C-408/95

2 — The article in question was inserted in the Sixth Directive by * Original language: Italian. Article 1(22) of Council Directive 91/680/EEC of 16 1 — Council Directive 77/388/EEC of 17 May 1977 on the har- December 1991 supplementing the common system of value monization of the laws of the Member States relating to added tax and amending Directive 77/388/EEC with a view turnover taxes — common system of value added tax: uni- to the abolition of fiscal frontiers (OJ 1991 L 376, p. 1). form basis of assessment (OJ 1977 L 145, p. 1). 3 — OJ 1992 L 76, p. 1.

I - 6318

EUROTUNNEL AND OTHERS v SEAFRANCE

I-6319

O P I N I O N OF MR TESAURO — CASE C-408/95

down by the Community provisions in Duty Directive. The national implementing force for the movement of travellers provisions, which repeat exactly the relevant between third countries and the Com- provisions of the articles in question, provide munity.' for exemption from payment of VAT and excise duty until 30 June 1999 regarding pur- chases by travellers within the Community by air or sea, and in the confines of the (French) terminal for access to the tunnel under the Channel. 6 For its part, Article 28 of the Excise Duty Directive contains provisions to the same effect, drafted in essentially similar terms.

5 — That directive modifies Directives 69/169/EEC and 77/388/EEC and increases the allowances for travellers com- ing from third countries and the limits for duty-free pur- chases by travellers within the Community (OJ 1994 L 60, 6 — More specifically, Article 26 quater of the General Tax Code, p. 14). However, that directive did not change the limits laid inserted by Article 17 I I of Law N o 92/677, exempts from down by the Excise Duty Directive, which thus continued to VAT until 30 June 1999 trade at sales outlets located in an be those 'laid down by Community provisions in force in airport or port or in the area of the (French) terminal for the context of the movement of travellers between third access to the Channel Tunnel. Article 302F of the General countries and the Community' (Article 28(2) of the Excise Tax Code, inserted by Article 59 of Law N o 92-677, contains Duty Directive). similar provisions regarding the payment of excise duties.

I - 6320

EUROTUNNEL A N D OTHERS v SEAFRANCE

on 14 June 1995 Eurotunnel brought unfair- provisions. Those, therefore, are the grounds competition proceedings before the Tribunal on which Eurotunnel based its action. de Commerce, Paris, against SNAT, 7 seeking a declaration that as from 22 December 1994, the date on which the 'Shutde' extended its operations to carry passenger vehicles, SNAT was engaging in unfair competition against it and, therefore, should be prohib- ited from carrying out transactions exempted from VAT and excise duties, that it should pay the plaintiff FF 77 000 000 for damage suffered from 22 December 1994 to 31 May 1995 and FF 15 000 000 for each subsequent month, together with FF 500 000 pursuant to Article 700 of the new Code of Civil Pro- cedure.

7 — In support of SNAT, the following intervened: the associa- tion representing companies in the duty-free industry (Inter- 8 — More specifically, by that judgment the High Court of Jus- national Duty-free Confederation); the association repre- tice, refusing to extend the period of three months provided senting the interests of most United Kingdom airports for by national legislation, declined to authorize Eurotunnel (Airport Operators Association Ltd); the company operating to bring an action for annulment. Nevertheless, it held that on routes across the Channel other than to Calais (Bretagne Eurotunnel could bring proceedings regarding tax-free sales Angleterre Irlande SA); and the association of passenger on 'booze-cruises' — one-day round trips, though not neces- shipping companies plying between the United Kingdom sarily on the same vessel. However, Eurotunnel did not avail ana other countries (Passenger Shipping Association Ltd). itself of that opportunity.

