C-128/92

A —Article 4 of the ECSC Treaty I - 1221

B —Article 60 of the ECSC Treaty I - 1225

C —Article 65 of the ECSC Treaty I - 1228

D —Article 66(7) of the ECSC Treaty I - 1231

IV — Do the Treaty provisions concerned have direct effect? I - 1232

A — Can ECSC Treaty provisions have direct effect at all? I - 1233

A — The role of the Commission and of the national court in enforcing Community competition rules I-1261

B — To what extent are findings of fact and/or of law in a Commission decision binding on the national court? I - 1263

Ir Original language: Dutch.

I-1212

BANKS

Mr President, Nationalization Act 1946 (hereinafter Members of the Court, 'CINA 1946') was vested with title to the vast majority of unworked coal in Great 1 Britain. British Coal is under a statutory- duty to work and get coal in Great Britain to the exclusion of any other person (save as 2 otherwise provided by the CINA 1946). It 1. The High Court of Justice of England and must also secure the efficient development of 3 Wales, Queen's Bench Division, Commercial the coal-mining industry. Pursuant to the Court ('the national court') seeks a prelimi­ CINA 1946, British Coal is empowered to nary ruling in this case on the basis of Arti­ grant, either conditionally or uncondition­ cles 41 of the ECSC Treaty and 177 of the ally, licences for the extraction of coal to 4 EEC Treaty on a number of questions con­ third parties. It has been the practice of cerning the interpretation of the competition British Coal to grant licences on one of two rules of the ECSC and EEC Treaties. The bases: (i) on a royalty-paid basis ('the royalty reference arises in connection with an action licence') whereby the licensee pays a royalty for damages brought by H. J. Banks & Com­ per tonne of coal produced and may sell the pany Ltd ('Banks') against British Coal Cor­ coal to any person without restriction; and poration ('British Coal') in which Banks (ii) on a royalty-free basis ('the delivered alleges that certain provisions of the ECSC licence') whereby the licensee is obliged by Treaty or the EEC Treaty have been the terms of the licence agreement to sell and infringed. deliver the coal to British Coal at a specified price. British Coal no longer grants licences of that type. 5

('the ESI'). That sector was privatized after 1 dominant position as supplier of electricity- April 1990. Since then the main generators of generating coal to secure favourable terms electricity, and thus the main purchasers of for itself under the coal supply contracts, coal, in England and Wales have been particularly as regards volume and price, National Power pic and PowerGen pic which had a detrimental effect on its compet­ (hereinafter 'National Power' and 'Power- itors, namely the small licensed coal produc­ Gen'). Shortly before privatization, in 1989- ers (contrary to Article 66(7) of the ECSC 90, British Coal conducted negotiations with Treaty); (ii) that the generating companies those two undertakings with a view to con­ concerned, namely National Power and cluding contracts for the supply of coal PowerGen, abused their dominant position ('coal supply contracts') in which British by discriminating against the members of the Coal was guaranteed for a number of years complainant associations in comparison with (from 1 April 1990 to 31 March 1993) speci­ British Coal as regards the purchase of coal fied quantities of coal at fixed prices. (contrary to Article 86 of the EEC Treaty); and (iii) that the contracts on the basis of which British Coal licensed third parties to extract coal and, in particular, the level of royalty payable in respect thereof were con­ trary to Articles 60 and 65 ECSC Treaty and, to the extent that the latter provision is not applicable, Article 85 of the EEC Treaty.

On 23 May 1991 the Commission adopted a rejected; 3and finally (iv) with regard to the decision. That decision is expressly stated complaint made under Article 66(7) of the to deal only with the situation in England ECSC Treaty concerning the royalties levied and Wales arising from the entry into opera by British Coal, the new royalty levels pro tion of the coal supply contracts from 1 posed by the United Kingdom authorities April 1990 between British Coal, on the one on 24 October 1990 and subsequently imple hand, and National Power and PowerGen on mented by British Coal with retroactive

10 on production, while Article 65 does not apply to the coal supply contracts between British Coal, on the one hand, and National Power and PowerGen on the other, since the latter two are not undertakings for the pur 4. On 9 July 1991 NALOO brought an poses of Article 80 of the ECSC Treaty; 11 action before the Court of First Instance (ii) the complaint made under Articles 63 under Article 33 of the ECSC Treaty for the and 66(7) of the ECSC Treaty and Arti annulment of the decision in so far as it con cles 85 and 86 of the EEC Treaty is justified cerns NALOO's complaint in relation to the in so far as it concerns the situation after 1 levels of royalty paid under royalty licences April 1990 when the coal supply contracts and the sums paid by British Coal under

NALOO based on Articles 63 and 66(7) of the ECSC also seeks an order from the Court of First Treaty and Articles 85 and 86 of the EEC Instance requiring the Commission to Treaty, is no longer valid and is therefore re-open the investigation into the level of royalty payable under royalty licences and the price paid for coal under delivered licences. On 30 January 1992 British Coal 7 — The decision has not been published in the Official Journal. It is drafted in the form of a letter addressed to NALOO , FSMGB and SWSMA and is signed by Sir Leon Brittan, Vice-President of the Commission. 8 — As stated in the first paragraph of the decision (no number) and in point 79 thereof. 13 — Point 82 of the decision. In point 67, the Commission states 9 — Point 80 of the decision. that the decision is based on the assumption that those con tracts will result in the elimination of discrimination 10 — Point 47 of the decision. between British Coal and the licensed mines, and that it 11 — Point 69 of the decision. reserves the right to reopen the case if that assumption 12 — Point 81 of the decision. should appear to have been unfounded.

5. Following the Commission's decision var­ ious licensed coal producers, including Banks, brought an action for damages against British Coal before the national court. Their actions are based upon breaches of Art­ icles 4(d), 60, 65 and 66(7) of the ECSC British Coal on the other hand contends Treaty. In the main proceedings Banks claims before the national court primarily that (i) more particularly that British Coal has the ECSC Treaty does not apply to the infringed those provisions in relation to the issues arising in this case; (ii) its conduct level of royalty paid to it under royalty does not constitute an infringement of Art­ licences and the prices paid by it under deliv­ icles 4(d), 60, 65 or 66(7) of the ECSC Treaty; ered licences. In its view, the level of royalty (iii) those articles do not have direct effect in set by British Coal under royalty licences is English law and do not give rise to rights excessive and not such as to enable Banks to and duties under private law, and the Com­ make a reasonable profit, while the prices mission has exclusive power, at least in the paid by British Coal pursuant to the deliv­ first instance, to determine whether there has ered licences are unreasonably low. Since the been an infringement of those provisions; aforesaid articles of the ECSC Treaty have and (iv) if the said articles have direct effect direct effect, according to Banks, it considers they can only do so following a Commission that they confer rights on it which the decision and/or the completion of all proce­ national court must protect by an award of dures referred to in those provisions and/or

(ii) the exhaustion of remedies (if any) in relation thereto available under (i) do Articles 85 and 86 EEC apply to the ECSC Treaty; and/or the circumstances set out in Ques­ tion 1;

(iii) the completion of the steps or pro­ cedures indicated in the relevant (ii) is the answer to (i) affected by Art­ provisions? icle 232(1) EEC?

(3) Are Articles 4(d), 60, 65 and/or 66(7) (6) If the Commission has taken a decision ECSC directly effective and such as to pursuant to a complaint, as it did in the

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OPINION OF MR VAN GERVEN — CASE C-128/92

Decision of 23 May 1991, to what 8. The answer to that question is to be extent is a national court bound by that found in Article 232(1) of the EEC Treaty, decision: which provides as follows:

II — Is the ECSC Treaty or the EEC Treaty applicable? In laying down that rule the authors of the EEC Treaty clearly sought to avoid any con­ flicts with regard to the delimitation of the scope of the EEC Treaty from that of the 14 ECSC Treaty. In substance, Article 232(1) of the EEC Treaty amounts to a confirma­ tion of the principle 'lex specialis derogat 15 lege generali.' As the Court stated in its judgment in Gerlach, it follows from that 7. The first issue facing the Court is whether provision that: the extraction of unworked coal falls in principle within the scope of the ECSC Treaty rather than within that of the EEC Treaty, and consequently whether Art­ icles 4(d), 60, 65 and 66(7) of the ECSC Treaty rather than Articles 85 and 86 of the EEC Treaty are capable of applying to 'the rules of the ECSC Treaty and all the licences to extract such coal and to the roy­ provisions adopted to implement that Treaty alty and payment terms therein. Before con­ sidering whether those provisions are appli­ cable in this case (see paragraph 10 et seq. below), I shall examine the question whether 14 — The same purpose underlies Article 232(2) of the EEC Treaty, which provides that the provisions of the EEC the ECSC Treaty is applicable in principle to Treaty are not to derogate from those of the Treaty estab­ lishing the European Atomic Energy Community. the products at issue in the main proceedings 15 — At the same time, that provision constitutes an exception to and the operations and transactions relating the principle of international law 'lex posterior derogat pri­ ori': see C. Vedder, 'Article 232', in Grabitz, Kommentar thereto. zum EWG-Vertrag, Munich, Beck, p. 1, no 1.

Let me add at once that the ECSC Treaty contains a large number of specific provi­ 'in addition to extraction, the Treaty regards sions in a field such as competition law — as production activities only those which it some of which are relevant here — so that in expressly recognizes as such. To decide cases which are centred on issues arising in

18 — Sec E.-U. Petersmann, 'Article 232', in von der Groeben 16 — Judgment in Case 239/84 Gerlach v Minister for Economic — Thiesing — Ehlermann, Kommentar zum EWG- Vertrag, Affairs [1985] ECR 3507, at paragraph 9. IV, Baden-Baden, Nomos, 1991, pp. 5715-16. 17 — Judgment in Case 328/85 Deutsche Babcock Handel v 19 — Emphasis added. The first paragraph of Article 79 of the Hanptzollamt Ltibeck-Ost [1987] ECR 5119, at paragraph ECSC Treaty specifies the territories to which the ECSC 10. Treaty applies.

