61993C0312

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My Lords,

1. In this case, the Court is asked to rule, on a reference from the Court of Appeal of Brussels, on whether Community law requires a national court to set aside certain provisions of national law which have the effect of precluding the national court from applying Community law.

2. The question referred has arisen in the context of proceedings between, on the one hand, Peterbroeck, Van Campenhout & Cie ("Peterbroeck"), a société en commandite simple formed under Belgian law, acting on its own behalf and on behalf of Continentale & Britse Trust BV ("CBT"), a company incorporated under Dutch law, and, on the other hand, the Belgian State.

3. In the tax year 1975, the Belgian tax authorities levied non-resident tax on the income that CBT earned as "active partner" of Peterbroeck. The decision levying the tax fixed the rate of that tax at 44.9 per cent. On 22 July 1976 and on 24 January 1978, Peterbroeck lodged complaints with the Regional Director of Direct Contributions ("the director") against the levying of that tax. It argued that the income in question should be taxed at the rate applicable to companies resident in Belgium, which at the material time did not exceed 42 per cent. By a decision dated 23 August 1979, the director rejected most of those complaints. Peterbroeck brought proceedings in the national court against that decision, in the course of which the present reference for a preliminary ruling has been made.

4. In the main proceedings, Peterbroeck claimed that tax should be levied at the rate applicable to companies resident in Belgium on the basis of two arguments: first, on the basis of Article 25(1) of the Agreement of 19 October 1970 between Belgium and the Netherlands on the Prevention of Double Taxation, which provides that companies resident in the Netherlands cannot be taxed in Belgium more heavily than Belgian companies which are in the same situation; and secondly, on the basis of Article 52 of the Treaty, which provides for the fundamental freedom of establishment.

5. Peterbroeck had raised the first argument in the complaints that it lodged with the director. The national court rejected the argument on the ground that CBT, which has no establishment in Belgium, is not in the same situation as Belgian companies, which are subject to corporation tax, and that it cannot therefore benefit from the principle of equal treatment provided for by Article 25(1) of the Double Taxation Agreement.

6. Peterbroeck submitted the argument based on Article 52 of the Treaty for the first time at a rather late stage in the proceedings before the national court. The Belgian authorities claimed that that argument was inadmissible on the ground that it was submitted outside the time-limit laid down by the Belgian Income Tax Code (Code des impôts sur les revenus, "CIR"). It was that claim which prompted the national court to make this reference.

7. In what follows I shall first discuss the relevant provisions of the CIR. I shall then examine the issues arising from the question referred.

8. Under the CIR, proceedings against the imposition of tax are divided into two stages, an administrative stage and a judicial stage. (1) The administrative stage is governed by Articles 267 to 276 of the CIR. (2) It begins with the lodging of a complaint with the director. (3) The complaint must be lodged by 30 April of the year following the year in which the tax was levied. However, the period within which the complaint must be lodged cannot be less than six months from the date of the tax statement imposing the tax. (4) Until the director takes a decision, the taxable person may submit new arguments in support of his complaint. (5) The administrative stage is completed with the issue of the director' s decision.

9. The judicial stage before the Court of Appeal is governed by Articles 278 to 286 of the CIR. (6) The taxable person may appeal against the decision of the director to the Court of Appeal within 40 days from the notification of that decision. (7) According to Article 278, the taxable person has the right to submit in the Court of Appeal new arguments - that is to say, arguments which he had not submitted in the complaint lodged with the director and which the director had not examined of his own motion - which concern the infringement of a law or the infringement of a procedural requirement, breach of which leads to nullity. Under Article 279(2), the new arguments provided for in Article 278 must be submitted within the time-limit prescribed in Article 282; otherwise they will be rejected as inadmissible. Article 282 fixes that time-limit at 60 days from the submission by the director of the contested decision and the case file to the Court of Appeal.

10. It appears that, according to the case-law of the Belgian Cour de Cassation, the Court of Appeal may not examine of its own motion issues which the taxable person is not entitled to raise after the expiry of the time-limit laid down by Article 282. (8) It follows that that time-limit has two effects. It renders inadmissible new arguments submitted by the taxable person and it prohibits the Court of Appeal from examining those arguments of its own motion.

11. The CIR does not provide for any exceptions to the rule that the taxable person must submit new arguments within the time-limit prescribed by Article 282. It appears, however, that some exceptions are recognized by the case-law of the Cour de Cassation. Under that case-law, the taxable person may submit, and the Court of Appeal may raise of its own motion, even after the expiry of the 60 day period, the objection that the imposition of the tax in question is time-barred and the objection that the matter under dispute is res judicata. The taxable person may also submit new arguments which for reasons of force majeure he was unable to submit at an earlier stage in the proceedings. (9)

12. It is clear from the order for reference that Peterbroeck submitted the claim based on Article 52 of the Treaty after the expiry of the 60 day time-limit and that that claim is a new argument within the meaning of Article 278 of the CIR. Under Article 279(2), therefore, it should be rejected as inadmissible.

13. In the order for reference, however, the Court of Appeal questions the compatibility of the time-limit imposed by the CIR with Community law. It states that the plea of inadmissibility raised by the director prevents it from raising of its own motion the claim based on Article 52. The result is that the rules of the CIR restrict the power of the Court of Appeal to consider the compatibility of the national law with Community law and also its power to request a preliminary ruling under Article 177. The rules of the CIR have as a further consequence that, with regard to the right of the taxpayer or the Court of Appeal to raise a claim based on Community law, that law is treated less advantageously than certain principles of national law such as the time-bar on the right to impose taxation and the force of res judicata, breach of which can be raised irrespective of any time-limit.

14. The question referred by the Court of Appeal is in the following terms:

"Must Community law be interpreted as meaning that a national court hearing a dispute concerning Community law must set aside a provision of national law which it considers makes the power of the national court to apply the Community law which it is bound to safeguard subject to the making of an express application by the plaintiff in the dispute within a short time-limit which, however, does not apply to applications based on the breach of an - albeit limited - number of principles of national law, in particular the bar on the right to impose taxation outside a given period and the force of res judicata?"

15. The national court does not seek guidance on the substantive issue whether the imposition of tax at the rate applicable to non-resident companies on the income that CBT earned as an active partner of Peterbroeck is compatible with Article 52 of the Treaty. It is sufficient to point out here that Article 52 of the Treaty has direct effect (10) and that, according to the case-law of the Court, a Member State may not impose on a company discriminatory tax treatment on the ground that its registered office is located in another Member State. (11) Nor may it use the criterion of fiscal residence in its territory for the purpose of granting certain tax advantages to companies when that criterion is likely to work in particular to the disadvantage of companies having their registered office in another Member State. (12)

16. The issue raised by the national court is not, however, that substantive issue, but is essentially whether it is compatible with Community law that under the provisions of the CIR an argument based on Community law cannot be considered by the national court unless it has been raised by the taxable person within the prescribed period.

17. It has long been established by this Court' s case-law that, in the absence of Community rules, it is for the domestic legal system of each Member State to determine the courts having jurisdiction and the procedural conditions governing actions intended to ensure the protection of directly effective Community rights, provided that those conditions fulfil two requirements: they are not less favourable than the conditions relating to similar actions of a domestic nature; and they do not render virtually impossible (13) or excessively difficult (14) the exercise of rights conferred by Community law. It is necessary therefore to examine whether the provisions of the CIR fulfil those two requirements. I will examine first the requirement of non-discrimination.

18. As the Belgian Government and the Commission point out, Article 278 allows the taxable person to advance certain new arguments in the Court of Appeal within the time-limit provided for in Article 282, irrespective of whether those arguments are based on national law or on Community law; Article 278 is therefore compatible with the requirement of non-discrimination.

19. Peterbroeck takes the view, however, that Belgian law infringes the requirement of non-discrimination because all arguments based on Community law are subject to the time-limit provided for by Article 282 of the CIR, whereas certain arguments based on national law are not so subject.

20. There is no doubt that where national law provides for certain exceptions from the procedural rules which apply in national proceedings, those exceptions must benefit not only arguments based on national law but also similar arguments based on Community law. Otherwise the requirement of non-discrimination would be infringed. However, the fact that certain arguments based on national law benefit from preferential treatment does not mean that that treatment should be accorded automatically to all arguments based on Community law, irrespective of their nature. With those considerations in mind, I turn to examine the specific exceptions to the rule that new arguments may not be advanced after the expiry of the 60 day time-limit.

