Opinion of Mr Advocate General Darmon delivered on 14 June 1988

1 Translated from the French.

2 Council Directive 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat (OJ, English Special Edition 1971 (I) p. 106); Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States (OJ 1983, L 359, p. 8); Regulation (EEC) No 2777/75 of the Council of 29 October 1975 (OJ 1975, L 282, p. 77)

3 Judgment of 11 July 1974 in Case 8/74[1974] ECR 837.

4 Judgment of 15 December 1976 in Case 35/76 Simmenthal [1976] ECR 1871; judgment of 5 October 1977 in Case 5/77 Tedeschi v Denkavit [19771 ECR 1555, at p. 1576; and, more recently, judgment of 3 October 1985 in Case 28/84 Commission v Federal Republic of Germany [1985] ECR 3097, at paragraph 25.

5 Judgment of 6 October 1983 in Joined Cases 2 to 4/82 [1983] ECR 2973.

6 Case 35/76, cited above.

7 Joined Cases 2 to 4/82, cited above, at paragraph 11.

8 Ibid., paragraph 12.

9 Ibid., paragraph 13.

10 Case 35/76, cited above, at paragraph 38.

11 Case 25/78, Dtnkavit Fullermilte! [1979] ECR 3369, paragraph 21.

12 Ibid., at paragraph 21.

13 Case 132/80 [1981] ECR 995, in particular paragraph 28 at p. 1024: the requirement that notice must be given in writing setting forth all the details prescribed under the legislation at issue at least 24 hours before importation appears to be incompatible with the speed of transactions and of transportation in this field, given the perishable nature of the goods in question. If, with regard to the determination by the customs authority of the premises where control is to be carried out as well as of days and times of their opening, it appears that the effect of these measures is to hinder imports they would be justified only on condition that they could be snown to satisfy objective requirements appertaining to the organization of the public health service.

14 Eighth recital in the preamble to Directive 71/118, my emphasis.

15 Judgment of 22 January 1980 in Case 30/79 [1980] ECR 151.

16 Judgment of 22 March 1983 in Case 88/82 [1983] ECR 1061.

17 P. 17 in fine of the original text.

18 Judgment of 6 October 1982 in Case 83/81 Cilfit [1982] ECR 3415, at paragraph 11.

19 Judgment of 5 February 1963 in Case 26/62 Van Genti en Loos [1963] ECR 1, at p. 24.

20 The law stemming from the Treaty, an independent source of law, could not, Decause of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question — judgment of 15 July 1964 in Case 6/64 Costa v ENEL [1964] ECR 585.

21 La spécificité du droit communautaire, RTDE, 1966, p. 1.

22 Judgment of 17 December 1970 in Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125.

23 The Court's judgments in Case 9/70 Grad [1970] ECR 825, and Case 33/70 SACE[1970] ECR 1213 opened the way (J. V. Louis: L'effect direct des directives. Mélanges Baugniet, p. 1) for a series of decisions, from which may be selected: Case 41/74 Van Duyn [1974] ECR 1337; judgment of 29 November 1978 in Case 21/78 Delkvist [1978] ECR 2327; Case 51/76 Verbond van Nederlandse Ondernemingen [1977] ECR 113; Case 38/77 ENKA [1977] ECR 2203; Case 148/78 Ratti [1979] ECR 1629; Case 8/81 Becker [1982] ECR 53; Case 255/81 Grendel [1982] ECR 2301; Case 271/82 Auer II [1983] ECR 2727; Case 70/83 Kloppenburg (1984) ECR 1075, and the judgments and opinions cited here under paragraph 25.

24 See Vlad Constaninesco: L'article 5 CEE, de la bonne foi à la loyauté communautaire, Liber Amicorum Pierre Pescatore, Nomos Verlagsgesellschaft, Baden-Baden, 1987, p. 97.

25 Case 148/78, cited above.

26 However, Mr Advocate General Warner had already expressed this view in his Opinion in the abovementioned ENKA case.

27 Paragraph 20, my emphasis.

28 Paragraph 21, my emphasis.

29 Paragraph 22, my emphasis.

30 Case 8/81, cited above.

31 Judgment of 4 December 1986 in Case 71/85 [1986] ECR 3855.

32 Judgment of 24 March 1987 in Case 286/85 [1987] ECR 1453, at paragraph 12.

33 Judgment of 8 October 1987 in Case 80/86 [1987] ECR 3969.

34 See the Opinion of Mr Advocate General Reischl in Ratti, cited above, and the Opinion of Advocate General Sir Gordon Slynn in Becker, cited above.

35 Case 286/85, cited above, paragraph 12, my emphasis.

36 See Y. Galmot and J.-C. Bonichot: La Cour de justice des Communautés européennes et la transposition des directives au droit national, Revue française de droit administratif, January-February 1988; see also G. Isaac: Droit communautaire général, Masson, 1983, p. 168.

37 ... special problems arise where a Member State has failed to implement a directive correctly and, more particularly, where the provisions of the directive have not been implemented by the end of the period prescribed for that purpose (Case 8/81, cited above, at paragraph 20).

38 Case 102/79 Commission v Belgium [1980] ECR 1473; see also Case 8/81 Becker, cited above, paragraph 19; judgment of 15 May 1986 in Case 227/84 Johnston [1986] ECR 1651, paragraph 53.

39 Directives are intended to take effect through the adoption of national legislation, although they cannot with impunity be blocked by failure on the pan of the State. R. Kovar: Observations sur l'intensité normative des directives, Liber Amicorum Pierre Pescatore, p. 359, paragraph 5; judgment of 15 July 1982 in Case 270/81 Felicitas Ridtmers-Linie [1982] ECR 2771, at p. 2787, paragraph 26: ...in this case the effects of the directive can reach individuals through the intermediary of the implementing measures adopted by the Member State concerned. Therefore it is unnecessary to examine the question whether Article 5 (2) meets the conditions which must be fulfilled for individuals to be able to rely upon it before a national court in the event of the directive not being correctly implemented.

40 Commission v Belgium, cited above.

41 P. Pescatore: L'effet des directives communautaires: une tentative de démythification, Dalloz (1980), p. 171, in particular p. 175; Y. Galmot and J.-C. Bonichot, op. cit.

42 Ibid.

43 And arises with regard to the State exclusively: judgment of 26 February 1986 in Case 152/84 Marshall [1986] ECR 723; judgment of 12 May 1987 in Joined Cases 372 to 374/84 Traen and Others [1987] ECR 2141; judgment of 11 June 1987 in Case 14/86 Pretore di Salò [1987] ECR 2545.

44 Pescatore, op. cit., p. 176.

45 See Vlad Constantinesco, op. cit., p. 109 et seq.

46 Case 14/83 Von Cohan [1984] ECR 1891, at p. 1909, in relation to another possibility, in which it was stated, and I consider it worthwhile to cite this passage: ... the Member Sutes obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts', (paragraph 26); see also judgment of 10 April 1984 in Case 79/83 Harz [1984] ECR 1921, at paragraph 26; Case 222/84 Johnston, cited above, at paragraph 26.

47 Pescatore, op. cit.