I - 6321

OPINION OF MR TESAURO — CASE C-408/95

5. Having noted that Eurotunnel was losing In the alternative, does Directive 94/4 cover income because of competition from SNAT a possible annulment of those two direc- and that in France sales at a loss are prohib- tives? ited only for products, not for services, the Tribunal de Commerce reached the conclu- sion that the only plea on which Eurotunnel could rely in an unfair-competition action was the application, by SNAT, of a national provision which (faithfully) implemented an unlawful Council provision. 3. In the event of annulment, must the fact that SNAT (Société Nouvelle d'Armement Transmanche) SA applied the fiscal laws adopted pursuant to those directives be imputed to it as a fault? If so, as from what date was the fault committed?'

I - 6322

EUROTUNNEL A N D OTHERS v SEAFRANCE

priate to consider two other aspects of SNAT's argument, namely that the dispute is admissibility, of a more general nature, raised artificial and the questions have no bearing during the proceedings. SNAT and the inter- on the dispute, thus relates specifically to the veners supporting it contend that the Court two cases in which the Court, in accordance of Justice should not answer any of the ques- with the case-law just cited, n exercises its tions submitted to it. They claim that Euro- right to refuse to give an answer to the tunnel's action before the national court is of national court and, thus, to state that it is a manifestly artificial nature and that, in any inappropriate to proceed with the case. event, the questions submitted to the Court are entirely irrelevant to the issues in the proceedings before the national court, and are not therefore necessary to determination of the main action.

— The artificial nature of the dispute

Admissibility

I - 6323

O P I N I O N O F MR TESAURO — CASE C-408/95

to persuade the High Court to seek a pre- respond to an objective requirement inherent liminary ruling, and from public statements in the resolution of a dispute'. 14 made by Eurotunnel's Chief Executive. , 2

Rather, it is all too clear that in this case the parties are not in agreement about anything: neither the need to make a reference to the Court of Justice, since SNAT contests the admissibility of the question submitted, nor the substantive 9. I do not consider that view to be well result to be arrived at. founded. Whilst it is true that in Foglia v Novello II the Court stated that in certain circumstances a 'decision by the Court that it has no jurisdiction .

graph 18. lems of Community law which do not cor- 15 — For the sake of completeness, I would point out that not even the view that Eurotunnel has no locus standi as a plaintiff — since the disputed provisions of the Sixth Direc- tive and the Excise Duty Directive, far from having a nega- tive impact on Eurotunnel's interests, allow it to make duty-free sales and therefore are favourable to it — can 12 — As stated in an interview given by Sir Alastair Morton and change the terms of the problem. Suffice it to point out that, published in the magazine Frontier in September 1995. In whilst it is true that a lack of locus standi might prompt a that interview, the Chairman of Eurotunnel stated that rinding that there is no dispute, and the existence of a dis- compensation for damage obtained from the smallest of the pute is a mandatory pre-condition for recourse to the pro- shipping companies was not important. What was impor- cedure under Article 177, the fact remains that the existence tant was to obtain a decision. of locus standi (and thereby of a dispute) is a matter which 13 — Case 104/79 Foglia v Novello I [1980] ECR 745, and Case should have been assessed by the national court on the basis 244/80 Foglia v Novello II [1981] ECR 3045. of its own domestic procedural rules.

In short, I consider that there is no evidence to justify describing the dispute in the main proceedings as artificial. I would add that the 12. The view just oudined makes it neces- aim pursued by Eurotunnel in the action sary to verify whether the answer to the brought before the national court is not in questions submitted may or may not be use- any event such as to prompt the view that ful to the national court in disposing of the the questions submitted to the Court of Jus- dispute before it. When the Court has exam- tice constitute a misuse of procedure and of ined this question of relevance, albeit only the purpose of Article 177. marginally, it has so far declined to give a reply only in response to questions which 'bear no relation to the subject-matter of the 16 — And it is certainly no accident that the principles upheld in action', , 8 or 'of a hypothetical nature', 1 9 or, the Foglia v Novello judgments, although constandy reiter- again, ones which are not 'objectively ated over the years, do not appear to have been applied in firactice in later cases. Foglia v Novello thus remains an iso- atcd case, even if a famous one. 17 — It is not superfluous to note that Article 177 'establishes direct cooperation between the Court and the courts and tribunals of the Member Sutes by way of a non- 18 — To that effect, see the order of 26 February 1990 in Case contentious procedure excluding any initiative of the parues C-286/88 FalcioL· [1990] ECR 1-191, paragraph 9, and Case who are merely invited to be heard in the course of that C-343/90 Lourenço Dias [1992] ECR 1-4673, paragraph 42. procedure' (Case C-364/92 SAT FluggeseUschaft v Eurocon- 19 — Case C-83/91 Meilicke v ADV-ORCA [1992] ECR 1-4871, trol [1994] ECR M 3 , paragraph 9). paragraphs 28 to 30.