21. The fact that those exceptions are not provided for by the CIR itself but are laid down in the case-law of the Cour de Cassation is of no significance. The requirements of Community law concerning the procedural conditions governing actions intended to ensure the protection of Community rights before national courts must be respected by the legal system of the Member State concerned as a whole. Whether a breach of those requirements occurs as a result of legislative or administrative action or as a result of judicial decisions is not material.

22. In the order for reference, the referring court cites two of the exceptions provided for by the case-law of the Cour de Cassation: namely, the claim that the issue in dispute is res judicata and the claim that the imposition of the tax in question is time-barred. The third exception which appears to be recognized by the case-law of the Cour de Cassation, i.e. that the taxable person may raise even after the 60 day time-limit arguments which he was unable to raise on the grounds of force majeure at an earlier stage in the proceedings, is not referred to in the order for reference. For completeness, however, I shall examine it.

23. The fact that the time-limit provided for by the CIR is subject to an exception with regard to the force of res judicata does not mean that an exception to that time-limit must be recognized with regard to a claim based on a directly effective provision of Community law. As the Belgian Government points out, the objection of res judicata is not comparable to such a claim. It is a general principle of law, recognized by all Member States, that disputes which have been resolved by a final judicial decision are definitively settled and cannot be subject to a fresh judicial examination. The force of res judicata represents the minimum binding effect which a judgment can have. It constitutes a limitation on the jurisdiction of the court on which the parties to the proceedings must be able to rely and which the court must be able to take into account of its own motion at any stage in the proceedings.

24. That is confirmed by reference to Community law. The Court has stated that "the force of res judicata prevents rights confirmed by a judgment of the Court from being disputed anew" (15) and there can be no doubt that this Court may take into account the existence of res judicata of its own motion at any stage in the proceedings. (16)

25. Similar considerations apply with regard to the argument that the imposition of the tax in issue in the proceedings is time-barred. That argument is a preliminary issue different in nature from the arguments which may be directed against the substantive legality of the tax imposed, including the argument that the tax in issue is contrary to Community law, and may enjoy preferential treatment under the procedural rules of a national legal order. The requirement of non-discrimination is satisfied provided that a claim that the imposition of taxation is time-barred can be raised after the 60 day time-limit irrespective of whether the tax in question is time-barred as a result of a rule of national law or as a result of a rule of Community law.

26. The exception of force majeure is different from the exceptions discussed above. It facilitates the submission of arguments which, irrespective of their nature, the taxable person was unable to submit within the requisite time-limit because of circumstances beyond his control. It is clear that to be compatible with the principle of non-discrimination, that exception must apply not only to arguments based on national law but also to arguments based on Community law.

27. There is no suggestion in the present case that Peterbroeck' s claim would fall within one of the exceptions recognized by Belgian law if the exception were applied without discrimination. Nor in my view, for the reasons I have given, is Peterbroeck' s claim comparable with any of the exceptions recognized by Belgian law. Moreover those exceptions are in themselves reasonable and normal exceptions. It follows that the argument based on discrimination must fail.

28. I turn now to examine the requirement that the procedural rules of national law must not render the protection of Community rights virtually impossible or excessively difficult. That requirement is separate from, and must be fulfilled in addition to, the requirement of non-discrimination. That was made clear in the judgment of the Court in San Giorgio (17) and is confirmed by the judgments in Deville (18) and in Emmott. (19)

29. The Court has held that the exercise of Community rights is not unduly obstructed where reasonable time-limits are fixed for the bringing of an action; the laying down of such time-limits for actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the tax-payer and the administration concerned. (20)

30. In the present case, the conclusion that the 60 day time-limit provided by the CIR is reasonable is supported by the analogy in Community law of Article 173 of the Treaty, under which the time-limit provided for the submission of an application to this Court or the Court of First Instance for the annulment of a Community act is two months.

31. It should also be noted that the applicant in such proceedings is in principle precluded from subsequently raising new issues: Article 42 of this Court' s Rules of Procedure provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. Exceptionally, however, as mentioned above (paragraph 24), certain issues may be raised at any stage in the proceedings.

32. In assessing the reasonableness of the time-limit in issue in the Belgian proceedings, it must also be noted that the period of 60 days does not start from the day when the taxable person appeals to the Court of Appeal against the decision of the director but from the submission by the director of that decision together with the case file to the Court of Appeal. That gives additional time to the taxable person to prepare his submissions.

