61964J0020

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1 . PROCEDURE - PRELIMINARY RULING - JURISDICTION OF THE COURT - INTERPRETATION

( EEC TREATY, ARTICLE 177 )

2 . PROCEDURE - PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY, ARTICLE 177 )

3 . ELIMINATION OF QUANTITATIVE RESTRICTIONS - PROCESS

1 . CF . PARA . 1 OF SUMMARY IN CASE 6/64, ( 1964 ) ECR 585 .

IN THE CONTEXT OF REQUESTS FOR PRELIMINARY RULINGS, THE COURT HAS NO JURISDICTION EITHER TO APPLY THE TREATY TO A SPECIFIC CASE OR TO DECIDE UPON THE VALIDITY OF A PROVISION OF DOMESTIC LAW IN RELATION TO THE TREATY, AS IT WOULD BE POSSIBLE FOR IT TO DO UNDER ARTICLE 169 . NEVERTHELESS, THE COURT HAS POWER TO EXTRACT FROM A QUESTION IMPERFECTLY FORMULATED BY THE NATIONAL COURT THOSE QUESTIONS WHICH ALONE PERTAIN TO THE INTERPRETATION OF THE TREATY .

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2 . CF . PARA . 2 OF SUMMARY IN CASE 6/64, ( 1964 ) ECR 585 . ARTICLE 177 IS BASED UPON A CLEAR SEPARATION OF FUNCTIONS BETWEEN NATIONAL COURTS AND THE COURT OF JUSTICE AND CANNOT EMPOWER THE LATTER EITHER TO INVESTIGATE THE FACTS OF THE CASE OR TO CRITICIZE THE GROUNDS AND PURPOSE OF THE REQUEST FOR INTERPRETATION .

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3 . THE TREATY DOES NOT IMPLY THE IMMEDIATE ABROGATION OF MEASURES FOR CONTROLLING IMPORTS EXISTING WHEN IT ENTERED INTO FORCE, BUT DOES ON THE OTHER HAND INVOLVE THE PROHIBITION OF ANY NEW RESTRICTION OR DISCRIMINATION, THE OBLIGATION PROGRESSIVELY TO ABOLISH EXISTING RESTRICTIONS AND DISCRIMINATIONS AND THE NECESSITY THAT THEY SHOULD DISAPPEAR TOTALLY AT THE LATEST BY THE END OF THE TRANSITIONAL PERIOD .

IN CASE 20/64

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNALE CIVILE DI ROMA FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

S.A.R.L . ALBATROS, HAVING ITS REGISTERED OFFICE IN ROME,

PLAINTIFF,

AND

SOCIETE DES PETROLES ET DES COMBUSTIBLES LIQUIDES ( SOPECO ), HAVING ITS REGISTERED OFFICE IN PARIS,

DEFENDANT,

P.33

AS TO THE JURISDICTION OF THE COURT

IT IS OBJECTED THAT THE QUESTIONS SUBMITTED TO THE COURT ARE LIKELY TO LEAD, THROUGH THE USE OF ARTICLE 177, TO A DECISION ON THE CONFORMITY OF LAWS AND ADMINISTRATIVE MEASURES OF A MEMBER STATE WITH THE TREATY .

