C-91/92

* Original language: German. 2 — Since 1 November 1993, the EC Treaty as a result of the 1 — Council Directive 85/577/EEC of 20 December 1985, Treaty on European Union of 7 February. 1992 (OJ 1992 OJ 1985 L 372, p. 31. C 224, p. 1).

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and of the fact that there is no obligation to all the Member States in which it asked them publish directives. 3 However, since the con- for their views on the question raised by the tent of some directives is precise and sub- national court as to 'whether the provisions stantively that of a regulation, the question of a directive which has not been transposed arises as to whether in such a case a directive into national law within the time-limit set can acquire 'legislative force' in excess of the could be relied upon directly by an individ- inherent effects of directives. The national ual in a dispute with another individual', and court refers to the Court's case-law and con- this prompted the French Government also siders that the results are in some respects to submit written observations. Lastly, repre- unsatisfactory, for example, where a measure sentatives of the Danish, German, Greek, is legislative in nature between some subjects French, Italian, Netherlands and British and not in relation to others. It takes the Governments took part in the oral proce- view that a preliminary ruling is called for, dure. All the representatives of the Govern- on the ground that the 'only sure factor is ments of the Member States, with the excep- the uncertain effects of directives'. tion of the representative of the Greek Government, argued, in common with the Commission, that the court's case-law to date should be maintained. The oral proce- dure revealed the complexity of this case, although, for the most part, the arguments 5. The questions referred to the Court for a for and against cover common ground. I preliminary ruling read as follows: shall be returning to the various arguments when I carry out the legal assessment.

8. As regards the Member States' margin of discretion for the transposition of Direc- 10. The consumer's right of renunciation tive 85/577 into national law, the starting laid down in Article 5 is the central core of premiss is that a Member State has various the directive and is to be carried out 'in possibilities open to it in the context of its accordance with the procedure laid down by freedom to choose the 'form and methods'. 5 national law'. That form of words warrants It may incorporate the provisions of the doubts as to whether this is a reference to directive into an existing legislative code, the general civil law — such as the rule on adopt a separate law or refer in a separate the lodgement of declarations of intention — law to provisions of the general civil law. or to independent rules which are to be laid down in the implementing measure.

or

13. Although the national court has not brought the facts of case under any particu- lar provision of the directive, it would appear that the application of Articles 1 and 5 is — during a visit by a trader inescapable. Article 1 defines the scope of the directive ratione materiae and Article 5 cre- ates the consumer's right of renunciation. Each of those articles should therefore sat- isfy the requirements of unconditionality and precision on which the Court's case-law makes the direct applicability of a provision (i) to the consumer's home or to that of of a directive depend. another consumer;

2. Article 1 of Directive 85/577 (ii) to the consumer's place of work;

14. Article 1(1) of Directive 85/577 reads as follows: where the visit does not take place at the express request of the consumer.'

'This Directive shall apply to contracts under which a trader supplies goods or services to a consumer and which are concluded:

6 — Judgment in Joined Cases C-6/90 and C-9/90 Frankovich 15. In itself, that paragraph is precise and and Others [1991] ECR1-5357, paragraph 20. unconditional, since it covers clearly defined

17. It can therefore be considered at this stage that Article 1(1) is sufficiently precise to qualify for direct applicability. 20. It therefore turns on whether Arti- cle 1(3) and (4) may be interpreted so as also to bring contractual offers made in other locations or fact situations within the scope of the directive. Article 1(3) and (4) read as follows: 18. In contrast, the application of Arti- cle 1(3) and (4), each of which paragraphs covers 'conditions similar to those described in paragraph 1 or paragraph 2', could prove awkward. It is open to question whether paragraphs 3 and 4 of Article 1 extend the scope ratione matériáé of the directive by '(3) This Directive shall apply to contracts in respect of which an offer was made by the consumer under conditions similar to those 7 — The contract was concluded 'near Milan Central Railway Station', whereas Ms Dori Uves in Monza. described in paragraph 1 or paragraph 2

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although the consumer was not bound by 23. The title of the directive suggests that it that offer before its acceptance by the trader. is intended to apply generally to contracts negotiated away from business premises. The preamble confirms this. The fourth recital in the preamble reads as follows:

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account of the contractual offer. Accord- 3. Article 5 of Directive 851577 ingly, I consider that the correct view is that paragraphs 3 and 4 extend the effects of the directive to cover possible circumventing transactions.

