CostaVEnel - COSTA v ENEL seeing respect that the Member...

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Unformatted text preview: COSTA v ENEL seeing respect that the Member States have the as which national courts must protect. those obligations upon which been imposed and them by them 9. Article 53 of the EEC Treaty of is Treaty States rights, part which bind satisfied so subjects long as no new measure na without creating individual obligation on the establishment but the this the not tionals more of other Member States than those to of Commission the right does severe rules pres give individuals to allege, cribed for nationals of the country the of in Community either law or under Article establishment, system whatever legal 177, failure by of the State governing the undertakings. concerned to fulfil any its obliga tions or breach of of duty on the part 10. Article 37 constitutes of (2) in of the EEC Treaty creat the Commission. 102 no of all its provisions a rule of 5. Article contains the EEC Treaty are rights Community law capable ing individual rights which courts national provisions which must protect. capable of creating individual which national courts must protect. 11. 11. The the provisions of Article 37 as (2) of 6. Article 93 tains able no of the EEC Treaty are con EEC Treaty have their object provisions which cap of creating individual rights which national courts must protect. the prohibition of any new measure contrary to the principles of Article 37 that is any measure having as (1), its object or effect a new discrimina tion 7. A Member State's the obligation under which between nationals of Member EEC Treaty, to is neither States regarding which goods the conditions in subject any conditions or nor, as are procured and regards its execution of effect, to marketed, or by means of monopolies the adoption any measure either bodies which must, first, have capable as by the States or by the Commission, is legally complete and consequently capable on of their a object transactions product regarding of commercial the relations and producing direct effects between Member individuals. being the subject of competition and trade between Member States, and States Such an part obligation of becomes an integral system of secondly must play in such trade. an effective part the legal and the Member their It is with a matter for the court dealing in each States, own thus and forms in part of the main action to assess whether law, directly whose concerns case the economic relates activity such of their nationals favour it under review to a has created individual must rights which product which, the by virtue or its national courts protect. nature and technical inter national conditions to which it is 8. Article 53 a of the EEC Treaty cap subject, part is capable of or constitutes able of Community rule in imports of playing such a exports between creating individual rights nationals the Member States. In Case 6/64 Reference to the Court under a Article 177 of the EEC Treaty by the Giudice Conciliatore, Milan, for that court preliminary ruling in the action pending before between 587 JUDGMENT OF 15.7.1964 -- CASE 6/64 flaminio Costa and ENEL (Ente Nazionale Energia Elettrica the Edison (National Electricity Board), formerly on Volta undertaking) of Articles the interpretation 102, 93, 53 and 37 of the said Treaty THE COURT composed of: A. M. Donner, President, Ch. L. Hammes and A. Trabucchi, Presidents and of Chambers, L. Delvaux, R. Rossi, R. Lecourt (Rapporteur) W. Strau, Judges, Advocate-General: M. Lagrange Registrar: A. Van Houtte gives the following JUDGMENT Issues I of fact and of law -- Facts and procedure order of 16 January decided 1964 acceding to as this request, follows: By and Law No 1643 subsequent of 6 December 1962 the decrees the Italian Having regard to Article 177 of the Treaty of 25 March 1957 establishing the Republic and nationalized production EEC, incorporated into Italian distribution an of electric energy (or and law by Law No 1203 of 14 October to the of alle created zionale organization, the Ente Na 1957, gation and having the regard Energia Elettrica ENEL) which that Law No 1643 6 Decem (National the Electricity Board) the electricity to ber 1962 and presidential of decrees assets of undertakings issued in 1670 of execution that Law (No were transferred. the payment of an In proceedings about 4 February 1963, 1963 and 15 December 1962, No 36 of No 138 of 25 Febru No 219 of invoice for electricity between Flaminio Costa and ENEL, before the Giudice shareholder of ary 14 March 1963) 37 of infringe Articles the Conciliatore, Milan, Mr Costa, as a Edison Volta, a company 102, 93, 53 and aforementioned Treaty, the stays Court hereby the proceedings affected an by the nationalization, and as and orders that a certified to electricity consumer, requested the court to apply Article 177 of the EEC file be transmitted of the copy of the Court of Economic Justice the European Treaty of so as to obtain an interpretation Community in This was Luxembourg.' Articles Treaty, which 102, 93, 53 and 37 of the said Articles, he alleged, had application for a preliminary ruling of transmitted by the the Registrar to the the been infringed by the Law of 6 Decem Giudice Conciliatore was Court and on ber 1962. The Giudice Conciliatore, by received in Court Registry 588 COSTA v ENEL 20 February 