I-1219

OPINION OF MR VAN GERVEN — CASE C-I28/92

Code No 3100, which is the type of coal produced in Great Britain. The United King­ dom's argument that unworked coal cannot be regarded as a product of that kind, inas­ much as by definition it is not yet capable of being the subject of trade between Member 22 — Judgment in Case 14/59 [1959] ECR 215, at p . 227. 23 — Ibid., at p . 228. 24 — I do not find it necessary to consider in detail the other two arguments which the United Kingdom adduces in support of the view that unworked coal does not constitute aprod- 20 — Judgment in Joined Cases 9/60 and 12/60 Vloebergbs v uct within the meaning of Annex I to the ECSC Treaty: High Authority [1961] ECR 197, at p . 212 (emphasis add­ (i) the first argument, to the effect that this follows from the ed). See the definition given by Advocate General Lagrange fact that raw materials referred to in OEEC Code No 1490 in Société des Fonderies de Pont-à-Momson of the term are excluded from the definition in Annex I, is untenable 'production' within the meaning of Article 80 of the ECSC since according to Note 1 of that annex that code relates Treaty, namely 'everything comprised in the whole process­ only to 'other raw materials not elsewhere classified for ing cycle of the most highly-worked product from the iron and steel production' and thus not for the production extraction of the raw material to the finishing stage at of fuels, including hard coal; (ii) nor, in my view, is the sec­ which it is considered that the line must be drawn': ond argument, derived from a communication issued by the Case 14/59 [1959] ECR 215, at p. 240. Commission in 1986 concerning the interpretation of the 21 — See also the Opinion of Advocate General Roemer in expressions 'hard coal' and 'run-of-mine brown coal' Joined Cases 9/60 and 12/60, according to whom it follows (Communication 86/C254/02, OJ 1986 C 245, p. 2), perti­ from Annex I to the ECSC Treaty 'that even in the sphere nent: in my view, it cannot be inferred from the fact that the of coal one speaks of "production", even as regards lignite Commission decided to regard certain fuels produced in in respect of which no alteration is involved but merely the Spain as hard coal within the meaning of the aforesaid extraction of a raw material. The mere extraction of coal annex that, in so doing, it precluded such coal — unworked therefore constitutes "production" within the meaning of — from constituting a product within the meaning of the Treaty': [1961] ECR 197, at p. 222. Annex I to the ECSC Treaty.

'The following are recognized as incompat­ ible with the common market for coal and steel and shall accordingly be abolished and prohibited within the Community, as pro­ vided in this Treaty: ...

12. What are we to make of that? There can be no possible doubt regarding the funda­ mental nature of Article 4 in the context of the ECSC Treaty. That is already apparent (b) measures or practices which discriminate from Article 2 of the ECSC Treaty, which between producers, between purchasers makes the attainment of the ECSC's objec­ or between consumers, especially in tives dependent on 'the establishment of a

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OPINION OF MR VAN GERVEN — CASE C-128/92

25: common market as provided in Article 4.' visions of the ECSC Treaty, it emphasized Since its earliest judgments, in Cases 1/54 on the basis of Article 84 thereof that: and 2/54, the Court has emphasized the essential nature of Article 4 (and of Art­ icles 2 and 3) of the ECSC Treaty: they con­ stitute 'fundamental provisions establishing the common market and the common objec­ tives of the Community.' 26 'the provisions contained in all those instru­ ments are equally binding and there is no question of contrasting them with one another but only of considering them in con­ junction with one another so as to apply 28 them appropriately.'

In addition, the case-law of the Court con­ tains several indications when it comes to After recalling the fundamental nature of answering the question whether Article 4 of Article 4 (and of Articles 2 and 3) in the con­ the ECSC Treaty can be applied on its own text of the ECSC Treaty, the Court consid­ or only — as its wording suggests if con­ ered that: strued accordingly — 'as provided in this Treaty'.

I -1222

BANKS

The Court has repeatedly reaffirmed that ranks as a lex specialis it excludes the appli­ interpretation of Article 4 of the ECSC cation of Article 4(b): Treaty, in particular in its judgments of 21 and 26 June 1958 concerning applications for annulment which certain undertakings and associations of undertakings had brought against some of the provisions of Decision 3 No 2/57 of the High Authority. 0In those judgments, moreover, the Court expressly 'Articles 4(b) and 65 of the Treaty govern stated that since Article 4 also establishes the the different aspects of economic life in their fundamental objectives of the Community, it respective fields of application. must 'always' be observed, its provisions are 'binding' and 'these provisions can stand by themselves and accordingly, in so far as they have not been adopted in any other provi­ sion of the Treaty, they are directly applica­ 31 ble.' Those two articles do not exclude neither do they annul each other; they serve to bring about the objectives of the Community. They are thus complementary in this respect.

In certain cases their provisions can cover 14. Further guidance on the question of the facts justifying a simultaneous and concur­ relationship between Article 4 and other, 3 rent application of the said articles.' 2 more specific, provisions of the ECSC Treaty is provided by the judgment in Geit- ling and Opinion 1/61. In the Geitling case, the Court expressly rejected the contention that since Article 65 of the ECSC Treaty

In Opinion 1/61 — so far the only pro­ subparagraph of Article 65(2) lays down for nouncement in which it has considered Art­ derogating from the prohibition in Art­ icle 4(d) of the ECSC Treaty — the Court icle 65(1) that the first-mentioned provision examined, inter alia, the compatibility with 'establishes an objective criterion for the Article 4(d) of a proposal of the High appraisal of cases where an agreement is in Authority and the Special Council of Minis­ any event incompatible with the prohibition 34 ters to amend Article 65 of the ECSC Treaty. laid down by Article 4(d).' For that rea­ With regard to the scope of Article 4(d), the son, the possibility of allowing derogations Court first stated that: from the conditions laid down by indent (c) of the first subparagraph of Article 65(2), provided for in the proposal submitted to the Court for its opinion, constituted according to the latter an infringement of the prohibition laid down in Article 4(d). 'this prohibition is clearly intended to pre­ vent undertakings from acquiring by means of restrictive practices a position which enables them to have or exploit markets.

I -1224

BANKS

Article 4 is in no way subordinate to it but is reductions tending towards the acquisi­ equally binding and must be viewed and tion of a monopoly position within the applied in conjunction, that is to say common market; together, with the provision concerned. To put it another way, Article 4 continues to play a supplementary role also in relation to provisions of the Treaty which implement or define the scope of the prohibition contained in Article 4. — discriminatory practices involving, within the common market, the application by a seller of dissimilar conditions to compa­ rable transactions, especially on grounds of the nationality of the buyer. 16. Since I propose to conclude that in this case other, more specific, provisions of the ECSC Treaty, more particularly Articles 65 and 66(7) — but not Article 60 — thereof, are applicable, it follows from the foregoing that, in relation to the licences to extract coal and the terms stipulated therein which are at issue in these proceedings, Article 4 has sup­ plementary effect within, though autono­ The High Authority may define the practices mous effect outside, the scope of Articles 65 covered by this prohibition by decisions and 66(7). taken after consulting the Consultative Committee and the Council.'

B — Article 60 of the ECSC Treaty

According to British Coal, the United King­ Even if the aim is not decisive as regards the dom and the Commission, on the other precise scope of Article 60, the context of hand, Article 60 of the ECSC Treaty does that provision does. It is apparent from its not apply to licences to extract unworked place within Chapter V on prices that it is coal or to royalties levied upon production: aimed at unfair and discriminatory pricing that article is concerned only with the pric­ practices on the part of sellers, in contrast to ing practices of sellers of coal and is thus not Article 63 of the ECSC Treaty which is applicable either to the royalties paid to Brit­ intended to regulate discriminatory pricing ish Coal or to the prices paid by British practices on the part of purchasers, whilst Coal. That also follows from the place of Articles 61 and 62 of that Treaty relate to Article 60 within the ECSC Treaty and from intervention by the High Authority with the secondary Community legislation. regard to the price level either by the fixing of maximum or minimum prices or by means of equalization arrangements between undertakings.

i-cle 60(1) prohibits pricing practices which mon market dissimilar conditions to compa­ constitute 'unfair competitive practices and rable transactions; and (iii) Article 60(2) gov­ discriminatory practices', 8 whilst Art­ erns the compulsory publication of price- icle 60(2) provides for a system of compul­ lists — that is to say, according to the Court sory publication of price-lists and conditions 'the prices on the basis of which undertak­ of sale. From that link and the explanation ings state their willingness to sell their prod­ 40 given by the Court in those judgments — ucts' — and conditions of sale applied by subsequently reaffirmed in the Rumi judg­ undertakings within the common market ment — concerning the functions of the (subparagraph (a)). It is also apparent from rules on publication set out in Article 60(2), the rules of secondary legislation adopted by it is clear that only sales practices are meant: the High Authority on the basis of Art­ 41 icle 60(1) and 60(2) of the ECSC Treaty « that Article 60 relates only to the pricing practices of sellers.