13. In the present case, the national court 14. First, the usefulness of the Court's merely stated that the only possible basis for answer, for determination of the dispute in an unfair-competition action could be the the main proceedings, is beyond doubt if an application, by SNAT, of the national legisla- examination óf the questions submitted dis- tion which (faithfully) implemented an closes no factor such as to detract from the unlawful Council provision. Although, validity of the directives at issue. 22 Second, therefore, it is clear that if the directives in SNAT's assertion that it could not in any cir- question were found to be valid Eurotun- cumstances — not even if the directives at nel's claims would be dismissed, it is not issue were declared invalid — be made to clear to the same extent how a declaration of pay compensation for any damage suffered invalidity might affect the outcome of the unfair-competition proceedings, particularly Eurotunnel's claim for damages against 22 — In such circumstances, Eurotunnel's claims, as already men- SNAT. tioned, would certainly fail. In that connection, the Celes- tini case is noteworthy (Case C-105/94, pending), which displays a number of similarities with this one and may be summarized as follows: an Italian court, in order to adjudi- cate on a claim for damages brought by an Italian company against a German company to which it had sold a consign- ment of wine, which was sent back to Italy by the German authorities, which considered it unfit for human consump- tion, asked the Court of Justice to rule as to the compatibil- ity with Community law of a particular system for the examination of wine used by the German authorities. In Is that sufficient reason to consider that the response to the Commission's view that the questions sub- questions submitted to the Court are not mitted were manifestly irrelevant to the substance of the dispute, Advocate General Fennelly, in his Opinion of 26 September 1996, regarded as sufficient, with regard to the relevance of the questions, the fact, to which the national court itself drew attention, that 'if the answers provided by the Court were to the effect that the test applied was com- 20 — Order of 16 May 1994 in Case C-428/93 Monin Automo- patible with Community law, the entire action of the plain- biles [1994] ECR 1-1707, paragraph 15. tiff would have to be dismissed' (paragraph 28). In the same opinion, the Advocate General rightly emphasized that 21 — This explains why, in the relevant case-law, there is ever- '[t]he duty of cooperation which governs the relationship increasing occurrence, particularly in recent years, of the between national courts and the Court in Article 177 pro- statement to the effect that 'it is essential for the national ceedings obliges the Court, in my opinion, to refuse to court to explain the reasons why it considers that a reply t o answer questions referred, only in circumstances where it is its questions is necessary to enable it to give judgment' (see, clear that no genuinely useful answer can reasonably be for example, Lourenço Dias, cited in footnote 18, paragraph given' (paragraph 29). 19).