1964. set out the obligations of the observations in Mr Costa written his his on procedure possible is that Treaty. The only under Articles statement of case lodged 169 and 170 and 15 May 1964. He of asked the Court 'for an present proceedings the consequently before the Court of interpretation cular of the Treaty, in parti Justice are 'absolutely the the inadmissible'. other Articles 102, 93, 53 and 37'. In its statement of case lodged on 23 May Mr Costa claims on hand that of by the Treaty within jurisdiction the 1964, mitted the that Italian the Government for a sub Court depends request on the mere existence of a application was pre the liminary ruling 'absolutely inad 177 and it appears meaning of Article from the question involves a missible' and that there were no grounds submitted that of it the case not of for raising the questions referred. in its statement of case lodged same were ENEL, on interpretation the Treaty; it is to for or the Court of Justice judge the facts day, also submitted that these there ques the considerations no grounds for raising of case the national court may have led to make its choice of which tions. questions. In its statement dated 23 May its of 1964, the the EEC Commission both on made finally the Commission raises the point Court's examination cannot that the concern observations the relevance itself with the court reasons which questions put and on the interpreta led the national to adopt its tion of the abovementioned Articles. questions or with of their importance for this case resemb The Court to also received an 'application the solution their the dispute. In to intervene', filed in the Registry on 20 May 1964, which was declared inadmissible II wording seems bear a lance to an action for failure as to fulfil a by order of 3 June 1964. Community under obligation envisaged and as such Articles 169 It decide those and 170 -- Observations under submitted is inadmissible. to is however the for the Article of 20 of the Court from questions Statute the Court referred subject of relating solely to the interpretation as permitted by Commission points out On the admissibility of the reference for a Article 177. preliminary ruling The Italian Government the trict pret Finally in complains not the that a judgment dated 7 March 1964 constitutional the to that res Italian court failed Giudice Conciliatore did itself to asking the Court to the Treaty but also asked whether was and inter apply this Article in a similar case and thus took a decision involving certain repercussions on it to the future of Com declare dispute the Italian law in the the munity law as a whole. in Treaty, A that conformity with because of this On the interpretation of Article 102 As to the interpretation of preliminary ruling is inadmissible. national court, it is claimed, procedure a cannot Article 102, consulta have recourse to this of when, Mr Costa tion with suggests that prior for the purposes deciding a dispute and the Commission should be it has only be to apply domestic law regarded as an obligation for the Mem not a provision of the a on Treaty. Article 177 means ber State in right. question and not as a mere of cannot a used as national court, allowing the initiative of a of Any other interpretation deprive consult with Article 102 would it of its purpose. national of a Member State, to subject Failure when to the Commission, of a consti- a law of that State to the procedure for a faced the of existence preliminary ruling for infringement of potential danger distortion, 589 JUDGMENT OF 15.7.1964 -- CASE 6/64 tutes an irregularity. A Member State of Court of Justice in cases of where the cannot itself appreciate the likelihood without material incompatibility accompanied the aid in distortion a power unilaterally assuming not dispute is of by infringement considera which has been conferred the procedural rule under on it. existence of a tion. The Commission denies the distortion. that, if The Commission has law in dispute but the conclusion studied the draft It seems to state however as there is any doubt be to its coming to that it is incompatible without existence, then there would grounds with the Common Market. In the opinion Com for consulting at the Commission the and that, con mission's relates the only question the time when disputed law was to the the matter of procedure notify. and cerning nationalization the Italian Republic did The Italian Government the adopted, the concerns failure to The Com action not respect mission reserves the right to take proves rule of procedure applicable in this case. out if the aid in question to be in points that compatible with the Treaty. and Commission, when informed by a The Italian Government out ENEL point written question submitted by a German in this that the facts show that there is no deputy, case accepted nationalization referred incompatibility nationalization between and the Law on and to Article 222. There the Article 93. ENEL has nothing law. is no distortion as a within meaning intended of The to establishment of with Article 102 setting up achieve long as it is a question of do Community public service to the objectives of public of indicated in Article 43 and as the utility Italian condi On the interpretation of Article 53 With regard constitution long are as not the to the interpretation of tions of competition adversely arguments Article 53 which prohibits States from the affected. introducing forward out similar any new restrictions on ENEL and puts right of establishment in their the territories, points that the establishment Mr Costa tion claims to see in nationaliza of a public service applies equally to all of a sector of the economy the above a measure those coming under the scheme. incompatible Article 222 with Article. cannot justify the legality of On the interpretation of Article 93 regard every of conceivable system of property With to the interpretation considers economic Article 93, Mr Costa of an that the ownership and the property is contrary No rule exempts a abolition of private to the above Article. sector nationalized nationalization activity from the application of Article denial 53. of a automatically results in the creation of a system in which hidden aid is granted to the sion Nationalization constitutes a Community best system and is the method of nationalized must sector. The Commis ac calculated to prevent enshrined the freedom accordingly intervene in establishment by of the said of cordance with the procedure prescribed Article other with regard to nationals both the by Article 93. The Commission States which Member state. States 55 and na considers not that Member the pro tionalizing do respect Finally, Article as cannot be considered visions of a Article 93 procedural committing infringement which itself the (3) are derogating is from Article 53, as the former suffices to entitle under Commission 169. retains to take action Article The the the exclusively concerned with latter exempting from the ambit of the the official powers of the State and not the power Commission power nevertheless to pursue an economic to bring the matter before activity. 590 COSTA v ENEL The Italian Government on objects to this also to potential discrimination if its only existing and it interpretation 53 does not the ground that Article would were have to no effect purpose cases of State concerned apply where the Member leaves to free private as eliminate whilst discrimination enterprise (without any distinction that part to lishment of new allowing the ones. The consequences estab nationality) which of the economy public of nationalization of a are identical to those the is not reserved to the legal monopoly, in ineluctable power other words authorities. sole power of of management, the character of binding its deci deci In be support the same interpretation should and ENEL suggests that Article 53 sions, the sions of in reaching those the the regarded as intended to place foreign as a nationals as to adopt criteria outside and field of of ers on the same footing economics exclusion regards activity. the exercise of productive competition. such a Therefore, is to the result This State principle is not infringed if a law the monopoly importation of similar render the goods produced not instituting a public service reserves to the relevant same sector of by foreign impossible. By undertakings difficult if the economy, nationals sector. by the token alike and foreigners in excluding from this creating a commercial monopoly, restrictive nationalization effect on has the same The Commission the considers regarded light not of that, when Article 222, with imports as protective duties or quantitative restrictions. nationailization is inconsistent and Rebutting Government this interpretation that with the Italian can of the Treaty. Articles 5 at 90 are aimed submits Article 37 alleviating the the consequences of resulting have nothing to do production the operation from operation sectors of ever the economy. nationalizing Article 53 how restrictions on a public service nor with an article whose depends on limited to a natural applies to possible sources (themselves subject public the right of establishment of nationals of concession) which can only be used by a other States which might result from a case of nationalization, such restrictions not necessarily limited number of producers. The rules of the Treaty safeguarding a being justified by in the sector technical question. require free the market cannot of be concerned services. with ments in system public Moreover, On the interpretation of Article 37 In 37 respect of prejudices as Article rules the 222 in no way in Member States owner the requirements that Member adjust of Article shall governing the system of property ship, it is possible for the constitutional authorities and to the effect States in each to prescribe the goods of progressively any State mono services capable being con polies of a commercial character so as to avoid all of sidered as public property and which, on remain discrimination between na the basis of objective decisions, tionals Member States regarding the under outside any rule on competition. Con and con conditions cured and which goods are pro sequently, the exclusion a sector of exports must marketed, Mr Costa asks the imports in sidered not such be Court to interpret widely in such a every a measure by this provision very way that it refers to which a State confers in terms of of a commercial exercise of a activity but In rather the public service. either on itself or on a monopoly which is body by its subject to it support of this the interpretation and position by the very nature reference to of Article 37 in commercial. in the Treaty, Article ENEL be considers specified The only said to Article applies, he claims, not actual cases of discrimination but 'commercial the said monopolies' to public or private 591 JUDGMENT OF 15.7.1964 -- CASE 6/64 organizations aiming, as make a concentration calculated institutions, exports to the field of the circulation of goods or of and services. Although as nationalization permissible new may imports be to disturb the free be considered under mono movement of goods. of That a could never Article 222, the creation of a the objective public service; a parti poly cannot. moreover cular international trade in However, trade a tactual estimate of the article depends on international in existence respect of between the Member agreements and complex administrative procedures and States in question commodity in is by its very of nature must be taken into considera outside and the requirements Article 37 competi tion. any provision relating to T here is no need to inquire whether the tion. creation of a The State Commission should finally be an considers that character monopoly of a commercial is inconsistent with Article the Article 37 import applied whenever a exclusive right 37 (2), where of importation and are establishes or to the exportation not of subject the said commodity export. To fall within to the discretionary power prohibitions in Article 37 the impugned in the administering body. measure must be intended to operate Grounds Order dated of of judgment By 16 January 1964, duly sent to the Court, the Giudice Milan, 'having regard to Article 177 of the Treaty of 25 March 1957 establishing the EEC, incorporated into Italian law by Law Conciliatore No 1203 No 1643 of of 14 October 1957, and having regard to the allegation that Law of 6 December 1962 ... and the presidential decrees issued in 37 of execution that Law infringe Articles 102, 93, 53 and the aforementioned Treaty', the stayed the proceedings and ordered that the of Justice. file be transmitted to Court On the application of Article 177 On the submission regarding the working of the question The complaint is made that the intention behind the on question posed was to of a national obtain, by means of Article 177, a ruling the compatibility law with the Treaty. By as the terms of this the present Article, however, is national courts against whose decisions, to the in case, there no judicial remedy, must refer the matter Court tation them. ofJustice so that a Treaty' preliminary ruling may be a question given upon the 'interpre raised of the provision whenever of interpretation is either of a before This gives or the to Court decide no jurisdiction to apply the of Treaty 592 to a specific case upon the validity provision COSTA v ENEL domestic law in under relation to the Treaty, as it would be possible for it to do Article 169. Nevertheless, formulated the the of Court has power to extract from a question imperfectly to the given by national court those questions a which alone pertain interpretation Court only of the Treaty. validity Consequently of an of decision should be not upon the Italian law in relation to the by the Treaty, but context upon the interpretation the abovementioned Articles in the the points of law stated by the Giudice Conciliatore. On the submission that an interpretation is not necessary has interpretation The complaint is made that the Milan court requested an of the Treaty which was not necessary for the solution of the dispute before it. Since, however, Article between latter national 177 is based and the upon of a clear separation of functions the courts Court of Justice, or it cannot empower either to investigate request the facts the case to criticize the grounds and purpose of the for interpretation. On the submission that the court was obliged to apply the national law The Italian Government is submits that the request of the Giudice Conciliatore is obliged 'absolutely inadmissible', a national inasmuch as a national court which to apply law cannot avail itself of Article 177. By its contrast with own ordinary legal international legal part system of which, on the treaties, the EEC T reaty has created entry into force of the Treaty, became an of integral the systems the Member States and which their courts are bound to apply. By its the creating own a Community plane of unlimited duration, having its and own institutions, personality, its own legal capacity more capacity of representation on international of and, particularly, real powers limitation sovereignty or a transfer of powers stemming from a from the States to the Com rights, albeit within munity, the Member States have limited their sovereign limited fields, and and have thus created a body of law which binds both their nationals themselves. The integration into derive from the of the laws of each and Member State of provisions which Community, more generally the terms and the spirit the Treaty, make it impossible for the States, as a corollary, to accord 593 JUDGMENT OF 15.7.1964 -- CASE 6/64 precedence accepted to a unilateral and subsequent measure over a legal system by them on a with basis of reciprocity. Such a measure cannot therefore be inconsistent law cannot that legal system. The executive force of Community subsequent of vary from without one State to another in deference to domestic laws, Treaty set by Article The out in Article 5 jeopardizing (2) and