'The purpose of that compulsory publica­ tion is (1) as far as possible to prevent pro­ hibitive practices, (2) to enable purchasers to learn exactly what prices will be charged and be able themselves to check whether any dis­ crimination has taken place and (3) to enable undertakings to have an accurate knowledge The foregoing considerations lead me to the of the prices of their competitors so as to conclusion that Article 60 is designed to enable them to align their prices.' 39 bring about effective competition on the market for coal and steel by preventing oli­ gopolistic undertakings from using, when fixing their selling prices with a view to the formation of a monopoly, unfair practices, in

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OPINION OF MR VAN GERVEN — CASE C-128/92

particular price reductions (first indent of concerted practices tending directly or indi­ paragraph 1), or discriminatory practices rectly to prevent, restrict or distort normal between different consumers in a similar sit­ competition within the common market shall uation (paragraph 1, second indent). That is be prohibited, and in particular those tend­ not the case as regards the dispute in the ing: main proceedings: there, a party which already has a monopoly grants production licences to other undertakings, whereby the licensee either has to pay the royalty due on production — with the result that there is no (a) to fix or determine prices; sale or purchase between the parties — or else he sells the products to the licensor at a fixed price — with the result that it is not the dominant undertaking which makes the sale. Article 60 of the ECSC Treaty does not apply to situations of that kind. As I shall (b)to restrict or control production, techni­ explain, however, they may fall within the cal development or investment; scope of Articles 65 and 66(7) of the ECSC Treaty.

(c) to share markets, products, customers or sources of supply.'

C — Article 65 of the ECSC Treaty

Banks and the Commission consider Arti­ cle 65 to be applicable here. Licences to extract coal constitute, in their view, agree­ ments between undertakings within the meaning of that provision, in that they can 19. The parties before the Court also dis­ prevent, distort or restrict normal competi­ agree as to the applicability of Article 65 of tion. The Commission adds that the catego­ the ECSC Treaty to licences to extract ries of agreement specified in Article 65 are unworked coal and to the royalty and pay­ not intended to be exhaustive. ment terms in that regard. Article 65(1) reads as follows:

21. So far as the latter question is concerned, I wish to make three points. In the first place, there is no support in the Court's case-law on competition for British Coal's argument that the licences in question 20. According to its actual wording, the pro­ strengthen competition and therefore by def­ hibition in Article 65(1) of the ECSC Treaty inition do not fall within the prohibition in applies to 'all agreements between undertak­ Article 65(1). Instead, it is apparent from the ings', that is to say between undertakings as case-law on licences for the exercise of defined in Article 80 of that Treaty (see para­ industrial and commercial property rights graph 9 above). It is undeniable that both that Article 85 of the EEC Treaty undoubt­ Banks and British Coal, both of which — the edly applies in principle to such licences but former as a private company and the latter as that their compatibility with the prohibition a public corporation — are engaged in the in Article 85(1) depends on a number of spe­ 43 production of coal, fall within that broad cific factors. Accordingly, on the assump­ definition. Furthermore, the categories of tion that the grant of licences by an under­ prohibited agreements referred to in Art­ taking such as British Coal leads to a certain icle 65(1) are, as the Commission rightly amount of competition on the United King­ points out, by no means exhaustive. A dom market for coal, that does not preclude licence to extract coal must therefore be the terms on which those licences are regarded as an agreement between undertak­ granted from tending to distort competition, ings which, in principle, falls within the which is prohibited by Article 65(1). scope of that provision.

extend to the level of royalty or other pay­ not affected by the possibility that Art­ ment rates is not acceptable either: the icle 66(7) thereof may also be applicable to thrust of that prohibition is that the terms of the facts of the dispute (and vice versa). The an agreement between undertakings subject Court has already stated, with regard to the to the ECSC Treaty must not — directly or relationship between Articles 85 and 86 of indirectly — have a disruptive effect on com­ the EEC Treaty, that those articles may in petition within the common market for coal certain circumstances both be applicable at and steel. I can well imagine that the imposi­ the same time. That brings to mind the tion of an unreasonably high royalty rate as Hoffman-La Roche judgment, in which the a condition for the grant of a royalty licence, Court raised the question whether exclusive or of an unreasonably low purchase price for supply agreements — which were banned by coal extracted under a delivered licence, is the Commission on the basis of Article 86 of at least indirectly capable of preventing, the EEC Treaty — fell within Article 85 of restricting or distorting normal competition. the EEC Treaty, and in particular within Thus an excessively high royalty or an exces­ paragraph (3) thereof: sively low purchase price could discourage the licensee from extracting more coal and/or applying for fresh licences or else, as a result of profitability being too low, from making fresh investments. Such clauses may then restrict or control production or invest­ ment within the meaning of Article 65(1)(b) of the ECSC Treaty. That must evidently be 'I owever, the fact that agreements of this assessed in the light of the overall factual cir­ kind might fall within Article 85 and in par­ cumstances of the case. ticular within paragraph (3) thereof does not preclude the application of Article 86, since this latter article is expressly aimed in fact at situations which clearly originate in contrac­ 45 tual relations.'

'Those considerations do not exclude the case where an agreement between two or 'If the High Authority finds that public or more undertakings simply constitutes the private undertakings which, in law or in fact, formal measure setting the seal on an eco­ hold or acquire in the market for one of the nomic reality characterized by the fact that products within its jurisdiction a dominant an undertaking in a dominant position has position shielding them against effective succeeded in having the tariffs in question competition in a substantial part of the com­ applied by other undertakings. In such a mon market are using that position for pur­ case, the possibility that Articles 85 and 86 poses contrary to the objectives of this may both be applicable cannot be ruled Treaty, it shall make to them such recom­ 46 out.' mendations as may be appropriate to prevent the position from being so used. If these rec­ ommendations are not implemented satisfac­ torily within a reasonable time, the High Authority shall, by decisions taken in con­ sultation with the Government concerned, That attitude has also been adopted by the determine the prices and conditions of sale Court of First Instance in the Tetra Pak 47 to be applied by the undertaking in question judgment. Isee no cogent reason why such or draw up production or delivery pro­ an approach should not be taken with regard grammes with which it must comply, subject to the relationship between Articles 65(1) to liability to the penalties provided for in and 66(7) of the ECSC Treaty as well. Articles 58, 59 and 64.'

23. This point can be dealt with briefly. It has already been demonstrated (in paragraph 9) that unworked coal is in fact a product falling within the scope of the ECSC Treaty. It is equally clear that British Coal is a 'pub­ IV — Do the Treaty provisions concerned lic ... undertaking' within the meaning of have direct effect? Article 66(7). Furthermore, all the informa­ tion available to the Court suggests that Brit­ ish Coal must be regarded as an undertaking which holds a dominant position in a sub­ stantial part of the common market, within the meaning of that provision: it is the largest coal producer in the United Kingdom (according to the Commission's decision, 24. In Question 3, the national court seeks in 1989/90 it accounted for 97% of coal pro­ to ascertain whether Articles 4(d), 60, 65 duction in the United Kingdom) and the and/or 66(7) of the ECSC Treaty have direct largest supplier of coal to the electricity gen­ effect in that they give rise to rights enforce­ erating sector (over 90% during the same able by individuals which must be protected period), factors which are undoubtedly con­ by the national courts. Once again the Court nected with its statutory rights (see para­ is faced with two opposing viewpoints. graph 2 above), namely the fact that it is Banks and the Commission argue in favour vested with title to the vast majority of of the straightforward application to the unworked coal in Great Britain and with the ECSC Treaty of the case-law of the Court exclusive right to work and get such coal. concerning the direct effect of EEC Treaty

provisions, and come to the conclusion that passes the various Community Treaties, in (nearly) all the provisions referred to by the the clearest possible terms with reference to national court are directly applicable. British the judgment in Van Gend en Loos: Coal and the United Kingdom, on the other hand, exclude any direct effect of the ECSC Treaty, save where direct effect is expressly provided for by its provisions. British Coal bases its contention primarily on the differ­ ences between the EEC Treaty and the 'As the Court of Justice has consistently ECSC Treaty, which emerge from a general held, the Community Treaties established a analysis of the latter Treaty and the role con­ new legal order for the benefit of which the ferred on the Commission in that connec­ States have limited their sovereign rights, in tion. Additionally, it contends, as does the ever wider fields, and the subjects of which United Kingdom, that the relevant provi­ comprise not only Member States but also sions of the ECSC Treaty are not sufficiently their nationals .... The essential characteris­ precise and unconditional to have direct tics of the Community legal order which has effect. thus been established are in particular its pri­ macy over the law of the Member States and the direct effect of a whole series of provi­ sions which are applicable to their nationals 5 and to the Member States themselves.' 1

A — Can ECSC Treaty provisions have direct effect at all?

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OPINION OF MR VAN GERVEN — CASE C-128/92

the latter based itself on its order in National It is apparent, especially from the last- Carbonising Company, made in the con­ mentioned judgment, that the Court has no text of the ECSC Treaty; the judgment in difficulty whatsoever in applying the criteria Foto-Frost, in which the Court sought a link for direct effect to the rules of the ECSC with the ECSC Treaty in connection with Treaty. If the Court takes such action with the question of its jurisdiction under Arti­ regard to rules of secondary Community cle 177 of the EEC Treaty to declare a mea­ legislation — and even with regard to Treaty 55 sure of a Community institution invalid; rules contained in association or cooperation the judgment in Busseni, where the Court agreements concluded by the Community used the EEC Treaty as a basis for its juris­ 59 with non-member countries — I see no diction to give a ruling on interpretation 56 reason why it should not do so a fortiori under Article 41 of the ECSC Treaty; the with regard to provisions of the ECSC parallel which the Court drew in the Fran- Treaty, which are rules contained in a Com- covich judgment between Article 5 of the EEC Treaty and Article 86 of the ECSC munity Treaty. Treaty in support of the view that there is an obligation on the part of the Member States to make reparation for loss or damage result­ 57 ing from a breach of Community law; and, of particular relevance to this case, the unre­ stricted application by the Court in Busseni to recommendations within the meaning of 5 the ECSC Treaty 8of its case-law concern­ ing the possibility that a directive which has not been transposed into national law may have direct effect.

