C-321/97

I - 3553

OPINION OF MR COSMAS — CASE C-321/97

II — Facts and procedure to transpose the wage protection directive as they would have enjoyed if Sweden had been a member of the European Union at the time of their employer's insolvency.

I - 3554

ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE

However, as the referring court observes, if compensation enforceable before a Swedish the Swedish rules on wage guarantees had court. been adapted to comply with the relevant Community directive, including the dero- gations from that directive provided for in the case of Sweden, the applicants would have been entitled to receive compensation for their unpaid wages. They did not belong to the category of employees exclu- ded from the scope of the directive, since ΙII— The questions referred they did not own, either on their own or together with a close relative, an essential part of the employer's undertaking, and they did not have a considerable influence 6. The national court has referred the on its activities. The fact that one of their following questions to the Court of Justice close relatives was the owner of an essential for a preliminary ruling: part of the undertaking did not preclude them de jure from receiving compensation under the directive, not even taking into account the derogations therefrom granted to Sweden. There is therefore no doubt that the receiver's refusal to pay the wages '1. Is Article 6 of the EEA Agreement to be under the guarantee is not consistent with interpreted as meaning that the legal the rules of the directive as incorporated principles laid down by the Court of into the EEA Agreement. What, then, is the Justice in, inter alia, Joined Cases consequence of this finding? Can the appli- C-6/90 and C-9/90 Francovich are part cants claim compensation from the Swedish of EEA law, so that a State can be liable State on the basis of its failure to comply in damages towards an individual for with the provisions of the EEA Agreement ? not properly implementing Council Directive 80/987/EEC of 20 October 1980, on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, during the period in which the State was only party to the EEA Agreement and had not acceded to the European Union?

IV — The relevant provisions (a) ...

7. Article 6 of the EEA Agreement pro- vides: (b) an act corresponding to an EEC direc- tive shall leave to the authorities of the Contracting Parties the choice of form and method of implementation.'

'Without prejudice to future developments of case-law, the provisions of this Agree- ment, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Economic 9. Protocol 34 to the EEA Agreement on Community and the Treaty establishing the the possibility for courts and tribunals of European Coal and Steel Community and EFTA States to request the Court of Justice to acts adopted in application of these two of the European Communities to decide on

I - 3556

ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE

the interpretation of EEA rules correspond- 'Sole Article ing to Community rules provides:

I - 3557

OPINION OF MR COSMAS — CASE C-321/97

jurisdiction to examine the first and second time of the facts in the main proceedings, questions. It must be noted first that those did not constitute a Community rule, in questions do not directly seek an interpre- particular for Sweden. The difference is tation of the content of Directive 80/987 or slight, but significant. The issue here is not clarification of the rule in Francovich, but the application of the regulatory provisions rather to ascertain the consequences for an and general principles of Community law EFTA State, as Sweden was, of failure to referred to by the national court within the comply with its obligations under the EEA context of the Community legal order, but Agreement. Can the Court of Justice exam- rather their application, if at all, within the ine such an issue specifically under Arti- context of a different legal structure created cle 177 of the EC Treaty? by the EEA Agreement, and, in any event, within the legal system of a State which was not a member of the Union at the material time. 5

I - 3558

ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE

EFTA do not automatically subscribe to the Tariff to which the applicable national Community legal order simply because they legislation expressly referred or whose belong to the EEA. content it reproduced.

(a) The rule in Dzodzi In Dzodzi,11 the national court had sought the Court's assistance in a dispute in which it had been asked to apply rules in Belgian law requiring the spouse of a Belgian 16. However, the above findings are not in national to be treated in the same way as themselves sufficient to form the basis of a if her husband had been a national of refusal by the Court of Justice to answer another Member State of the Community. the first two questions under Article 177 of The question was, therefore, whether a the Treaty. The Court is willing, in some national of Togo who was the widow of a cases, to examine the substance of ques- Belgian national would be entitled to reside tions which, although relating to the inter- in Belgium if her husband had been a pretation of a Community rule, are sub- national of another Member State. mitted in the context of disputes which do not fall within the scope of Community law. I consider it essential to set out below the basic elements of that case-law. What the relevant decisions of the Court have in common is that they relate to situations governed by purely national provisions8 which refer to, or reproduce the content of, Community law. Such provisions reflect the desire of the national legislature to afford In Kleinwort Benson,12 an English court to individuals falling within their scope the requested the interpretation of a provision same treatment as that guaranteed by the of the Brussels Convention with a view to Community legal order. applying a national law modelled on that Convention which laid down that, in determining the meaning or effect of any of its provisions, 'regard shall be had to any relevant principles laid down by the Eur- opean Court in connection with Title II of the 1968 (Brussels) Convention and to any 17. More specifically, Thomasdünger9 and relevant decision of that Court as to the Gmurzynska10 concerned the interpreta- meaning or effect of any provision of that tion of provisions of the Common Customs Title'.

