Opinion of Advocate General Van Gerven delivered on 27 October 1993

1 Original language: Dutch.

2 In 1946 British Coal was still known as the National Coal Board. Following the Coal Industry Act 1987, it was renamed British Coal Corporation.

3 Section 1(1 )(a) of the CINA 1946. It is apparent from the figures given by the Commission in its Decision of 23 May 1991 (sec paragraph 3, below) that total coal production in the United Kingdom in 1989-90 amounted to approximately 96 million tonnes, of which British Coal produced some 93 million tonnes (that is to say approximately 97% of the total); sec also paragraph 23 below.

4 Section l(l)(b) of the CINA 1946.

5 Section 36 of the CINA 1946.

6 Still according to the figures set out in the Commission decision referred to in footnote 2, total production of coal under licence in 1989-90 amounted to approximately 3 million tonnes.

7 On 5 June 1990, a similar complaint was submitted by the South Wales Small Mines Association (SWSMA).

8 The decision has not been published in the Official Journal. It is drafted in the form of a letter addressed to NALOO, FSMGB and SWSMA and is signed by Sir Leon Brittan, Vice-President of the Commission.

9 As stated in the first paragraph of the decision (no number) and in point 79 thereof.

10 Point 80 of the decision.

11 Point 47 of the decision.

12 Point 69 of the decision.

13 Point 81 of the decision.

14 Point 82 of the decision. In point 67, the Commission states that the decision is based on the assumption that those contracts will result in the elimination of discrimination between British Coal and the licensed mines, and that it reserves the right to reopen the case if that assumption should appear to have been unfounded.

15 The same purpose underlies Article 232(2) of the EEC Treaty, which provides that the provisions of the EEC Treaty are not to derogate from those of the Treaty establishing the European Atomic Energy Community.

16 At the same time, that provision constitutes an exception to the principle of international law lex posterior derogat priori: see C. Vedder, Article 232, in Grabitz, Kommentar zum EWG-Vertrag, Munich, Beck, p. 1, no 1.

17 Judgment in Case 239/84 Gerlach v Minister for Economic Affairs [1985] ECR 3507, at paragraph 9.

18 Judgment in Case 328/85 Deutsche Babcock Handel v Hanptzollamt Ltibeck-Ost [1987] ECR 5119, at paragraph 10.

19 Sec E.-U. Petersmann, Article 232, in von der Groeben — Thiesing — Ehlermann, Kommentar zum EWG- Vertrag, IV, Baden-Baden, Nomos, 1991, pp. 5715-16.

20 Emphasis added. The first paragraph of Article 79 of the ECSC Treaty specifies the territories to which the ECSC Treaty applies.

21 Judgment in Joined Cases 9/60 and 12/60 Vloebergbs v High Authority [1961] ECR 197, at p. 212 (emphasis added). See the definition given by Advocate General Lagrange in Société des Fonderies de Pont-à-Momson of the term production within the meaning of Article 80 of the ECSC Treaty, namely everything comprised in the whole processing cycle of the most highly-worked product from the extraction of the raw material to the finishing stage at which it is considered that the line must be drawn: Case 14/59 [1959] ECR 215, at p. 240.

22 See also the Opinion of Advocate General Roemer in Joined Cases 9/60 and 12/60, according to whom it follows from Annex I to the ECSC Treaty that even in the sphere of coal one speaks of production, even as regards lignite in respect of which no alteration is involved but merely the extraction of a raw material. The mere extraction of coal therefore constitutes production within the meaning of the Treaty: [1961] ECR 197, at p. 222.

23 Judgment in Case 14/59 [1959] ECR 215, at p. 227.

24 Ibid., at p. 228.

25 I do not find it necessary to consider in detail the other two arguments which the United Kingdom adduces in support of the view that unworked coal does not constitute aproduct within the meaning of Annex I to the ECSC Treaty: (i) the first argument, to the effect that this follows from the fact that raw materials referred to in OEEC Code No 1490 are excluded from the definition in Annex I, is untenable since according to Note 1 of that annex that code relates only to other raw materials not elsewhere classified for iron and steel production and thus not for the production of fuels, including hard coal; (ii) nor, in my view, is the second argument, derived from a communication issued by the Commission in 1986 concerning the interpretation of the expressions hard coal and run-of-mine brown coal (Communication 86/C254/02, OJ 1986 C 245, p. 2), pertinent: in my view, it cannot be inferred from the fact that the Commission decided to regard certain fuels produced in Spain as hard coal within the meaning of the aforesaid annex that, in so doing, it precluded such coal — unworked — from constituting a product within the meaning of Annex I to the ECSC Treaty.

26 Article 4 is expressly referred to in several other provisions of the ECSC Treaty as well, namely Articles 58(2) and 60(1) (see paragraph 17 below), the second subparagraph of Article 66(2), the second paragraph of Article 86, the third paragraph of Article 88 and the first and third paragraphs of Article 95 of the ECSC Treaty.

27 Judgment in Case 1/54 France v High Authority [1954] ECR 1, at p. 9, and in Case 2/54 Italy v High Authority [1954] ECR 37, at p. 45. That was confirmed by the Court, inter alia, in its judgment in Joined Cases 7/54 and 9/54 Industries Sidérurgiques Luxembourgeoises v High Authority [1956] ECR 175, at p. 195; see also the more recent judgment in Joined Cases 154/78, 205/78, 206/78, 226/78 to 228/78, 263/78 and 264/78, 39/79, 31/79, 83/79 and 85/79 Valsabbia v Commission [1980] ECR 907, at paragraph 82.

28 According to that article, the words this Treaty must be understood as meaning the provisions of the Treaty and its annexes, of the Protocols annexed thereto and of the Convention on the Transitional Provisions.

29 Judgment in Industries Sidérurgiques Luxembourgeoises-, cited in footnote 26, at p. 194.

30 Judgment in Industries Sidérurgiques Luxembourgeoises, cited above, at p. 195.

31 Decision No 2/57 of 26 January 1957 making a financial arrangement to ensure a regular supply of ferrous scrap to the common market, OJ No 4 of 28 January 1957, p. 61. In that decision, the High Authority introduced on the basis of Article 53 of the ECSC Treaty a number of equalization schemes for scrap.

