Opinion of Advocate General

Mr President,

Members of the Court,

1. The questions referred to the Court of Justice for a preliminary ruling by the Supremo Tribunal Administrativo (Supreme Administrative Court) of Portugal are concerned with the interpretation of Article 37(1) of the Treaty, Article 208(1) of the Act of Accession and the Commission recommendation of 8 September 1987.

2. The undertaking Caves Neto Costa SA (hereinafter CNC) brought proceedings against the measure of 24 November 1987 by which the Director-General for Foreign Trade refused it authorization to import a quantity of ethyl alcohol from France. Faced with an implied decision of refusal on the part of the Minister for Trade and Tourism and the State Secretary for Foreign Trade, CNC brought an action before the Supremo Tribunal Administrativo.

3. As it appears from my Opinion in the case of Commission v Portugal, to which I refer in so far as it is appropriate, Article 208(1) of the Act of Accession does not specifically require global import quotas to be established; it merely provides that the Member State in question is to adjust the monopoly progressively so as to eliminate, by the end of the transitional period, all discrimination as between Member State nationals with regard to the conditions under which monopoly goods are procured and marketed. Consequently, the choice of the means and methods of achieving that result is left to the Member States' discretion. As for the provisions of the Commission's recommendation, it is sufficient to observe — and this is not in dispute between the parties — that the recommendation is a non-binding measure.

4. Having said that, I can only emphasize that the national court's questions are based — quite plainly — on the assumption that Article 37(1) of the Treaty and Article 208(1) of the Act of Accession have direct effect during the transitional period. In this regard, it must be pointed out that, as the Court has consistently held, a Community provision has direct effect only if it is sufficiently precise and unconditional. However, as has already been mentioned, the provisions in question only impose an obligation to achieve a certain result and leave it to the Member States to choose the means and methods of achieving it within the time-limits specified.

5. In the light of the foregoing considerations, I therefore suggest that the Court should answer the questions referred by the Supremo Tribunal Administrativo of Portugal as follows:

1 Original language: Italian.

2 Commission recommendation of 8 October 1987 to the Portuguese Republic concerning the adjustment of the State monopoly of a commercial character in alcohol vis-à-vis the other Member States, OJ 1987 L 306. p. 32.

3 See in particular sections 3 and 5.

4 Judgment in Case 59/75 Pubblico Ministero v Mangera [1976] ECR 91, paragraph 15.

5 Judgment in Case 45/75 Rewe v Hauptzollamt Landau [1976] ECR 181, paragraph 24.