Opinion of mr advocate-general Gand

Mr President,

Members of the Court,

References for preliminary rulings made to you by courts of the Member States can be classified into two quite distinct categories. In some you are questioned on the scope of particular provisions of Community regulations which only appear of interest to a few specialists. In others on the contrary, and for the solution of a dispute which appears ordinary enough, you are asked to interpret certain fundamental Articles of the Treaty of Rome.

The present case certainly falls into the second category. The refusal of an advocate in Milan to pay an electricity bill led you in your judgment of 15 July last to pronounce upon certain aspects of the right of establishment and of the system of State monopolies. Today the Tribunale Civile of Rome refers to you, with regard to the failure to perform a contract for the importation into France of 6000 metric tons of petrol, four questions bearing on the interpretation of Articles 30 to 37 of the Treaty relating to quantitative restrictions and monopolies, questions which are put to you in relation to the system governing the importation into France of hydrocarbons.

It is enough to say that the legal scope and the practical importance of the judgment which you are to give go beyond the interests of the two parties to the action pending before the Italian court, and, if any doubt remained on that point, it would suffice to note that in addition to the Commission of the EEC, three of the Member States — Belgium, France and the Netherlands — have submitted their observations, which incidentally are not in agreement.

You know the facts which have been recalled in the course of the oral proceedings. The Société des Pétroles et Combustibles Liquides (Sopéco), a French company, made a contract in March 1959 with S.R.L. Albatros, the registered office of which is in Rome, for the importation into France of an annual quantity of 6000 metric tons of refined petroleum in monthly deliveries of 400 to 600 metric tons. On 11 April 1959 the request for an import licence for 500 metric tons made by Sopéco was rejected by the French foreign exchange office for the reason that the company was not authorized to make bulk imports of petroleum products (Law of 30 March 1928). A refusal of an import licence constitutes in French law an administrative act which can be the object of an action for abuse of powers (excès de pouvoir) before the administrative courts. Sopéco did not bring such an action but when sued before an Italian court by the seller, who asked for performance of the contract or its termination with damages for the loss incurred, it pleaded a fundamental mistake of law and force majeure, which latter, it said, amounted to a refusal which was a violation of the EEC Treaty. It requested that the file be sent to you for interpretation of the Treaty, and Albatros joined in that request. After various procedural steps (the action being struck off the list on 25 January 1962 and restored on 29 May 1963), the Tribunale Civile of Rome by order of 18 January 1964 — which incidentally was not transmitted to you until four months later — referred to you under Article 177 of the EEC Treaty four questions which may be analysed as follows:

One first point must be settled, namely, the admissibility of the request for interpretation, which is expressly disputed by the French Government. By questions A and C, supposing that they can be understood as bearing on the point whether the previous French rules concerning petroleum imports are compatible with the Treaty, you are being asked to decide a possible conflict between Community law and French internal law, which is not within your jurisdiction. As to questions B and D. they lack relevance. The Ordonnance of 24 September 1958, which relates to petroleum classified as national, has not been invoked by the French authorities against Sopéco. Besides, the concept of progressive adjustment contained in Article 37 prevents that Article from having any relevance to a dispute arising at the beginning of 1959.

As guardians of the implementation of the Treaty of Rome, your function covers Article 177 itself as it does all the other provisions of that Treaty and it is for you, maintains the French Government, to define the limits within which it can apply. You must refuse to allow it to be used to evade other provisions of the Treaty, such as Articles 169 to 173 for instance, or to allow a national court to encroach on the jurisdiction of the courts of the other Member States.

You have often met with similar objections on the occasion of previous preliminary rulings which have been sought from you. They have led you in the first place to affirm your jurisdiction, so long as the questions relate to the interpretation of the Treaty or of a Community Regulation, even if you extract from a question imperfectly formulated by the national court those questions which alone pertain to interpretation of the Treaty, (Case 6/64, Costa v E.N.E.L.), and that is certainly not impossible here. On the other hand, within the framework of Article 177, you can neither apply the Treaty to a particular case nor give judgment on the validity of a measure of national law, but can only interpret the Articles of the Treaty having regard to the legal particulars set out by the court in the main action. Finally, the considerations which may have led that court in its choice of questions, as well as the relevance which it attributes to such questions in the context of a case before it, are excluded from review by you (Case 26/62— Van Gend en Loos v Nederlandse Administratie der Belastingen).

These rules, which are certainly logical, do however raise certain problems which Mr Advocate-General Lagrange noted in his opinion in the Costa case. There is, on the one hand, the difficulty of tracing the boundary between interpretation and application of the Treaty, which is simultaneously the boundary of the respective jurisdictions of the Community Court and the national courts, the settlement of disputes over which has not been allotted to any court. On the other hand is it necessary to take to its final conclusion the principle whereby the Court does not have the task of assessing the considerations upon which the national court based its reference for a preliminary ruling, even if the question put is clearly without any relation to the dispute in the main action? Must the Court nevertheless give in such a case an abstract, theoretical interpretation unconnected with the settlement of a dispute, but which it would nonetheless be possible to raise for other purposes and which might create conflicts with national courts or authorities? Perhaps you will one day have to fix a limit to what might appear an abuse of procedure.