32 Judgment in Case 8/57 Aciéries Belges v High Authority [1958] ECR 245, at p. 253; judgment in Case 13/57 Eisenund Stahlindustrie v High Authority [1958] ECR 265, at p. 278; judgment in Case 9/57 Chambre Syndicale de la Sidérurgie Française v High Authority [1958] ECR 319, at p. 327; judgment in Case 10/57 Aubert et Duval v High Authority [1958] ECR 339, at p. 346; judgment in Case 11/57 Société d'Electriques d'Ugine v High Authority [1958] ECR 357, at p. 364; and judgment in Case 12/57 Sidérurgie du Centre-Midi v High Authority [1958] ECR 375, at p. 383.

33 Judgment in Case 2/56 Geitling v High Authority [1957] ECR 3, at p. 20.

34 Opinion of the Court of 13 December 1961, No 1/61 [1961] ECR 243, at p. 262.

35 Opinion No 1/61, at p. 262.

36 Namely the Clayton Act 1914 and the Robinson-Patman Act 1936.

37 Opinion in Case 8/83 Bertolt v Commission [1984] ECR 1649, at p. 1666. This also explains, according to the Advocate General, why there is no provision equivalent to Article 60 of the ECSC Treaty in the EEC Treaty: in 1958 the majority of the economic sectors which feli within the scope of the EEC Treaty were not in the nature of an oligopoly.

38 Case 1/54 and Case 2/54, both cited in footnote 26 above, at pp. 7 and 43 respectively. Somewhat further, the Court also emphasized the instrumental nature of the rules on publication provided for in Article 60(2), which the ECSC Treaty regards as an appropriate means of attaining the objectives set out in the previous paragraph: see pp. 10 and 46 respectively.

39 Judgment in Case 1/54, cited above, at p. 9; and in Case 2/54, cited above, at p. 46.

40 The quotation is taken from the Court's judgment in Case 149/78 Rumi v Commission [1979] ECR 2523, at paragraph 10; judgments in Case 1/54, cited above, at p. 9; and in Case 2/54, cited above, at p. 46. The Court added in the last-mentioned decisions that publication is but one of the means provided for by the ECSC Treaty for the attainment of those objectives and is not sufficient on its own to ensure that those objectives are actually attained.

41 Judgment in Case 1/54, cited above, at p. 11; and in Case 2/54, cited above, at p. 47.

42 The final subparagraph of Article 60(1) of the ECSC Treaty (set out in paragraph 17 above) empowers the High. Authority to define the practices covered by the prohibition in paragraph 1 by decisions. The High Authority did so by Decision No 30-53 of 2 May 1953 on practices prohibited by Article 60(1) of the Treaty in the common market for coal and steel (OJ 1953 No 6, p. 109; subsequently amended by Decision I-54 of 7 January 1954, OJ 1954 No 1, p. 217; by Decision 19-63 of 11 December 1963, OJ 1963 No 187, p. 2969; by Decision 72/440/ECSC of 22 December 1972, OJ, English Special Edition 1972 (30-31 December), p. 19; and by Decision 1834/81/ECSC of 3 July 1981, OJ 1981 L 184, p. 7). The practices referred to in Articles 2, 4, 5 and 6 of that decision as prohibited within the meaning of Article 60(1) arc all pricing practices of sellers.

43 Sec, inter a/j/ī. Decision No 4/53 of the High Authority of 12 February 1953 on the publication of price-lists and conditions of sale applied by undertakings in the coal and iron-ore industries (OJ 1953 No 2, p. 3; subsequently amended by Decision No 22-63 of 11 December 1963, OJ 1963 No 187, p. 2975; by Decision 19-67 of 21 June 1967, OJ 1967 No 124, p. 2429; and by Decision 72/442/ECSC of 22 December 1972, OJ, English Special Edition 1972 (30-31 December), p. 24).

44 Namely lhe specific nature of the product concerned (in particular the fact that, as yet, there is no trade in that product in a particular Member State) and of the terms of the licences in question (in particular, the open or exclusive nature thereof): sec the judgment in Case 258/78 Nungesser v Commission [1982] ECR 2015, at paragraph 53 et scq.

45 I fail to see how it is possible to infer from the preamble and provisions of Commission Regulation (EEC) No 2349/84 on the application of Article 85(3) of the Treaty to certain categories of patent licensing agreements (OJ 1984 L 219, p. 15) and of Commission Regulation (EEC) No 556/89 of 30 November 1988 on the application of Article 85(3) of the Treaty to certain categories of know-how licensing agreements (OJ 1989 L 61, p. 1), referred to by British Coal, that Article 85 of the EEC Treaty is inapplicable to the quantum of the consideration payable under such agreements.

46 Judgment in Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, at paragraph 116. The Court added that the Commission is therefore at liberty, taking into account the nature of the reciprocal undertakings entered into and the competitive position of the various contracting parties on the market or markets in which they operate to proceed on the basis of Article 85 or Article 86.

47 Judgment in Case 66/86 Ahmed Saeed Flugreisen and Others v Zentrale zur Bekampfung unlauteren Wettbewerbs [1989] ECR 803, M paragraph 37.

48 Judgment in Casc T-51/89 Tetra Pak v Commission [1990] ECR II-309, at paragraph 21. In that judgment the Court considered, more specifically, the question of the compatibility of Article 86 of the EEC Treaty with the existence of a block exemption.

49 Judgment in Case 53/87 CICRA v Renault [1988] ECR 6039, at paragraph 15 (in connection with Article 86 of the EEC Treaty).

50 See, for the application of Article 86 of the EEC Treaty, the judgment in Case 53/87 CICRA, cited in the previous footnote, at paragraph 16, and in Case 238/87 Volvo v Veng [1988] ECR 6211, at paragraph 9. The Court considered that, with regard to the exercise of an exclusive right by the proprietor of an ornamental design or a registered design in respect of car body panels, that such a right may be prohibited by Article 86 if it involves, on the part of an undertaking holding a dominant position, abusive conduct such as the fixing of unfair prices for spare parts.

51 Judgment in Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.

52 Opinion 1/91 [1991] ECR I-6079. at paragraph 21 (emphasis added).

53 That is already apparent in Case 9/56 Aleroni v High Authority [1958] ECR 157, at p. 13, where the Court considered that a party may question, on the basis of the grounds set out in Article 33 of the ECSC Treaty, the legality of a general decision on which the individual decision contested by him is based, and it used as a further argument in that regard the analogy with Articles 184 of the EEC Treaty and 156 of the EAEC Treaty.

54 Sec the express reference to the coherence of the Treaties in the judgment in Case C-221/88 Bitiseni [1990] ECR I-495, at paragraph 16.

55 Order in Case 792/79 R Camera Care v Commission [1980] ECR 119, atparagraph 20, where the Court in the context of the EEC Treaty considers the same key principles of the Community to be applicable as those which, according to the order in National Carbonising Company, were applicable in the case of the ECSC Treaty: order in Case 109/75 R National Carbonising Company [1975] ECR 1193, at paragraph 8.

56 Judgment in Case 314/85 Foto-Frost v Hatiptzollamt Lübeck-Ost [1987] ECR 4199. In its judgment in Busseni, cited in footnote 53, the Court acknowledged that the abovementioned ruling constituted a result corresponding to the express provision of Article 41 of the ECSC Treaty: paragraph 14 of that judgment.

57 Judgment in Busseni, cited above, at paragraphs 9 to 17.

58 Judgment in Joined Cases C-6/90 and 9/90 Francovich v Italian Republic [1991] ECR I-5357, at paragraph 36. In that regard, the Court refers to the ruling it gave in the context of the ECSC Treaty in Case 6/60 Humblet [1960] ECR 559.

59 Judgment in Busseni, cited above, at paragraph 21: recommendations, according to the Court, are measures of the same kind, binding upon those to whom they are addressed as to the result to be achieved but leaving to them the choice of form and methods to achieve that result. In paragraphs 22 and 23 of its judgment, the Court recapitulates its established case-law, in the context of the EEC Treaty, concerning the direct effect of directives.

60 See, in particular, the judgment in Case 12/86 Demirel [1987] ECR 3719, at paragraph 14; judgment in Case C-18/90 Kziber [1991] ECR I-199, at paragraph 15.

61 According to Article 1 of the ECSC Treaty, the European Coal and Steel Community is founded upon a common market, common objectives and common institutions. Those common objectives are clarified in Article 2 of the ECSC Treaty, which bears a strong resemblance to Article 2 of the EEC Treaty.

62 According to the fifth recital in the preamble to the ECSC Treaty, the Heads of State arc resolved to substitute for age-old rivalries the merging of their essential interests; to create, by establishing an economic community, the basis for a broader and deeper community among peoples long divided by bloody conflicts; and to lay the foundations for institutions which will give direction to a destiny henceforward shared.

63 I consider to be of particular significance in that connection the original Article 9 of the ECSC Treaty which imposed upon the Members of the High Authority the obligation to refrain from any act which is incompatible with the supranational character of their office and upon every Member State to observe that supranational character.

64 See Articles 20 and 18 of the ECSC Treaty, respectively.

65 Judgment in Bussem, cited above, at paragraph 13: specifically to ensure the utmost uniformity in the application of Community law and to establish for that purpose effective cooperation between the Court of Justice and national courts.

66 See W. F. Bayer, Das Privatrecht der Montanunion, Reibels Zeitschrift, 1952, (325), p. 329. Admittedly, there was some controversy in that regard: for a good survey of the relevant academic writings and a powerful argument in favour of direct effect, see K. Ballcrstedt, Übernationale una nation-ale Marktordnung. Eine niontanrecbtliche Studie, Tübingen, Mohr, 1955, pp. 12-16.

67 B. G. H. Z., No 30, p. 74; also published in Neue Juristische Wochenschrift, 1959, p. 1176 and, in an English translation, in [1963] 2 CMLR 251. In that judgment the Bundesgerichtshof considers that the provisions of the ECSC Treaty arc also directly binding on the undertakings referred to in Article 80 thereof.

68 Sec the judgment in Bussent, cited above, at paragraph 15, where the Court acknowledges that national courts, because of the nature of the powers which the ECSC Treaty has devolved on the Community authorities, in particular the Commission, less often have occasion to apply that Treaty and measures adopted under it.

69 Terms taken from P. Reuter, Organisations européennes-, Paris, Presses Universitaires de France, 1970, Second Edition, p. 188. That difference in the extent of regulation can undoubtedly also be clarified by the fact that coal and steel are markets with a monopolistic or oligopolistic structure which at the time occupied a key position in the national economies: cf. P. J. G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities (ed. W. Gormley), Deventer-Boston, Kluwer Law and Taxation, Second Edition, 1988, p. 29.

70 Judgment in Van Gena en Loos-, cited above, at p. 13.

71 Judgment in Case 44/84 Hurd v Jones [1986] ECR 29, at paragraph 47.

72 At limes the Court refers to a clear and precise prohibition or injunction which has no reservation allowing States to subject its implementation to a positive measure of domestic law or to an intervention by tnc institutions of the Community: see, for example, the judgment in Case 77/72 Capolongo v Maya [1973] ECR 611, at paragraph 11 (concerning Article 13(2) of the EEC Treaty); cf. the wording of the judgment in Case 57/65 Liitticke v Haitptzollamt Saarlouis [1966] ECR 205, at p. 210.