33. The Belgian Government states that account must also be taken of the administrative stage in the proceedings. As we have seen, the taxable person has a considerable period of time to launch a complaint against the imposition of tax and until the director reaches a decision he can submit new arguments in support of his complaint. It will be remembered that in this case Peterbroeck submitted a complaint to the director on 22 July 1976 and the director reached his decision on 27 August 1979.

34. I accept that in some cases it may be appropriate, in assessing the reasonableness of a time-limit, to take account of the administrative stage in the proceedings. It is unnecessary, in my view, to do so in this case, since I take the view that the time-limit provided for by the CIR is in any event not unreasonably short and does not prevent a taxable person from claiming rights based on Community law.

35. In the order for reference the national court also raises the question whether it is compatible with Community law that, once the time-limit prescribed by the CIR has expired, the Court of Appeal is prohibited by rules of national law from dealing with the issue of Community law of its own motion. Such rules of national law could preclude the national courts, not only from examining the compatibility of national legislation with Community law, but also from referring questions of Community law to this Court for a preliminary ruling under Article 177 of the Treaty. The Court of Appeal raises the question whether the restriction imposed on its power to examine of its own motion the compatibility of the contested tax with Article 52 of the Treaty infringes Community law. It refers to the judgments of the Court in Simmenthal (21) and Factortame (22) and asks whether a national court, since it has a duty to give full effect to Article 52, is therefore required to set aside the provisions of the CIR which may impede the effective protection of the rights arising from that article.

36. It seems to me, however, that the question whether the national court can be precluded from raising of its own motion issues of Community law cannot be divorced from the question which I have already discussed. Indeed, one may be the corollary of the other. As the Belgian Government points out, the powers of a court are in general delimited by the claim with which the court is seised. Consequently, where a court cannot raise new issues of its own motion, that may be the corollary of the fact that the claimant is precluded from raising new issues. Conversely, if the national court were free, or indeed required, to raise a new issue of its own motion at any time, that might have the effect that it could do so at the instance of a party, who might therefore be able to bring it to the attention of the court, irrespective of any time-limit. As I shall explain, however, I do not take the view that a national court must be free to raise an issue of Community law of its own motion irrespective of any time-limit imposed by national law.

37. It is of course true that, notwithstanding the time-limits which it lays down, national law sometimes recognizes that certain issues may be raised at any time by the court of its own motion. The position in Belgian fiscal law has been set out above. The position in French law is set out in the observations of the French Government. It appears that in French law the court may always examine of its own motion issues of public policy (moyens d' ordre public), but the question what constitutes such an issue depends on the nature of the proceedings. In civil proceedings, the court must consider of its own motion certain issues of admissibility, for example a failure to observe the time-limit within which the action should have been brought. But in French public law, as well as issues going to the jurisdiction of the court and the admissibility of the action, certain substantive issues are regarded as issues of public policy, for example the issue of lack of competence of the administrative authority and the issue whether the contested act was adopted on the basis of the legal rules in force at the time.

38. The position is not dissimilar in Community law itself. What constitutes an issue which this Court will examine of its own motion, depends, as in national law, on the nature of the proceedings. In proceedings for the review of the legality of Community measures before this Court or the Court of First Instance, for example under Article 173 or Article 179 of the Treaty, it will be for the parties to define the issues and hence to delimit the scope of the action, but the Court will examine of its own motion whether, for example, the time-limits for bringing the action have been observed. (23) However, in actions for compensation brought against the Community under the second paragraph of Article 215 of the Treaty, the Court will not of its own motion raise the issue of time limitation under Article 43 of the Protocol on the Statute of the Court of Justice of the EC where that issue has not been raised by the defendant - that position receiving some support, in cases of non-contractual liability, if one invokes the "general principles common to the laws of the Member States" referred to in the second paragraph of Article 215. (24) In a reference for a preliminary ruling under Article 177 of the Treaty, on the other hand, the proceedings are not contentious (25) and the Court will in some circumstances raise issues going beyond the observations submitted to the Court, in order to give the national court the fullest guidance on the questions of Community law relevant to that court' s decision.

39. Similarly the power or duty of a court to raise of its own motion issues which have not been raised by the parties may depend upon the stage which the case has reached. Different considerations may apply depending on whether, for example, an administrative decision, as in the present case, is subject to judicial review, or whether an appeal is brought against a decision of a court of first instance, or whether a further appeal is made on a point of law. Given the variety of situations which have to be considered, it would be anomalous, in my view, and would create difficulties in practice, if it were held that national courts must in all circumstances and at any stage in the proceedings be free to raise issues of Community law. It might also result in unnecessary incursions into the procedural autonomy of the legal systems of the Member States.