giving rise the attainment of the objectives the to the discrimination prohibited 7. obligations undertaken would not under the Treaty establishing the Community be unconditional, but merely contingent, if they could be called in question by subsequent legislative acts of the signatories. Wherever the Treaty precise grants the States (for the right to act unilaterally, example it does this by clear and provisions Articles 15, 93 (3), 223, 224 derogate from example and 225). Applications, by Member States for 17 authority to the Treaty (4), are subject to a special authorization procedure (for Articles 8 (4), 25, 26, 73, lose the third subparagraph of Article 93 (2), and 226) which would their purpose if the Member States could renounce their obliga tions by means of an ordinary law. law is Article 189, whereby a in all Member States'. be quite of a meaning The precedence of Community binding' confirmed by regulation 'shall be and 'directly applicable This provision, less if a which is subject to no reservation, would effects State could unilaterally nullify its by means legislative measure which could prevail over Community that the law. It follows from an all these observations independent source of law, could law stemming from the Treaty, because of its special and original not, nature, be overridden out by domestic legal provisions, however framed, with being of deprived of its character as Community into law and without the legal basis the Community itself being by of called question. The transfer system the States from their domestic legal system to the the legal with the rights and obligations arising under Community Treaty carries which it a permanent limitation of their sovereign rights, of against a subsequent unilateral act cannot prevail. incompatible with the concept the Community of Consequently Article 177 is to be applied regardless any domestic arise. law, whenever questions relating to the interpretation of the Treaty The and questions put 37 effects 102, 93, 53, by the Giudice Conciliatore regarding Articles directed first to enquiring whether these provisions produce direct are and create individual rights which national courts must protect, and, meaning is. if so, 594 what their COSTA v ENEL On the interpretation of Article 102 Article 102 down provides that, where 'there is fear' reason to that a provision laid by law may cause 'distortion', the Member State desiring to proceed therewith shall 'consult the Commission'; the Commission has power to the Member States the adoption of suitable measures recommend to to avoid the distortion feared. This Article, placed in the chapter devoted to the 'Approximation of of Laws', more is designed to nations with prevent the regard differences between the legislation objectives of the different to the the Treaty from becoming pronounced. By virtue of this provision, Member States have limited their freedom of initiative consultation. with by agreeing to submit to an appropriate By binding themselves unambiguously to prior all procedure of consultation might the Commission in those cases where their projected the legislation create a risk, however slight, of a possible distortion, national States have under taken an obligation to the Community which binds rights which them as courts States, but which does not create individual must protect. For this its part, the Commission is bound to ensure respect give for the provisions of right Article, but within this obligation of does not individuals the to allege, either the framework State the Community law and by means of Article 177 breach failure by the concerned to fulfil any of its obligations or of duty on the part of Commission. On the interpretation of Article 93 Under Article 93 (1) and (2), the Commission, in cooperation with of aid Member States, is States' to 'keep of under constant review all systems existing in those with a view to the adoption of appropriate measures required by the functioning By virtue of the Common Market. of Article 93 (3), plans the or Commission is to be alter informed, in sufficient not time, any to grant aid, the Member State concerned being entitled to put its proposed measures into effect until the Community of procedure, and, if necessary, any proceedings before the Court Justice, have been completed. These provisions, contained on in the section of the Treaty headed 'Aids granted by States', aids of are designed, other affairs the one hand, to eliminate progressively existing and, on the hand, from to prevent the individual States in the conduct their internal introducing new aids 'in any form whatsoever' 595 JUDGMENT OF 15.7.1964 -- CASE 6/64 which are likely directly an or indirectly and of to favour certain undertakings or products in appreciable way, which threaten, the even potentially, to ack distort competition. By virtue Article 92, Member States have the nowledged that such aids are incompatible not with Common Market and have thus provided agreed in implicitly the Treaty; the undertaken to create any more, save as on the other otherwise in Article 93, hand, they have for the merely to submit themselves to appropriate procedures aids and abolition of existing introduction of new ones. By of so expressly undertaking to inform the Commission 'in plans time' sufficient any for aid, and by accepting the an procedures with laid down in Article 93, the States