption on 13 May 1986, but also to those application of levies in the years preceding which arose prior to that date. In order to the adoption of the recommendation.’ answer that question, three situations may be envisaged. 81. C — As the relevant texts are very clear and do not give rise, in general, to any diffi- 79. A — In so far as that question concerns culties of interpretation, it seems possible to the capacity of the recommendation to be me that the second question should be relied upon as against individuals, it serves understood as referring in reality to the no purpose, in my opinion, bearing in mind validity of the recommendation, in so far as the reply to the first question. the fact that it applies to debts arising prior to its adoption would confer on it an illegal retrospective effect.

January 1988 at the latest. The provision preventing new rules from applying to the that in future certain debts, even existing future effects of situations which arose ones, shall have a preferential rank, in under the earlier rules'. 16 respect of competition among creditors, certainly does not amount to a retrospective 86. Recommendation 86/198 may thus be measure. applied to situations which arose prior to its entry into force but which had not been 83. To the extent to which that may definitively settled at that date. possibly give rise to criticism based on the principle of legal certainty, two comments are necessary. 87. Finally, we have seen that, in so far as the recommendation is to apply to 84. First, since levies are the principal proceedings for recovery already in progress source of revenue of the ECSC (third at the moment of its implementation, recital), the Community may have felt Member States are required to ensure that justified in ensuring the most extensive they do not prejudice rights acquired by possible recovery of debts arising from their other creditors under the provisions of the application, including those arising in the previously applicable national law. To the years preceding the adoption of the recom- extent to which those creditors might have mendation (seventh recital). expected, in all confidence, that debts owed to them would continue to be treated in the 85. Secondly, the Court has consistently manner laid down by national law when held that they first arose, it must be pointed out that the recommendation itself prescribes the ' . . . the field of application of the principle adoption of the provisions necessary for of legitimate expectation cannot be their legitimate expectation to be duly extended to the point of generally protected.

IV — The mandatory nature of the However, should the Court wish to reply to time-limit laid down for the implementation the first part of the question, it would of Recommendation 86/198 suffice to point out that while under the third paragraph of Article 14 of the ECSC 89. In its third question, the national court Treaty recommendations leave the choice of asks whether the time-limit of 1 January the methods to those to whom they are 1988 laid down by Article 4 of the recom- addressed, they are none the less binding as mendation is mandatory, so that failure to to the aims to be pursued. The latter include comply with it gives rise, according to the the entry into force, within the periods case-law of the Italian Constitutional Court, stipulated, of national provisions necessary to doubts as to the constitutionality of the for their implementation. It cannot therefore Italian legislation (on the ground of be doubted that the time-limit of 1 January infringement of Article 11 of the Italian 1988 is mandatory and that any failure to Constitution). comply with it constitutes, on the part of the Member State involved, a failure to 90. It is clear that in the context of a fulfil one of the obligations devolving on it reference for a preliminary ruling the Court under the ECSC Treaty and which is has no jurisdiction to rule on the conse- capable of giving rise to proceedings for quences in national law of a potential failure to fulfil obligations as referred in breach of a provision of Community law. Article 88 of that Treaty.

91. I therefore propose that the Court answers the third question as follows: