30. 12. 89 Official Journal of the European Communities No C 330/1 
I 
(Information) 
COMMISSION 
Sixth Annual Report 
to the European Parliament 
on Commission monitoring of the application of Community law 
1988 
COM(%%) 4/7 /%*%/ 
(89/C 330/01) 
30. 12. 89 Official Journal of the European Communities No C 330/3 
CONTENTS 
INTRODUCTION 5 
SECTOR-BY-SECTOR ANALYSIS 
I. AN AREA WITHOUT FRONTIERS 
The single market 
Removal of physical frontiers 7 
Customs union 7 
Free movement of goods 8 
Aricle 30 8 
Article 95 9 
Abolition of animal and plant health controls 10 
Abolition of tax controls 10 
Removal of technical frontiers 11 
Free movement of goods 11 
Principles governing freedom of movement 11 
Article 30 11 
Mutual recognition of national rules 13 
Technical regulations 14 
Miscellaneous products 14 
Motor vehicles 14 
Foodstuffs 14 
Pharmaceutical products 14 
Chemical products 15 
Energy-generating products 15 
Opening-up of public procurement 15 
Free movement of workers and of members of the professions 16 
Services 16 
Financial services 16 
New technologies and related services 17 
Capital movements 17 
Rules applying to businesses 18 
Company law 18 
Intellectual and industrial property 18 
A People's Europe 
Free movement of persons 19 
The right to cross borders freely 19 
Taxation and the citizen 19 
Right of establishment and recognition of qualifications 20 
Discrimination on grounds of nationality 20 
Other questions: driving licences 21 
Employment, social policy and education 21 
Consumer protection 22 
No C 330/4 Official Journal of the European Communities 30. 12. 89 
II. OTHER QUESTIONS 
Statistical matters 22 
Community staff 23 
Budgetary matters 23 
Environment policy 24 
Competition policy 25 
Agricultural policy 25 
Fisheries 27 
Transport policy 27 
Energy policy 28 
External relations 28 
Development cooperation policy 28 
TABLES, CHARTS AND SUMMARIES 
Page 
No 1 Infringement proceedings initiated since 1981 classified by stage of proceedings and Member 
State 29 
No 2 Number of letters of formal notice, 1985 to 1988, classified by sector 30 
No 3 Number of reasoned opinions, 1985 to 1988, classified by sector 31 
No 4 Number of references to the Court of Justice, 1985 to 1988, classified by sector 32 
No 5 Infringement proceedings initiated since 1981 classified by stage of proceedings and sector... 33 
No 6 Infringement proceedings initiated since 1981 classified by sector and legal basis 34 
No 7 Number of infringement proceedings initiated since 1982 classified by legal basis and stage of 
proceedings 35 
No 8 Number of infringement proceedings initiated since 1985 classified by Member State, legal 
basis and stage of proceedings 36 
No 9 References to Court and judgments since 1981 37 
No 10 Court of Justice judgments delivered up to 31 December 1988 not complied with 41 
No 11 Review of significant judgments of national courts of final instance 53 
No 12 Statistics on complaints and infringements detected by the Commission's own inquiries 56 
ANNEXES 
A — Infringements of the Treaties and of Regulations 59 
B — Infringement of directives 82 
30. 12. 89 Official Journal of the European Communities No C 330/5 
INTRODUCTION 
1. The sixth annual report on the application of 
Community law by the Member States deals with the 
monitoring of the application of Community law during 
1988. Like its predecessors (') it represents a response to 
the desire expressed by the European Parliament in its 
resolution of 9 February 1983 (2). 
2. The report comprises: 
— a summary of infringements of the Treaties and of 
secondary legislation as at 31 December 1988 and of 
the infringement proceedings terminated during 1988 
(Annex A), and 
— a review showing the stage reached in the application 
of directives as at 31 December 1988 (Annex B). 
These are preceded by a sector-by-sector analysis, 
various tables and graphs and a commentary on the main 
judgments delivered by the highest courts of law in the 
Member States. 
3. The presentation of the report is essentially similar 
to that of last year. However some innovations have 
been made in response to a request by the European 
Parliament: 
(a) in the sector-by-sector analysis, the chapter on the 
single market has been drafted in such a way as to 
follow the structure of the Commission's White 
Paper on the internal market and the chapter on a 
citizens' Europe has been amplified. Among other 
questions, there is now an analysis of external 
relations; 
(b) in response to the interest by the European 
Parliament in the attitude of national courts towards 
Community law, the annual review of important 
judgments of national courts is supplemented this 
year by a study of how their decisions have 
developed. This study, which was already fore­
shadowed in the fifth report, is published as an 
appendix to the present report. 
4. The summaries and tables in the sixth annual report 
call for the following comments: 
(a) As regards the means of detecting infringements 
(i) Complaints are a primary source of information 
for the Commission. The number of complaints 
registered continues to grow significantly (1 137 
in 1988), thus showing that citizens are assuming 
an increasingly active role in the effective 
O First annual report COM (84) 181 final, 20. 4. 1984, 
Second annual report COM (85) 149 final, 23. 4. 1985, 
Third annual report COM (86) 204 final, 3. 6. 1986, 
published in OJ No C 220, 1. 9. 1986, 
Fourth annual report COM (87) 250 final, 24. 8. 1987, 
published in OJ No C 338, 16. 12. 1987 and 
Fifth annual report COM (88) 425 final, 13. 9. 1988, 
published in OJ No C 310, 5. 12. 1988. 
O OJN0C68, 14. 3. 1983. creation of a Community based on law. The 
Commission makes every effort — as was 
indicated in the fifth report — to give a decision 
as quickly as possible (see table 12); 
(ii) As regards cases detected by the Commission's 
own enquiries there is an increase (307), 
contrary to the situation noted in 1987. A 
number of such cases originate from 
parliamentary questions or petitions. In these 
cases also the Commission tries to ensure that 
they are dealt with as rapidly as possible (see 
table 12); 
(b) The number of letters of formal notice has fallen 
slightly in comparison with the previous year. The 
internal market and industrial affairs, agriculture and 
the environment are the main areas in which 
infringement procedures have been commenced. In 
comparison with 1987 there is a sharp increase in 
relation to agriculture but a fall in the number of 
cases concerned with the environment, employment 
and social affairs (see tables 1 and 5, graph 2); 
(c) The number of reasoned opinions, on the other 
hand, has increased in 1988 thus continuing the 
increase noted in 1987. The sectors to which this 
increase relates are chiefly the environment, 
transport and agriculture. There has been a fall in 
the number of cases concerned with the customs 
union, taxation and the internal market and 
industrial affairs (see tables 1 and 5, graph 3); 
(d) The number of actions brought before the Court of 
Justice has increased slightly in comparison with 
1987 (see tables 1 and 5, graph 4); 
(e) The number of judgments of the Court of Justice 
which have not yet been complied with rose 
considerably, thus aggravating the trend criticized in 
1987 (see table 9 and summary 10). 
5. These facts call for the following comments: 
(a) Letters of formal notice: 
(i) The largest number of letters of formal notice 
relate to the internal market and industrial 
affairs. This is due to the Commission's inten­
sified monitoring of the observance of Articles 
30 to 36 of the EEC Treaty and of the 
implementation of the directives concerned with 
the achievement of the single market; 
(ii) Agriculture comes second. The relative increase 
noted in comparison with 1987 arises particularly 
from delay in the adoption of national measures 
implementing harmonization directives (plant 
health sector, seeds and plants, animal feeding-
stuffs and veterinary law); 
No C 330/6 Official Journal of the European Communities 30. 12. 89 
(iii) Next comes the environment. The considerable 
fall in the number of letters of formal notice no 
doubt reflects the fact that the Member States 
are paying greater attention to observance of 
their obligations in this field; 
(iv) Social questions have also seen a substantial fall 
in the number of letters of formal notice. This is 
due to better application by the Member States 
of the directives concerning equality between 
men and women, those relating to safety and 
protection of health in the work place and the 
provisions on non-discrimination in access to 
public employment; 
(b) Reasoned opinions: 
(i) The environment is the sector giving rise to the 
largest number of reasoned opinions. This is 
partly due to the continuation of the numerous 
infringement procedures initiated in the previous 
years. It must not, however, obscure the fact that 
a large number of cases have been terminated 
because they have been regularized. It must be 
emphasized that public opinion has played a 
major part in safeguarding the environment. 
Thus, the pressure exerted in relation to the 
Karin B case encouraged the implementation of 
the directive on the cross-frontier transport of 
dangerous waste in Italian law, and consequently 
the regularization of the existing situation of 
infringement; 
(ii) Contrary to what has been noted in relation to 
letters of formal notice, the number of reasoned 
opinions concerning the internal market and 
industrial affairs has fallen during 1988, 
although it is still substantial; 
(iii) As regards agriculture, the number of reasoned 
opinions has doubled in comparison with 1987, 
and this is true also of letters of formal notice; 
(iv) Finally, the customs union and indirect taxation 
have shown a decline comparable to that of 
1986; 
(c) The increase in the number of actions brought 
before the Court of Justice relates particularly to the 
environment and social questions. This slight 
increase does not, however, affect the general 
tendency noted in the fifth report (paragraph 5 (c)). 
6. In conclusion, the commission wishes to draw the 
attention of the European Parliament to the following 
points: the law of all the Member States. The Commission's 
action pursuant to Article 169 of the EEC Treaty is 
essential in this connection ('). But it must be 
supplemented by a constant effort to increase public 
awareness. The Commission is making this effort. A 
development of the relations between the European 
Parliament and the national parliaments could 
contribute to increasing the awareness of the latter 
where the intervention of the national legislature is 
necessary. 
(b) In view of the importance of its task, the 
Commission attaches great value to parliamentary 
questions, petitions and complaints by the public. 
These initiatives enable the Commission to exercise 
more extensive control and for this reason the 
Commission makes a point of examining them as 
quickly as possible. 
(c) The Commission expresses its concern regarding the 
judgments of the Court of Justice that have not yet 
been complied with, although it is certain that cases 
of a lack of political will are rather rare. It is never­
theless true that this situation undermines the funda­
mental principle of a Community based on law. The 
rules must be observed without exception or 
ambiguity. As regards remedies, the only one 
available under the system created by the Treaty is a 
power on the part of the Court of Justice to find that 
the necessary measures to comply with its judgment 
have not been taken (Article 171 of the EEC 
Treaty). In the absence of any further legal means of 
strengthening the authority of the Court's 
judgments, the grave problem of failure to comply 
with its judgments can be dealt with only by political 
action: making both governments and individuals 
more aware of the situation, increased measures of 
publicity, information and encouragement of 
references for preliminary rulings, etc. In this context 
the Commission is pleased to observe initiatives such 
as Law No 86 of 9 March 1989 in Italy, known as 
the La Pergola law, intended to accelerate the 
process of implementing Community law. Such 
initiatives are particularly encouraged by the 
Commission since, more often than not, cases where 
judgments have not been complied with are 
concerned with the implementation of directives and 
are due to the slowness of domestic legislative 
procedures. 
(d) In this context and also more generally, the 
Commission draws the attention of the European 
Parliament to its practice of giving suitable publicity 
to cases where infringements are found, and to their 
regularization, so as to inform the public of their 
rights and encourage any indirect checks on the 
(a) The objectives to be attained before the end of 1992 
require increased attention to the implementation of 
Community law by the Member States and 
particularly the directives. Among the directives 
relating to the single market which are already in 
force, there are few that have been incorporated into (') In general, the Commission, following the suggestion of the 
European Parliament (see point 5 or the resolution on the 
fifth annual report), systematically includes in its new 
proposals for directives a provision requiring the Member 
States to refer explicitly to the directives in the national 
instruments implementing them. This facilitates the 
Commission's task of verification and can at the same time 
contribute to better legal protection for citizens. 
30. 12. 89 Official Journal of the European Communities No C 330/7 
observance of Community law by means of actions 
before national courts, which may in appropriate 
cases refer questions for preliminary rulings. 
(e) As regards the place of the preliminary rulings 
procedure in the monitoring of the application of 
Community law, the Commission examines, in each 
case where a preliminary ruling is sought, whether 
there is a need to commence infringement 
proceedings. However, the observations made in the 
fifth report regarding the implementation of Article 
177 of the EEC Treaty still remain valid. Thus, the 
Commission takes the view that the problem of the 
costs involved in the procedure can be resolved only 
in a context of harmonization. As regards the 
I. AN AREA WITHOUT FRONTIERS 
THE SINGLE MARKET 
1. Completing the internal market involves: 
— organizing the mutual recognition of national rules, 
a process which is already well under way in the 
field of the free movement of goods and which has 
been extended to cover freedom to provide services, 
— adopting some 300 measures set out in the 
Commission's White Paper of June 1985 which, 
despite their number, merely define essential 
requirements and general principles; these measures 
are designed to harmonize national rules only to the 
extent that is strictly necessary in order to protect 
health, safety or the environment. 
2. Updates on the implementation of the White Paper 
appear in the Commission's progress reports. Following 
publication in November 1988 of the report required by 
Article 8b of the Treaty (COM(88) 650), in June 1989 
the Commission pubished its fourth annual report on the 
White Paper's implementation. 
3. It is not enough, however, simply for the measures 
to be adopted; they must also be effectively implemented 
by the Member States. In its November 1988 report, the 
Commission welcomed the fact that almost half of its 
programme had been the subject of Council decisions. 
But it also expressed concern about the incorporation of 
the measures into national law. Of the 112 measures 
adopted, 77', including 65 directives, were to have been 
transposed by the Member States by 1 January 1989. 
However, only two of those 65 directives have been 
implemented throughout the Community, some Member 
States having by that date taken none of the other 
measures necessary. problems raised by the attitude of national courts of 
last instance to the question of references for a 
preliminary ruling the Commission refers to the 
contents of table 11 in the present report, which 
deals specifically with this question. 
(f) Like the European Parliament, the Commission 
considers it important to promote wider knowledge 
of Community law, which can only make the moni­
toring of its application more effective. For this 
purpose the Commission is increasing its efforts to 
encourage a wider knowledge of Community law, 
particularly among those most concerned (lawyers, 
judges, national officials, consumers' associations, 
etc.). 
4. It is therefore important that the Commission 
should keep a very close watch on progress in 
implementing those measures which have been adopted 
so as to make sure that Member States' dilatoriness does 
not call the 1992 deadline in question by allowing the 
retention of barriers which the Community has decided 
to eliminate. 