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BANKS

thereto malung it clear that the ECSC Treaty the direct applicability of ECSC Treaty pro­ — if only within the restricted area of the visions, a position adopted by the Bundes­ market for coal and steel — is also addressed gerichtshof (Federal Court of Justice) in its 61 66 directly to the peoples of Europe; (ii) the judgment of 14 April 1959 which has also supranational character of the institutional been relied upon by British Coal and the 62 framework of both Treaties, in regard to United Kingdom, chiefly in connection with which it is striking that as from the establish­ Question 4. ment of the ECSC a role (albeit a primarily supervisory and consultative one) was con­ ferred on the nationals of the Member States through representation in the Common Assembly and the Consultative Commit­ 63 tee; and, last but not least, (iii) the role conferred on the Court of Justice in both of those Treaties by means of the preliminary rulings procedure (Articles 177 of the EEC Treaty and 41 of the ECSC Treaty) which is based on common objectives as emphasized 64 by the Court in the Bnsseni judgment.

61 — According to the fifth recital in the preamble to the ECSC Treaty, the Heads of State arc 'resolved to substitute for 65 — See W. F. Bayer, 'Das Privatrecht der Montanunion', Reibels age-old rivalries the merging of their essential interests; to Zeitschrift, 1952, (325), p. 329. Admittedly, there was some create, by establishing an economic community, the basis controversy in that regard: for a good survey of the relevant for a broader and deeper community among peoples long academic writings and a powerful argument in favour of divided by bloody conflicts; and to lay the foundations for direct effect, see K. Ballcrstedt, Übernationale una nation- institutions which will give direction to a destiny hencefor­ ale Marktordnung. Eine niontanrecbtliche Studie, Tübingen, ward shared.' Mohr, 1955, pp. 12-16. 62 — I consider to be of particular significance in that connection 66 — B. G. H. Z., No 30, p. 74; also published in Neue Juristische the original Article 9 of the ECSC Treaty which imposed Wochenschrift, 1959, p. 1176 and, in an English translation, upon the Members of the High Authority the obligation to in [1963] 2 CMLR 251. In that judgment the Bundesge­ refrain 'from any act which is incompatible with the supra­ richtshof considers that the provisions of the ECSC Treaty national character of their office' and upon every Member arc also directly binding on the undertakings referred to in State 'to observe that supranational character'. Article 80 thereof. 63 — See Articles 20 and 18 of the ECSC Treaty, respectively. 67 — Sec the judgment in Bussent, cited above, at paragraph 15, 64 — Judgment in Bussem, cited above, at paragraph 13: specifi­ where the Court acknowledges that 'national courts, cally 'to ensure the utmost uniformity in the application of because of the nature of the powers which the ECSC Treaty Community law and to establish for that purpose effective has devolved on the Community authorities, in particular cooperation between the Court of Justice and national the Commission, less often have occasion to apply that courts.' Treaty and measures adopted under it.'

A second objection, concerning the powers 27. It may appear from the foregoing that of the Commission in the context of the the criteria for direct effect, developed in ECSC Treaty, is that they are chiefly of an connection with the law relating to the EEC implementing nature and are aimed above all Treaty, must also be applied as such to the at ensuring that undertakings which fall ECSC Treaty. Those criteria are sufficiently within the scope of the ECSC Treaty comply well known; in the Hurd judgment the with the relevant provisions of Community Court summarized them as follows: law (see, for instance, Article 66(7): para­ graph 34 below). In other words, the High Authority is a watchdog which must enforce prompt compliance with Treaty rules (that are often sufficiently clear in themselves), rather than a policy body with sweeping political powers. It is moreover apparent 'According to a consistent line of decisions from the judgment in Van Gend en Loos that of the Court, a provision produces direct effect in relations between the Member States and their subjects only if it is clear and unconditional and not contingent on any 68 — Terms taken from P. Reuter, Organisations européennes-, 7 Paris, Presses Universitaires de France, 1970, Second Edi­ discretionary implementing measure.' 0 tion, p . 188. That difference in the extent of regulation can undoubtedly also be clarified by the fact that coal and steel are markets with a monopolistic or oligopolistic structure which at the time occupied a key position in the national economies: cf. P. J. G. Kapteyn and P. VerLoren van The- maat, Introduction to the Law of the European Communi- 69 — Judgment in Van Gena en Loos-, cited above, at p. 13. ties (ed. W. Gormley), Deventer-Boston, Kluwer Law and 70 — Judgment in Case 44/84 Hurd v Jones [1986] ECR 29, at Taxation, Second Edition, 1988, p. 29. paragraph 47.

C — Examination of the direct effect of the 71 — At limes the Court refers to a 'clear' and 'precise' prohibi­ ECSC Treaty provisions concerned tion or injunction which 'has no reservation allowing States to subject its implementation to a positive measure of domestic law or to an intervention by tnc institutions of the Community': see, for example, the judgment in Case 77/72 Capolongo v Maya [1973] ECR 611, at paragraph 11 (con­ cerning Article 13(2) of the EEC Treaty); cf. the wording of the judgment in Case 57/65 Liitticke v Haitptzollamt Saar- louis [1966] ECR 205, at p. 210. 72 — The requirement applied here by the Court is that provi­ 28. That brings me to the question of the sions have, 'as far as their subject-matter is concerned, to be direct effect of the ECSC Treaty provisions unconditional and sufficiently precise' in order to be capa­ ble of being relied upon by individuals before the national referred to by the national court. So far as court: judgment in Case 8/81 Becker v Finanzamt Munster- Innenstadt [1982] ECR 53, at paragraph 25; for recent con­ concerns Article 4(d) of the ECSC Treaty, I firmation, see inter alta the judgment in Case 297/89 can already rely in that regard on the judg­ Ryborg [1991] ECR I-1943, at paragraph 37; and in Joined Cases C-19/90 and C-20/90 Karelia and Karellas [1991] ments in Industries Sidérurgiques Luxem- ECR I-2691, at paragraph 17. In recent judgments, minor differences arc apparent in that regard: thus, in its judgment bourgeoises and the judgments of 21 and 26 in Case C-345/89 Stoeckel [1991] ECR I-4047, at para­ June 1958, referred to above (in paragraph graph 12, the Court refers to 'sufficiently precise and unconditional', whilst in its judgments in Case C-381/89 Syndesmos [1992] ECR I-2111, at paragraph 39, and in Case C-200/90 Dansk Denkami [1992] ECR I-2217, at para­ graph 17, it refers to a provision of a directive which is 'clear, precise and unconditional'. In its earlier judgments in 74 — Judgment in Francovich, cited in footnote 57, at para­ Case 271/82 Auer [1983] ECR 2727, at paragraph 16 and in graph 17, further applied in paragraphs 18-22; judgment in Case 5/83 Rienks [1983] ECR 4233, at paragraph 8, the Case C-271/91 Marshall v Southampton and South West Court referred to 'clear, complete, precise and uncondi­ Hampshire Area Health Authority [1993] ECR I-4367, at tional duties' which 'leave ... no discretion'. paragraph 37. 73 — The Francovich judgment was concerned with a discretion 75 — Sec also the views of T. C. Hartley, The foundations of which Directive 80/987/EEC (cited in footnote 100 below) European Community Law, Oxford, Clarendon Press, Sec­ left to the Member States with regard to the methods of ond Edition, 1988, p. 195, and, much earlier, P. Pescatore, providing guarantees for employees in the event of the 'The Doctrine of "Direct Effect": An Infant Disease of insolvency of their employer, and also as regards the restric­ Community Law', European Law Review, 1983, (155), tion in the amount thereof. p. 177.

29. Nor do there seem to me to be any cogent objections to Article 60(1) of the ECSC Treaty having direct effect, even though, as was demonstrated earlier (para­ 30. If the criteria for direct effect are applied graph 18), that provision is not applicable to to Article 65(1) of the ECSC Treaty, it can­ the dispute in the main proceedings. It not be disputed, in my view, that it too con­ merely defines, clearly and unconditionally, stitutes a sufficiently effective provision: the the prohibitions already laid down in Arti­ prohibition laid down therein is couched in cle 4 with regard to the pricing practices of particularly incisive terms, and is clear, sellers. That is clear from the actual wording unconditional and not dependent on any dis­ of Article 60(1) which prohibits 'pricing cretionary implementing measure of any practices contrary to Articles 2, 3 and 4', fol­ kind. As a result of the marked similarities lowed by two specific expressions of that between that provision and Article 85(1) of prohibition, namely unfair competitive prac­ the EEC Treaty — the Court itself acknowl­ tices which — especially as a result of purely edged at the time that 'a common intention' temporary or purely local price reductions inspired the drafting of both articles 78 — it — tend towards the acquisition of a monop­ is almost self-evident that the line of cases oly position within the common market, and decided by the Court since the judgment in discriminatory practices involving, within BRT in connection with Article 85(1) of the the common market, the application by a EEC Treaty also apply to Article 65(1) of the seller of dissimilar conditions to comparable transactions, especially on grounds of the buyer's nationality. The direct effect of that provision, contrary to British Coal's conten­ 76 — The Commission has exercised this power, as evidenced by tion, is in no way impaired by the fact that Decision 30-53 referred to in footnote 41. 77 — Judgment in Case 1/54, cited above, at p. 10; and in under the final subparagraph of Article 60(1) Case 2/54, cited above, at p. 46 (emphasis added). the High Authority 'may define' by deci­ 78 — Judgment in Case 13/60 Geitling v High Authority [1962] ECR 83, at p. 102.

