C-322/88

4. According to the fifth paragraph of 2. This question calls for an equally precise Article 189 of the EEC Treaty 'recommen­ and clear negative response. It is true that dations ... have no binding force'. As a the Court has consistently held that 'whilst general rule, a recommendation as defined under Article 189 regulations are directly in that article cannot therefore have direct applicable and, consequently, by their effect, since it if could there would be no nature capable of producing direct effects, difference between the measures listed. that does not mean that other categories of measures covered by that article can never 1 produce similar effects'. In its judgments the Court has recognized that a number of provisions of directives, in particular, have 5. Nevertheless, the Court has consistently such effects, stating that 'wherever the held that it is not the description of the provisions of a directive appear, as far as measure which matters but its content and their subject-matter is concerned, to be scope. Does this mean that it is necessary to unconditional and sufficiently precise, those ascertain the true nature of the provisions of provisions may be relied upon by an indi­ a recommendation and in particular those vidual against the State where that State referred to by the national court? fails to implement the directive in national law at the end of the period prescribed or where it fails to implement the directive 2 correctly'.

6. I think not. It is indeed necessary to * Original language: French. check whether the measure, leaving aside its 1 — See, in particular, the judgment of 19 January 1982 in Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR title, does in fact merely recommend that 53, paragraph 21. the persons to whom it is addressed adopt a 2 — See judgments of 26 February 1986 in Case 152/84 Marshall v Southampton and South-Wen Hampshire Area certain action. But I do not think that it is Health Authority [1986] ECR 723, paragraph 46, and of 8 necessary to pursue the examination any October 1987 in Case 80/86 Criminal proceedings against Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 7. further. However clear, unconditional,

7. There is no doubt that the recommen­ dations at issue in this case are true recom­ 9. Prevention of occupational diseases is mendations. Both the Commission Recom­ one of the matters expressly listed in mendation to the Member States of 23 July Article 118. With a view to harmonizing the 1962 concerning the adoption of a national lists of occupational diseases and European schedule of occupational diseases ultimately replacing them with a European {Journal officiel 1962, 80, p. 2188) and the schedule, the Commission therefore Commission Recommendation of 20 July intervened in a field which is within the 1966 on the conditions for granting competence of the Member States. Thus it compensation to persons suffering from was impossible for the Commission to adopt occupational diseases {Journal officiel 1966, binding provisions in this case. The 147, p. 2696) are based on Article 155 of adoption of a recommendation in the proper the EEC Treaty, which confers on the sense of the word was its only option. Commission a general power to 'formulate recommendations or deliver opinions on matters dealt with in this Treaty, if it expressly so provides or if the Commission considers it necessary'. 10. I would add that the fact that the recommendations in question are more than or very nearly 25 years old cannot have any bearing on their effects in the absence of implementation by the Member States. It may, indeed, seem regrettable that after a 8. Moreover, both recommendations are in the field of social policy and expressly refer 3 — See in particular the judgment of 29 September 1987 in Case 126/86 Giménez Zaera v Instituto Nacional de la to Article 117 or Anicie 118 of the EEC Seguridad Social y Tesoreria de la Seguridad Social (1987) Treaty, or both. The Court has already ECR 3697, paragraphs 15 and 16 4 — Judgment of 9 July 1987 In Joined Cases 281. 283, 284, pointed out that the objectives of social 285 and 287/85 Germany. France, the Netherlands, Denmark policy laid down in Article 117 are essen­ and the United Kingdom v Commission [1987] ECR 3203

'In contrast with Article 173 of the Treaty which provides that "the Court of Justice shall review the legality of acts of the Council and the Commission other than 11. It therefore follows from all the recommendations or opinions", Article 177 considerations set out above that a recom­ confers on the Court "jurisdiction to give mendation cannot have direct effect. preliminary rulings concerning . . . the validity and interpretation of acts of the institutions of the Community" without any qualification. It is thus clear, in my opinion, that the reference to "acts" in Article 177 includes recommendations. Moreover I do 12. For the sake of completeness, I would not think it correct to say that the interpre­ add that in my opinion the Court need not tation of a recommendation can never be linger over the question whether it has juris­ relevant to a question at issue before a diction to give a ruling on the interpretation national court. Where, for example, a of a recommendation in view of the fact national statute has been passed for the that recommendations are not binding. First express purpose of giving effect to a recom­ of all, the question asked by the national mendation the correct interpretation of that court raises the general question, by impli­ statute may well depend on that of the cation at least, whether a recommendation recommendation. Whether it does so within the meaning of the fifth paragraph of Article 189 of the EEC Treaty can have 5 — In this same context, it should be noted that it was in inter­ direct effect, and it is therefore a question preting Council 'resolutions', which essentially only expressed the political will of the Council and of the repre­ on the interpretation of the Treaty itself. sentatives of the governments of the Member States, that Furthermore, since the question precisely the Court stated that they could not produce effects in law on which interested parties could rely before the courts (see concerns the effects of two particular judgment of 24 October 1973 in Case 9/73 Schlüter v Hatiptzollaml Lörrach [1973] ECR 1135, paragraph 40) recommendations, the jurisdiction of the and could not engender effects which could be used against Court cannot be contested on the ground individuals (see judgment of 3 February 1976 in Case 59/75 Pubblico Ministero v Manghera [1976] ECR 91 , that recommendations have no binding legal paragraph 21).