P.34

THIS ARTICLE PROVIDES THAT NATIONAL COURTS OR TRIBUNALS MAY MAKE A REFERENCE TO THE COURT FOR A PRELIMINARY RULING ON THE ' INTERPRETATION OF THE TREATY ' WHEN SUCH A QUESTION IS RAISED BEFORE THEM . HOWEVER, ON THE BASIS OF THIS PROVISION THE COURT CAN NEITHER APPLY THE TREATY TO A GIVEN CASE NOR GIVE JUDGMENT ON THE VALIDITY OF A MEASURE OF NATIONAL LAW WITH REGARD TO IT, AS IT IS REQUIRED TO DO UNDER ARTICLES 169 AND 170 . IT MAY, NONETHELESS, EXTRACT FROM THE WORDING OF THE REFERENCE SUBMITTED TO IT BY A NATIONAL COURT OR TRIBUNAL THE QUESTIONS ARISING AS A PRELIMINARY MATTER CONCERNING THE INTERPRETATION OF THE TREATY . IN THE PRESENT CASE IT MUST THEREFORE NOT GIVE JUDGMENT ON THE VALIDITY WITH REGARD TO THE TREATY OF THE FRENCH LEGISLATION CONCERNING THE IMPORTATION OF PETROLEUM, BUT ONLY INTERPRET THE PROVISIONS OF THE SAID TREATY IN THE LIGHT OF THE LEGAL PARTICULARS PROVIDED BY THE ROME COURT .

IT IS OBJECTED THAT THE LATTER HAS REQUESTED, ESPECIALLY IN QUESTIONS B AND D, AN INTERPRETATION OF THE TREATY WHICH WAS NOT NECESSARY TO THE RESOLUTION OF THE PROCEEDINGS BEFORE IT .

HOWEVER, ARTICLE 177, BEING BASED ON A CLEAR SEPARATION OF FUNCTIONS BETWEEN NATIONAL COURTS OR TRIBUNALS AND THE COURT OF JUSTICE, DOES NOT PERMIT THE LATTER TO TAKE COGNIZANCE OF THE FACTS OF THE CASE OR TO FIND FAULT WITH THE GROUNDS FOR MAKING THE REQUEST FOR INTERPRETATION . THE OBJECTIONS RAISED AGAINST THE JURISDICTION OF THE COURT MUST THEREFORE BE DISMISSED .

ON THE SUBSTANCE OF THE CASE

IT FOLLOWS FROM THE ORDER OF THE ROME COURT MAKING THE REFERENCE THAT THE QUESTIONS WERE DRAFTED AS THE RESULT OF AN ACTION FOR THE EXECUTION OF A CONTRACT OR FOR COMPENSATION FOR THE DAMAGE RESULTING FROM THE TERMINATION OF THE SAID CONTRACT, AN ACTION AGAINST WHICH TWO OBJECTIONS WERE RAISED, BASED FIRST ON THE NULLITY OF THE CONTRACT ON THE GROUND OF A FUNDAMENTAL MISTAKE OF LAW AND SECONDLY ON THE IMPOSSIBILITY OF PERFORMANCE BY REASON OF THE UNFORESEEABLE FACT THAT THE TREATY WAS DISREGARDED BY ONE OF THE MEMBER STATES . ON THE OTHER HAND, THE SAID ORDER STATED THAT THE PRINCIPAL OBJECT OF THE REFERENCE FOR A PRELIMINARY RULING WAS TO ASCERTAIN THE EFFECT WHICH THE LIBERALIZATION RULES OF THE COMMUNITY, CITED IN THE ORDER, CONSIDERED AS RULES OF A ' SUPRANATIONAL ' LEGAL ORDER COMMON TO THE PARTIES TO THE ACTION, HAD ON THE RULES AND THE LEGAL SYSTEM GOVERNING THE PETROLEUM PRODUCTS MENTIONED IN THE CONTRACT .

THE COURT COULD NOT, AS HAS ALREADY BEEN OBSERVED, ANSWER THE QUESTIONS ASKED IN SO FAR AS THEY PRESUPPOSE AN EXAMINATION OF THE RULES GOVERNING THE IMPORTATION OF PETROLEUM WHICH DERIVE FROM THE PROVISIONS OF THE FRENCH LAW OF 30 MARCH 1928 AND THE SUBSEQUENT REGULATIONS . CONSEQUENTLY THERE IS NO GROUND FOR EXAMINING WHETHER THE AFOREMENTIONED FRENCH RULES CONSTITUTE A NATIONAL MONOPOLY WITHIN THE MEANING OF ARTICLE 37 OF THE TREATY .