31. However, the remainder of Article 65 raises a problem on which British Coal and the United Kingdom largely base their con­ tention that Article 65(1) does not have direct effect. After laying down in the first subparagraph that any agreement or decision prohibited by paragraph (1) is automatically void and may not be relied upon before any court or tribunal in the Member States, the I share the Commission's view that such an second subparagraph of Article 65(4) pro­ interpretation cannot be allowed to prevail. vides as follows: Before going into the matter, I wish to dis­ pose of an argument put forward by the opponents of the view that Article 65(1) has direct effect. They consider that the second subparagraph of Article 65(4) was deliber­ ately couched by the authors of the Treaty in such terms as to prevent the unrestricted 'The High Authority shall have sole juris­ application of Article 65(1) by the national diction, subject to the right to bring actions courts from jeopardizing the uniform appli­ before the Court, to rule whether any such cation of the ECSC Treaty. Although that agreement or decision is compatible with this fear may have been justified initially, there article.' have been no grounds for it since the judg­ ment in Busseni, at least no more than there are with regard to Article 85(1) of the EEC 79 — Judgment of 30 January 1974 in Case 127/73 BRT v Treaty. As stated earlier (paragraph 25 SABAM [1974] ECR 51, at paragraph 16. For subsequent confirmation, see inter alia the judgment in Case 37/79 above), the Court decided in that judgment, Many v Lauder [1980] ECR 2481, at paragraph 13; the by analogy with Article 177 of the EEC judgment in Case C-234/89 Delimiti! [1991] ECR 1-935, at paragraph 45; sec also the judgment of the Court of First Treaty, that the jurisdiction to give prelimi­ Instance in Case T-51/89 Tetra Pak, cited in footnote 47, at paragraph 42. nary rulings conferred on the Court in Art-

icle 41 of the ECSC Treaty encompasses not tion No 17 and, on the other, the jurisdic only appraisal of validity but interpretation tion of the national courts or tribunals 80 as well. The uniform application of Art 'before which the prohibitions contained in icle 65(1) by the national courts can therefore Articles 85 and 86 are invoked in a dispute 84 be safeguarded by the submission of a refer governed by private law'. The jurisdiction ence to the Court for a preliminary ruling. of those courts or tribunals — which accord ing to the judgment in BRT are not to be regarded as 'authorities of the Member States' within the meaning of Article 9 of Regulation No 17 — 'to apply the provisions of Community law, particularly in the case of such disputes, derives from the direct

81 Articles 85 and 86 of the EEC Treaty, as interpreted by the Court in its judgments. That distinction is between, on the one hand, the competence of the cartel authorities — that is, the Commission and, as long as the latter has not initiated any procedure under 33. It is in the light of that distinction made Regulation No 17, the national cartel author in EEC competition law, and regard being ities — to apply Article 85(1) and Article 86 on the basis of Article 9(2) or (3) of Regula 82 — So far as concerns the application of Article 85(3) of the EEC Treaty, on the other hand, the Commission has sole jurisdiction, that is to the exclusion of the national cartel authorities: see Article 9(1) of Regulation No 17. 80 — Judgment cited in footnote 53. After emphasizing the com 83 — Excluding 'in certain Member States courts especially mon objectives of the preliminary rulings procedure set out entrusted with the task of applying domestic legislation on in Articles 41 of the ECSC Treaty and 177 of the EEC competition or that of ensuring the legality of that applica Treaty (see paragraph 27 above), the Court decided in para tion by the administrative authorities', which courts are graph 16 as follows: 'It would therefore be contrary to the treated as equivalent to the cartel authorities of the Member objectives and the coherence of the Treaties if the determi States: see the judgment in BRT v SABAM [1974] ECR 51, nation of the meaning and scope of rules deriving from the at paragraph 19. EEC and EAEC Treaties were ultimately a matter for the Court of Justice, as is provided in identical terms by Arti 84 — Judgment in BRT v SABAM, cited above, at paragraph 14. cle 177 of the EEC Treaty and Article 150 of the EAEC 85 — Judgment in BRT, cited above, at paragraph 15. Treaty, thereby enabling those rules to be applied in a uni 86 — Ibid, at paragraph 17. A parallel can be drawn here with the form manner, but such jurisdiction in respect of rules deriv case-law on State aid: as the Court recognized in its judg ing from the ECSC Treaty were to be retained exclusively ment in Case C-354/90 Fédération Nationale du Commerce

ment. measures into effect before completion of the procedure under Article 92; pending the Commission's final decision, 81 — Regulation No 17 of the Council of 6 February 1962: First they must protect the rights of individuals against any Regulation implementing Articles 85 and 86 of the Treaty breach of that prohibition. (OJ, English Special Edition 1959-1962, p . 87).

had to the need for consistency in the tribunals since Article 65(2) (and (5)) does interpretation of the ECSC and EEC not have direct effect. Treaties and for the fullest possible protec tion of undertakings, that Article 65(4) of the ECSC Treaty must be understood. The first subparagraph thereof concerns the juris diction of the national courts or tribunals, which arises from the direct effect of Art icle 65(1), to declare, in civil proceedings in which that provision is relied upon, an agree ment prohibited by it to be automatically

The argu ments of the last-mentioned parties against direct effect converge to a large extent: their thrust is that, in contrast to Article 86 of the EEC Treaty which refers to 'abuse', the 87 — Compare this provision with the corresponding provision application of Article 66(7) of the ECSC in Article 85(2) of the EEC Treaty, which provides that any Treaty depends on the establishment by the agreements or decisions prohibited pursuant to that article are automatically void. In the Brasserie de Haecht judg Commission of a practice which is 'contrary ment, the Court stated with regard to that provision that 'apart from the possible intervention by the Commission to the objectives of this Treaty'.

That can the same flexibility': judgment in Case 48/72 Brasserie de result in conflicts of jurisdiction with the national courts or Haecht v Wilkm-Janssen [1973] ECR 77, at paragraphs 4 tribunals, which have been known to arise under EEC law: and 5 (emphasis added). see paragraph 56 et seq. below.

Secondly, Article 66(7) is drafted in clear terms and specifies the conditions for its application: (i) public or private undertak­ ings, (ii) which, in law or in fact, hold or 35. There are indeed some notable differ­ acquire in the market for one of the products ences between the wording of Article 86 of falling within the scope of the ECSC Treaty the EEC Treaty and that of Article 66(7) of a dominant position shielding them against the ECSC Treaty: the latter provision lays effective competition in a substantial part of emphasis on the intervention of the High the common market, (iii) must be using that Authority, which is obliged, if an undertak­ position for purposes contrary to the objec­ ing uses a dominant position for purposes tives of the ECSC Treaty. That reference to contrary to the ECSC Treaty, to make the objectives of the ECSC Treaty would appropriate recommendations and, in the seem to encompass a reference to Article 4 event of non-compliance therewith, to take thereof — which has direct effect — hence measures to prevent the undertaking con­ it is clear that the discriminatory cerned from using its position for those pur­ measures/practices or the restrictive practices poses; Article 86 of the EEC Treaty, on the tending towards the sharing or exploitation other hand, directly prohibits undertakings of markets, which are prohibited in Art­ from abusing a dominant position within the icle 4(b) and (d) respectively, fall within the common market or in a substantial part of it. types of conduct banned by Article 66(7). That strongly diminishes the force of the United Kingdom's argument to the effect that Article 66(7), unlike Article 86 of the EEC Treaty, is not worded in the form of a prohibition on abuse of a dominant position.

ment is subject to specific criteria, and the Community law of the right to damages action it must take to remedy the abuse, for breach of Community competition rules whether actual or potential, is strictly defined (issue a recommendation and, failing its implementation, adopt a decision). There is no question of any power of discretion, definition or exemption: the Commission merely has power to apply that provision, enabling it at most, in adopting a decision, to 36. Amongst the problems under consider­ choose between determining prices and con­ ation in this case, the national court's fourth ditions of sale and drawing up production or question is undoubtedly the most important. Its terms, it will be remembered, are delivery programmes. It is self-evident, in as follows: does the national court have my view, that this does not stand in the way the power and/or the obligation under of direct effect, certainly not in the light of Community law to award damages in the broad interpretation thereof given by the respect of breach of the said articles Court in the Francovich and Marshall judg­ of the ECSC Treaty (and, if applicable, ments (paragraph 27 above). the EEC Treaty) for loss sustained as a result of such breach? Before I turn to this question, it seems to me that three remarks are called for. First, in accordance with my previous findings (paragraphs 8 and 9 above), I shall start from the premise that only the ECSC Treaty is applicable to this case. Accordingly, I do not propose to examine Articles 85 and 86 of the EEC Treaty, even though I consider that the results of such an examination might well be applicable here. Secondly, I shall focus my analysis exclusively on the question of reparation for breach of V — Power and/or obligation of the provisions of Community law having direct national court to award damages in respect effect. Earlier I came to the conclusion of breach of the aforesaid Treaty provisions that all the provisions of the ECSC Treaty referred to by the national court and applicable in this case are capable of being relied upon directly. Thirdly, I shall confine myself to the question whether an undertaking is liable for breach of Treaty provisions having direct effect. The liability of the State for breach of Treaty provisions having direct effect, in particular the detailed rules for claiming compensation in respect of loss which an individual has sustained as a result of national legislation contrary to the Com­ munity Treaties, does not arise here: that question arises in two other cases now A — Examination on the basis of