73 The requirement applied here by the Court is that provisions have, as far as their subject-matter is concerned, to be unconditional and sufficiently precise in order to be capable of being relied upon by individuals before the national court: judgment in Case 8/81 Becker v Finanzamt Munster-Innenstadt [1982] ECR 53, at paragraph 25; for recent confirmation, see inter alta the judgment in Case 297/89 Ryborg [1991] ECR I-1943, at paragraph 37; and in Joined Cases C-19/90 and C-20/90 Karelia and Karellas [1991] ECR I-2691, at paragraph 17. In recent judgments, minor differences arc apparent in that regard: thus, in its judgment in Case C-345/89 Stoeckel [1991] ECR I-4047, at paragraph 12, the Court refers to sufficiently precise and unconditional, whilst in its judgments in Case C-381/89 Syndesmos [1992] ECR I-2111, at paragraph 39, and in Case C-200/90 Dansk Denkami [1992] ECR I-2217, at paragraph 17, it refers to a provision of a directive which is clear, precise and unconditional. In its earlier judgments in Case 271/82 Auer [1983] ECR 2727, at paragraph 16 and in Case 5/83 Rienks [1983] ECR 4233, at paragraph 8, the Court referred to clear, complete, precise and unconditional duties which leave... no discretion.

74 The Francovich judgment was concerned with a discretion which Directive 80/987/EEC (cited in footnote 100 below) left to the Member States with regard to the methods of providing guarantees for employees in the event of the insolvency of their employer, and also as regards the restriction in the amount thereof.

75 Judgment in Francovich, cited in footnote 57, at paragraph 17, further applied in paragraphs 18-22; judgment in Case C-271/91 Marshall v Southampton and South West Hampshire Area Health Authority [1993] ECR I-4367, at paragraph 37.

76 Sec also the views of T. C. Hartley, The foundations of European Community Law, Oxford, Clarendon Press, Second Edition, 1988, p. 195, and, much earlier, P. Pescatore, The Doctrine of Direct Effect: An Infant Disease of Community Law, European Law Review, 1983, (155), p. 177.

77 The Commission has exercised this power, as evidenced by Decision 30-53 referred to in footnote 41.

78 Judgment in Case 1/54, cited above, at p. 10; and in Case 2/54, cited above, at p. 46 (emphasis added).

79 Judgment in Case 13/60 Geitling v High Authority [1962] ECR 83, at p. 102.

80 Judgment of 30 January 1974 in Case 127/73 BRT v SABAM [1974] ECR 51, at paragraph 16. For subsequent confirmation, see inter alia the judgment in Case 37/79 Many v Lauder [1980] ECR 2481, at paragraph 13; the judgment in Case C-234/89 Delimiti! [1991] ECR I-935, at paragraph 45; sec also the judgment of the Court of First Instance in Case T-51/89 Tetra Pak, cited in footnote 47, at paragraph 42.

81 Judgment cited in footnote 53. After emphasizing the common objectives of the preliminary rulings procedure set out in Articles 41 of the ECSC Treaty and 177 of the EEC Treaty (see paragraph 27 above), the Court decided in paragraph 16 as follows: It would therefore be contrary to the objectives and the coherence of the Treaties if the determination of the meaning and scope of rules deriving from the EEC and EAEC Treaties were ultimately a matter for the Court of Justice, as is provided in identical terms by Article 177 of the EEC Treaty and Article 150 of the EAEC Treaty, thereby enabling those rules to be applied in a uniform manner, but such jurisdiction in respect of rules deriving from the ECSC Treaty were to be retained exclusively by the various national courts, whose interpretations might differ, and the Court of Justice were to have no power to ensure that such rules were given a uniform interpretation. Although the Busseni case was only concerned with the interpretation of a measure adopted pursuant to the ECSC Treaty, namely a Commission recommendation, the Court's ruling clearly extends to ECSC Treaty provisions themselves, as is clear from paragraphs 9, 15 and 16 of the judgment.

82 Regulation No 17 of the Council of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).

83 So far as concerns the application of Article 85(3) of the EEC Treaty, on the other hand, the Commission has sole jurisdiction, that is to the exclusion of the national cartel authorities: see Article 9(1) of Regulation No 17.

84 Excluding in certain Member States courts especially entrusted with the task of applying domestic legislation on competition or that of ensuring the legality of that application by the administrative authorities, which courts are treated as equivalent to the cartel authorities of the Member States: see the judgment in BRT v SABAM [1974] ECR 51, at paragraph 19.

85 Judgment in BRT v SABAM, cited above, at paragraph 14.

86 Judgment in BRT, cited above, at paragraph 15.

87 Ibid, at paragraph 17. A parallel can be drawn here with the case-law on State aid: as the Court recognized in its judgment in Case C-354/90 Fédération Nationale du Commerce Extérieur [1991] ECR I-5505, at paragraph 14, the exclusive role which Articles 92 and 93 of the EEC Treaty confer on the Commission, which is to hold State aid to be incompatible with the common market, differs fundamentally from the role of national courts in safeguarding rights which individuals enjoy as a result of the direct effect of the prohibition laid down in the last sentence of Article 93(3), which forbids the Member State from putting its proposed measures into effect before completion of the procedure under Article 92; pending the Commission's final decision, they must protect the rights of individuals against any breach of that prohibition.

88 Compare this provision with the corresponding provision in Article 85(2) of the EEC Treaty, which provides that any agreements or decisions prohibited pursuant to that article are automatically void. In the Brasserie de Haecht judgment, the Court stated with regard to that provision that apart from the possible intervention by the Commission by virtue of the regulations and directives referred to in Article 87, the judiciary, by virtue of the direct effect of Article 85(2), is competent to rule against prohibited agreements and decisions Dv declaring them automatically void; the Court goes on to state that while the first course offers the necessary flexibility to take the peculiarities of each case into account. Article 85(2), the intention of which is to attach severe sanctions to a serious prohibition, docs not of its very nature allow the court the power to intervene with the same flexibility: judgment in Case 48/72 Brasserie de Haecht v Wilkm-Janssen [1 973] ECR 77, at paragraphs 4 and 5 (emphasis added).

89 The grant of exemption naturally implies that the High Authority has first established that the agreement in question falls within the prohibition in Article 65(1). That can result in conflicts of jurisdiction with the national courts or tribunals, which have been known to arise under EEC law: see paragraph 56 et seq. below.

90 In Case C-46/93 Brasserie du Pêcheur the Bundesgerichtshof has submitted a number of questions for a preliminary ruling concerning these problems as a result of a claim for compensation by Brasserie du Pêcheur SA, a French brewery, against the German authorities in respect of damage sustained as a result of the German Biersteuergesetz (Law on Beer Duty), whose Reinheitsgebot (purity requirement) was held by the Court in its judgment in Case 178/84 Commission v Germany [1987] ECR 1227 to be contrary to Article 30 of the EEC Treaty. In Case C-48/93 Faaortame the Divisional Court of the High Court of Justice, Queen's Bench Division, has submitted a number of questions to the Court for a preliminary ruling on the same problems. Those questions arise in connection with the claims lodged by several companies and individuals against the United Kingdom authorities for compensation in respect of the damage sustained as a result of the Merchant Shipping Act 1988, a number of whose provisions have been held by the Court to be contrary to the EEC Treaty (judgment in Case C-221/89 Faaortame [1991] ECR I-3905 and in Case C-246/89 Commission v United Kingdom [1991] ECR I-4585).

91 Judgment cited in footnote 57.

92 Judgment in Case C-120/88 Commission v Italy [1991] ECR I-621, at paragraph 10; in Case C-119/89 Commission v Spain [1991] ECR I-641, at paragraph 9; and in Case C-159/89 Commission v Greece [1991] ECR I-691, at paragraph 10; sec also the judgment in Case 72/85 Commission v Netherlands [1986] ECR 1219, at paragraph 20; and in Case 166/85 Commission v Italy [1986] ECR 2945, at paragraph 11. In the Eminott judgment as well, the Court acknowledged, with regard to its case-law concerning the direct effect of directives, that this was only a minimum guarantee: judgment in Case C-208/90 [1991) ECR I-4269, at paragraph 20.

93 Especially in connection with proceedings against Member States for failure to fulfil their obligations: the continued existence of national provisions which conflict with Community rules leads to ambiguity with regard to the rights and obligations of individuals, which runs counter to the ftrincipics of legal certainty and legal protection. It is then or the national or regional legislative authorities to remedy the situation and to give full effect to Community law: see, (rer alia, the judgments cited in the previous footnote in Commission v Italy, at paragraph 11, Commission v Spam, at paragraph 10, and Commission v Greece, at paragraph 11; judgment in Case 257/86 Commission v Italy [1988] ECR 3249, at paragraph 12. The Court also turns to the national legislature witii regard to the imposition of penalties: where a Community rule docs not itself provide for a specific mechanism for the imposition of penalties, the Member States arc required to take all measures necessary to guarantee the application and effectiveness of Community lawon the basis of Article 5 of the EEC Treaty: judgment in Case 68/88 Commission v Greece [1989] ECR 2965, at paragraph Zi.

94 Judgment in Case 106/77 Simmenthal [1978] ECR 629, at paragraph 16.

95 Judgment in Case C-213/89 Factortame [1990] ECR 2433, at paragraph 19. See, for earlier confirmation, the judgment in Case 33/76 Rewe [1976] ECR 1989, at paragraph 5, and in Case 45/76 Comet [1976] ECR 2043, at paragraph 12; the judgment in Case 68/79 Just [1980] ECR 501, at paragraph 25; the judgment in Case 61/79 Denkavit Italiana [1980] ECR 1205, at paragraph 25; the judgment in Case 811/79 Ariete [1980] ECR 2545, at paragraph 12, and in Case 826/79 Mireco [1980] ECR 2559, at paragraph 13. For an even earlier judgment see Case 13/68 Salgoil [1968] ECR 453, at p. 463.

96 Judgment in Francovich, cited above, at paragraph 36.

97 Judgment in Simmenthal, cited above, at paragraph 21.

98 Judgment in Factortame, cited in footnote 94, at paragraph 21.

99 Judgment in Frctncovicb, cited in footnote 57, at paragraph 35.

100 Judgment in Francovich, cited above, at paragraph 33. In paragraph 34 the Court added that the possibility of obtaining redress is particularly necessary where, as in that case (which was concerned with the failure to implement a directive) the full effectiveness of Community rules is subject to prior action on the part of the State and where, consequently, in the absence of such action, individuals cannot enforce before the national courts the rights conferred upon them by Community law.

101 Namely Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23).

102 Sec paragraphs 10 to 27 inclusive of the Francovich judgment. It has been argued that the Court decided against direct effect because it wished to develop a legal remedy against a Member State's failure to comply with Community directives which is unconnected with the requirement of direct effect; in that way, the Court purportedly sought to circumvent the problems connected with the non-horizontal effect of directives: J. Steiner, From direct effects to Francovich: shifting means of enforcement of Community law, European Law Review, 1993, (3), p. 9; sec also C. W. A. Timmermans, La sanction des infractions au droit communautaire, in La sanction des infractions ait droit communautaire. Fifteenth FIDE Congress in Lisbon, II, 1992, p. 24, who points out that the legal remedy developed by the Court in Francovich is to some extent a substitute for the doctrine of direct effect.

103 Judgment in Case C-188/89 Foster [1990] ECR I-3313, at paragraph 22 and operative part.

104 Judgment in Francovich, cited above, at paragraph 37 (emphasis added).

105 Judgment in Foster, cited in footnote 102, at paragraph 20. The legal position of the State-owned undertaking involved in that case, namely British Gas Corporation, was at the material time largely comparable to that of British Coal: pursuant to the Gas Act 1972 (which replaced the Gas Act 1948, whereby the gas industry in the United Kingdom was nationalized) British Gas Corporation was vested with a monopoly of the supply of gas in Great Britain and a number of related tasks. It was only afterwards, by the Gas Act 1986, that the industry was privatized: see paragraph 3 of my Opinion in the Foster case [1990] ECR I-3326, at p. 3327.