P.35

FOR THE PURPOSES OF THIS CASE, AN ANSWER MUST BE SOUGHT TO THE QUESTION WHETHER, DURING THE TRANSITIONAL PERIOD, AND ESPECIALLY IN THE YEAR 1959, IN WHICH THE ALLEGED FUNDAMENTAL MISTAKE OF LAW AND THE IMPOSSIBILITY OF PERFORMANCE OCCURRED, THE TREATY BROUGHT ABOUT THE ABROGATION IPSO JURE OF THE LEGISLATION OF THE MEMBER STATES REFERRED TO IN ONE OR OTHER OF THE PROVISIONS OF THE CHAPTER RELATING TO THE ELIMINATION OF THE QUANTITATIVE RESTRICTIONS BETWEEN MEMBER STATES, MENTIONED IN THE ORDER MAKING THE REFERENCE . THE SAID CHAPTER CONTAINS TWO GROUPS OF PROVISIONS RELEVANT TO THIS CASE .

ONE GROUP, APPEARING NOT ONLY IN THE FIRST PARAGRAPH OF BOTH ARTICLE 31 AND ARTICLE 32 BUT ALSO IN ARTICLE 37(2 ) OF THE TREATY, AND PROHIBITING ANY INTENSIFICATION OF THE RESTRICTIONS, DISCRIMINATIONS OR MEASURES HAVING EQUIVALENT EFFECT EXISTING AT THE TIME WHEN THE TREATY ENTERED INTO FORCE, CAN, BY THEIR VERY NATURE, BE APPLIED ONLY TO NATIONAL MEASURES SUBSEQUENT TO THAT DATE .

OTHER PROVISIONS APPEAR EITHER IN THE SECOND PARAGRAPH OF ARTICLE 32 AND IN ARTICLE 33, WHICH PROVIDE FOR THE PROGRESSIVE ABOLITION ACCORDING TO A CERTAIN TIMETABLE DURING THE TRANSITIONAL PERIOD OF THE QUANTITATIVE RESTRICTIONS REFERRED TO BY THE SAID ARTICLES, OR IN ARTICLE 37(1 ) AND ( 3 ), WHICH PRESCRIBE THE PROGRESSIVE ADJUSTMENT OF STATE MONOPOLIES ACCORDING TO A TIMETABLE HARMONIZED WITH THAT FOR THE SAME PRODUCTS PROVIDED FOR IN ARTICLE 30 TO 34 .

ON THE ONE HAND, THE IDEA OF PROGRESSIVE ADJUSTMENT DOES NOT INVOLVE IMMEDIATE ABROGATION IPSO JURE OF THE NATIONAL LEGISLATIVE MEASURES REFERRED TO IN THE SAID ARTICLES . ON THE OTHER HAND, THE TIMETABLE FOR THE ADJUSTMENT PROVIDED FOR DOES NOT PERMIT OF A FORECAST IN THE ABSTRACT OF THE DATES DURING THE TRANSITIONAL PERIOD BY WHICH THE OBSTACLES IN QUESTION MUST HAVE DISAPPEARED, BUT DOES REVEAL THAT THE MEMBER STATES WERE NOT OBLIGED TO ABOLISH THEM COMPLETELY BY 1959 . THE TREATY THUS DOES NOT IMPLY THE IMMEDIATE ABROGATION OF ALL THE MEASURES FOR CONTROLLING IMPORTS EXISTING WHEN IT ENTERED INTO FORCE, BUT DOES ON THE OTHER HAND INVOLVE THE PROHIBITION OF ANY NEW RESTRICTION OR DISCRIMINATION, THE OBLIGATION PROGRESSIVELY TO ABOLISH EXISTING RESTRICTIONS AND DISCRIMINATIONS AND THE NECESSITY THAT THEY SHOULD DISAPPEAR TOTALLY AT THE LATEST BY THE END OF THE TRANSITIONAL PERIOD .