Removal of physical frontiers 
5. Article 8 a of the Single European Act, sets the 
Community a clear objective, namely the creation by 31 
December 1992 of 'an area without internal frontiers in 
which the free movement of goods, persons, services and 
capital is ensured'. The Commission's internal market 
White Paper contains a timetable for achieving this 
objective. It is important that the Council should keep to 
schedule in adopting the necessary measures so as to 
permit their timely implementation. 
Customs union 
6. The judgments delivered by the Court of Justice in 
1988 in the customs union field concern charges having 
an effect equivalent to customs duties applied in trade 
between Member States (Articles 9 et seq. of the EEC 
Treaty). 
7. In connection with the creation of a single market 
by the end of 1992, it is worth mentioning the judgments 
delivered in Cases 18/87 and 104/86. 
8. In its judgment in Case 18/87, the Court held that 
a fee whose sole purpose was to provide compensation, 
in a manner which was justified from both a financial 
and an economic point of view, in respect of an SECTOR-BY-SECTOR ANALYSIS 
No C 330/8 Official Journal of the European Communities 30. 12. 89 
inspection obligation imposed uniformly by Community 
law could not be equated with a charge having an effect 
equivalent to a customs duty because the harmonization 
of inspections is likely to favour the free movement of 
goods. 
9. The Court also stated that the adverse effects on 
the free movement of goods within the Community to 
which such a fee may give rise may be set aside only on 
the basis of Community provisions providing either for 
the harmonziation of the fees, or for the expenses 
incurred in respect of the inspections to be borne by the 
Member States or, finally, for the cost of the inspections 
to be included in the Community budget. 
10. In its judgement in Case 104/86, the Court reaf­
firmed its previous case law according to which the 
primacy and direct effect of Community law do not 
release the Member States from the obligation to 
eliminate from their internal legal system provisions 
incompatible with Community law. 
11. As regards the infringement proceedings 
concerning the duty-free importation of military 
equipment, the political solution announced by the 
Commission in its fifth report (page 13, point 32) has 
been embarked upon by the presentation to the Council 
of a proposal for a Regulation based on Article 28 of the 
EEC Treaty (see proposal for a Council Regulation 
(EEC) temporarily suspending import duties on certain 
weapons and military equipment, OJ No C 265, 12. 10. 
1988). 
12. On the question of directives, it should be noted 
that all the infringement proceedings relating to mutual 
assistance have been terminated, the Member States 
concerned having complied with Community law. On 
the other hand, other proceedings against Italy 
concerning the release of goods for free circulation and 
export procedures have not had the desired effect despite 
the Court's rulings, so fresh proceedings have been 
initiated against Italy pursuant to Article 171 of the EEC 
Treaty for its failure to comply with those rulings. This is 
a worrying situation as it calls into question the credi­
bility of the Court's judgments. 
13. The Commission has had to bring an action 
before the Court of Justice for a declaration that 
Belgium does not duly enter agricultural levies in the 
accounts or calculate periods of deferment in accordance 
with the Directive on the harmonization of provisions 
concerning deferred payment of import duties or export 
duties. Free movement of goods 
14. The abolition of frontier controls is achieved 
through the direct application of the Treaty and through 
harmonization measures. Such harmonization measures 
concern the free movement of agricultural products and 
the elimination of tax checks at frontiers (see points 34 et 
seq). 
Article 30 
15. Article 30 of the Treaty prohibits, between 
Member States, quantitative restrictions on imports and 
measures having equivalent effect. The provision enables 
action to be taken against import formalities which are 
not justified by compelling reasons such as health 
protection or safety considerations. 
16. The Commission has thus called in question a 
number of rules introducing unjustified formalities in the 
movement of industrial and agricultural products. 
17. In the field of industrial products, the following 
measures have been modified following the 
Commission's intervention: 
(i) in France, the monopoly held by the Caisse des 
monnaies et medailles (Coins and Medals Office), 
which had the effect of preventing imports of 
medals into France, has been ended; following 
amendment of the relevant rules (see Official 
Journal of the French Republic for March 1988), 
medals manufactured and marketed in other 
Member States may henceforth be imported freely 
into France; 
(ii) the restrictions placed in Portugal on the 
importation of pleasure boats, in the from of a 
document certifying that the imported boat was not 
built in Portugal or could be bought there at a 
comparable price, have been lifted; 
(iii) the rule that prior authorization must be obtained to 
import and place on the market alcoholic beverages 
in Greece has been abolished, and the Greek 
customs authorities have been instructed no longer 
to require the production of certificates of origin on 
the importation of such products. The requirement 
that individuals wishing to clear through customs 
goods intended for personal use must be in 
possession of a residence permit and convert into 
drachmas twice the value of the goods has likewise 
been abolished; 
(iv) a large number of Spanish rules governing the type-
approval of industrial products have been amended 
following the Commission's intervention. Cutlery, 
taps and fittings, decorative items and photovoltaic 
equipment — products whose placing on the market 
used to be subject to prior type-approval — may 
henceforth enter Spain without restriction; 
30. 12. 89 Official Journal of the European Communities No C 330/9 
18. With regard to origin marking, the Commission 
has pressed ahead with its action against Italy, the 
United Kingdom and France aimed at preventing those 
countries' rules on corrective origin marking from having 
the effect of unjustifiably hindering trade. Such is the 
case with the indication of the geographical origin of an 
imported product where that product has been worked 
or processed in another Member State at a trader's 
request and that trader's name or trade-mark is affixed 
to the product (a widespread practice, notably in the 
textile industry). 
19. In relation to agricultural products, the following 
import formalities, which have been the subject of 
Commission scrutiny, may be mentioned: 
(i) the requiring of certificates, to be issued by the 
producer Member State, attesting to the conformity 
of the products in question with the standards of the 
importing Member State; this requirement is 
imposed by Greece, Luxembourg and Germany in 
respect of pasteurized butter, and by Greece alone 
in respect of numerous foodstuffs, on grounds of 
radioactivity; 
(ii) the requiring of a licence or prior authorization to 
import sheep into Germany, sperm intended for 
artificial insemination into France, and live animals 
and fresh meat into Belgium; 
(iii) measures restricting trade based on the existence of 
a national market organization, such as the 
arrangements applicable to bananas in Greece; 
(iv) measures prohibiting exports or rendering them 
impossible, such as those affecting olive oil or maize 
in Greece. 
Article 95 
20. This provision makes it possible to prohibit tax 
controls and formalities which are out of proportion to 
the objective of combating fraud. 
21. In this respect, 1988 was a particularly successful 
year for the Community as far as the monitoring of 
Community tax law is concerned, both in view of the 
large number of judgments delivered by the Court of 
Justice, which in almost every case endorsed the 
Commission's point of view, and because of the steps 
taken by the Member States to regularize the 
infringement situation in which they found themselves. 
22. As in previous years, the Commission's efforts 
were directed at ensuring both observance of Article 95 
and the conformity of national legislation with 
Community directives. It is with regard to the latter 
aspect that the case-load was the heavier, especially in 
relation to compliance with the Sixth VAT Directive. The Commission notes with satisfaction, however, that 
the Member States are resorting less and less to taxation 
as a means of protecting their domestic industries — a 
highly encouraging sign in the run-up to 1992. As 
regards the former aspect, it should be pointed out that 
the regulatory tax introduced against the background of 
the negotiations on the Greek memorandum of 23 
March 1982 (») was abolished on 31 December 1988. 