Finally, in Leur-Bloem 14and Giloy, 15 the Court was asked to give a preliminary ruling on the interpretation of directives concerning taxation and customs matters In Kleinwort Benson, Advocate General which, while not directly at issue in the Tesauro proposed that the rule in Dzodzi main proceedings, were referred to by the should be abandoned for good on the applicable national legislation. ground that, notwithstanding previous case-law, a broad interpretation of Arti- cle 177 of the Treaty (a) did not appear to be conducive to the required uniform interpretation of Community law — which is the primary purpose of the preliminary ruling procedure -, (b) jeopardised the 18. With the exception of Kleinwort Ben- binding nature of the Court's decisions, son, the Court agreed to examine the and (c) was open to direct criticism as questions referred for a preliminary ruling regards its usefulness for the national court. in all those cases. Indeed, it is notable that He states, characteristically, that the rule in it did so despite the views to the contrary Dzodzi 'in terms of general legal theory... expressed by the Advocates General. flies in the face of the logic of the pre- liminary-ruling procedure, actually result- ing — let us admit it — in a misuse of procedure'. 16

In Thomasdünger, Advocate General Man- cini concluded that the Court had no jurisdiction to reply to the questions sub- mitted, on the ground that it would thereby Advocate General Jacobs, in his Opinions in Leur-Bloem and Giloy, concurred with 13 — Case C-73/89 Fournier [1992] ECR I-5621. 14 — Case C-28/95 Leur-Bloem [1997] ECR I-4161. 15 — Case C-130/95 Giloy [1997] ECR I-4291. 16 — Point 27 of the Opinion.

the objections raised in the past by previous 19. At first sight, the scepticism of the Advocates General. First of all he questions Advocates General in their Opinions does how the purpose of ensuring that Commu- not seem to have had any impact on the nity law is uniformly applied in all the Court. I think, however, that a closer Member States is served in cases where the analysis of the aforementioned judgments Court rules in disputes in which a Com- shows that, while the rule in Dzodzi has munity rule is borrowed by a Member State not been abandoned, its scope has been and transposed to a non-Community con- reduced, or, in any event, stricter conditions text. 1 7 In such circumstances, 'the threat to have gradually been imposed on its appli- the proper application of Community law cation. The intervention of the Community in the State concerned would at most be judicature, by way of a ruling on interpre- only indirect and temporary'. 18 On the tation, in areas which it would be wrong to other hand, he states that, when the Court regard as being of direct interest to the Community legal order, has been permitted is asked to interpret a Community rule in cases where the national legislature, in outside its proper context, 'the Court runs order to avoid undesirable disparities and the risk not only of failing to consider all to strengthen the uniform application of relevant issues but also of being misled by rules of law, has expressly, directly and extraneous factors'. 19 Moreover, even unconditionally extended provisions taken assuming that the Court is able to provide straight from Community law to situations a proper interpretation of Community law of a purely domestic nature, thereby requir- in a dispute arising in a non-Community ing the national court to follow the Court's context, 'there is no certainty that the interpretation. Where, however, the refer- Court's ruling will be relevant to the ence to the Community rule by the national dispute concerned'. 20 Finally, having iden- legislature is not quite so comprehensive tified other theoretical and practical diffi- and urgent, and does not result in an culties associated with the extensive appli- absolute obligation on the part of the cation of Article 177, he concludes 'that national court to interpret the applicable the Court should only rule in cases in which national provision in the way in which the it is aware of the factual and legislative Court will indirectly indicate, the Court of context of the dispute and that context is Justice cannot have jurisdiction. one contemplated by the Community rule', because that approach 'is the only one which is consistent with legal principles and with the purpose of Article 177'. 21