40. The case-law of the Court in this area establishes a balance between, on the one hand, the need to respect that autonomy and, on the other hand, the need to ensure the effective protection of Community rights in the national courts. That is true both of the case-law on the subject of time-limits which I have set out above and of the decisions in Simmenthal and Factortame which are mentioned in the order for reference and are relied on by Peterbroeck, and which illustrate the Court' s concern for the effective protection of Community rights.

41. In Simmenthal the Pretore di Susa raised the question whether the national court was required itself to set aside certain measures of national law which had been found by this Court to be incompatible with Community law, without waiting for those measures to be repealed by the Italian legislature or to be declared unconstitutional by the Italian Constitutional Court. In response to that question, the Court held that "every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule". (26) The Court accordingly ruled that "a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means".

42. In Factortame, the House of Lords requested a preliminary ruling on the question whether a national court is required to grant interim relief by suspending the application of a national statute in order to protect rights claimed under Community law pending a reference to the Court, where that form of interim relief was not available under national law. The Court recalled that it is for the national courts, in application of the principle of cooperation laid down in Article 5 of the Treaty, to ensure the legal protection which persons derive from the direct effect of provisions of Community law. (27) Referring to its judgment in Simmenthal, the Court held: (28)

"... any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with those requirements, which are the very essence of Community law ... .

... the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule."

43. The decisions in Simmenthal and Factortame were necessary to ensure that the court seised was not precluded from giving effect to the Community rights claimed in the respective national proceedings. The decisions demonstrate the way in which Community law can have an impact - indeed a remarkable impact - on national procedures. But it will be noted that in both cases the effect of Community law was to exclude a national rule which would have made the judicial protection of Community rights by the court seised wholly impossible. Those cases show, therefore, that it must always be possible for an individual to bring a claim before a national court and to require the national court to protect his Community rights. They do not suggest that it must in all circumstances be open to the national court, as a matter of Community law, to raise of its own motion issues which the parties have failed to raise.

44. Nor in my view can that proposition be supported by reliance on Article 177 of the Treaty. The Court' s case-law on that article establishes that where a question of Community law is raised before the national court, no rule of national law can preclude the national court from referring the question to this Court. (29) Article 177 does not, I think, address the prior question in what circumstances a national court may itself raise of its own motion a point of Community law. It is true that in Rheinmuehlen the Court stated that Article 177 gives national courts the power and, where appropriate, imposes on them the obligation to refer a case for a preliminary ruling "as soon as the judge perceives either of his own motion or at the request of the parties that the litigation depends on a point referred to in the first paragraph of Article 177". (30) But the Court was not, I think, suggesting that it must always be open to a national court to raise of its own motion a point of Community law; read in the context of the case, the ruling in Rheinmuehlen was concerned with the scope of the national court' s power to refer to the Court of Justice a question of Community law which had already been raised, notwithstanding rules of national law which might have been understood as having the effect of limiting that power. Moreover the formulation adopted in Rheinmuehlen makes it clear that the terms of Article 177, referring in both the second and the third paragraphs to cases where a question of Community law "is raised" before a national court, do not limit the scope of Article 177 to cases where the question is raised by a party. The case-law establishes that Article 177 applies also where the national court "perceives of its own motion" that a question of Community law may be relevant. (31) But the case-law does not suggest that a national court must be able by virtue of Article 177 to raise a question of Community law of its own motion in all circumstances and at any stage in the national proceedings.

45. That view is confirmed by the judgment in Verholen, (32) in which the Court referred to the above citation from the Rheinmuehlen judgment on the scope of Article 177 and ruled that Community law does not preclude a national court from examining of its own motion whether national rules are in conformity with a directive where the individual has not relied on that directive before the national court. The Court did not adopt the suggestion mentioned in the Opinion of Advocate General Darmon that a national court has a duty to raise of its own motion the existence of a Community rule. (33)

46. It seems to me therefore that national law may preclude a national court from considering a point of Community law which has not been raised by one of the parties in accordance with the procedural requirements imposed by national law, subject to the provisos which have been established by this Court' s case-law, namely that the national rules must not discriminate in any way between points of Community law and points of national law, and that they must not render excessively difficult the protection of rights guaranteed by Community law.