37. I shall rapidly consider the views of the parties before the Court, which differ widely on this question as well. Banks maintains, inter alia, on the basis of the judgment in British Coal and the United Kingdom are far Francovich, 90 that the cause of action for more reserved. The former concedes that a damages is in fact based on Community law. national court may award damages in respect It maintains that, in the event of a breach of of a breach of directly effective provisions of Treaty provisions having direct effect, an the EEC Treaty under the same rules as appropriate remedy must be available before apply in the case of purely national disputes; the national court; the award of damages is, since, however, none of the ECSC Treaty in particular, essential for the enforcement of provisions at issue has direct effect, there can the Community rules of competition, espe­ be no question of the award of damages in cially since it acts as a deterrent to unlawful this case. According to the United Kingdom, behaviour by undertakings. The Commis­ it follows from the established case-law of sion also refers to the judgment in Francov- the Court that it is for the national court to ich, from which it deduces that the national determine, in the light of its own legal sys­ court is under an obligation on the basis of tem, and having regard to the circumstances Article 5 of the EEC Treaty and Article 86 of of the case, whether a breach of a directly the ECSC Treaty to award damages; since in effective Treaty provision is remediable in that judgment the Court accepted the exist­ damages. However, certain of the provisions referred to by the national court do not have direct effect and therefore do not give rise to any rights, with the result that the national 89 — In Case C-46/93 Brasserie du Pêcheur the Bundesgerichts­ court cannot have either the power or the hof has submitted a number of questions for a preliminary ruling concerning these problems as a result of a claim for obligation under Community law to award compensation by Brasserie du Pêcheur SA, a French brew­ damages in respect of a breach of those pro­ ery, against the German authorities in respect of damage sustained as a result of the German Biersteuergesetz (Law visions. on Beer Duty), whose 'Reinheitsgebot' (purity require­ ment) was held by the Court in its judgment in Case 178/84 Commission v Germany [1987] ECR 1227 to be contrary to Article 30 of the EEC Treaty. In Case C-48/93 Faaortame the Divisional Court of the High Court of Justice, Queen's Bench Division, has submitted a number of questions to the Court for a preliminary ruling on the same problems. Those questions arise in connection with the claims lodged by several companies and individuals against the United Kingdom authorities for compensation in respect of the damage sustained as a result of the Merchant Shipping Act 1988, a number of whose provisions have been held by the Court to be contrary to the EEC Treaty (judgment in Case C-221/89 Faaortame [1991] ECR I-3905 and in Case C-246/89 Commission v United Kingdom [1991] ECR I-4585). 38. Is there a basis under Community law 90 — Judgment cited in footnote 57. for the power or obligation of the national

'In accordance with the case-law of the Court, it is for the national courts, in appli­ Accordingly, the direct effect of a Treaty cation of the principle of cooperation laid provision in the eyes of the Court consti­ down in Article 5 of the EEC Treaty, to tutes a point of departure, but is certainly ensure the legal protection which persons not the end of the matter, in the range of instruments which Community law makes available to ensure its implementation in full 92 — Especially in connection with proceedings against Member and the necessary legal protection for it. States for failure to fulfil their obligations: the continued Over the years, in addition to the exhorta­ existence of national provisions which conflict with Com­ munity rules leads to ambiguity with regard to the rights tions addressed to national legislatures to and obligations of individuals, which runs counter to the trincipics of legal certainty and legal protection. It is then comply with their obligations under Com­ for the national or regional legislative authorities to remedy the situation and to give full effect to Community law: see, («rer alia, the judgments cited in the previous footnote in Commission v Italy, at paragraph 11, Commission v Spam, at paragraph 10, and Commission v Greece, at paragraph 11; judgment in Case 257/86 Commission v Italy [1988] 91 — Judgment in Case C-120/88 Commission v Italy [1991] ECR 3249, at paragraph 12. The Court also turns to the ECR I-621, at paragraph 10; in Case C-119/89 Commission national legislature witii regard to the imposition of penal­ v Spain [1991] ECR I-641, at paragraph 9; and in Case ties: where a Community rule docs not itself provide for a C-159/89 Commission v Greece [1991] ECR I-691, at para­ specific mechanism for the imposition of penalties, the graph 10; sec also the judgment in Case 72/85 Commission Member States arc required 'to take all measures necessary v Netherlands [1986] ECR 1219, at paragraph 20; and in to guarantee the application and effectiveness of Commu­ Case 166/85 Commission v Italy [1986] ECR 2945, at para­ nity law' on the basis of Article 5 of the EEC Treaty: judg­ graph 11. In the Eminott judgment as well, the Court ment in Case 68/88 Commission v Greece [1989] ECR 2965, acknowledged, with regard to its case-law concerning the at paragraph Zi. direct effect of directives, that this was only a minimum guarantee: judgment in Case C-208/90 [1991) ECR I-4269, 93 — Judgment in Case 106/77 Simmenthal [1978] ECR 629, at at paragraph 20. paragraph 16.

'every national court must, in a case within its jurisdiction, apply Community law in its

Finally, in Francovich the Court took a deci­ sive step by inferring from the scheme and 94 — Judgment in Case C-213/89 Factortame [1990] ECR 2433, fundamental principles of the EEC Treaty at paragraph 19. See, for earlier confirmation, the judgment in Case 33/76 Rewe [1976] ECR 1989, at paragraph 5, and (see paragraph 40 below) that 'the principle in Case 45/76 Comet [1976] ECR 2043, at paragraph 12; the whereby a State must be liable for loss and judgment in Case 68/79 Just [1980] ECR 501, at para­ graph 25; the judgment in Case 61/79 Denkavit Italiana [1980] ECR 1205, at paragraph 25; the judgment in Case 811/79 Ariete [1980] ECR 2545, at paragraph 12, and in Case 826/79 Mireco [1980] ECR 2559, at paragraph 13. For an even earlier judgment see Case 13/68 Salgoil [1968] 96 — Judgment in Simmenthal, cited above, at paragraph 21. ECR 453, at p. 463. 97 — Judgment in Factortame, cited in footnote 94, at paragraph 95 — Judgment in Francovich, cited above, at paragraph 36. 21.

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damage caused to individuals as a result of thorough analysis, 1 cannot of course be breaches of Community law for which the used as an argument for refusing to award State can be held responsible is inherent in damages in respect of a breach of directly 98 the system of the Treaty'. In the words of effective Treaty provisions. Instead, I agree the Court: with the Commission that the existence of direct effect constitutes an a fortiori argu­ ment: in the Foster judgment in any event the Court accepted, in the case of a directly effective provision of a directive, the possi­ bility of an individual claiming damages from the State (in very broad terms: see below) in respect of a breach of a provision 102 of that kind.

101 — Sec paragraphs 10 to 27 inclusive of the Francovich judg­ ment. It has been argued that the Court decided against direct effect because it wished to develop a legal remedy 98 — Judgment in Frctncovicb, cited in footnote 57, at paragraph against a Member State's failure to comply with Commu­ 35. nity directives which is unconnected with the requirement 99 — Judgment in Francovich, cited above, at paragraph 33. In of direct effect; in that way, the Court purportedly sought paragraph 34 the Court added that the possibility of to circumvent the problems connected with the non- obtaining redress is particularly necessary where, as in that horizontal effect of directives: J. Steiner, 'From direct case (which was concerned with the failure to implement a effects to Francovich: shifting means of enforcement of directive) 'the full effectiveness of Community rules is Community law', European Law Review, 1993, (3), p. 9; subject to prior action on the part of the State and where, sec also C. W. A. Timmermans, 'La sanction des infrac­ consequently, in the absence of such action, individuals tions au droit communautaire', in La sanction des infrac- cannot enforce before the national courts the rights con­ tions ait droit communautaire. Fifteenth FIDE Congress in ferred upon them by Community law.' Lisbon, II, 1992, p. 24, who points out that the legal rem­ edy developed by the Court in Francovich is to some 100 — Namely Council Directive 80/987/EEC of 20 Octo­ extent a substitute for the doctrine of direct effect. ber 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event 102 — Judgment in Case C-188/89 Foster [1990] ECR 1-3313, at of the insolvency of their employer (OJ 1980 L 283, p. 23). paragraph 22 and operative part.

103 — Judgment in Francovich, cited above, at paragraph 37 (emphasis added). 'It should be borne in mind at the outset 104 — Judgment in Foster, cited in footnote 102, at paragraph 20. The legal position of the State-owned undertaking that the EEC Treaty has created its own legal involved in that case, namely British Gas Corporation, was at the material time largely comparable to that of Brit­ system, which it integrated into the legal sys­ ish Coal: pursuant to the Gas Act 1972 (which replaced the Gas Act 1948, whereby the gas industry in the United tems of the Member States and which their Kingdom was nationalized) British Gas Corporation was vested with a monopoly of the supply of gas in Great Brit­ ain and a number of related tasks. It was only afterwards, by the Gas Act 1986, that the industry was privatized: see paragraph 3 of my Opinion in the Foster case [1990] ECR 105 — See the judgment in Francovich, cited above, at paragraph 1-3326, at p. 3327. 30. Emphasis added here and in the following paragraphs.

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106 — Sec above, paragraph 37 and footnote 86. 108 — Judgment in Francovich, cited above, at paragraph 36. 107 — Judgment in Francovich, cited above, at paragraph 35. 109 — Judgment in Van Gend en Loos, cited above, at p. 12.

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individuals, who are parties to legal relation­ clusion of the horizontal direct effect of the ships under Community law.' 0 rules concerned: the rulings in Simmenthal and Factortame (paragraph 39 above) offer no solution where a national court has to adjudicate not on a rule of national legisla­ tion or administrative law which it can refrain from applying, but on a situation governed by private law in which one or It has been generally acknowledged for some more undertakings infringe a rule of compe­ considerable time (and, in particular, since tition, as a result of which a third party suf­ the BRT judgment, paragraph 30 above) that fers loss and damage. The only effective such provisions of Community law as have method whereby the national court can in direct effect in relation to individuals include those circumstances fully safeguard the Articles 85 and 86 of the EEC Treaty: as directly effective provisions of Community shown earlier in this Opinion the same is law which have been infringed is by restor­ true of Articles 4, 65(1) and 66(7) of the ing the rights of the injured party by the ECSC Treaty. When an undertaking subject award of damages. Even a declaration that to those rules infringes them, it can be held the legal relationship between the parties is responsible for that infringement, according void — for which there is an express basis in to the reasoning in the Francovich judgment, in Community law — is not capable of mak¬ and it must be held liable for the loss and ing good the loss and damage (already) suf­ damage resulting from that breach of Com­ fered by a third party. munity law.