have as entered into obligation the Community, in the case which of binds them States but creates no individual is not rights except question the final provision of Article 93 (3), which in in the present case. For its part, the Commission is bound to this ensure respect for the provisions of Article, and is required, in cooperation with Member States, to keep under constant give however, existing systems of aids. This obligation does not, individuals the right to plead, within the framework of Com review munity law to fulfil any and by means of Article 177, obligations or either failure by the State of concerned of its breach of duty on the part the Commission. On the interpretation of Article 53 By Article Member 53 the Member States undertake not to introduce any new restric tions on the right of establishment in their territories of nationals of other States, save as otherwise provided in the Treaty. The obligation not thus entered which into by the States simply amounts legally the to a duty its or to act, is neither subject to any conditions, nor, as regards execution or effect, to the adoption mission. of of any measure either complete by States by the Com It is therefore legally express producing direct effects on in itself and is consequently capable the relations between Member States and which individuals. Such an prohibition came into force integral of with the the Treaty legal throughout the Community, States, nationals, in and thus became the an part of system of the Member forms part of law those States and directly concerns their whose favour it has created individual rights which national courts must protect. T he interpretation of Article 53 which is sought requires that it be considered in it the context of the occurs. Chapter relating to the right of establishment in which After enacting in Article 52 that 'restrictions on the freedom of establishment of nationals of a Member State in the territory of another 596 COSTA v ENEL Member State shall be abolished by progressive stages', this not chapter goes on new in Article 53 to restrictions on other provide that 'Member States shall introduce any the right of establishment in their territories on what of nationals of conditions Member States'. The question is, therefore, where the nationals of other with Member States have of a right of establishment. This is dealt by the second paragraph Article 52, it is stated that freedom of establishment shall include and the right to take up and pursue activities as undertakings self-employed conditions persons to set up and manage own nationals 'under the where laid down for its is by the law of the country such establishment effected'. Article 53 is therefore lishment satisfied so long as no new measure subjects the estab of nationals of other Member States to more severe rules than those whatever prescribed for nationals of the country of establishment, the legal system governing the undertaking. On the interpretation of Article 37 Article 37 (1) provides that Member States character' shall progressively adjust any 'State monopolies of a commercial discrim so as to ensure that no mar ination regarding the conditions under which goods are procured and nationals of keted exists between Member States. Member States measure which are under an obligation to refrain from By Article 37 (2), the introducing any new is contrary to the principles laid down in Article 37 (1). Thus, Member States have place, one an active one undertaken a dual obligation: in the first to adjust State monopolies, in the second place, a requested passive to avoid any new measures. The interpretation is of the second obligation together with any aspects of the first necessary for this interpreta tion. Article 37 (2) contains an absolute prohibition: not an obligation to do something but an obligation to refrain from doing something. This obligation is not accompanied by any reservation which might make its implementation subject which to any positive capable of act of national law. This prohibition is essentially one is producing direct effects on the legal relations between Member States and their nationals. Such a clearly expressed prohibition which came into force integral of those with the Treaty legal throughout the system of the Community, nationals, in and so became the an part of the Member States, forms part of law States and direct ly concerns their whose favour it creates individual rights which 597 JUDGMENT OF 15.7.1964 -- CASE 6/64 national courts must protect. By reason of the complexity of the wording and requested the fact that Articles 37 (1) and 37 (2) overlap, the interpretation makes occur. it necessary to examine them as a part of the Chapter in This Chapter deals with the 'elimination of quantitative object of (1)' which they 'the restrictions between Member States'. The principles of the reference in Article 37 (2) to laid down in paragraph is thus to prevent the establishment any new procured and 'discrimination regarding between marketed . . . the conditions nationals of under which goods are Member States'. the ways Having which specified the objective in this way, Article 37 order (1) sets out in this objective might be thwarted in to prohibit them. Thus, by specified the reference in Article 37 (2), any in so new monopolies or bodies in Article 37 (1) are prohibited far as they tend to introduce new cases