15. By its first question, it will be remem- bered, the national court asks whether Euro- tunnel can allege the invalidity of the direc- tives in question in preliminary-ruling proceedings. Its doubts in that connection, as expressed in the question itself, are due to In that regard, I need only observe that the the fact that Eurotunnel did not challenge action brought by Eurotunnel before the those directives by means of an action for High Court of Justice is of no importance as annulment under Article 173, and also the far as the present proceedings are concerned. dismissal, by judgment of 17 February 1995, Quite apart from the fact that it was a differ- of the action brought by Eurotunnel before ent action, involving different parties, it is quite clear that, in proceedings under Article 177, the Court certainly cannot appraise the need for a request for a preliminary ruling 23 — It is with that problem that the third question is specifically concerned — see paragraphs 33 to 36 below. by reference to the solution adopted by a 24 — Indeed, the possible invalidity of the directives at issue, to different national court in relation to a simi- the extent to which it might justify, as the court appears to indicate in the order for reference, describing S N A T s con- lar problem. These are proceedings from one duct as 'unfair competition' would without doubt be help- ful to the national court (at the very least) in calling on court to another, in which the national court SNAT to desist from such conduct, in other words to dis- fully retains the right to submit questions to continue duty-free sales, a result which, moreover, is in line with one of the claims made by Eurotunnel in the main the Court of Justice where it has doubts on a proceedings (sec paragraph 4 above). point involving the interpretation or the 25 — In that connection, see footnote 11, and also paragraph 12, in particular footnotes 18 and 20. validity of Community law provisions.

In that judgment, the Court re-examined its earlier case-law on the subject, from which it was apparent, either expressly 27 or only b y implication, 2S that private individuals can indeed allege the invalidity of a Community For the sake of the principle of legal cer- measure in proceedings under Article 177, tainty, the Court thus altered case-law which without its being necessary to consider was fully acceptable and, in my opinion, whether it might be open to them to chal- more correct, in particular because it was in lenge the measure in question directly. harmony with the spirit of cooperation between the national court and the Commu- nity Court underlying the procedure under 26 — Case C-118/92 [1994] ECR 1-833. Article 177. To deprive the national court of 27 — See Case 216/82 Universität Hamburg [1983] ECR 2771, the opportunity to make proper references paragraphs 7 to 11, and Joined Cases 133/85 to 136/85 Rau and Others [1987] ECR 2289, paragraphs 11 and 12. to the Court, when entertaining doubts as to 28 — See, for example, Case 314/85 Foto-Frost [1987] ECR 4199, the validity of a Community measure, goes in which the Court answered questions on the validity of a decision which the plaintiff in the main proceedings could against that spirit of cooperation and, in the indeed have challenged under Article 173. See also Case last analysis, undermines the preliminary- C-16/65 Schwarze [1965] ECR 877, in which the Court, giving its views in preliminary-ruling proceedings on a ruling procedure. point of validity, regarding the relationship between Articles 173 and 177, observed that '[t]here are, therefore, no grounds for alleging that the parties to the main action have circumvented the provisions of Article 173 of the Treaty. The national court did not intend to determine, o n a national level, questions of law exclusively reserved for the 29 — The same reasoning was followed by the Court in the later Court of the Communities; the parties applied for a refer- judgment in Case C-178/95 Wiljo [1997] ECR 1-585, para- ence to the Court of Justice and the Finanzgericht agreed, graphs 20 to 23, in which the addressee of the decision, and complied with the conditions and procedure laid down which had not been challenged under Article 173, was nev- by the Treaty' (p. 887). ertheless the same plaintiff in the main proceedings.

19. That said, it is nevertheless true that the or legal person in question was 'undoubt- new approach in this area should not be con- edly' entitled to bring an action under strued as meaning that, since the TWD judg- Article 173 against the Community measure ment, individuals are now precluded from in question. In other words, it is not suffi- alleging the invalidity of a Community cient for the person in question to have been measure before a national court — thereby able to bring an action for annulment: it is making it impossible for the latter to seek a also necessary for there to have been no preliminary ruling from the Court of Justice doubt as to the admissibility of the action, — whenever the measure in question could either because the person in question was the have been challenged by them under Article addressee of the measure or because, as in 173. Indeed, having been asked for its views the TWD case, he was definitely entitled to on the admissibility of preliminary questions challenge the measure and was apprised of concerning the validity of a regulation, the that possibility. Court stated that 'since the contested provi- sions are contained in a Community regu- lation and are addressed in general terms to categories of persons defined in the abstract and to situations determined objectively, it is not obvious that an action ... challenging that regulation under Article 173 of the Treaty would have been admissible'. 30 The Court thus reached the conclusion that the invalid- 20. As far as the present case is concerned, it ity of the regulation in question might must be recognized, in the light of the case- indeed have been pleaded before the national law thus referred to, that Eurotunnel cer- court and it made clear, on the same occa- tainly cannot be regarded as 'undoubtedly' sion, that in circumstances of that kind refer- entitled to bring an action for annulment ence to the 'l'WD judgment is inappropriate, under Article 173. It need only be noted that since the latter concerned 'a company which the measures whose validity is being chal- was undoubtedly entitled, and which had lenged before the national court are direc- been informed that it was entitled, to bring tives and are thus measures which, at least in an action for annulment of the Community principle, are of general legislative scope, act whose validity it was indirectly challeng- with a result that it is not obvious that an ing before a national court'. 3I action against those directives under Article 173 would have been admissible.