This will make it possible to terminate two sets of 
proceedings connected with the introduction of the tax, 
one concerning the taxation of cheeses and the other 
that of plastic decorating materials (2). 
23. It should be noted that Ireland has aligned the 
excise duty on table waters imported from other Member 
States on that on domestic products, as a result of which 
the Commission has withdrawn its court action (3). 
24. By contrast, despite the Court's judgment in Case 
257/86, Italy has not yet put an end to the discrimi­
natory VAT treatment of medical samples, nor has it 
taken any steps to comply with the judgments in cases 
184/85 and 193/85 concerning the consumption tax on 
bananas originating in other Member States, as a result 
of which the Commission has initiated the procedure 
provided for in Article 171 of the EEC Treaty. 
25. Several new reasoned opinions were issued, of 
which the following are among the most significant: 
firstly, that served on the United Kingdom in respect of 
the parafiscal charge levied by the Sea Fish Industry 
Auhtority on domestic and imported fishery products, 
United Kingdom fishermen being the main beneficiaries 
of that body's spending; and secondly, that served on 
Greece in respect of the differential taxation of imported 
spirituous beverages (gin, whisky, rum), these being 
subject to a VAT rate of 36 % whereas domestic 
products (ouzo, liqueurs) bears a rate of only 18 %. 
26. Among the proceedings previously instituted 
which have led to a reference to the Court, mention may 
be made of those brought against Denmark and Greece 
in the field of motor vehicle taxation. In those countries, 
the swingeing taxes are reflected in higher car prices, 
which put consumers there at a considerable disad-
O COM (82) 348 final. 
(2) Fifth Report, point 38. 
(3) Case 202/87, removed from the Court register on 27 April. 
No C 330/10 Official Journal of the European Communities 30. 12. 89 
vantage compared with other Community citizens, as 
well as constituting an artificial brake on imports of such 
goods. In Denmark the vehicle registration tax is so high 
that it affects the number of cars on the roads, while in 
Greece the tax arrangements are particularly 
unfavourable to vehicles of over 1 800 cc, of which there 
is no domestic production. 
Abolition of animal and plant health controls 
27. The White Paper proposes that harmonization 
measures be taken in order to remove the justification 
for certain controls. As indicated in the Article 8b report 
(referred to above), despite the Commission's repeated 
expressions of dissatisfaction at the delays within the 
Council, the only measures to have been adopted so far 
in the field of frontier controls concern the abolition of 
animal and plant health checks. In this sphere, 22 
directives in the White Paper programme entered into 
force on 31 December 1988, although none of them has 
as yet been incorporated into national law throughout 
the Community. 
For each of these measures, the Commission will 
therefore have to initiate the procedures provided for in 
the Treaty with particular diligence in view of the link 
between them and the 1992 deadline. It must also ensure 
that all the relevant legislation, most of which predates 
the White Paper programme or relates to the adminis­
tration of existing law, is applied. Thus in 1988 the 
Commission commenced 130 fresh infringement 
proceedings pursuant to Article 169 of the EEC Treaty 
for failure to communicate national measures 
implementing directives in the above fields. 
Abolition of tax controls 
28. Monitoring the correct application of the Sixth 
VAT Directive (), which makes provision for a uniform 
basis of assessment of VAT, is a particularly important 
aspect of the Commission's taxation programme for 
1993. It is essential that the provisions of the Sixth 
Directive are applied absolutely correctly in order to 
avoid distortions of competition, the severity of which 
will be even greater once VAT rates are approximated. 
29. Following the initiation of proceedings by the 
Commission, the Court of Justice has handed down a 
large number of judgments the importance of which is 
considerable, not only because they regularize several 
infringements, but also because they help clarify the 
meaning of certain provisions of the directive in 
question. 
30. Of the more significant judgments, it is worth 
mentioning those censuring Ireland and the United 
Kingdom (2) for maintaining a system of zero rating for 
O OJ No L 145, 13. 6. 1977. 
(2) Cases 415/85 and 416/85. certain categories of goods and services (in particular, 
the construction of buildings and the supply of water, 
energy and fuel) incompatible with Article 28 (2) of the 
Sixth Directive. 
Also worthy of note is the judgment given against 
Belgium (J) in which the Court held that, in its Law of 
31 July 1984 on the list price as the basis for the taxation 
of new saloon cars and estate cars, that Member State 
had failed to take the measures necessary to give effect 
to the Court's Judgment in Case 324/82. 
31. By its judgment in Case 50/87 the Court estab­
lished an important principle in regard to the right to 
deduct VAT when it declared that the maintenance in 
force in France of that right in the case of enterprises 
which let buildings which they had purchased or built 
was contrary to the Sixth Directive. 
32. Lastly, in connection with Article 25 of the Sixth 
Directive, the Court censured Italy for over-compen­
sating flat-rate farmers in the beef, pigmeat and milk 
sectors in respect of goods delivered and services 
supplied to them. (4). 
33. The Commission is monitoring the correct 
implementation of these judgments in the Member states 
concerned, and as a result it has felt obliged to initiate 
proceedings against the Netherlands for failure to 
comply to date with the judgment in case 235/85 
concerning the exemption from VAT in that country of 
the official functions performed by notaries and 
bailiffs (5). 
34. On the other hand, the Commission notes with 
satisfaction that the United Kingdom has complied with 
the Judgment in Case 353/85 censuring that country for 
exempting from VAT the supply of certain goods (e.g. 
corrective spectacles made by approved opticians) in so 
far as such goods do not form an integral part of the 
services provided. Moreover, it withdrew its action 
against Italy in connection with the exemption of credit 
cards (6). 
35. However, the year under review saw the 
institution of fresh proceedings against Spain for intro­
ducing a zero rate of VAT for services provided by 
lawyers and for sports associations and sports events, 
(3) Case 391/85. 
(4) Case 3/86. 
(5) Fifth report, point 37. 
(6) Case 103/87, removed from the Court register on 27 
October. 
30. 12. 89 Official Journal of the European Communities No C 330/11 
and the referral to the Court of two cases on which the 
file had been opened prior to 1988, one concerning 
Germany following the exemption of travel agencies in 
respect of journeys to Spain, and the other France, in 
connection with the tax arrangements applicable to 
gaming machines ('). 
36. France was'censured in 1983 in Case 90/82 for 
infringing article 5 (1) of Directive 72/464/EEC (2) 
which provides that the retail selling price of tobacco 
products is to be determined freely by the manufacturers 
or importers and not by the public authorities, as was the 
case in France. The Commission considered the measures 
taken by the French authorities to be inadequate, so it 
referred the matter once more to the Court pursuant to 
Article 171 of the EEC Treaty. In its judgment in Case 
169/87, the Court upheld the Commission's view and 
again censured France for failing to take the measures 
necessary to comply with its previous judgment. 
37. It should be noted, finally, that in 1988 a reasoned 
opinion had to be served on Spain, where the authorities 
also fix the retail selling price of tobacco in breach of the 
directive. 
Removal of technical frontiers 
38. 70 °/o of the progress made with the White Paper 
programme has taken place in the field of technical 
frontiers; in other words, it is there that the first diffi­
culties in implementing the provisions adopted will arise. 
Free movement of goods 
39. The free movement of goods is hindered not only 
by import formalities (see above), but also by different 
rules governing the placing of products on the market. 
Principles governing freedom of movement 
40. The elimination of non-tariff barriers to intra-
Community trade in goods is a cornerstone of the 
completion of the internal market. To that end, the 
Commission has at its disposal two basic instruments, 
namely the prohibition of any measure having an effect 
(') Fifth report, point 38. 
O OJ No L 303, 31. 12. 1972, p. 1. equivalent to quantitative restrictions (Articles 30 to 36 
of the EEC Treaty) and the approximation of national 
laws. 
Article 30 
41. Article 30 of the EEC Treaty prohibits, between 
Member States, quantitative restrictions on imports and 
measures having equivalent effect. The very wide inter­
pretation given to this latter concept, which covers — in 
the words of the Court of Justice itself — 'all trading 
rules which are capable of hindering, directly or indi­
rectly, actually or potentially, intra-Community trade', 
enables the Commission as 'guardian of the Treaties' to 
act with a view to eliminating obstacles to trade of the 
most diverse kinds. 
42. Action is usually taken in response to complaints 
lodged with the Commission by business people or 
private individuals. The Commission's departments are 
also expanding their own monitoring operations 
(own-initiative enquiries) based on information either 
communicated by Parliament (parliamentary questions) 
or gathered by themselves (e.g. from Member States' 
official gazettes). 
43. In the field of industrial products the monitoring 
activity is steadily gathering pace, as can be seen both 
from the number of new complaints lodged in 1988 
(518) and from that of own-initiative enquiries (46, 
including six as a result of parliamentary questions). 
44. To this should be added the number of technical 
regulations notified under Directive 83/189/EEC and 
scrutinized in the light of Articles 30 and 36 of the 
Treaty (see below). 
45. In view of the ever-increasing number of cases 
broght to their attention, the Commission's departments 
have found it necessary to stop dealing with them on an 
individual basis and adopt a global approach, and this on 
two levels. 
46. From the substantive point of view, the problems 
encountered are in fact similar from one Member State 
to another (e.g. type-approval of industrial products, 
indications of origin on imported goods, importers' 
liability, prices of medicinal products, etc.). 
47. As far as investigations are concerned, the 
Commission's departments have tried to settle as many 
cases as possible at the pre-hearing stage. With this end 
in view, the practice has arisen of holding package 
meetings at regular intervals in each Member State with 
representatives of the government departments 
concerned. At such meetings, all the cases involving a 
No C 330/12 Official Journal of the European Communities 30. 12. 89 
Member State are discussed. Pragmatic solutions in 
keeping with Community law can thus be sought jointly 
as early as the complaint stage. The results of this 
practice were particularly encouraging in relation to 
those Member States (Italy, France, Portugal and 
Greece) with which meetings were held in 1988. This can 
be illustrated with the help of the following examples: 
(i) Italy (22 cases discussed): 
— imported television sets may henceforth enter 
Italy accompanied by a manufacturer's self-
issued safety certificate, as provided for in 
Directive 73/23/EEC; 
— certain labelling requirements — indication of 
the name of the importer in addition to that of 
the foreign manufacturer — have been abolished 
by means of an interpretative circular; 
— on the Cassis de Dijon principle, several cases 
were settled in such a way as to ensure free 
access for products lawfully manufactured and 
marketed in other Member States. The example 
may be given of alcoholic beverages of an 
alcoholic strength of less than 9 % which could 
not be marketed as such in Italy. Another case 
concerned potable spirits the importation of 
which was made subject to prior authorization 
so as to enable checks to be carried out on the 
product's conformity with Italian law. 
(ii) France: 
— some long-standing infringements were settled: 
for example, postal franking machines made by 
the United Kingdom firm Pitney-Bowes were at 
last given type-approval by the competent auth­
orities as a result of proceedings following upon 
a Court judgment; 
— another infringement dating from 1985 involving 
foodstuffs (charcuterie) was resolved satisfactorily 
by the issuing of a circular which stated that 
imported products could continue to be known 
as charcuterie despite the fact that they were not 
made using traditional French methods; 
— the pharmacists' monopoly over the sale of arti­
ficial sweeteners, granted under a 1902 act, was 
abolished; 
— the prohibition on the importation by private 
individuals of medicinal products intended for 
their personal use but not authorized in France 
was also abolished. 
(iii) Portugal: 
— the principle of one-off certification was 
introduced in cases of compulsory certification 
of agricultural and forestry machinery and has 
now been embodied in a statute. (iv) Greece: 
— one case worthy of note involved lightning 
conductors, which had by law to meet domestic 
technical standards if they were to be used in 
public works. This requirement was amended by 
a circular sent to the various government 
departments concerned. 
48. In the field of the free movement of goods, 1988 
saw the emergence of restrictive measures whose justifi­
cation lies in the protection of the environment. For 
example, in Case 302/86 Commission v. Denmark, the 
Court of Justice held that a compulsory deposit-
and-return system for beer and soft drink containers was 
not only lawful but necessary to attain the environmental 
protection objective pursued. 
49. This objective was described by the Court as 'one 
of the Community's essential objectives which may . . . 
justify certain limitations on the principle of the free 
movement of goods. That view is moreover confirmed by 
the Single European Act' (Ground of judgment 8). 
50. Of the new laws scrutinized by the Commission, 
mention should be made of the German legislation — 
enacted by six Lander — providing that, when smog 
occurs, traffic, with the exception of emergency vehicles 
(ambulances, etc.), may be prohibited. 
51. In the foodstuffs sector, the Court of Justice 
delivered several important judgments in 1988 which 
reaffirmed its previous rulings and upheld the 
Commission's views on, among other things, the 
reserving of names and descriptions for products which 
meet domestic requirements and the prohibiting of the 
importation or sale of products which do not comply 
with national regulations. 
52. Thus, in giving judgment against France in Case 
298/87 deep-frozen yoghurt and Case 286/86 Edam, the 
Court again condemned the practice of reserving names 
and descriptions where the product's characteristics are 
not substantially different and where appropriate 
labelling suffices to ensure that consumers are properly 
informed. 
53. In its judgments in Cases 90/86 Zoni and 407/85 
Drei Glocken (pasta products), 216/84 Commission v. 
France (milk substitutes) and 261/85 Commission v. 
United Kingdom (pasteurized milk and unfrozen 
pasteurized cream), the Court held respectively that 
prohibitions on the sale of pasta made from common 
wheat or a mixture of common wheat and durum wheat, 
30. 12. 89 Official Journal of the European Communities No C 330/13 
the importation of powdered milk substitutes and the 
importation of pasteurized milk and unfrozen 
pasteurized cream were neither compatible with Article 
30 of the EEC Treaty nor justifiable pursuant to Article 
36. 