106 See the judgment in Francovich, cited above, at paragraph 30. Emphasis added here and in the following paragraphs.

107 Sec above, paragraph 37 and footnote 86.

108 Judgment in Francovich, cited above, at paragraph 35.

109 Judgment in Francovich, cited above, at paragraph 36.

110 Judgment in Van Gend en Loos, cited above, at p. 12.

111 Judgment in Simmenthal, cited above, at paragraph 15 (emphasis added).

112 Article 85(2) of the EEC Treaty; Article 65(4) of the ECSC Treaty.

113 See the Commission's Thirteenth Report on Competition Policy, 1984, Brussels-Luxembourg, pp. 147 to 149, Nos 217 and 218; Fourteenth Report on Competition Policy, 1985, No 47, p. 59; and, in particular. Fifteenth Report on Competition Policy, 1986, pp. 52 to 55, Nos 38 to 43; sec also the Commission's Answer to Written Question No 519/72, OJ 1973 C 67, p. 54, and, more recently, the answer given by Mr Andriessen on behalf of the Commission to Written Question No 1935/83, OJ 1984 C 144, p. 14. It would seem from an interna! survey that approximately one-half of the complaints addressed to the Commission in connection with breaches of the Community rules of competition could be settled on the basis of a purely legal analysis and could therefore be dealt with satisfactorily by the national courts and tribunals: Fifteenth Report on Competition Policy, p. 54, No 40. With that end in view, the Commission recently drew up an important Notice on cooperation between national courts and the Commission in applying Articles 85 and 86 of the EEC Treaty (OJ 1993 C 39, p. 6).

114 Individuals in the United States arc entitled to recover threefold compensation for damage sustained as a result of a breach of federal anti-trust legislation (so-called treble damages): both the Sherman Act and the Clayton Act provide that any individual injured in his business or property by reason of anything forbidden in the anti-trust laws... shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee; see, in that regard, with numerous references, P. Areeda and L. Kaplow, Antitrust Analysts. Problems, Text, Cases, Boston-Toronto, Little, Brown & Company, Fourth Edition, 1988, p. 83, No 146 et seq.

115 Judgment in Simmenthal, cited above, at paragraph 17.

116 See, for instance, the Report on reparation for damage as a result of breach of Articles 85 and 86 of the EEC Treaty, Collected Studies Series on Competition, No 1, Commission, Brussels, 1966, p. 5. This was also the opinion of the Bundesgerichtshof in its judgment of 14 April 1959 (see footnote 66), though in fact it was one of the reasons why, although it recognized the direct effect of Article 60(1) of the ECSC Treaty (see footnote 66 again), that court refused to attach thereto any consequences under private law; that would lead to an assessment differing from one Member State to another, which in fact runs counter to the equality of treatment pursued by the ECSC Treaty. For a criticism of that judgment see inter alia J. L. Janssen Van Raay, Een beslissing van het Bundesgerichtshof over E. G. K. S.-recht, Nederlands Juristenblad, 1960, (437), pp. 444-445.

117 Namely to the extent that it is possible for the enforcement of the Community rules to rely on the procedural and substantive system of legal protection which already exists in the Member States.

118 The omissions and weaknesses of national law also affect the enforcement of Community law. Reference has repeatedly been made to those dangers: see, inter alia, J. Bridge, Procedural Aspects of the Enforcement of European Community Law through the Legal Systems of the Member States, European Law Review, 1984, (28), pp. 31-32; D. Curtin, The Decentralised Enforcement of Community Law Rights. Judicial Snakes and Ladders, in Constitutional Adjudication in European Community and National Law. Essays for the Hon. Mr Justice T. E O'Higgins, Dublin, Butterworth, (33), p. 34; see also C. W. A. Timmermans, La Sanction des Infractions au Droit Communautaire, referred to in footnote 101, p. 21.

119 Judgment in Joined Cases C-143/88 and C-92/89 Zuckerfabrik [1991] ECR I-415, at paragraph 26.

120 Sec J. Bridge's article referred to in footnote 117, p. 29.

121 Judgment in Francovich, cited above, at paragraph 42. In its judgment in Russo the Court had already held that if such damage (suffered by a producer) has been caused through an infringement of Community law, the State is liable to the injured party far the consequences in the context of tbc provisions of national law on the liability of the State: Case 60/75 Russo v AIMA [1976] ECR 45, at paragraph 9 (emphasis added).

122 Ibid. On this point the Court refers, inter alia, to the judgment in Case 33/76 Rewe, cited in footnote 94, and to the judgment in Case 158/80 Rewe v Hauptzollamt Kiel [1981] ECR 1805.

123 Sec the judgment in Salgati, cited in footnote 94, at p. 645, as well as the other judgments cited in that footnote, namely Rcwe, at paragraph 5; Comet, at paragraph 15; Anete, at paragraph 12; and Mtreco, at paragraph 13. Sec also the judgment in Case 179/84 Bozzetti [1985] ECR 2301, at paragraph 17.

124 Sec the judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, at paragraph 18 (in paragraph 20 the Court refers to the principle of effective judicial control); and in Case 222/86 Heylens [1987] ECR 4097, at paragraph 14. According to those judgments, that requirement flows from the constitutional traditions common to all the Member States and is also laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights.

125 Judgment in Case 158/80 Rewe, cited in footnote 121, at paragraph 44.

126 Those requirements of non-discrimination — and practical possibility —had already been laid down by the Court in the aforesaid judgments in Rewe, at paragraph 5, and Comet, at paragraphs 13 and 16; see also the judgments cited in footnote 94: Just, at paragraph 25; Denkavit Italiana, at paragraph 25, Ariete, at paragraph 12; Mireco, at paragraph 13; judgment in Case 199/82 San Giorgio [1983] ECR 3595, at paragraph 12; Emmott, cited in footnote 91, at paragraph 16. The independent significance of the second requirement is apparent from paragraph 17 of the judgment in San Giorgio: there, the Court pointed out that the requirement of non-discrimination cannot be construed as justifying a measure where no legal redress (specifically reimbursement of charges unduly paid) is available as regards both the relevant breach of Community law and a similar infringement of national law.

127 Judgment in Francovich, cited above, at paragraph 43 (emphasis added). In the Francovich judgment the Court does not restate the requirement of direct effect, which is present in the judgments referred to in the previous footnote.

128 See the case-law of the Court with regard to the recovery of charges levied contrary to Community law: judgment in San Giorgio, cited above, at paragraph 14; judgment in Case 104/86 Commission v Italy [1988] ECR 1799, at paragraph 7.