21. I would add, for the sake of complete- The foregoing observations show clearly that ness, that whilst it is true that the Court has Eurotunnel not only could not be regarded not excluded a priori the right of individuals as undoubtedly entitled to bring an action to challenge the provisions of a directive, 32 it for the annulment of the disputed provisions is necessary for that purpose for the provi- of the directives in question under Article sions in question to be in the nature of a 173 but also that such proceedings would in decision which is of individual and direct any event have been inadmissible.

tion. This means that the disputed provisions have no direct effect and, in order to be applied, require intervention by the national legislature, which could well have decided The second question not to avail itself of that option and thus not to transpose the provisions in question into its domestic law. That fact in itself could mean that Eurotunnel could not be regarded as 'directly and individually' concerned by those provisions within the meaning and for the purposes of Article 173. 22. I should first point out that, by its sec- ond question, the national court merely asks the Court of Justice whether Directive 91/680/EEC and the Excise Duty Directive were adopted 'lawfully', that is to say in compliance with the applicable procedural 32 — See the order of 27 April 1988 in Case 352/87 Farzoo and rules. More precisely, as is apparent from the Koronami v Commission [1988] ECR 2281; the orders of 7 December 1988 in Case 138/88 Flourez and Others v Coun- order for reference itself, the national court cil [1988] ECR 6393 and Case 160/88 Tedesa and Others v Council [1988] ECR 6399; also, more particularly, Case is referring to the fact that the Commission's C-298/89 Gibraltar v Council [1993] ECR 1-3605, para- graphs 15 to 19. The Court of First Instance appears more proposals did not contain the disputed pro- loath to recognize that directives may be challenged by visions and the Parliament was not recon- individuals: in its order of 20 October 1994 in Case T-99/94 Asácame v Council [1994] ECR II-871, it stated: T h e sulted after they were inserted by the Coun- fourth paragraph of Article 173 of the Treaty makes no pro- cil. vision — for the benefit of individuals — for a direct action before the Community judicature against directives or against decisions adopted in the form of directives.

I - 6330

EUROTUNNEL A N D OTHERS v SEAFRANCE

claimed, in addition to the grounds men- seek a ruling, on matters raised by the tioned by the national court in its order for parties. reference, that there is a lack of statement of reasons, breach of Community rules on State aid, infringement of Articles 99 and 7a of the Treaty, misuse of powers on the part of the Council, breach of the principles of protec- tion of legitimate expectations, legal certainty and proportionality, and breach of the prin- ciple of non-discrimination. The question on validity being drafted in general terms, in so The case before us is entirely different. Even far as the adverb 'lawfully' cannot be con- if one declines to attribute a narrow meaning strued as meaning that the national court to the adverb 'lawfully', the fact remains that wished to limit consideration of validity to it is very clear from the order for reference procedural defects, the Court of Justice that the defects to which the national court should, in Eurotunnel's view, as in earlier refers are the absence of the contested provi- cases, consider those grounds which it relied sions in the proposals submitted by the on at the procedural stage and before the Commission and the failure to re-consult the national court. Parliament. 34 In this case, therefore, what must be established is whether this Court can and/or must take account not only of the defects mentioned in the questions and, in any event, clarified in the grounds of the order for reference but also of the other defects raised by one of the parties to the main proceedings.