IT IS, MOREOVER, ALWAYS POSSIBLE FOR INTERESTED PARTIES WHO CONSIDER THEMSELVES HARMED BY UNLAWFUL MEASURES OF A MEMBER STATE TO BRING AN ACTION BEFORE THE COURTS OR TRIBUNALS OF THAT STATE WHICH HAVE JURISDICTION TO REVIEW AND ANNUL THE SAID MEASURES, SO AS TO OBTAIN THE APPROPRIATE SAFEGUARDS FOR THEIR RIGHTS AND INTERESTS, SUBJECT TO THE POWER OR OBLIGATION, AS THE CASE MAY BE, OF THESE COURTS OR TRIBUNALS TO HAVE RECOURSE TO THE PROCEDURE OF ARTICLE 177 IN ORDER TO OBTAIN AN INTERPRETATION, UNIFORM FOR THE WHOLE OF THE COMMUNITY, OF THE COMPLEX PROVISIONS OF THE SAID CHAPTER 2 AND THEIR RELATIONSHIP INTER SE .

THE ABOVE CONSIDERATIONS APPLY WITHOUT DISTINCTION TO THE QUESTIONS PUT BY THE ROME COURT, WITHOUT ITS BEING NECESSARY TO CONSIDER THEM SEPARATELY . THERE IS NO NEED EITHER TO DECIDE IN THIS CASE THE QUESTION WHETHER THE APPLICATION OF ARTICLE 37 TO STATE MONOPOLIES DOES OR DOES NOT EXCLUDE THE APPLICATION OF ANY OTHER PROVISION OF THE CHAPTER RELATING TO THE ELIMINATION OF QUANTITATIVE RESTRICTIONS BETWEEN MEMBER STATES, THE EFFECT OF BOTH INTERPRETATIONS BEING IDENTICAL IN THE CONTEXT OF THE LEGAL INFORMATION SUPPLIED BY THE ITALIAN COURT .

FINALLY, THERE IS NO NEED TO ENQUIRE IN THE PRESENT CASE WHICH PROVISIONS MENTIONED BY THE COURT ARE DIRECTLY APPLICABLE TO INTERESTED PARTIES IN THE MEMBER STATES .

CONSEQUENTLY, IT IS NECESSARY ONLY TO ANSWER, IN REPLY TO THE QUESTIONS PUT, THAT NONE OF THE ARTICLES OF THE TREATY MENTIONED IN THOSE QUESTIONS IMPLIES THE ABROGATION IPSO JURE, AT THE DATE OF THE ENTRY INTO FORCE OF THE TREATY, OF THE QUANTITATIVE RESTRICTIONS, DISCRIMINATIONS OR MEASURES HAVING EQUIVALENT EFFECT WHICH EXISTED AT THAT DATE, OR REQUIRES THE STATES TO ABOLISH THEM COMPLETELY AS FROM 1959 .

THE COSTS INCURRED BY THE COMMISSION OF THE EEC AND THE NETHERLANDS, FRENCH AND BELGIAN GOVERNMENTS, WHICH SUBMITTED THEIR OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE ACTION PENDING BEFORE THE TRIBUNALE CIVILE OF ROME ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THAT COURT .

THE COURT

HEREBY RULES :

1 . NONE OF THE PROVISIONS OF THE TREATY MENTIONED BY THE TRIBUNALE CIVILE, ROME, IMPLIES THE ABROGATION IPSO JURE ON THE DATE OF THE ENTRY INTO FORCE OF THE TREATY OF THE QUANTITATIVE RESTRICTIONS, DISCRIMINATIONS OR MEASURES HAVING EQUIVALENT EFFECT WHICH EXISTED ON THAT DATE, OR REQUIRES THE STATES TO ABOLISH THEM COMPLETELY AS FROM 1959;

2 . THE DECISION AS TO COSTS IS A MATTER FOR THE ABOVE-MENTIONED COURT .