21. The latter observation is clearly borne out by the Court's recent judgment in Hermès,22 which concerned the interpreta- tion of the international agreement on trade-related aspects of intellectual prop- erty rights signed by the Community in the In my opinion it would be unwise to rely context of the Agreement establishing the systematically on that rule and thereby to World Trade Organisation. The Court turn the Court, albeit for the sake of considered that it had jurisdiction to inter- harmonising the rules of law or ensuring pret provisions of that agreement, despite equal treatment, into a forum for determin- the fact that the case did not concern their ing whether extra-Community provisions application to a dispute relating to Com- are compatible with Community law. The munity law, on the ground that 'where a search for such uniformity might be detri- provision can apply both to situations mental to Community law, particularly if, falling within the scope of national law for the sake of harmonisation, we were to and to situations falling within the scope of cease to have due regard for the specific Community law, it is clearly in the Com- and unique nature of the Community legal munity interest that, in order to forestall system. This case is a prime example of that future differences of interpretation, that risk. provision should be interpreted uniformly, whatever the circumstances in which it is to apply'. 23

23. In any event, it is not necessary to seek revision of the rule in Dzodzi in order to substantiate my view that the Court should (b) The rule in Dzodzi and this case not examine the questions referred. I believe that they do not fall within the scope of that rule. Moreover, they do not relate directly to Directive 80/987 or to the rule in Francovich, but raise the issue of the 22. It is not my task here to give a full interpretation of Article 6 of the EEA assessment of, and a positive or negative Agreement in conjunction with Directive verdict on, the rule in Dzodzi. 80/987 and the judgment in Francovich with a view to determining how to apply those rules of Community case-law and 22 — Case C-53/96 Hermès [1998] ECR I-3603. written law outside the Community legal 23 — Paragraph 32. order.

24. (i) My first objection to the idea that it substance of the case. Raising such issues at is appropriate for the Court to answer the the stage of considering the admissibility of questions referred relates to the usefulness the questions, in so far as it presupposes of the reply that has been requested. The that they have already been held to be well- Court has consistently held that the pur- founded, is not justified, even for practical pose of the procedure under Article 177 of reasons. the Treaty is to provide a reply which the referring court can use in order to give judgment in the main proceedings. More- over, the Court would refuse, even in the context of the rule in Dzodzi, to examine questions submitted to it, 'if it were appar- ent... that the provision of Community law referred to the Court for interpretation was manifestly incapable of applying'. 24 I believe that that exception is applicable in 25. (ii) There is a second objection to the the present case, in so far as the questions admissibility of the questions referred referred attempt to transpose constituent which in my opinion is far more serious. parts of the Community legal order into the The questions referred in the present case law of a State which has not acceded to that differ in one significant respect from those order. which were examined by the Court in Dzodzi. In this instance, the national court is not interested in the interpretation of a Community rule which it will itself apply to a dispute which has arisen outside the Community legal order, in accordance with the recommendations and limits laid down However, there are two reasons why the by the non-Community rule applicable in above arguments, though sound, do not that dispute. The national court is asking satisfy me from a methodological point of directly in what way, to what extent and view: firstly, responsibility for determining how strictly it should apply Community whether a question referred for a prelimin- rules outside the Community legal order. ary ruling is useful lies ultimately with the That, however, does not fall within the national court; and secondly, the view that Court's jurisdiction. As the judgment in the Community provisions and the case- Dzodzi expressly states, 'the jurisdiction of law relied on by the Swedish court in the the Court is confined to considering provi- present case are 'manifestly' inapplicable to sions of Community law only. In its reply to the main action is based on an approach the national court, the Court of Justice whereby the issues of substance are exam- cannot take account of the general scheme ined at the same time as the admissibility of of the provisions of domestic law which, the questions referred. In other words, in while referring to Community law, define order to determine the extent to which the the extent of that reference. Consideration rule in Francovich is 'manifestly' inapplic- of the limits which the national legislature able to the circumstances described by the may have placed on the application of national court, it is essential to examine the Community law to purely internal situa- tions, to which it is applicable only through the operation of the national legislation, is 24 — Dzodzi, cited in footnote 11 above, paragraph 40. a matter for domestic law and hence falls