I - 6331

O P I N I O N OF MR TESAURO — CASE C-408/95

Court of its own motion. 3 5 Whilst not ing, of course, that such an approach would expressly returning to that point, the Court not be guaranteed in circumstances where subsequently followed that approach; where neither the questions submitted by the necessary, its examination of the questions of national court nor the grounds of the order validity referred to it included defects not for reference clarified the grounds on which mentioned by the national court but qualify- invalidity was alleged. ing for consideration of this Court's own motion, such as the obligation to state rea- sons. 36

— Inadequate statement of reasons 35 — Joined C u e s 73/63 and 74/63 Handelsvereniging Rotter- dam v Minister van Landbouw [1964] ECR 1, in particular at p. 14; in that case, the Court reached the conclusion that 'the failure to provide the necessary publicity can be con- sidered by the Court of its own motion'. In contrast, the Court refused to consider, since they were not grounds open to examination of the Court's own motion, defects alleged by the parties and not accepted by the national court (see, for example, Case 6/71 Rbeinmühlen [1971] ECR 823, paragraph 13; and the Opinion of Advocate Gen- eral Duthallet De Lamothe in that case, at p. 842 et seq., in particular p. 852). 25. It is to be noted at the outset that, 36 — Thus, for example, in the 'Butter Cruise' judgment, when according to settled case-law, the statement called on to rule as to the validity of a regulation in relation to breach of certain fundamental principles of Community of reasons required by Article 190 depends law, the Court considered it appropriate, before considering those grounds, 'to consider whether the regulation complies on the nature of the measure in question and with the requirements of Article 190 of the Treaty which provides that regulations shall sute the reasons on which they are based' (Case 158/80 REWE v HauptzoUamt Kiel [1981] ECR 1805, paragraphs 18 and 19). 37 — Sec, among others, the orders in Case C-191/96 Modesti 38 — In that connection, see footnote 36. The case-law goes the [1996] ECR 1-3937 paragraph 5, and Case C-196/96 Hassan same way in relation to actions for annulment under Article [1996] ECR 1-3945, paragraph 5. The same approach was 173: see, for example. Case 32/71 Jamet v Commission taken as early as in the judgment in Joined Cases 141/81, [1972] ECR 483, paragraphs 11/12, and Case 185/85 Usinor 142/81 and 143/81 Holdijk [1982] ECR 1299, paragraph 6. v Commission [1986] ECR 2079, paragraph 19.

In this case it need only be pointed out that the 13th recital in the preamble to Directive It having been established that the Commis- 91/680/EEC and the 23rd recital in the pre- sion's initial proposals did not contain the amble to the Excise Duty Directive state that provisions in question, 42 which were added the provision of a transitional period, during by the Council at the final stage of the pro- which the Member States are allowed to cedure and, without therefore being submit- exempt from VAT and excise duty trade car- ted to the Parliament for examination, 43 it ried on in connection with air and sea travel remains only to examine the merits of the within the Community, derives from the arguments put forward by Eurotunnel. need to deal with the social repercussions in the sectors affected and the regional difficul- ties that might follow the abolition of the tax on imports and the remission of tax on exports. The matters on which the Council relied are therefore made sufficiently clear to 27. As regards the lack of a Commission enable interested parties to challenge the proposal, I consider that a few comments basis of the measure and the Court to under- take its review of legality. It follows that the provisions at issue are supported by an 42 — The proposal for a Council Directive supplementing the common system of value added tax and amending Directive adequate statement of reasons. 77/388/EEC was presented on 7 August 1987 (OJ 1987 C 252, p. 2) and was subsequently amended on 17 May 1990 (OJ 1990 C 176, p. 8) and on 2 May 1991 (OJ 1991 C 131, p. 3); the Utter amendment followed consultation of the Parliament and, as will be seen, included some of the amendments proposed by the Parliament. The initial pro- 39 — See, for example, Case 13/72 Netherlands v Commission posal for the Excise Duty Directive was presented by the [1973] ECR 27 and Case 819/79 Germany v Commission Commission on 27 September 1990 (OJ 1990 C 322, p. 1) [1981] ECR 21. and was subsequendy amended on 24 January 1991 (OJ 40 — Case C-205/94 Binder [1996] ECR 1-2871, paragraph 25. 1991 C 45, p. 10). 41 — On this point, sec the Opinion of Judge Vestcrdorf, desig- 43 — The Parliament gave its own opinion on the proposal for nated i s Advocate General in Joined Cases T-l/89, T-2/89, Directive 91/680 on 20 November 1990 (OJ 1990 C 324, T-3/89, T-4/89 and T-6/89 to T-15/89 (the polypropylene p. 97). The opinion on the proposal concerning the Excise casesX delivered on 10 July 1991 ([1991] ECR II-869, in Duty Directive, on the other hand, was approved at the ses- particular at 11-908). sion on 12 June 1991 (OJ 1991 C 183, p. 122).