54. The Court thus confirmed once more that, in the 
absence of any considerations of public health, the only 
compelling reason that might justify the banning of a 
foodstuff made in another Member State according to 
quality standards applicable there is, therefore, the need 
to protect consumers against fraud and producers against 
unfair competition. In general, the existing Community 
rules on labelling ensure the provision of proper infor­
mation and help guard against error. Obstacles to the 
free movement of foodstuffs due to the application of 
quality standards to imported products can, therefore, be 
removed on the basis of Articles 30 and 36. In 1989 the 
Commission will publish a commentary on the Court's 
judgments on foodstuffs. 
55. In relation to agricultural products, i. e. the 
products listed in Annex II to the EEC Treaty, it should 
be stressed that Articles 30 and 34 of the Treaty (on the 
elimination of quantitative restrictions on imports and 
exports and of all measures having equivalent effect) 
form an integral part of common market organizations 
(see judgment of the Court of Justice in Case 83/78 Pigs 
Marketing Board v. Redmond (1978) ECR 2347, Ground 
55) and that obstacles to trade in products covered by 
such organizations affect the normal functioning of those 
organizations. The obstacles in respect of which the 
Commission initiated proceedings were many and varied, 
as the following examples illustrate: 
(i) technical requirements relating to the presentation, 
quality or packaging of products, having the effect 
of limiting or discouraging imports: the Commission 
took action against this type of measure in the case 
of restrictions imposed in Italy on the marketing or 
importation of fats and oils (obligatory1 presence of 
a tracer) and of cheeses (minimum fat content), and 
in that of the German legislation reserving the use 
of a given bottle shape for certain national 
producers (Bocksbeutel); 
(ii) national measures to do with human, animal or 
plant health or with additives, prohibiting imports or 
making them impossible, such as measures 
concerning pasteurized milk in the United 
Kingdom, certain meat preserves in Germany and 
cheeses in Italy and Greece (maximum nitrate 
content); (iii) the fixing of maximum prices having the effect of 
discouraging and restricting imports, as practised in 
Greece in the olive oil trade; 
(iv) measures restricting the advertising of imported 
products, such as the refusal by Greek publicly 
owned radio and television stations to broadcast 
advertisements promoting foodstuffs from various 
Member States. 
Mutual recognition of national rules 
56. In accordance with the strategy it outlined in its 
internal market White Paper, the Commission is treating 
as a matter of priority the application of the EEC 
Treaty's rules on the free movement of goods (Articles 
30 to 36) and is endeavouring to ensure that the 
principle of mutual recognition is systematically incor­
porated in national law. According to this principle, any 
product lawfully manufactured and marketed in one 
Member State must have free access to the markets of 
the other Member States, provided it does not endanger 
health and safety. 
57. In the latter event, the measures taken must never­
theless be strictly proportionate to the objectives pursued. 
This strategy has made it possible to put an end to the 
compulsory type-approval of industrial products in Spain 
and to ensure acceptance there of the principle of the 
recognition of products providing an equivalent level of 
protection where such recognition is justified. It has also 
helped bring about greater flexibility in the approval 
procedures to which telecommunications terminal 
equipment is subject in Portugal. Also worthy of mention 
are certain cases concerning domestic appliances such as 
gas cookers and refrigerator-freezers, which were subject 
in France to compliance with national standards. 
The importation into Germany and the marketing there 
of building materials (chipboard) manufactured, tested 
and marketed in France has been made possible through 
the application of Article 30. The German authorities 
now grant such panels type-approval on the strength of 
the results obtained in France using that country's testing 
methods, without systematically subjecting the panels to 
fresh tests. 
Lastly, mention may be made of the United Kingdom 
rules whereby all imported gas and electric cookers had 
to comply with national surface temperature 
requirements. 
58. To this ex post facto monitoring activity must be 
added, in the case of industrial products, the prior moni­
toring carried out by the Commission pursuant to 
NoC 330/14 Official Journal of the European Communities 30. 12. 89 
Directive 83/189/EEC. This directive obliges the 
Member States to submit draft technical regulations for 
prior vetting as part of an information procedure. This 
obligation — which in the past did not cover the agri­
cultural, foodstuffs, pharmaceuticals and cosmetic sectors 
— has been extended to cover all technical regulations as 
from 1 January 1989. 
59. In 1988, 157 draft technical regulations and 
standards were thus scrutinized in the light of the Treaty 
and secondary legislation. Following such scrutiny the 
Commission sought, in 64 cases, amendments designed 
to ensure that their adoption did not create new 
obstacles to the free movement of goods. In four cases, 
the Commission announced the presentation of a draft 
Community directive the provisions of which are to 
replace the national measures. 
Technical regulations 
60. Twenty-four measures of the White Paper 
programme have entered into force, to which should be 
added 50 other directives adopted prior to the White 
Paper or as part of the administration of existing law. Of 
these 24 measures, only one, on pharmaceutical products 
(Directive 87/21 /EEC), had by 31 December been 
transposed throughout the Community, allowing for the 
derogations enjoyed until 31 December 1992 by Spain, 
Greece and Portugal. Other major directives, such as 
those on car exhaust emissions, which were to have been 
transposed by 1 July (Directives 88/76/EEC and 
88/77/EEC) or 1 October (Directive 88/436/EEC) were 
transposed in only a small number of Member States. 50 
or so infringement proceedings are still under way. 
Miscellaneous products 
61. A large number of proceedings, 51 to be precise, 
concern failure to notify implementing measures. As in 
the past, they stem as a rule from the slowness of 
national procedures for amending legislation. 41 cases 
were, however, regularized by the Member States 
concerned in 1988, a distinct improvement on the 
previous year. Nevertheless, two sets of proceedings 
instituted against Italy still remain open (medical ther­
mometers). The Court of Justice gave judgment against 
Italy in one case and an action has been brought in the 
other. As regards the stage reached in the application by 
Spain and Portugal of the directives covering these areas 
of activity, contact has been maintained with the 
competent government departments with a view to 
quickly making up for time lost in transposing the 
directives into Spanish and Portuguese law. 
62. As to the non-conformity of national laws with 
Community directives or the incorrect application of such laws, the infringement proceedings currently under 
way, namely one action against the United Kingdom and 
another against Spain, are a leftover from 1987. Both 
sets of proceedings concern Directive 73/23/EEC, 
otherwise known as the low voltage directive. The 
relevant United Kingdom legislation is currently 
undergoing amendment. In Spain, despite the entry into 
force on 1 December of Royal Decree 7/1988 incor­
porating the directive into national law, obstacles to 
trade in products falling within the directive's scope 
remain, according to complaints recently received by the 
Commission. The Commission is continuing its investi­
gation into these cases, which are apparently due to a 
misinterpretation of the Community directive. 
Meanwhile, the Court of Justice remains seized of the 
matter. 
Motor vehicles 
63. Implementation of the directives on motor 
vehicles, agricultural tractors and motor cycles continued 
normally in the Member States, 124 of them having now 
been transposed. In the course of the year, four 
infringement proceedings for failure to transpose 
directives were commenced. 
The infringements are all due to administrative delays in 
certain Member States in incorporating Community 
directives into their national law. 
Foodstuffs 
64. The proceedings initiated in respect of directives 
concern only instances of failure to communicate 
national implementing measures. The file was closed on 
43 infringements, 19 cases are at the formal notice stage 
and three are at the reasoned opinion stage. 
65. The Commission brought actions against France 
and the Netherlands for failure to transpose Directive 
83/417/EEC (fetoproteins) and against France for 
failure to transpose Directive 83/635/EEC (preserved 
milk). 