129 Judgment in Rewe, cited in footnote 94, at paragraph 5; in Comet, cited above, at paragraph 17; and in Emmott, cited above, at paragraph 17.

130 Sec, with regard to the position of a directive which has not yet been properly transposed into national law by a Member State, the judgment in Einmott, at paragraphs 23 and 24 and the operative part.

131 This was decided by the Court in fiscal disputes, in which it was necessary to take account of the possibility that an undertaking had incorporated in its prices charges unduly levied and passed them on to its customers: sec the judgment injust, cited above, at paragraphs 26 and 27; in Denkavit Italiana, cited above, at paragraphs 26 and 28; in Anete, cited above, at paragraph 13; and in Mireco, cited above, at paragraph 14.

132 As Advocate General Mischo has already pointed out in Francovich, it is undesirable that the liability of the Community institutions for breach of Community law should be framed in a manner which differs fundamentally from that of the national authorities (or individuals) for breach of Community law: [1991] ECR I-5396, at paragraph 71, with reference to the judgment in Joined Cased 106/87 and 120/87 Astern [1988] ECR 5515, at paragraph 18.

133 Judgment in Francovich, cited above, at paragraph 38.

134 See paragraphs 39 and 40 of the judgment in Francovich. according to the Court, those conditions are: (i) the result prescribed by the directive must entail the grant of rights to individuals; (ii) it must be possible to identify the content of those rights on the basis of the provisions of the directive; and (iii) there must be a causal link between the breach of the State's obligations and the loss and damage suffered by the injured parties.

135 This has long been settled case-law: see the judgment in Case 4/69 Lüttkke v Commission [1971] ECR 325, at paragraph 10; see also the judgment in Case 281/84 Zuckerfabrik Bedburg v Council and Commission [1987] ECR 49, at paragraph 17.

136 See paragraph 40 of the Francovich judgment set out in footnote 132.

137 This is settled case-law: see, inter alia, the judgment in Case 153/73 Holtz & Willemsen v Council and Commission [1974] ECR 675, at paragraph 7; in Case 49/79 Pool v Council [1980] ECR 569, at paragraph 7; and in Case 50/86 Grands Moulins de Paris v Council and Commission [1987] ECR 4833, at paragraph 7.

138 See the judgment in Joined Cases 5/66, 7/66 and 13/66 to 24/66 Kampffmeyer v Commission [1967] ECR 245, at p. 266, where the Court's attitude is reserved with regard to the alleged damage in respect of the loss of profit (which) is based on facts of an essentially speculative nature.

139 Judgment in Joined Cases 56/74 to 66/74 Kampffmeyer [1976] ECR 711, at paragraph 6; in Case 44/76 Milch-, Feu- und Eierkontor [1977] ECR 393, at paragraph 8; in Case 147/83 Binderer [1985] ECR 257, at paragraph 19; and in Case 281/84 Zuckerfabrik Bedburg, cited in footnote 128, at paragraph 14. Those judgments are consistent with earlier case-law: thus, in Plaumann, the Court had already considered that an applicant may include in the application a request for a declaration with regard to the damage which may result from the contested measure and in the course of the written and oral procedures it may specify and set a value on the amount of such damage: judgment in Case 25/62 Plaumann v Commission [1963] ECR 95, at p. 108.

140 Judgment in Kampffmeyer, cited in the previous footnote, at paragraph 6.

141 Judgment in Joined Cases C-104/89 and C-37/90 Mulder and Heinemann v Council and Commission [1992] ECR I-3061, at paragraph 26, and my Opinion [1992] ECR I-3121, at paragraph 47.

142 Judgment in Mulder and Heinemann, cited above, at paragraph 33, and my Opinion, cited above, at paragraph 49.

143 See the judgment in Case 238/78 Ireks-Arkady [1979] ECR 2955, at paragraph 14; in Joined Cases 241/78, 242/78 and 245/78 to 250/78 DCV [1979] ECR 3017, at paragraph 15; in Joined Cases 261/78 and 262/78 Interquell Starke-Chemie [1979] ECR 3045, at paragraph 17; and in Joined Cases 64/76 and 113/76, 167/78 and 239/78, 27/79, 28/79 and 45/79 Dumortier Frères [1979] ECR 3091, at paragraph 15.

144 Judgment in Joined Cases 29/63, 31/63, 36/63, 39/63 to 47/63, 50/63 and 51/63 Société Anonyme des Laminoirs and Others v High Authority [1965] ECR 911, at p. 939.

145 Judgment m Case 261/78 Interquell Starke-Chemie [1982] ECR 3271, at paragraph 11.

146 Sec paragraph 40 of the Francovich judgment, summarized in footnote 133.

147 Judgment in Dumortier Frères, cited above, at paragraph 21.

148 See the judgment in Vloeberghs, cited in footnote 20, at p. 216; judgment in Case IS/60 Worms v High Authority [1962] ECR 195, at p. 206; most recently upheld in the judgment in Joined Cases C-363/88 and C-364/88 Finsider [1992] ECR I-359, at paragraph 25; in paragraph 45 of that judgment, the Court reiterates that there must be evidence of a sufficiently serious fault which is the direct cause of the damage relied upon.

149 See the judgment in Joined Cases 83/76 and 94/76, 4/77, 15/77 and 40/77 HNL v Council and Commission [1978] ECR 1209, at paragraph 4; judgment in Mulder and Heinemann, cited above, at paragraph 12.

150 In the Francovich judgment there was also a breach, though on the part of the authorities, of a precise obligation to transpose the directive concerned into national law within a specified period. Hence in that case as well there were no grounds for applying the more flexible criterion referred to in Article 215 of the EEC Treaty and in the text to the exercise of discretionary powers by the authorities.

151 Judgment in Case C-177/88 Dekker [1990] ECR I-3941, at paragraph 19 et seq.

152 Council Directive of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40).

153 Once again, therefore, the practical effect of the rules of competition would be weakened considerably if proof of fault were required; see the judgment in Dekker, cited above, at paragraph 24. It is otherwise as regards the question of the existence of intent or negligence as a condition for the imposition of a fine: see, in the context of the EEC Treaty, Article 15 of Regulation No 17.