within the exclusive jurisdiction of the 27. The above reasoning might be refuted courts of the Member State'. 25 on the ground that it underestimates the need for a uniform interpretation of Arti- cle 6 of the EEA Agreement, particularly since the whole purpose of that article is to ensure the uniform interpretation of Com- munity rules. In fact, the aforementioned judgments in Leur-Bloem and Hermes clearly state that, 'where a provision can apply both to situations falling within the scope of national law and to situations falling within the scope of Community 26. Transposition of the abovementioned law', in other words where it has a dual case-law to this case leads to the following nature, as Article 6 of the EEA Agreement conclusions. The first two questions are not has, 'it is clearly in the Community interest concerned with the interpretation of Direc- that, in order to forestall future differences tive 80/987 or with clarification of the rule in interpretation, that provision should be in Francovich. They seek to ascertain the interpreted uniformly, whatever the cir- extent to which the rule in Francovich can cumstances in which it is to apply'. 26 At be applied to the main proceedings on the first sight, therefore, the above approach, basis of the interpretation and application on the basis of which the reply to the first of Article 6 of the EEA Agreement. That two questions referred for a preliminary article, like the agreement as a whole, is ruling falls outside the jurisdiction of the two-sided, having both a Community and a Court of Justice, to the extent that it also non-Community dimension. In the context falls outside the Community legal order of the questions referred in this case, it does and is inseparably linked to the general not have a Community character, but is a scheme of the law of the EFTA States and rule of an international agreement which of public international law, seems irrecon- has been incorporated into Sweden's inter- cilable with the philosophy on which the nal legal system in its capacity as an EFTA Court drew in Leur-Bloem and Hermes. In State, and not as a member of the Union, in those cases, the need for a uniform inter- accordance with the rules of national law pretation provided a sufficient basis for the and public international law. The referring Court's jurisdiction to interpret a rule with court alone has jurisdiction, taking into a dual nature (Community and non-Com- account the general scheme of the provi- munity), despite the inevitable differences sions of Swedish law and public interna- in the application of the rule interpreted. tional law, to determine the extent and the degree to which Article 6 of the EEA Agreement -still in its capacity as a non- Community rule — encompasses Commu- nity law (and in particular the provisions of Directive 80/987 and the rule in Francov- ich). The Court of Justice cannot intervene in this matter, even by means of the rule in Dzodzi.

28. In my opinion, however, the positions in the context of these proceedings, Arti- adopted by the Court of Justice in the cle 6 of the EEA Agreement must not be abovementioned judgments are not incom- interpreted for the purposes pursued by the patible with the approach I propose in the first two questions referred. present case. It should be pointed out, first of all, that the objective of achieving uni- form interpretation is not absolute. The Community judicature fully understands the limits of any attempt at harmonisation through interpretation, and for that reason 29. (iii) A feature of the above reasoning is refuses to examine the manner and limits of that while it precludes an examination of applying the rules which it is asked to the first two questions in this case, it does interpret in an area outside the Community not preclude the Court, in future, from legal order. Moreover, it is necessary to applying the rule in Dzodzi for the purpose emphasise the exceptional nature of this of clarifying a provision of the EEA Agree- case: the first two questions referred are ment by way of a ruling on interpretation, not concerned solely with the interpretation even if that provision is to be applied of a provision having both a Community outside the Community legal order, provi- and a non-Community character, that is to ded, of course, that the interpretation and say, Article 6 of the EEA Agreement; they the application of the provision in question also directly ask how that provision is to be are not interwoven as they are in this case. applied and what the consequences are of Alternatively, if the Court considers it is its application in a legal order outside the legally more correct to take more radical Community legal order. That confusion steps to preclude the examination of ques- between interpretation and application is tions referred for a preliminary ruling by a a sufficient basis on which to find that the court of a Member State which is a former Court does not have jurisdiction. EFTA State and a signatory of the EEA Agreement with a view to the interpreta- tion of the latter agreement, the following arguments may also be put forward.