It need hardly be added, therefore, that Eurotunnel's argument that the existence of Further consultation of the Parliament is a Commission proposal is a mandatory pre- thus unnecessary in only two cases: where condition for the exercise by the Council of the measure finally adopted, taken as a the powers conferred on it by Article 99 has whole, does not differ in substance from the no basis. What is important, as the Council one on which the Parliament has already itself has emphasized, is that the amendments been consulted, or where the amendments adopted do not fall outside the scope of the subsequently made conform essentially with measure in question, as defined by the pro- the wishes expressed by the Parliament. posal. And I do not think there can be any doubt whatsoever that the insertion in the directives in question of provisions which provide for the maintenance in force, for a limited period, of the exemption conditions for intra-Community trade involving air and 29. In order to establish whether the changes sea travellers falls entirely within the scope made by the Council are substantial, it is of of the directives, whose stated purpose is t o course necessary to compare the text of the implement the conditions necessary for the proposals on which the Parliament gave its abolition of fiscal frontiers within the Com- views and the text of the directives finally munity. adopted. It should be borne in mind once again that the directives in question were intended to provide for transition to a regime characterized by total abolition of fiscal frontiers and that, to that end, they included transitional provisions to facilitate 28. More complex, however, is the position adjustment to the new circumstances regarding the obligation to consult the Par- liament. In that connection, I would point 45 — Case C-21/94 Parliament v Council [1995] ECR 1-1827, paragraph 18. To the same effect, see, inter alia, Case C-280/93 Germany v Council [1994] ECR 1-4973, para- 44 — Ac the material time, that provision was contained in graph 38, and the judgment of 5 October 1993 cited in foot- Article 149(1). note 33, paragraph 23.

30. In any event, I consider that an examina- tion of the amendments proposed by the Parliament itself when it was consulted would lead to the same conclusion. Indeed, with regard to the proposal for a directive o n In my opinion, having regard to the overall VAT, the Parliament suggested, inter alia, scheme of the directives in question and the amendments Nos 6 and 31. In the first, it results which they pursue, the answer must requested the inclusion of an additional be no. Whilst it is true that the discontinua- recital in the preamble, in the following tion of duty-free sales was thereby deferred terms: 'Whereas the transitional period must for several years, it is also true that the be used to take measures to offset the social amendments not only are not such as to repercussions in the professions concerned detract from the ultimate purpose pursued and to prevent regional problems arising, by the directives but also do not alter their notably in intra-Community frontier scope. Moreover, it should be remembered, regions, as a result of the abolition of fiscal the cases in which the Court considered fur- frontiers' (recital 4f). Amendment 31 then ther consultation of the Parliament to be suggested the inclusion of a further recital, in necessary related to departures from the pro- the following terms: 'Whereas the economic posal on which the Parliament had been con- and social implications of the completion of sulted, which appreciably altered the scope the internal market for tax-free sales will be thereof or even the very objectives pursued, determined through a report undertaken by in such a way as, 'to affect the very essence the Commission and presented to the Coun- of the enactment'. ^ Whilst recognizing that cil and the European Parliament' (recital 4g). the changes made by the Council cannot be