Pharmaceutical products 
66. Proceedings were commenced in respect of the 
medicinal products directives against Italy alone. In 
particular, the Commission brought an action before the 
Court for that country's failure to comply with the 
30. 12. 89 Official Journal of the European Communities No C 330/15 
judgment in Case 145/82 on the non-transposition of 
two basic directives on proprietary medicinal products 
(65/65/EEC and 75/319/EEC). 
Chemical products 
67. While some Member States have transposed a 
good many directives in this field, there remains much 
leeway to be made up. In view of the large number of 
directives (31) and their technical complexity, Spain and 
Portugal have been given more time in which to translate 
them into national law. 
68. During the year under review, 22 instances of 
implementation of chemicals directives were notified to 
the Commission. The main products concerned are 
asbestos, paints and varnishes. 
69. The Commission brought an action before the 
Court against Germany in respect of PCBs/PCTs. 
Belgium and Italy have still not implemented the two 
directives on detergents despite being censured by the 
Court. 
Letters of formal notice have been sent in this 
connection. Of the nine letters of formal notice sent to 
Member States, eight have been acted upon. 
Energy-generating products 
70. In connection with the proceedings mentioned in 
the fifth annual report, the following developments have 
taken place. 
71. After having taken Belgium to court for failing to 
provide stastistical information on the prices of crude oil 
and petroleum products, the Commission withdrew its 
action as the Member State had complied in the 
meantime. 
72. As to implementation of the directives on the 
performance of heat generators, the Commission is 
continuing its comparative evaluation of the national 
implementing measures. The work should be completed 
in the course of 1989. 
73. In 1988 the Commission embarked upon only one 
new study, aimed at verifying the conformity of Member 
States' national laws with the provisions of Directive 
85/536/EEC on the use of substitute fuels. The laws of 
four Member States (Denmark, Germany, Luxembourg 
and Spain) are in keeping with the Community directive. 
A fifth Member State (France) has written the directive 
into national law. The Commission has requested more 
explicit and detailed information on certain aspects of 
the French legislation. Under the Accession Treaty, 
Portugal has been awarded an extension to the time limit 
for bringing its legislation into line with Community law. 
The Commission sent the six remaining Member States a letter on 28 September reminding them of their obli­
gation to notify national measures implementing the 
directive. By the end of the year the Commission hadre-
ceived replies from two of the letter's recipients (the 
Netherlands and the United Kingdom), in which it was 
stated that work on transposing the directive should be 
completed by early 1989. 
Opening-up of public procurement 
74. The opening-up of public procurement is one of 
the keys to completion of the internal market. In 1988, 
as in 1987, the Commission attached great importance to 
the correct implementation of the Community directives 
coordinating the procedures for the award of public 
works and public supply contracts, and satisfied itself 
that the Treaties' rules on freedom to provide services 
and the free movement of goods were being made full 
use of. 
75. The infringements concerned mainly: 
(i) the choice of award procedure and the obligation 
on contract-awarding authorities to advertise 
tenders in the Official Journal of the European 
Communities: for example, in Italy the call for 
tenders for the construction of an urban solid waste 
incineration plant in La Spezia was made without 
any prior publication of a tender notice, the 
contract-awarding authority having invited directly 
certain Italian firms to submit bids. Thanks to the 
measures adopted by the Commission in 1987 to 
speed up the handling of infringements, this case, 
which came to the Commission's notice in January, 
was brought before the Court in time (in July) for it 
to order the contract's suspension pending delivery 
of judgment; 
(ii) interpretation of the scope of the directives and of 
the sectors excluded: for example, a reasoned 
opinion was served on Portugal because the public 
enterprise which runs Lisbon airport had not put out 
to Community-wide competitive tender, by 
publishing a notice in the Official Journal of the 
European Communities, a contract for the supply 
and assembly of a telephone exchange; 
(iii) the criteria for selecting bidders or applicants to bid: 
for example, a reasoned opinion was served on 
Germany because, for the construction of a 
purifying plant in Duisburg, the contract-awarding 
authority had stipulated that contractors must be 
affiliated to a German quality assurance body and 
that the contract guarantee must be provided by a 
credit insurance institution licensed by the Germany 
authorities. A reasoned opinion was also served on 
Italy because the tender notice for a construction 
contract published by the University of Pavia 
stipulated that, to qualify, tenderers must have 
approved contractor status in Italy and be listed in 
the Italian trade register; 
No C 330/16 Official Journal of the European Communities 30. 12. 89 
(iv) the technical specifications for products: in the year 
under review the Court gave judgment in an action 
brought by the Commission in 1987 against Ireland 
in respect of the call for tenders for work on the 
Dundalk Water Supply Augmentation Scheme: 
contract No 4 (Case 45/87). The Court, while 
finding that the contract-awarding authority was a 
body outside the scope of Directive 71/305/EEC, 
nevertheless held that Ireland had infringed Article 
30 of the EEC Treaty. The authority had insisted on 
the use of materials certified as complying with a 
national standard and had ruled out the possibility 
of taking into consideration any tender based on 
another Member State as affording equivalent safe­
guards; 
(v) the contract award criteria: for example, in 
connection with a public works contract, about 
which a reasoned opinion has been served on the 
Netherlands, the Local Committee for Land 
Consolidation applied, in awarding the contract, 
criteria which had not been laid down beforehand 
and on which it could therefore not rely. The 
contract gave rise to a reference by the Arrondisse-
mentsrechtbank (District Court), The Hague for a 
preliminary ruling by the Court of Justice (Case 
31/87). The judgment in this case is of special 
importance as far as the opening-up of public 
procurement is concerned for the way in which the 
Court interpreted the concept of contract-awarding 
authority within the meaning of Direcitve 
71/305/EEC. The Court held that a body such as 
the Local Committee for Land Consolidation is 
bound by the directive as the purpose of the 
directive, namely the bringing about of freedom of 
establishment and freedom to provide services in the 
public works field, would be defeated if the directive 
were to be declared inapplicable solely because a 
public works contract had been awarded by a body 
which, though set up to carry out tasks conferred 
on it by law, was not formally part of the State. The 
judgment is also significant in that the Court 
recognized the direct effect of Articles 20, 26 and 
29 of the directive. 
76. As far as monitoring the incorporation of 
directives into national law is concerned, the 
Commission served a reasoned opinion on Greece for its 
failure to transpose Directive 71/305/EEC correctly. 78. The Commission has therefore injected some 
vigour into its own-initiative enquiries by introducing 
measures which are to become operational in 1989. 
Firstly, it has adopted a new system of monitoring 
compliance with the public procurement rules in the case 
of projects and programmes financed by the Structural 
Funds and other Community financial instruments (') 
Monitoring has now been extended to cover all the 
different forms of Community financing and stepped up 
inasmuch as not only the rules on advertising and the 
exceptions thereto but also compliance with procedural 
requirements are subject to vetting. Secondly, it has 
concluded a study contract with a firm of consultants 
with a view to examining systematically, over several 
periods during 1989, tender notices published both in the 
Official Journal of the European Communities and in the 
press in the various Member States. At the same time, the 
firm has been instructed to gather all the information it 
can on privately negotiated public contracts and public 
contracts awarded in excluded sectors. 