not their circumstances fall within the 3 1 . Secondly, it has already been stated that scope of Community law, despite the fact it is conceivable for provisions of Commu- that the rules of law applicable in either nity law which are not directly relevant to a case are similar, if not identical. The idea of decision in the main proceedings to be harmonisation of legislation — which of interpreted by way of a preliminary ruling course includes its interpretation — is an where an extra-Community rule refers to important concern of the Treaty and a them expressly, directly and uncondition- fundamental means of furthering European ally, provided that the purpose of the

nity. I therefore consider that the rule in Dzodzi has no place here and should not be 32. It may therefore be concluded from the applied in circumstances such as those in analysis so far that the points of law raised this case, or at least that it cannot justify an by the first two questions are not ones expansion of the Court's role within the context of the preliminary-ruling procedure as it has done previously in cases involving 27 — In this connection, see point 33 et seq. below. the application of provisions of Commu- 28 — At the time of Sweden's accession to the European Union, nity interest within the law of the Member it undertook to comply with the judgments of the Court of Justice in the context of the Community legal order but not States. outside it.

which may be brought before the Court of may ask the Court of Justice of the Justice under Article 177 of the Treaty. European Communities to assist them in interpreting those rules of the EEA Agree- ment that are identical to Community provisions,29 provided that two conditions are met, one relating to substance and the other to form. First, the jurisdiction of the Court of Justice of the European Commu- nities is limited to those provisions of the B — The EEA Agreement as a possible EEA Agreement 'which are identical in legal basis for the Court's jurisdiction to substance to the provisions of the Treaties examine the questions in this case establishing the European Communities, as amended or supplemented, or of acts adopted in pursuance thereof'. Secondly, an EFTA State which intends to avail itself 33. Irrespective of the foregoing, the jur- of that possibility is required to notify the isdiction of the Court of Justice cannot be Court of Justice of the European Commu- founded on the EEA Agreement either. As nities regarding 'to what extent and accord- the Commission rightly points out, it must ing to what modalities the Protocol will be concluded, after an overall assessment of apply to its courts and tribunals'. Regard- the content and the structure of the agree- less of the extent to which the first condi- ment in question, that the Court of Justice tion is met, the fact remains that the formal of the European Communities should not condition of notification has not been be regarded as having jurisdiction in cir- fulfilled. Sweden has never availed itself cumstances such as those of this case. More of the possibility provided for in Protocol specifically, the interpretation of Article 6 34 of recognising the jurisdiction of the of the EEA Agreement, which is relevant to Court of Justice of the European Commu- the reply to be given to the first two nities to reply to the first and second questions, appears to lie within the exclu- questions referred for a preliminary ruling. sive jurisdiction of the EFTA Court, at least in so far as that interpretation relates to the application of the Agreement by an EFTA State. Article 34 of the Agreement conclu- ded between the EFTA States establishing an EFTA Surveillance Authority and Court provides that the latter has jurisdiction to give advisory opinions on the interpretation of the EEA Agreement, that is to say, to 35. The question then arises as to how determine to what extent that agreement questions of interpretation regarding the has been correctly transposed into the EEA Agreement are resolved where an national legal orders of the EFTA States. EFTA State such as Sweden accedes to the European Union. That problem was dealt

with by means of a special agreement 36. In the light of the foregoing, it is my signed in Brussels on 28 September 1994 opinion that the Court of Justice does not concerning transitional measures during have jurisdiction to reply to the first two the period following the accession of cer­ questions referred for a preliminary ruling. tain EFTA States to the European Commu­ nity. Under that agreement, the EFTA Court continues to have jurisdiction to give preliminary rulings on questions relating to cases pending before the courts of EFTA States where the facts underlying the dis­ pute in question predate that State's acces­ VI — Merits of the first two questions sion to the European Union. That extension of the EFTA Court's jurisdiction was inten­ ded to last only for a limited period of time, which had already elapsed at the time when 37. As an entirely secondary submission, I shall set out my observations regarding the the questions in this case were referred to merits of these questions. To begin with, it the Court for a preliminary ruling. How­ is necessary to define the legal issue. The ever, the fact that the EFTA Court appears, question is whether the Court's findings in at least on the basis of the provisions of the Francovich as regards the civil liability of a Agreement of 28 September 1994, to have State in the event of the incorrect transpo­ no jurisdiction ratione temporis to examine sition of a Community directive into the questions referred to the Court of national law have also become part of Justice cannot be construed as an argument ΈΕΑ law' by virtue of Article 6 of the EEA in favour of recognising the latter court as Agreement, and whether they take prece­ having jurisdiction to do so. In any event, dence over the national law of an EFTA the Court of Justice lacks jurisdiction State which has signed the EEA Agreement. ratione materiae. 30 Furthermore, even if Sweden so wished, it could not at this late stage avail itself of Protocol 34 in order to give the Court of Justice jurisdiction to interpret the rules of the EEA Agreement, for the simple reason that it is no longer a member of EFTA. 31 A — Preliminary observations

European Communities given prior to the 40. First of all, the view could be taken 34 date of signature of this Agreement'. Nor that Article 6 of the EEA Agreement, and can there be any doubt that the provisions indeed the provisions of Directive 80/987, on wage guarantees in Directive 80/987 are in so far as they are referred to in the identical to those contained in Annex X- relevant annexes to that agreement, form VIII to the EEA Agreement. Moreover, that an integral part of the Community legal annex refers directly to Directive 80/987. order in so far as they are part of a text of There is also the fact that the rule in international law which the Community Francovich, which was established in the has signed with non-member countries. 35 Court's judgment in Joined Cases C-6/90 Accordingly, the constituent parts of that and C-9/90, 32 predated the signature of the legal order, in other words its primacy, its EEA Agreement, exactly as required by direct effect and, more generally, the case- Article 6 thereof. Finally, the judgment in law of the Court of Justice which forms Francovich related to the incorrect trans- part of what is known as the 'acquis position of Directive 80/987 into the inter- communautaire', may have a place in a nal law of a Member State, a situation body of rules such as the EEA Agreement, similar, in law and in fact, to the issue in particular where this seems to be made which has been raised in the main proceed- possible by a specific provision of the ings pending before the referring court. 33 international agreement in question (Arti- cle 6 of the EEA Agreement).

I - 3569

OPINION OF MR COSMAS — CASE C-321/97

I - 3570

ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE

45. On the basis of the above, it can be structure that might be called ΈΕΑ law'. concluded that, in order to determine the That law seems to extend the scope of the content and the legal effects of the provi- Community rules to States which are not sions of Article 6 of the EEA Agreement members of the Community, and with it the and of Directive 80/987 — where the latter content which those rules have in the is applied exclusively within the context of Community legal order. They also rely on the EEA Agreement — an overall assess- Article 7 of the EEA Agreement, concern­ ment of that Agreement is required. From ing the obligation to transpose certain that assessment, and a comparison of the Community directives into the internal EEA Agreement with Community law and law of EFTA States. From that provision with the Community legal order in general, they infer the existence of an obligation on it will be possible to identify the criteria for the part of those States to incorporate the interpreting Article 6 of the EEA and acquis communautaire into their internal determining the legal consequences for an legal systems in a full and effective manner. EFTA State of its failure to comply with the That obligation, they contend, is limited in provisions of Directive 80/987, an integral scope to the particular fields to which the part of the EEA Agreement. EEA Agreement relates; it is not, however, limited as regards its force, inasmuch as it includes all the case-law of the Court of Justice in relation to those fields. Finally, they conclude that the principles of pri­ macy and direct effect laid down in Com­ munity law also extend to the EEA Agree­ ment by virtue of the specific objective of C — The EEA Agreement and Community that agreement and the characteristics of law; a comparative approach the legal mechanism for convergence with Community law which it introduces.

relations between the Contracting Parties', ever wider fields, and the subjects of which whereas 'in contrast, as far as the Commu- comprise not only Member States but also nity is concerned, the rules on free trade their nationals.... The essential characteris- and competition.... have developed and tics of the Community legal order are in form part of the Community legal order, particular its primacy over the law of the the objectives of which go beyond that of Member States and the direct effect of a the agreement'. 41 There is therefore a gap, whole series of provisions which are applic- from a teleological point of view, between able to their nationals and to the Member the EEA Agreement and the Community States themselves'.42 Treaty: while freedom of movement and undistorted competition are aims in them- selves in the EEA Agreement, for the Community they are merely the means of achieving more remote objectives, such as the establishment of an internal market, the creation of an economic and monetary 49. It follows, therefore, that the notion union and the substantive progress of that the EEA and the Community legal European Union. order largely coincide, as argued by the French Government and implied by the plaintiffs in the main proceedings, is mis- placed, in so far as it is contradicted by fundamental differences between the two legal systems, that of the EEA Agreement on the one hand and that of the Commu- nity on the other. Moreover, the aforemen- 48. However, the general context into tioned citation from Opinion 1/91 supports which the objective of the EEA Agreement the a contrario conclusion that the essential fits is also different from the context in characteristics of the Community legal which the Community objectives are pur- order, that is to say its primacy and direct sued. In Opinion 1/91 the Court of Justice effect, are exclusive to the Community and states that 'the EEA is to be established on do not extend to the legal structure created the basis of an international treaty which, by the EEA Agreement. Accordingly, the essentially, merely creates rights and obli- rule in Francovich, which is inextricably gations as between the Contracting Parties linked to the fundamental principles set out and provides for no transfer of sovereign above, cannot be transposed to the field of rights to the inter-governmental institutions the EEA Agreement either, despite what is which it sets up. In contrast, the EEC laid down in Article 6 of that Agreement. Treaty, albeit concluded in the form of an international agreement, none the less con- stitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the States have limited their sovereign rights, in 50. In my opinion, the abovementioned findings in Opinion 1/91 — which, it

should be noted, were not overturned in the EFTA States concerning compliance Opinion 1/92 43 — are sufficient to support with the rules of Community origin which an answer in the negative to the first and have been incorporated into it. However, second questions. 44 For the sake of com- those provisions are not binding on the pleteness, however, the following may be Contracting Parties in as forceful or as full observed. a manner as the corresponding provisions of primary Community law are binding on the Member States of the Community.

. .' (paragraph 109). If that sentence means that the Court's findings in Opinion 1/91 are restricted exclusively to the special 52. Furthermore, in order to avoid any context of the judicial mechanism provided for in the draft EEA Agreement, then I am bound to express my objections conflict between the rules of the EEA and to it. I believe that the reasoning followed by the Court of other legislative acts, Protocol 35 of the Justice in Opinion 1/91 concerning the substantive differ- ences between the legal structure of the EEA and that of EEA Agreement provides that the EFTA the Community is generally applicable. Moreover, the Court of First Instance states, in the same States 'undertake to introduce, if necessary, case, that 'the EEA Agreement involves a high degree of a statutory provision to the effect that EEA integration, with objectives which exceed those of a mere free-trade agreement', and that 'the EEA Agreement also rules prevail in these cases'.

In any event, the aforementioned judgment of the Court of First tion of which may require the adoption of Instance has to be seen in the light of the specific legal specific internal measures. context of that case. The Court of First Instance had been asked whether Article 10 of the EEA Agreement was essentially the same as Articles 12, 13, 16 and 17 of the EC Treaty, which prohibit customs duties on imports and exports and any charges having equivalent effect. In that

I - 3573

OPINION OF MR COSMAS — CASE C-321/97

which creates rights and obligations VII— The third question between the Contracting Parties in that area (international law) on the basis of a 'dualist' legal logic. It does not, therefore, have the essential supranational dimension which is a feature of the Community legal 55. The third question does not raise issues system. There is therefore no assimilation of admissibility, inasmuch as it clearly falls of ΈΕΑ law' into internal law, nor even any within the ambit of Community law. It interaction between the two, as there is in seeks to determine the temporal application the Community system. The EEA Agree­ of Community rules. In particular, it raises ment does not lead to a surrender of the question of the extent to which Direc­ sovereign rights by the Contracting States, tive 80/987 and the general principles of nor to an abandonment of the 'dualist' law laid down by the Court of Justice in approach to law prevalent in those States, Francovich also apply to events arising at a which is in accordance with the standard time when the State concerned had not yet reference works on international law. acceded to the European Union.

active effect and the immediate effect of the what matters, as I stated earlier, is to rule. In order to distinguish between them, identify the rule in force at the time when regard must be had to the temporal aspects the legal situation becomes fixed. of the situations governed by the rule. 48 Retroactive effect consists in the applica- tion of the rule to situations which were permanently fixed before that rule came into force. 4 9Immediate effect, which, in principle, works likewise according to the principle tempus regit actum, consists in applying the rule to situations which are 59. Those criteria have also been applied continuing. 50This means that the temporal by the Court in its case-law and I have scope of a rule also includes the future selected the following four judgments as effects of ongoing situations which were examples. created but were not permanently fixed before the rule entered into force.

48 — Idem, paragraph 348 et seq. 49 — Idem, paragraph 354 et seq. and paragraph 765 et seq. 52 — Joined Cases C-140/91, C-141/91, C-278/91 and C-279/91 50 — Idem, paragraphs 356 and 865 et seq. Suffritti and Others [1992] ECR I-6337. 51 — Idem, paragraph 635 et seq. 53 — Suffritti, cited in footnote 52 above.

I - 3575

OPINION OF MR COSMAS — CASE C-321/97

o c c u r r i n g on or after 31 D e c e m b e r 1988', 57 the date of expiry of the time- limit for transposition of Directive 84/5. Recently, in Kuusijärvi, 60 the question referred for a preliminary ruling was whe- ther Regulation N o 1408/71 6 1 applies to a person who, on the entry into force of that regulation in Sweden, was residing in that State as an unemployed person, having Saldanha and MTS 58concerned a rule of previously been in employment there dur- Austrian civil procedure requiring nationals ing a period when Sweden was not a of other Member States not resident in member of the European Union.

Community. From the date of accession, relied on Article 94 of the regulation, therefore, nationals of another Member which provides expressly that a right arises State can no longer be made subject to a under that regulation even in relation to a procedural rule which discriminates on contingency which materialised prior to the grounds of nationality, provided that such date of entry into force of that regulation in a rule comes within the scope ratione the territory of the Member State in question, and that all insurance periods as well as all periods of employment or 54 — Case C-316/93 Vaneetveld [1994] ECR I-763. 55 — Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of 59 — Paragraph 14. motor vehicles (OJ 1984 L 8, p. 17). 60 — Case C-275/96 Kuusijärvi [1998] ECR 1-3419. 56 — Paragraph 16. 61 — Regulation (EEC) No 1408/71 of the Council of 14 June 57 — Paragraph 18. 1971. 58 — Case C-122/96 Saldanha and MTS [1997] I-5325. 62 — Paragraph 23.

In Suffritti, the legal situation to which the Finally, as far as the judgment in Kuusijärvi Community rule related, namely the insol- is concerned, the position adopted by the vency of the employer, was permanently Court, which is, moreover, based on the fixed at the time when the insolvency express intention of the author of Regula- occurred, that is to say before the expiry tion No 1408/71, is entirely justified. The of the time-limit for the transposition of the legal situation which arises from an indivi- directive concerned. dual's affiliation to a social security scheme, employment or residence, with respect to the entitlement to social security benefits which it creates, is permanently fixed upon fulfilment of the conditions for In Vaneetveld, the legal situations covered confirming that entitlement, or, if appro- by the directive in question were road priate, upon presentation of the relevant accidents. It was therefore rightly held that application by the person concerned. Con- the relevant time for the purposes of sequently, the fact that the entitlement selecting the applicable rule was the time claimed by the applicant under Regulation when the road accident took place. Both No 1408/71, in an action which she those cases actually concerned temporary brought after the entry into force of that legal situations which did not pose any regulation in Sweden, related to periods of

I - 3577

OPINION OF MR COSMAS — CASE C-321/97

I - 3578

ANDERSSON AND WÅKERÅS-ANDERSSON V SWEDISH STATE

(2) Circumstances which are permanently fixed prior to the accession of a State to the European Union do not, in principle, fall within the scope of the rules of Community law. In particular, Council Directive 80/987/EEC on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer does not apply to circumstances which became fixed prior to Sweden's accession to the European Union. Accordingly, the legal consequences arising from the incorrect transposition of that directive into national law do not apply to circumstances which were already fixed prior to Sweden's accession to the European Union.

I - 3579