154 Judgment in Mulder and Heinemann, cited above, at paragraph 34.

155 It was already apparent from the comparative analysis undertaken by Advocate General Capotorti in the Dumortier case that this is a general principle common to the legal systems of the Member States: Opinion in Joined Cases 64/76 and 113/76, 167/78 and 239/78, 27/79, 28/79 and 45/79 Dtimortier v Council [1982] ECR 1752, at pp. 1756 to 1758 (No 4). The Advocate General inferred from his comparative analysis that within the Community there is a sufficiently clear and widespread tendency to the effect that in determining compensation in cases of noncontractual liability account is also taken of the effects of matters subsequent to the event causing the damage, such as a currency depreciation or devaluation.

156 Order in Case C-358/90 R Compagnia Italiana Alcool [19901 ECR I-4887, at paragraph 26 (emphasis added); see also the order in Case 229/88 R Cargill [1988] ECR 5183, at paragraph 17; in Cases C-51/90 R and C-59/90 R Como; Tank and Others [1990] ECR I-2167, at paragraph 24; and in Case C-257/90 R /talsolar [1990] ECR I-3941, at paragraph 15.

157 Judgment in Ireks-Arkady, cited above, at paragraph 20; in DGV, cited above, at paragraph 22; in Intcrquell Starke-Chemie, cited above, at paragraph 23; and in Dumortier Frères, cited above, at paragraph 25; expressly confirmed by the Court in Mulder and Heinemann, cited above, at paragraph 35.

158 Judgment in Case 14/83 Von Colson and Kamann v Land Nordrbem-Westfalen [1984] ECR 1891, at paragraphs 23 and 24; followed in the judgment in Dekker, referred to in footnote 150, at paragraph 23; and in Marshall, cited in footnote 74, at paragraph 18: instead the directive, according to the Court, leaves the Member States freedom of choice between the various solutions appropriate for achieving the aim it pursues.

159 Judgment in Marshall, cited above, at paragraph 26 (emphasis and words in brackets added).

160 Judgment in Marshall, cited above, at paragraph 30.

161 Judgment in Marshall, cited above, at paragraph 31. In paragraph 32 of the judgment and point 1 of the operative part, therefore, the Court's answer to the question raised was that as a result of Article 6 of Directive 76/207/EEC, reparation of the damage sustained by a person injured as a result of discriminatory dismissal may not be limited... by the absence of interest intended to compensate for the loss sustained by the recipient of the compensation as a result of the effluxion of time until the capital sum awarded is actually paid.

162 Sec the judgment in Fédération Nationale du Commerce Extérieur, cited in footnote 86, in particular at paragraph 16.

163 Sec, in particular, the judgment in Brasserie de Haech, cited in footnote 87, in particular at paragraphs 4 to 12; and the judgments cited in footnote 79, namely BRT, at paragraphs 15 to 23, and Marty, at paragraphs 13 and 14.

164 Judgment in Delimitis, cited in footnote 79, at paragraphs 44 and 45.

165 Judgment in Delimitis, cited above, at paragraph 47.

166 Judgment in Delimitis, cited above, at paragraph 50. In paragraph 51 the Court points out that an exemption decision may only be taken in respect of an agreement which has been notified or is exempt from having to be notified.

167 Judgment in Delimits, cited above, at paragraphs 52 and 53. The Court goes on to state that, under Article 5 of the EEC Treaty, the Commission is bound by a duty of sincere cooperation with the judicial authorities of the Member States.

168 Judgment in Delimita, cited above, at paragraph 54.

169 See the reference thereto in footnote 112.

170 See the Opinion of Judge Kirschner, acting as Advocate General, in Case T-5I/89 Tetra Pak [1990] ECR II-312, at pp. 345-346, No 104, who rightly adds, on the basis of the case-law of the Court concerning Regulation No 67/67, that the national court retains jurisdiction to interpret a {directly effective) block-exemption regulation in order to establish whether or not a particular agreement is covered by it: the danger of inconsistency can be countered by recourse to the preliminary ruling procedure.

171 See in that regard the Opinion of Advocate General Reischl in Many [1980] ECR 2502, at p. 2507, and the Opinion of Judge Kirschner acting as Advocate General in the Tetra Pak case, cited in the previous footnote, ibid.

172 Judgment in Joined Cases 253/78 and 1/79 to 3/79 Procureur tic la République v Gtry and Gitćrlam [1980] ECR 2327, at paragraph 13; in Many, cited in footnote 79, at paragraph 10; in Case 99/79 Laucóme v ETOS [1980] ECR 2511, at paragraph 11; and again in Case 31/80 L'Oréal [1980] ECR 3775, at paragraph 11.

173 Ibid.

174 In the case of individua! ECSC decisions, see Article 14 in conjunction with the second paragraph of Article 15 of the ECSC Treaty; for EEC decisions, sec the fourth paragraph of Article 189 of the EEC Treaty.

175 Judgment in Foto-Frost, cited in footnote 55; sec also the judgment in Bussent, cited in footnote 53, at paragraph 14.

176 Evidently this does not apply to the addressee of the Commission decision or to persons to whom it is quite clearly of direct and individual concern: the only course of action open to them, if they wish to challenge the findings of fact or of law made in the decision, is to bring an action for annulment under Article 173 of the EEC Treaty.

177 See the condition laid down by the Court in the Zuckerfabrik judgment, cited in footnote 118, for suspension by a national court of the enforcement of a national administrative act based on a Community regulation: judgment in Zuckerfabrik, at paragraphs 23 and 33 and point 2 of the operative part. 177 — These are then findings which, since they were not necessary in order to substantiate the operative part (in line with the Court's case-law concerning Article 190 of the EEC Treaty: see paragraphs 15 to 17 of my Opinion of 29 June 1993 in Case C-137/92 P BASF, not published in the ECR), cannot be the subject of an action for annulment: see the judgment of the Court of First Instance in Case T-138/89 NBV and NVB [1992] ECR II-2181, at paragraph 31.