17. The applicability of the directive is of practical utility for the consumer only if he can rely on the right of renunciation pro- vided for in Article 5 in order to release him- self from a contract concluded away from the trader's premises. Ms Dori expressly relied on Article 5 of the directive in the 25. In the absence of a binding interpreta- main proceedings. tion by the Court of Article 1(3) and (4), those provisions are not, in my view, suffi- ciently precise and unconditional to be capa- ble of being directly applicable.

29. The idea that the provision in question is s answered in the affirmative, the national sufficiently precise could be assumed at the court wishes to know whether the directive most from the limited angle of the main pro- could have effects between the individual and ceedings, in which — as far as appears from the Italian State after the period for its the documents before the Court — the con- implementation elapsed and before it was tract was not in any way performed. Notifi- actually implemented. As the Court has con- cation of the exercise of the right of renunci- sistently held, 12 an individual may, after the ation within seven days would then be the expiry of the period prescribed for imple- minimum requirement for triggering the mentation, rely directly against the Member legal consequence described in Article 5(2), State in default upon a provision of a direc- namely: tive which is in his favour, unconditional and precise. In such circumstances, the Member State may not take advantage of its conduct contrary to the Treaty. 13 'The giving of the notice shall have the effect of releasing the consumer from any obliga- tions under the cancelled contract'.

31. That effect attaching to directives, which The release of the consumer from his con- may also be described as vertical direct tractual obligations can therefore be con- effect, affords satisfactory protection for the strued as a minimum guarantee u for the legal interests of individuals only if the direc- consumer. To my mind, therefore, Article 5 tive is intended and fit to have effects in such of Directive 85/577 is eligible for direct vertical legal relations. The directive will not applicability only subject to the reservations be directly applicable where the obligation in set out above. question is incumbent, not on the State, but on a private individual.

33. With a view to setting broad limits to the direct applicability of directives, the concept of the State has to be understood in the (b) Obligation on all State institutions broad sense. The broad definition covers to apply Community law by way of inter- local or regional authorities, H public author- pretation ities ' 5 and bodies coming under the State 16 even in the form of nationalized undertak- ings. 17 It is above all the inclusion within the definition of the State of State-controlled undertakings which has given rise to criti- cism. It is doubtless the cases in which it was possible to rely on a directive against a nationalized undertaking in its capacity as an employer, 18 and not against a private person, to which the national court adverts when it 35. Another means of procuring the widest states that 'a legislative measure takes effect possible application of directives which, by as between some individuals who are subject default, have not yet been transposed into to a particular legal system and not others'. 1 9 national law or have been insufficiently transposed consists of the obligation on all public authorities to take all appropriate measures within their jurisdiction, whether 14 — Judgment in Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839, paragraph 31. general or particular, to ensure fulfilment of 15 — Judgments in Becker, cited above, in Case 152/84 Marshall the Member States' obligation arising from a v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723, in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, in Costanzo, cited above, and in Case C-221/88 Busseni [1990] ECR 1-495. 16 — Judgment in Case 31/87 Beentjes v State of the Netherlands 20 — For the functional concept of the State, see the judgment in [1988] ECR 4635. Beentjes, cited above. 17 — Judgment in Case C-188/89 Foster and Others [1990] 21 — Purely incidentally, I would observe that in labour law it does not only make a difference as far as the effect of direc- ECR 1-3313, paragraph 20. tives is concerned whether the contract of employment was 18 — Judgment in Foster, cited above. concluded with an employer subject to public law or with a 19 — See the national court's order, p. 11 of the original version. private employer.