B — Detailed rifles governing an action for damages in respect of breach of the rules of Community law

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OPINION OF MR VAN GERVEN — CASE C-128/92

age on the one hand, and reparation on the competition rules. It is self-evident that a other (paragraph 49 et seq. below). reference to national law, although providing in certain respects a powerful basis for Com­ 116 munity law, entails serious risks for the uniform and effective application of Com­ munity law if too many details are left to 117 national law. The uniform application of Community law is, however, as the Court stated in the Zuckerfabrik judgment, 'a fun­ damental requirement of the Community 118 legal order'. No less important, it seems to me, is the sec­ ond implication: given the primacy of Com­ munity law, the principles developed by the Court in the Simmenthal and Factortamt judgments (paragraph 39 above) are also applicable here. In other words, the national court must refrain from applying national law where it prevents the exercise of the right to obtain reparation under Community law, as defined by the Court. This means, in particular, that the conditions for liability The establishment of a basis under Commu­ laid down by the Court 'preclude the valid nity law itself for an action for damages in adoption of new national legislative measures respect of breach of Community (competi­ to the extent to which they would be incom­ tion) rules gives rise, moreover, to greater 1 patible with Community provisions'. 14

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interaction between Community and guard the rights which individuals derive national law, where the previous relationship from Community law ...'. 1 between them was characterised by the exclusive dependence of the former on the latter as regards the machinery for enforce­ 119 ment.

The Court thus followed its earlier case-law which, in the absence of Community harmo­ nization measures, refers to the national law of the Member States for the exercise of 122 rights conferred by Community law. Notwithstanding that premise, the case-law 1. Minimum rules of Community law for the of the Court reveals a clear tendency to lay grant of legal redress by the national court down a number of minimum requirements which the rules of national law must fulfil. I shall enumerate the most important ones.

— In the first place, the Court has acknow­ 48. In its judgment in Francovich the Court ledged that the right to obtain an effective expressly confirmed that in the event of an legal remedy against measures which are action for damages under Community law, contrary to the rules of Community law the consequences of the loss and damage — in other words the possibility of effec­ caused must be remedied 'on the basis of the 120 tive judicial control — is a general prin­ rules of national law on liability'. Accord­ 123 ciple of Community law. Although ing to the Court: Community law has not itself sought to provide other possible remedies for its enforcement, in addition to the means of redress already afforded by national law, the system of legal protection established by Community law implies that 'it must

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be possible for every type of action pro­ out that national law must not 'make it vided for by national law to be available virtually impossible or excessively diffi- for the purpose of ensuring observance of cult to obtain reparation'. Community provisions having direct effect, on the same conditions concerning admissibility and procedure as would apply were it a question of ensuring 124 observance of national law'.

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long as that State has not complied with view, open to doubt: the criteria laid down the relevant Community legislation. by the Court in that connection are, accord­ ing to the second paragraph of Article 215 of the EEC Treaty, based on 'the general prin­ ciples common to the laws of the Member States' and therefore apply to every kind of 31 non-contractual liability. 1 — However, Community law does not pre­ vent the national court from ensuring, in accordance with national law, that the protection of rights guaranteed by the Community legal order does not result in the unjust enrichment of those enti­ 13 tled. 0

129 — Sec, with regard to the position of a directive which has not yet been properly transposed into national law by a Member State, the judgment in Einmott, at paragraphs 23 and 24 and the operative part. 131 — As Advocate General Mischo has already pointed out in 130 — This was decided by the Court in fiscal disputes, in which Francovich, it is undesirable that the liability of the Com­ it was necessary to take account of the possibility that an munity institutions for breach of Community law should undertaking had incorporated in its prices charges unduly be framed in a manner which differs fundamentally from levied and passed them on to its customers: sec the judg­ that of the national authorities (or individuals) for breach ment injust, cited above, at paragraphs 26 and 27; in Den- of Community law: [1991] ECR I-5396, at paragraph 71, kavit Italiana, cited above, at paragraphs 26 and 28; in with reference to the judgment in Joined Cased 106/87 Anete, cited above, at paragraph 13; and in Mireco, cited and 120/87 Astern [1988] ECR 5515, at paragraph 18. above, at paragraph 14. 132 — Judgment in Francovich, cited above, at paragraph 38.

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135 — See paragraph 40 of the Francovich judgment set out in footnote 132. 136 — This is settled case-law: see, inter alia, the judgment in Case 153/73 Holtz & Willemsen v Council and Commis- sion [1974] ECR 675, at paragraph 7; in Case 49/79 Pool v Council [1980] ECR 569, at paragraph 7; and in Case 50/86 Grands Moulins de Paris v Council and Com- 51. The existence of damage. The party mission [1987] ECR 4833, at paragraph 7. invoking liability must furnish proof that 137 — See the judgment in Joined Cases 5/66, 7/66 and 13/66 to 24/66 Kampffmeyer v Commission [1967] ECR 245, at it has suffered damage. Admittedly, the p. 266, where the Court's attitude is reserved with regard to the alleged damage 'in respect of the loss of profit 'loss and damage' factor is not referred to in (which) is based on facts of an essentially speculative nature'. 138 — Judgment in Joined Cases 56/74 to 66/74 Kampffmeyer [1976] ECR 711, at paragraph 6; in Case 44/76 Milch-, Feu- und Eierkontor [1977] ECR 393, at paragraph 8; in 133 — See paragraphs 39 and 40 of the judgment in Francovich'. Case 147/83 Binderer [1985] ECR 257, at paragraph 19; according to the Court, those conditions are: (i) the result and in Case 281/84 Zuckerfabrik Bedburg, cited in foot­ prescribed by the directive must entail the grant of rights note 128, at paragraph 14. Those judgments are consistent to individuals; (ii) it must be possible to identify the con­ with earlier case-law: thus, in Plaumann, the Court had tent of those rights on the basis of the provisions of the already considered that an applicant may include in the directive; and (iii) there must be a causal link between the application a request for a declaration with regard to the breach of the State's obligations and the loss and damage damage which may result from the contested measure and suffered by the injured parties. in the course of the written and oral procedures it may specify and set a value on the amount of such damage: 134 — This has long been settled case-law: see the judgment in judgment in Case 25/62 Plaumann v Commission [1963] Case 4/69 Lüttkke v Commission [1971] ECR 325, at ECR 95, at p . 108. paragraph 10; see also the judgment in Case 281/84 Zuck- erfabrik Bedburg v Council and Commission [1987] 139 — Judgment in Kampffmeyer, cited in the previous footnote, ECR 49, at paragraph 17. at paragraph 6.

Secondly, in quantifying the extent of the court) to reach acceptable approximations damage to be made good, the Court pointed provided that the basic facts are sufficiently out in its recent judgment in Mulder and reliable'. Heinemann that 'in the absence of particular circumstances warranting a different assess ment, account should be taken of the loss of 140 earnings . . .'. In the same judgment the Court linked that to an obligation on the part of the injured party to mitigate the dam Finally, so far as concerns proof of damage, age: it acknowledged, in particular, that there the Court has taken the view that 'a general was a general principle common to the legal feature' of the laws of the Member States systems of the Member States 'to the effect relating to non-contractual liability 'is that that the injured party must show reasonable the Court has an unfettered discretion in

145 EEC Treaty and the Francovich judgment require the existence of a causal connection between the breach of Community law and the damage suffered by the injured party. Beyond that, the Court has not defined this The Court has also stated its position on the requirement in more detail. It did point out methods of assessing the damage: in the in its judgment in Dumortier Frères that if Société Anonyme des Laminoirs judgment, it the damage (in that case the closure of a fac considered that where the only possible tory), even though it was precipitated by the method of assessing the damage resulting relevant breach of Community law (the from a wrongful act or omission consists in absence of refunds), was not a direct conse- imagining the position which would have quence of the unlawful conduct in question, arisen were it not for that act or omission, there was no liability: according to the 'the sampling methods habitually used in Court, therefore, the principles common to economic surveys make it possible (for the the laws of the Member States to which the second paragraph of Article 215 of the EEC Treaty refers cannot be relied upon 'to deduce an obligation to make good every 140 — Judgment in Joined Cases C-104/89 and C-37/90 Mulder and Heinemann v Council and Commission [1992] ECR harmful consequence, even a remote one, of I-3061, at paragraph 26, and my Opinion [1992] ECR 1-3121, at paragraph 47. 141 — Judgment in Mulder and Heinemann, cited above, at para graph 33, and my Opinion, cited above, at paragraph 49. 142 — See the judgment in Case 238/78 Ireks-Arkady [1979] 143 — Judgment in Joined Cases 29/63, 31/63, 36/63, 39/63 ECR 2955, at paragraph 14; in Joined Cases to 47/63, 50/63 and 51/63 Société Anonyme des Laminoirs 241/78, 242/78 and 245/78 to 250/78 DCV [1979] and Others v High Authority [1965] ECR 911, at p. 939. ECR 3017, at paragraph 15; in Joined Cases 261/78

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15 the wrongful act or omission alleged and the Dekker 0 with regard to the prohibition of 147 damage sustained. discrimination in Articles 2(1) and (3) of Council Directive 76/207/EEC on 'equal 151 treatment for men and women', the pro hibitions laid down in Community competi tion law cannot be made conditional on proof of fault or on the absence of any ground of exemption. Those prohibitions are aimed at safeguarding undistorted competi tion and freedom of competition for under takings operating in the common market, the

Recent decisions serious breach of a superior rule of law for exhibit a number of interesting developments the protection of the individual has 148 occurred' : the relevant rules of competi tion impose on undertakings precise, directly 149 — In the Francovich judgment there was also a breach, effective obligations which are reflected in though on the part of the authorities, of a precise obliga rights conferred on individuals (see para tion to transpose the directive concerned into national law within a specified period. Hence in that case as well there were no grounds for applying the more flexible criterion referred to in Article 215 of the EEC Treaty and in the text to the exercise of discretionary powers by the author ities. 146 — Judgment in Dumortier Frères, cited above, at paragraph 150 — Judgment in Case C-177/88 Dekker [1990] ECR I-3941, at 21. paragraph 19 et seq. 147 — See the judgment in Vloeberghs, cited in footnote 20, at 151 — Council Directive of 9 February 1976 on the implementa p . 216; judgment in Case IS/60 Worms v High Authority tion of the principle of equal treatment for men and [1962] ECR 195, at p. 206; most recently upheld in the women as regards access to employment, vocational train judgment in Joined Cases C-363/88 and C-364/88 Finsider ing and promotion, and working conditions (OJ 1976 [1992] ECR I-359, at paragraph 25; in paragraph 45 of that L 39, p. 40). judgment, the Court reiterates that there must be evidence 152 — Once again, therefore, the practical effect of the rules of of a sufficiently serious fault which is the direct cause of competition would be weakened considerably if proof of the damage relied upon. fault were required; see the judgment in Dekker, cited 148 — See the judgment in Joined Cases 83/76 and above, at paragraph 24. It is otherwise as regards the ques 94/76, 4/77, 15/77 and 40/77 HNL v Council and Com- tion of the existence of intent or negligence as a condition mission [1978] ECR 1209, at paragraph 4; judgment in for the imposition of a fine: see, in the context of the EEC

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specifically with regard to the question of establishing the obligation to make good the damages. So far as concerns the application damage. of the second paragraph of Article 215 of the EEC Treaty, the Court acknowledged in Mulder and Heinemann that 'the amount of compensation payable by the Community should correspond to the damage which it 153 caused'. The Court thus made it clear that reparation must be made in full, that is to say In that connection, reference must also be its aim must be to make good the loss of made to the case-law regarding the award of capital caused by the unlawful conduct (res- damages as a penalty for breach of Directive 154 titutio in integrum). That principle has for No 76/207/EEC, referred to above (para­ some time been implicit in the case-law of graph 53). In its judgment in Von Colson and the Court, as is apparent from its consistent Kamann, the Court considered that although practice with regard to the grant of interim that directive does not prescribe a specific measures, whereby the President does not form of sanction, the sanction must never­ regard financial loss as serious and irrepara­ theless be such as to guarantee real and effec­ ble (and therefore orders interim measures to tive judicial protection and have real deter­ prevent it) 'unless it could not be wholly rent effect, with the result that where a recouped if the applicant were to be success­ Member State decides to penalize a breach of 155 ful in the main action'. That has also been the prohibition of discrimination contained apparent from the established case-law of the in the directive by the award of damages, the Court since 1979 — when it came to the award must in any event be adequate in rela­ conclusion that in the light of the principles tion to the damage sustained and may not be common to the legal systems of the Member merely symbolic. 157 In its recent judgment States 'a claim for interest is in general in Marshall, the Court pointed out in that admissible' — namely that the amount of regard, in a situation involving discrimina­ damages payable must be subject to default tory dismissal, that: interest as from the date of the judgment

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tive indicated above (that is to say, real poses of restoring real equality of treat­ equality of opportunity), it must be ade­ ment.' 0 quate, in that it must enable the damage actually sustained as a result of the discrimi­ natory dismissal to be made good in full in accordance with the applicable national 158 rules.'

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So far as concerns Question 5, the answer the provisions of Community competition flows from the examination of Questions 3 law. Although that case-law is concerned and 4: it has been established that Art­ with EEC competition law, it is, in my view, icles 4, 65(1) and 66(7) are directly effective in the light of the similarity between the rel­ provisions and that the national court is evant ECSC and EEC rules (paragraphs 30 obliged on the basis of Community law to to 35 above) and the need for consistency in award damages with a view to providing the their application, applicable as such to ECSC fullest possible redress for the parties whose competition law. rights have been impaired. Completion of the steps or procedures specified in the rele­ vant Treaty provisions and exhaustion of any other legal remedies provided by the ECSC Treaty — in particular the action for failure to act under Article 35 of the ECSC Treaty A — The role of the Commission and of the — is not a prerequisite for such an award; national court in enforcing Community com- that would amount to a denial of the direct petition rules effect of the aforesaid provisions and the attendant obligation on the part of the national court to protect the rights of indi­ 161 viduals.

57. The Court has frequently had occasion to rule on the division of tasks between the Commission and the national court with regard to the enforcement of the Commu­ 162 nity rules of competition. It did so most recently and systematically in the Delimitis judgment:

On the other hand, the Commission does not have exclusive competence to apply Art­ icles 85(1) and 86. It shares that competence with the national courts. As the Court stated in its judgment in Case 127/73 (BRT v SABAM [1974] ECR 51), Articles 85(1) and 86 produce direct effect in relations between individuals and create rights directly For that reason the Court advised the in respect of the individuals concerned which national court, 'in order to reconcile the need the national courts must safeguard.' 163 to avoid conflicting decisions with the national court's duty to rule on the claims of a party to the proceedings that the agreement is automatically void', to have regard to the following considerations:

The competence shared between the Com­ mission and the national court, referred to in the preceding paragraph, can give rise to conflicting decisions in connection with the specific application of the Community rules of competition. In that regard, the Court — If the conditions for the application of stated in the Delimitis judgment that: Article 85(1) are clearly not satisfied and there is, consequently, scarcely any risk of the Commission taking a different decision, the national court may continue the proceedings and rule on the agree­ ment in issue. It may do the same if the agreement's incompatibility with Arti­ 'account should here be taken of the risk of cle 85(1) is beyond doubt and, regard national courts taking decisions which con­ being had to the exemption regulations

163 — Judgment in Delimitis, cited in footnote 79, at para­ graphs 44 and 45. 164 — Judgment in Delimitis, cited above, at paragraph 47.

58. Once again the parties before the Court 165 — Judgment in Delimitis, cited above, at paragraph 50. In are strongly divided on this point. At one paragraph 51 the Court points out that an exemption deci­ end of the spectrum, Banks argues that a sion may only be taken in respect of an agreement which has been notified or is exempt from having to be notified. 166 — Judgment in Delimits, cited above, at paragraphs 52 and 53. The Court goes on to state that, under Article 5 of the EEC Treaty, the Commission is bound by a duty of sin­ 167 — Judgment in Delimita, cited above, at paragraph 54. cere cooperation with the judicial authorities of the Mem­ ber States. 168 — See the reference thereto in footnote 112.

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169 — See the Opinion of Judge Kirschner, acting as Advocate General, in Case T-5I/89 Tetra Pak [1990] ECR II-312, at pp. 345-346, No 104, who rightly adds, on the basis of the case-law of the Court concerning Regulation No 67/67, that the national court retains jurisdiction to interpret a {directly effective) block-exemption regulation in order to 59. In my view, a qualified answer is called establish whether or not a particular agreement is covered for. The premise for it is the distinction by it: the danger of inconsistency can be countered by recourse to the preliminary ruling procedure. drawn by the Court in the Delimitis judg­ 170 — See in that regard the Opinion of Advocate General ment (paragraph 57 above) between the Reischl in Many [1980] ECR 2502, at p. 2507, and the Opinion of Judge Kirschner acting as Advocate General in exclusive competence of the Commission to the Tetra Pak case, cited in the previous footnote, ibid.

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establishing a breach of that article. So far as icle 86 thereof, or the corresponding provi­ concerns the first possibility, the Court has sions of the ECSC Treaty). Strictly speaking determined in the 'Perfume' cases that such such a decision is, on account of its nature, administrative letters binding only on those to whom it is 173 expressly addressed. In my view, however, a decision of that kind carries greater signif­ icance than the aforesaid administrative let­ ters and negative clearance.

'do not have the effect of preventing national courts, before which the agreements in question are alleged to be incompatible with Article 85, from reaching a different finding as regards the agreements concerned on the basis of the information available to 71 them.' 1

171 — Judgment in Joined Cases 253/78 and 1/79 to 3/79 Pro­ cureur tic la République v Gtry and Gitćrlam [1980] 173 — In the case of individua! ECSC decisions, see Article 14 in ECR 2327, at paragraph 13; in Many, cited in footnote 79, conjunction with the second paragraph of Article 15 of the at paragraph 10; in Case 99/79 Laucóme v ETOS [1980] ECSC Treaty; for EEC decisions, sec the fourth paragraph ECR 2511, at paragraph 11; and again in Case 31/80 of Article 189 of the EEC Treaty. L'Oréal [1980] ECR 3775, at paragraph 11. 174 — Judgment in Foto-Frost, cited in footnote 55; sec also the 172 — Ibid. judgment in Bussent, cited in footnote 53, at paragraph 14.

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175 — Evidently this does not apply to the addressee of the 177 — These are then findings which, since they were not neces­ Commission decision or to persons to whom it is quite sary in order to substantiate the operative part (in line clearly of direct and individual concern: the only course of with the Court's case-law concerning Article 190 of the action open to them, if they wish to challenge the findings EEC Treaty: see paragraphs 15 to 17 of my Opinion of 29 of fact or of law made in the decision, is to bring an action June 1993 in Case C-137/92 P BASF, not published in the for annulment under Article 173 of the EEC Treaty. ECR), cannot be the subject of an action for annulment: see the judgment of the Court of First Instance in Case 176 — See the condition laid down by the Court in the Zucker- T-138/89 NBV and NVB [1992] ECR II-2181, at para­ fabrik judgment, cited in footnote 118, for suspension by a graph 31. national court of the enforcement of a national administra­ tive act based on a Community regulation: judgment in Zuckerfabrik, at paragraphs 23 and 33 and point 2 of the operative part.

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(2) Articles 4, 65(1) and 66(7) of the ECSC Treaty have direct effect.

(3) The national court is obliged in principle, under Community law, to award damages for loss sustained as a result of breach of a directly effective compe­ tition rule laid down by the ECSC Treaty.