In the particular case before us, the Tribunale Civile of Rome has taken care to set out the reasons for which the interpretation of the Treaty appears to it necessary, namely whether, at the date on which the contract was concluded, the purchaser had reasonably to expect that the import licence requested would be refused on the basis of the earlier law or whether on the contrary it could have expected to be granted one by reason of alterations in administrative regulations and practice which, ex hypothesi, the entry into force of the Treaty must bring about. It is to enable assessment of this subjective aspect of the behaviour of the buyer (the adjective appears in the grounds of the order) that you are requested to interpret the Treaty.

This doubtless explains two remarks Which the French Government put forward with great emphasis in the oral proceedings. The first is that, in all the cases submitted to you hitherto, the national courts were seeking clarification of the lawfulness, in the light of the Treaty of Rome, of their own law or an act of their government. It was thus natural that this Court, after interpreting the Treaty, should leave to those courts the task of drawing the consequences from such interpretation within the framework of their own jurisdiction and on the basis of the dispute which was before them. But here the interpretation of the Treaty will be applied by the Italian court to French legislation.

The French Government secondly doubts whether there is any legal connexion between the interpretation which you are to give and the solution of the dispute in the main action. It is a fact, if we have properly understood the order of the Italian court, that, whatever may be the positive or negative answer which you are to give to the questions asked, that court will always be free to draw from it the consequences it pleases as far as the subject matter of the main action is concerned, since it has the task of judging the subjeotive behaviour of the debtor.

These two remarks have the advantage of emphasizing the peculiarities of the case. I do not, however, think that they should lead you to refuse to accept that you have jurisdiction. The Community legal order and the national legal orders, it has often been stated, are two fields which cannot be confused. It is your task to interpret the Treaty; it is not only a power, it is an obligation for you once a reference has been made to you. To refuse to give this interpretation because it might risk leading in the main action to an encroachment by the court of one Member State on that of another Member State would amount to giving judgment on the respective jurisdictions of the two courts, which would clearly exceed your jurisdiction. Besides, if your interpretation of the Treaty, which is binding on the national court, does not deprive the latter of its liberty in drawing consequences from it as to the decision to be made in the action, in so far as that decision is linked to subjective assessments, that is not enough to destroy all legal connexion between the interpretation and the dispute. Furthermore, at this point we once more come up against the problem of the relevance of the questions put, which you always refuse to examine.

I propose, then, that you reject the submission of inadmissibility put forward by the French Government and reply to the questions within the limits of your jurisdiction and within the framework of the actual dispute which arises, let us remember, from the failure to perform a contract concluded in March 1959.

1. In question A you are asked whether Article 30 of the Treaty, read together with Articles 3, 31, 32 and 35, is to be interpreted as having or not having an effect abrogating the previous provisions in the French regulations governing the importation of petroleum, and in particular the provisions of the Law of 30 March 1928, the Decree of 8 August 1935 and the Decree of 1 February 1950, in so far as these provisions might conflict with the abovementioned Articles of the Treaty.

2. Having reached this point in the discussion, I do not feel it possible to examine the subsequent questions one after the other and in the order in which they are put to you. Question B covers the effects of Articles 31 and 32 on the rules introduced subsequent to the Treaty; question C relates to the consequences of Article 33, which provides for the progressive elimination of quotas in the French petroleum import system; question D finally poses the problem of the progressive prohibition of public monopolies. But, on the relations between these different Articles, on their combination, their exclusive or cumulative application, the most varied arguments have been put forward in the written procedure and repeated at the oral proceedings. In the opinion of the French Government and, subject to certain qualifications, of the Commission, only Article 37 is applicable to a system such as the French one. The Belgian Government, on the other hand, doubts whether such a complex body of rules comes within the situations described in Article 37 (1). As for the Netherlands Government, it forcibly declares that there is no clear distinction in Chapter 2 between the quantitative restrictions on imports, measures having equivalent effect and the system of State trading or of monopolies; that all the provisions of that Chapter concern all three types of measure, which are not governed each by its own separate rules.

3. It is necessary now, in the light or these observations, to return to the three last questions asked and to try to answer them in so far as their occasionally rather obscure wording permits.

4. By question C the Italian court asks whether, if the preceding questions should be answered by you in the negative, Article 33 of the Treaty, combined with Article 5, must be interpreted to mean that the French system for making rules of law which results from the whole of the said provisions of the national law, is or is not liable to be rendered void at a later date in view of the date of entry into force of the Treaty. That at least is the translation which I think I can give on my own responsibility of the question which is put to you.

5. Finally, you are asked by question D whether Article 37, still taken together with Article 5, must be interpreted as implying the progressive prohibition (or abolition) of any public monopolies operating on the same basis as does the French system governing petroleum imports. I shall here make a remark as to the wording. Article 37 (1), to which the question refers, does not speak of prohibition or abolition, even progressive, of monopolies but of adjustment of them, and on the meaning of that expression I have already given my views. But I do not think that there is any necessity for you to give a detailed reply to the question put and to indicate wherein and how this adjustment must be realised. Not, as has been said, because on the date on which the dispute arose, the transitional period having scarcely begun, Article 37 could not assist in the settlement of the dispute. But it follows clearly from that Article itself that the obligation to adjust which it imposes is made the responsibility of the Member State monopoly-holder which undertakes that responsibility under the supervision of the Commission. Article 37 sets out an obligation to produce a result which the Member State undertakes and which can only be given specific form by the measures which that State may take.

To sum up, I am of the opinion that the questions should be answered as follows:

Finally, I am of the opinion that the question of costs is a matter for the Tribunale Civile of Rome.

1 Translated from the French.