37. There are, however, natural limits to the possibility of construing national law in con- formity with Community law. They are dis- cernible when the Court refers to the obliga- Intermediate conclusion tions incumbent, under Community law, on all public authorities to take appropriate measures 'within their jurisdiction'. 27 Conse- quently, the limits on the interpretation of the law also constitute limits on the power of 39. (aa) Consequently, in so far as the national court's question relates to the effects of Directive 85/577 in relations between an individual and the Italian State in the period 22 — See the judgments in Case 14/83 Von Cohort and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 26, between the expiry of the period prescribed in Beentjes, cited above, paragraph 39, in Case C-106/89 for the transposition of the directive into Marleasing [1990] ECR 1-4135 and in Case C-373/90 X [1992] ECR 1-131, paragraph 7. national law and its actual implementation, 23 — Judgment in Von Colson and Kamann v Land Nordrhein- its attention should be drawn to the exist- Westfalen, cited above, paragraphs 26 and 28. 24 — Judgment in Case 111/75 Mazzalai v Ferrovia del Renon ence of the right to compensation on the [1976] ECR 657, paragraphs 7/9 and 10/11. basis of Community law. 25 — Judgments in Von Colson and Kamman, cited above, para- graph 26, and in Marleasing, cited above. 26 — Judgment in Costanzo, cited above. 27 — Judgments in Von Colson and Kamann, cited above, para- graph 26. 28 — Cf. judgment in Francovich, cited above.

41. The Commission provided information about Italian civil law both in its written observations and at the hearing, and men- tioned two provisions which, in its view, are suitable for the implementation of the right of renunciation. 44. The Court's justification for this is as follows: '... according to Article 189 of the EEC Treaty the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to "each Mem- ber State to which it is addressed". It follows that a directive may not of itself impose obli- 42. The Court may not rule on the applica- gations on an individual and that a provision tion of national law. The burden imposed on of a directive may not be relied upon as such individuals indirectly by the proposed inter- against such a person'. 31 pretation was, admittedly, allowed by the Court in Marleasing. 29 As has been rightly objected, renunciation of the effects of the contract presupposes the existence of a right of renunciation. The Court is under a duty to rule on that condition where it is asked about the effects of the directive during the 45. Consequently, emphasis is clearly placed interim period — between the end of the on the refusal to impose a burden on a pri- period for transposition and actual imple- vate person. According to the wording of the mentation — on relations between private Treaty, an obligation is imposed only on the individuals inter se. To refer in that context Member States to which the directive is to the obligations arising for the national addressed. court under Community law and that court's exclusive jurisdiction to interpret national law would be to ignore the true issue. 30 — Judgments in Marshall, cited above, paragraph 48, in Joined Cases 372 to 374/85 Traen [1987] ECR 2141, paragraph 24, in Pretore äi Salò v Persons unknown, cited above, para- graph 19, in Busseni, cited above, paragraph 23, and in Mar- leasing, cited above, paragraph 6. 29 — Cited above. 31 — Judgment in Marshall, cited above, paragraph 48.

32 — Cited above. 51. The principle of the prohibition of dis- 33 — Cited above. crimination, which ranks as a fundamental 34 — Section 12 of his Opinion of 26 January 1993 in Case right, also militates in favour of directives' C-271/91 (judgment of 2 August 1993) Marshall v Southampton and South-West Hampshire Area Health Authority ('Marshall ƒƒ'), [1993] ECR 1-4367. 35 — Section 15 et seq. of his Opinion of 27 January 1994 in Case C-316/93 Vaneetveld, [1994] ECR 1-763, at 1-765. 36 — Judge Schockweiler has also spoken in favour of the hori- 37 — Since 1 January 1993, in accordance with Article 8a of the zontal effect of directives in his contribution Effets des EEC Treaty, which has since become Article 7a of the EC directives non transposées en droit national à l'égard des Treaty. particuliers to Mr Diez de Velasco's Festschrift 'Hacia un 38 — My emphasis. nuevo orden internacional y europeo'. 39 — Second recital in the preamble to Directive 85/577.

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52. If those disparities were to be main- tained, it would go against the stated aim of the approximation of legislation. That find- ing cannot be refuted by arguing that it is in the nature of directives that there are bound to be different conditions as between Mem- 54. In the case of directives whose content is ber States until such time as the directives are intended to have effects in relations between transposed into national law. 40 Such inequal- private persons and which embody provi- ity should be allowed only during the period sions designed to protect the weaker party, 42 prescribed for implementation. It is one of it is obvious that the failure to transpose a the aims of directives that comparable condi- directive deprives it of effet utile. Following tions should prevail after that period has the expiry of the period for transposition, expired. the application of protective provisions with precise and unconditional content should be possible. A provision of a directive, which the Community legislator intended to be binding, should be recognized as having sub- stantive effect and the conduct of a Member State contrary to the Treaty should not be able to impede the assertion of legal posi- tions which are in themselves complete. 53. The discrimination argument has gained even more substance since the entry into force of the Maastricht Treaty and of citizen- 41 — Expressed in the first recital in the preamble to the Treaty ship of the Union, enshrined in the EC on European Union, cited in footnote 2. Treaty. According to the intention of the 42 — See, for example, Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of the employer (OJ 1980 L 283, p. 23; see in this regard the judgment in Francovich and Others, cited above) or Directive 85/577/EEC, which is the 40 — See section 8 of my Opinion of 10 October 1989 in Case subject-matter of the present proceedings and of the judg- C-38/89 Blanguemon [1990] ECR 1-83, at 1-87. ment in Case C-361/89 Di Pinto [1991] ECR 1-1189.

59. In my view, those arguments can be refuted. As regards in the first place the free- 56. The direct applicability of directives as dom given to the Member States as to the between private persons would cease to be in choice of the form and methods for imple- the nature of an objection in the sense that menting directives, that freedom is com- the favourable provision is 'relied upon'. The pletely unaffected until the transitional directly applicable provision of a directive period expires. Even after that, the Member would in contrast be given effects erga States retain — also where individual provi- omnes. It would as a result be equated with sions have direct effect — leeway wherever the directly applicable provisions of the

47 — For example — Article 12: judgment in Case 26/62 Van Gend 6- Loos [1963] ECR 1; 43 — Admittedly, even in the context of the existing case-law on — Articles 53 and 37(2): judgment in Case 6/64 Costa v the effect of directives, direct responsibility for the infringe- ENEL [1964] ECR 585; ment of the Treaty is not necessary, as witness the broad — Articles 9 and 13(2): judgment in Case 33/70 SACE v interpretation given by the Court's case-law to the concept Ministry for Finance of the Italian Republic [1970] of the Sute; see section 11.1(a), above. ECR 1213); 44 — Nemo auditur, venire contra factum proprium, estoppel. — Article 48: judgment in Case 41/74 Van Duyn v Home Office [1974] ECR 1337; 45 — Judgment in Becker, cited above, paragraph 24. — Article 119: judgment in Case 43/75 Defrenne v Sabena 46 — See my Opinion in Costanzo, cited above, section 23. [1976] ECR 455.

62. Another argument put forward against horizontal applicability for directives relates to the burden imposed on third parties on the ground that it is incompatible with the rule of law. That argument cannot in fact be dis­ 60. The obligation for the Member State to missed forthwith. It is questionable whether achieve the results intended by the directive a private person whose conduct is lawful exists immediately that the directive takes under the national legal system may have effect. As far as the results intended to be burdens imposed upon him under an unim- achieved by a directive are concerned, the plemented directive not addressed to him for Member States do not normally have any which, moreover, he will have scarcely any discretion. Such results include, for example, remedy against the Member State in making protective provisions binding by no default. 4 9 later than the end of the period for imple­ mentation. 4 S The binding nature of such rules is — as I have already observed — intended by the Community legislator and inherent in the nature of directives. Direc­ tives are not measures of lesser quality but 63. O n grounds of legal certainty the hori­ are addressed, with a view to their imple­ zontal effect of directives appears to me to be mentation, to the Member States, which are extremely problematic from the point of under an obligation under the Treaty to view of the third party suffering the burden. transpose them into national law in full and The fact that private individuals have had in good time. burdens imposed on them indirectly as a result of directly applicable directives — for example, owing to irregularities committed in a tender calling in question the legal situ­ ation of the other tenderers and, possibly, the contractor 5 0 or owing to the effect of such directives resulting from their interpretation 61. In my view, the nature of directives does in conformity with Community law in a dis­ not preclude their having horizontal effect. pute between companies subject to private Neither would that eliminate the demarca­ tion between regulations and directives, since