Conclusion

47. I am accordingly of the opinion that the question referred should be answered as follows:

Community law does not preclude a rule of national law which prevents a national court from taking account of an argument based on Community law unless it has been raised by one of the parties to the proceedings within a specified time-limit, provided that that rule applies without discrimination to similar arguments based on national law and that it does not render excessively difficult the protection of rights guaranteed by Community law.

(*) Original language: English.

(1) - According to the observations of the Belgian Government, the director statue en fonctionnaire et n' exerce aucune fonction judiciaire mais sa décision sur la contestation faisant l' objet de la réclamation est un acte de juridiction qui a l' autorité de la chose jugée . For the position of the director in Luxembourg see Case C-24/92 Corbiau [1993] ECR I-1277.

(2) - Following the coordination of the provisions relating to income tax effected by a Royal Decree of 10 April 1992 (Moniteur belge 30 July 1992), Articles 267 to 276 were renumbered 366 to 375 respectively with effect from the tax year 1992.

(3) - CIR, Article 267.

(4) - CIR, Article 272.

(5) - CIR, Article 273.

(6) - See note above. Those articles have now been renumbered 377 to 385.

(7) - CIR, Articles 278 to 280.

(8) - Decision of the Cour de Cassation of 10 December 1990.

(9) - Decision of the Cour de Cassation of 10 April 1962 and see also Commentaire administratif du code des impôts sur les revenus.

(10) - See e.g. Case 2/74 Reyners v Belgium [1974] ECR 631.

(11) - Case 270/83 Commission v France [1986] ECR 273.

(12) - Case C-330/91 The Queen v Inland Revenue Commissioners, ex parte Commerzbank AG [1993] ECR I-4017.

(13) - See e.g. Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, paragraph 5 of the judgment; Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 12; Case C-208/90 Emmott [1991] ECR I-4269, paragraph 16. See also Joined Cases C-31/91 to C-44/91 Lageder and Others [1993] ECR I-1761, paragraphs 27 to 29.

(14) - See San Giorgio, cited in note , paragraph 14 of the judgment; Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 43.

(15) - Joined Cases 79 and 82/63 Reynier v Commission [1964] ECR 259, p. 266.

(16) - See Joined Cases 29, 31, 36, 39-47, 50 and 51/63 Usines de la Providence v High Authority [1965] ECR 911, per Advocate General Roemer, p. 951.

(17) - San Giorgio, cited in note , paragraph 17 of the judgment.

(18) - Case 240/87 Deville v Administration des Impôts [1988] ECR 3513. See also Case 309/85 Barra v Belgium and another [1988] ECR 355.

(19) - Emmott, cited in note .

(20) - See Rewe, cited in note , paragraph 5 of the judgment; Emmott, cited in note , paragraph 17.

(21) - Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629.

(22) - Case C-213/89 Factortame and Others [1990] ECR I-2433.

(23) - See for example Case 33/72 Gunnella v Commission [1973] ECR 475.

(24) - Case 20/88 Roquette Frères v Commission [1989] ECR 1553; see the Opinion of Advocate General Darmon, paragraph 13.

(25) - See Case 6/64 Costa v ENEL, order of 3 June 1964 [1964] ECR 614.

(26) - Paragraph 21 of the judgment.

(27) - Paragraph 19 of the judgment.

(28) - Paragraphs 20 and 21 of the judgment.

(29) - Case 166/73 Rheinmuehlen v Einfuhr- und Vorratsstelle Getreide [1974] ECR 33, paragraphs 3 and 4 of the judgment. See also Case 146/73 Rheinmuehlen-Duesseldorf v Einfuhr- und Vorratsstelle Getreide [1974] ECR 139; Joined Cases C-87/90, C-88/90 and C-89/90 Verholen and Others [1991] ECR I-3757, paragraph 15 and Case C-348/89 Mecanarte [1991] ECR I-3277, paragraphs 44 and 48.

(30) - Case 166/73, cited in note , paragraph 3 of the judgment.

(31) - See also Case 126/80 Salonia v Poidomani and Giglio [1981] ECR 1563, paragraph 7 of the judgment.

(32) - Cited above, note .

(33) - Paragraph 19 of the Opinion.