of procured discrimination regarding and marketed. It is therefore first new the conditions a matter under which goods are for the is court dealing with the main action whether to examine whether this objective being hampered, Member States and marketed that is any discrimination between under nationals of regard ing the conditions which goods will are procured results from the disputed measure itself or be the consequence thereof. There not remain to be considered the means envisaged of by Article 37 (1). It does a prohibit the creation any State monopolies, but merely those 'of commercial character', and then only to. in so far as they tend to introduce the cases of discrimination referred To fall must, under this prohibition the State monopolies and bodies in a question first, have capable transac as their object tions regarding in commercial product of being the subject of competition and trade such between Member States, and secondly must play an effective part trade. It is a matter for the court dealing with the main action to assess in each case to such a product whether the economic activity under review relates or which, which by virtue of its nature and the technical an international part conditions to it is subject, is between capable nationals of the ofplaying Member States. effective in imports or exports Costs The incurred costs ity ies the and the by the Commission of the European Economic Italian Government, which have submitted observations are, in so Commun to the part Court, are not recoverable and as these proceedings main far as the to the action are concerned, a the Giudice Conciliatore, Milan, step in the action pending before decision on costs is a matter for that court. 598 COSTA v ENEL On those grounds, Upon reading the pleadings; hearing the report of the Judge-Rapporteur; Com hearing the observations of the parties to the main action, the Govern mission of the European Economic Community and the Italian Upon ment; Upon Upon hearing the opinion of the and Advocate-Gnral; Having the regard to Articles 37, 53, 93, 102 on the 177 of the Treaty of establishing European Economic regard Community; Statute of Having to the Protocol the Court Justice of the European Economic Community; Rules of Having regard to the pean Communities; Procedure of the Court ofJustice of the Euro THE COURT Ruling upon As a the plea of inadmissibility based unilateral on Article 177 hereby declares: subsequent measure cannot take precedence over Community law, Milan, interpretation the questions put by the Giudice Concili in this case atore, to the are admissible in so far as they relate of provisions of the EEC Treaty; and also rules: 1. Article 102 contains no provisions which which are capable of creating protect; individual rights national courts must 2. Those individual relates portions of Article 93 to which the question equally contain no such provisons; 3. Article 53 constitutes a rights Community national which rule capable of must creating individual prohibits ment which courts protect. It any new measure of other subjects the establish of nationals Member States to for nationals more severe of rules than those prescribed of the country establishment, undertakings. whatever the legal system governing the 4. Article 37 (2) is in all its provisions a rule of Community law 599 OPINION OF MR LAGRANGE -- CASE 6/64 capable of must creating individual protect. In so far as the prohibits rights which national courts question put of to the Court is concerned, it the introduction of any new measure contrary measure to the principles Article 37 (1), that is, any having goods as its object or effect a new discrimination conditions means between in nationals of Member are States regading the and which procured which marketed, by of monopolies or bodies must, first, have trade as their object capable transactions regarding a commercial product of being the subject and of competition and between Member in such States, and secondly must play an effective part trade; further declares: The decision the on the costs of the present action is a matter for Guidice Conciliatore, Milan. Donner Hammes Trabucchi Delvaux Rossi Lecourt Strau 1964. Delivered in open court in Luxembourg on 15 July A. Van Houtte Registrar A. M. Donner President OPINION OF MR ADVOCATE-GENERAL LAGRANGE DELIVERED ON 25 JUNE 1964 <ap note>1</ap note> Mr President, Members of the are such as to bring in issue the the consti Court, question a upon tutional relations between European Economic The preliminary you have to give 177 of which Community you and its Member importance States. This highlights of the ruling under Article for the judgment in are called upon to the EEC from Treaty a does not, pronounce this case. The facts a are once, come but from an Netherlands court, Italian one, and it is no security or of known to you: Mr Costa, lawyer practising in under Milan, claims that he is not longer a question of social an obligation to pay an invoice Regulation No 3, but number rather of a certain of of provisions the Treaty that amounting to 1925 lire demanded of him in respect of the supply of electricity itself, in tation respect of which your requested interpre by the 'Ente Nazionale per l'Energia to this is in circumstances Elettrica (ENEL)'. He objected 1--Translated from the French. 600 ...
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