And it was precisely amendment No 6, sels at sea up to 31 December 1995'. 50 Con- adopted by the Commission in the amended trary to the Parliament's assertions, in fact, proposal which it submitted on 2 May that proposal certainly cannot be linked with 1991, 48 that was used by the Council as the extra-Community trade, if only because the reason for inserting Article 28k. The Council Excise Duty Directive governs the posses- itself also argued, in my opinion not without sion and movement of products subject to foundation, that the terms in which amend- excise duty in intra-Community dealings, ment N o 31 is drafted — in particular the and not with respect to third countries. request for a report from the Commission on the economic and social implications con- cerning tax-free sales — support the conclu- sion that the Parliament advocated mainte- nance, albeit temporarily, of the scheme in question. The view put forward by the Par- liament, 49 to the effect that the report in In those circumstances, whatever the real question presupposed that the tax-free sales intentions of the Parliament, it seems to me scheme would be completely abolished and that it cannot be reasonably contended that that the adverse repercussions referred to in the Council, by inserting Article 28, amendment N o 6 related particularly to amended the Excise Duty Directive in a repercussions for customs officials, does not manner contrary to the wishes expressed by appear at all persuasive, particularly in view the Parliament itself, 5I which prompts me to of the express reference to the need to use conclude, on the basis of the case-law the transitional period to mitigate the referred to earlier, that fresh consultation of adverse repercussions for the sectors affected the Parliament was not necessary. by abolition of the fiscal frontiers.

I - 6336

EUROTUNNEL AND OTHERS v SEAFRANCE

provisions. I would add, in case the Court which, it will be remembered, 'was touched should reach a different conclusion, that the upon when I considered the question of 'lawful' adoption of Directive 94/4/EC, by admissibility in relation to the alleged irrel- which the Council proceeded to raise the evance of the questions submitted. 52 I shall limits for tax-free purchases by intra- therefore only make a few brief and specific Community travellers, cannot in any event observations on this point. be regarded as capable of retroactively recti- fying the breach of essential procedural requirements allegedly affecting Directive 91/680/EEC and the Excise Duty Directive as a result of failure to fulfil the requirement of consulting the Parliament.

52 — According to SNAT, the Court should not answer the questions precisely because, even if the directives in ques- In view of the conclusion which I reached tion had been declared invalid, it would not in any event regarding the second question, it is unneces- have been possible to attach liability to a private individual for its conduct in applying a legal provision (see paragraphs sary to give my views on that last question, 11 and 13 above).

I - 6337

OPINION OF MR TESAURO — CASE C-408/95

This case, however, is quite different. SNAT cannot be accused of negligence of any kind, The same conclusion, namely that non- having merely availed itself of a possibility contractual liability cannot be based on a expressly provided by national provisions provision of Community law, was also adopted to implement provisions contained reached by the Court in relation to the pos- in Community directives. More generally, sibility of the beneficiary of aid, which is the possibility must be ruled out — categori- subsequently declared incompatible with the cally — that an individual applying a common market, being called on to compen- national provision which has (properly) sate for damage suffered by a competitor, transposed a Community provision and even where the beneficiary had not ascer- who, in any event, is required to apply that tained whether the aid had been properly provision, could then incur liability. I would granted, particularly as regards the require- add that any other solution would be, to say ment of prior notification of the Commis- the least, bizarre, whatever the country con- sion. 53 cerned.

53 — Case C-39/94 SFEl and Others [1996] ECR 1-3547, para- graph 74. 54 — Ibid., paragraph 75.

I - 6338

EUROTUNNEL AND OTHERS v SEAFRANCE

Conclusion

37. In view of the foregoing considerations, I propose that the Court reply as fol- lows to the questions submitted by the Tribunal de Commerce, Paris: