OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 5 JUNE 1980

My Lords,

I hope that I shall be acquitted of any discourtesy to Counsel if in these cases I express my opinion at once and briefly. I do so because it seems to me that with one minor qualification the questions that are referred to the Court are answered by the judgments delivered by the Court on 27 February of this year in Case 68/79 the fust case and on 27 March of this year in Case 61/79 the Denkavit Italiana case and in Cases 66, 127 & 128/79 the Salumi, Vasanelli and Ultrocchi cases. I see no reason to invite Your Lordships to depart from what the Court there said. I agree in that respect with the Opinion delivered by Mr. Advocate General Capotorti on 6 May in Case 130/79 the Express Dairy Foods Ltd. case. Those judgments were, of course, delivered after the orders for reference in the present cases had been made. The one qualification to which I referred is that those judgments make no mention of Article 171 of the Treaty whereas the first question referred to the Court in Case 826/79 does mention it. It is, however, in my opinion, manifest that a judgment of the Court of the kind to which Article 171 applies, like a judgment under Article 177 cannot create new law. It can only be declaratory of what the law has been. That must be so since such a judgment entails a finding that the Member State concerned “has failed to fulfil an obligation” under the Treaty.

In my opinion, therefore, Your Lordhips should in these cases follow the authorities that I have mentioned. It is not in my opinion for this Court to try to resolve the doubts and difficulties arising from the relevant Italian law which have been discussed during the argument before us.