64. The basic condition for a burden 66. For reasons of legal certainty, which is a imposed on the citizen by legislative mea- fundamental right of the citizen on whom a sures is their constitutive publication in an burden is imposed, the public must be pre- official organ. " That condition is not ful- pared as of now for the fact that directives filled by directives adopted on the basis of will in future have to be recognized as hav- the EEC Treaty. 53 The usage of publishing ing horizontal direct effect. For those rea- directives in the Official Journal of the Euro- sons, too, one must be gratified at the afore- pean Communities as measures whose publi- mentioned stands taken by members of the cation is not a condition for their applicabil- Court. 56 ity does not remedy that situation. Publication in the Official Journal of the European Communities is purely declaratory and is not a condition for directives to take effect, which is sometimes clarified by a footnote indicating the date on which the 67. The principle of legitimate expectations directive was notified to the Member is invoked in favour of private individuals on States, 54 since directives take effect by noti- whom a burden is imposed and against the fication. 55 The fact that it is possible to take horizontal effect of directives. Expectations cognizance of a measure does not replace its deserving of protection certainly exist, in so constitutive publication. far as a private individual does not have to reckon with the imposition of additional burdens provided that he acts lawfully within the context of his national legal sys- tem. On the other hand, once a directive has been published and the period for transposi- 65. In the case of directives adopted and to tion has expired, the burden is foreseeable. I be adopted following the entry into force of would ask whether the expectation that the the Maastricht Treaty on 1 November 1993, national legislature will act contrary to Com- the situation is fundamentally different. Arti- munity law is worthy of protection. cle 191 of the EC Treaty also requires direc- tives to be published in the Official Journal of the Community. An objection based on

69. As far as the alleged democratic deficit is concerned, I would observe, on the one hand, that the European Parliament's rights to collaborate in drawing up Community legislation have gradually been increased by the Single European Act and the Maastricht Treaty. On the other hand, it cannot be 71. The objection that recognition of the argued, I submit, that the national legislature horizontal direct effect of directives would is by-passed. increase Member State's carelessness in transposing them does not convince me, since the national legislature remains respon- sible for their implementation in full. Recog- nition in principle of horizontal effect might possibly encourage Member States to effect transposition within the prescribed period in order to forestall horizontal application by the authorities and courts of the Community 70. The national legislature has every free- and the Member States. In my view, the dom during the period for transposition to arguments on the educative effect of hori- choose the form and means of transposing zontal applicability balance themselves out the directive into national law. 57 Even after and hence do not tip the balance for or the period for transposition has elapsed, the against. obligation 58 on the national legislature to transpose the directive continues to exist, as well as leeway to fulfil that obligation in one way or another to the extent permitted by the directive. Only provisions of directives or protective rules which are sufficiently pre- cise to be asserted without being fleshed out in any way and therefore have to be taken over by the national legislature would have 72. Before concluding, I would further observe that, if directives are recognized as having horizontal effect, the necessary conse- 57 — Judgment in Grad, cited above, paragraph 13. quences should be drawn as regards legal 58 — Judgment in Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 12. protection. Thus they should be capable of

(2) (a) O n the basis of the case-law to date, an unimplemented directive can have effects vis-à-vis the State in so far as all public authorities, in particular, the courts, are under a duty to take all appropriate measures, whether general or particular, to ensure fulfilment of obligations arising from a directive.

59 — See my Opinion in Case 298/89 Gibraltar v Council (judg- ment of 29 June 1993), [1993] E C R 1-3605.

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(b) Shortcomings in the implementation of the directive may entail an obligation on the Member State to compensate a private individual who benefits from its provisions.

(3) In accordance with that which the Court has consistently held, an unimple- mented directive cannot have direct effect in relations between private individuals. That case-law should be maintained on grounds of legal certainty as regards past situations.