79. Other steps have been taken to improve the inves­
tigation of infringement cases through a deeper 
knowledge of the facts and of the rules and practices 
existing in each Member State. The Commission has 
concluded a study contract to that end. 
80. In parallel with the closer monitoring of 
compliance with the Community procurement rules, the 
Commission has continued its awareness campaign aimed 
at preventing infringements. The campaign has included 
the holding of numerous seminars and conferences for 
the benefit of existing contract-awarding authorities and 
other entities equated therewith in the proposed works 
and excluded sectors directives. This has been coupled 
with a major programme of training Euro-info-centres 
and informing potential tenderers. 
Free movement of workers and of members of the 
professions 
See chapter entitled 'A people's Europe'. 
Services 
Financial services 
77. Although the increase in the number of complaints 
bears witness to a greater awareness on the part of 
European business people of their rights under the 
Community's public procurement rules, there is never­
theless still a certain reluctance to complain for fear of 
retaliation when tendering for a new contract. 81. Although the advent of the single market has 
given fresh impetus to the work on freedom to provide 
financial services" and enabled a number of directives to 
O See Commission Notice in OJ No C 22, 28. 1. 1989. 
30. 12. 89 Official Journal of the European Communities No C 330/17 
be adopted on banking, insurance and securities trans­
actions, none of these measures has yet been 
implemented in the Member States. 
82. The Commission has received numerous letters 
from members of the public in response to its request for 
copies of correspondence with banks concerning the 
charging of commissions on Eurocheques cashed abroad. 
It now has a wealth of information on specific problems 
encountered by Eurocheque users. With regard to the 
charging of stamp duties on cheques cashed in Italy, the 
Commission, in deference to Member States' fiscal 
sovereignty, has refrained from calling for the abolition 
of such duties as long as they are not charged in a 
discriminatory manner. It has therefore made a finding 
of incompatibility with Community law only in the case 
of the Lit 500 stamp duty systematically charged on 
cheques involving a currency transaction, notably Euro­
cheques drawn on a foreign bank. 
83. Several letters have been received in which the 
writer complains about charges for transferring money 
from one Community country to another. The 
Commission is aware of this unsatisfactory situation, but 
it can remedy it only by means of a specific initiative 
which it proposes to launch in connection with the trans­
parency of banking conditions. 
84. A reasoned opinion was served on Italy for the 
failure of the Italian police to respect the obligation no 
longer to require production of the green card as proof of 
the fact that a car is insured. The Community system is 
based on an agreement between the various national 
insurers' bureaux to compensate the victims of accidents 
caused abroad by a vehicle registered in another Member 
State, by virtue of such registration alone. The 
requirement of the production of a green card has, in a 
number of cases, had quite unacceptable and dispropor­
tionate consequences (for example, seizure of the 
vehicle, involuntary prolongation of a stay pending the 
dispatch of a green card from the country of origin). 
85. Only Denmark has amended its legislation 
following the Court's judgments on co-insurance. 
Pending formal amendment of their laws, the French and 
Irish authorities have simply issued administrative 
instructions to the effect that the leading insurer should 
no longer be required to have an establishment in France 
or Ireland, while the German government, which is in 
the process of drawing up amending legislation, has not 
considered it necessary to take interim measures. The 
Commission will return to this problem in the context of 
monitoring the implementation of the second non-life 
insurance directive of 22 June 1988 (Directive 
88/357/EEC). New technologies and related services 
86. The means provided by the EEC Treaty of 
ensuring the free movement of radio and television 
broadcasts within the Community are twofold: firstly, 
the coordination of national laws, and secondly, the 
direct application of the Treaty's provisions, and in 
particular Articles 59 and 62. 
87. As regards the first aspect, following the delivery 
by Parliament of its opinion on the proposal for a 
directive on the pursuit of broadcasting activities (OJ No 
C 49, 22. 2. 1988), the Commission transmitted to the 
Council on 6 April 1988 its amended proposal for a 
directive (OJ No C 110, 27. 4. 1988). 
88. As regards the direct application of the Treaty, the 
proceedings initiated in 1987 have had a favourable 
outcome. The Commission terminated the proceedings 
brought against Germany, as the retransmission by cable 
of programmes from other Member States can no longer 
be restricted owing to application of the requirements of 
pluralism imposed on broadcasters established in the 
Land of Bremen and the other Lander. 
89. In Case 352/85 Vereniging Bond van Adverteerders 
and Others v. The Netherlands State the Court gave a 
preliminary ruling on the interpretation of the Dutch 
rules on the distribution by cable of foreign television 
programmes (the Kabelregeling). In its judgment, the 
Court held that the prohibition contained in the Kabelre­
geling on the cable distribution in the Netherlands of 
programmes transmitted by satellite from other Member 
States with Dutch sub-titles and containing advertising 
aimed specifically at the Dutch public entailed 
restrictions on freedom to provide services contrary to 
Article 59 of the Treaty. 
90. Lastly, the Commission's attention was drawn to 
the fact that in Belgium private individuals are forbidden 
to possess satellite dishes capable of picking up television 
broadcasts transmitted via telecommunications satellites. 
The Commission commenced proceedings pursuant to 
Article 169 of the Treaty in respect of this prohibition. 
91. It should be pointed out in this context that the 
deadline for incorporating into national law Directive 
87/372/EEC on the frequency bands to be reserved for the 
pan-European system of cellular mobile telephony was 25 
December 1988. 
Capital movements 
92. In the field of capital movements (Articles 67 et 
seq. of the EEC Treaty), the improvement in Ireland's 
external payments situation induced the Commission not 
to extend the term of validity of the decision authorizing 
No C 330/18 Official Journal of the European Communities 30. 12. 89 
that Member State, pursuant to Article 108 (3) of the 
EEC Treaty, to maintain until 31 December 1988 
restrictions on certain capital movements liberalized 
under Community law (*) Ireland thus had to take the 
necessary measures to fulfil as from 1 January 1989 all 
its Community obligations in relation to the free 
movement of capital. The Commission's November 1985 
decision to support a programme aimed at restoring 
Greece's balance of payments was also revised in such a 
way as to relax considerably the restrictions on capital 
movements authorized at that time. The improvement in 
Greece's external equilibrium justified this move but did 
not permit at that stage the removal of all the protective 
measures orginally authorized. The authorization in 
respect of some of those protective measures was thus 
renewed until 31 December 1989 (z). Spain and Portugal 
may also maintain certain restrictions on capital 
movements until 1990 and 1992 respectively under the 
transitional arrangements laid down in the Act of 
Accession. 
93. Following the Court's judgment in Case 194/84 
on funds blocked in Greece, the Greek authorities have 
taken steps to comply therewith. However, the steps are 
in some respects inadequate and the Commission has 
brought a fresh action against Greece. 
Rules applying to businesses 
94. In the White Paper programme, only some of the 
measures planned in the fields of company law and 
industrial property have been adopted and have entered 
into force. (i) the Fourth Council Directive (78/660/EEC)of 25 
July 1978 on the annual accounts of certain types of 
company has been transposed in all Member States 
except Italy, Spain and Portugal. Italy was censured 
by the Court of Justice in its judgment in Case 
17/85 for its failure to transpose the Directive. As 
Italy has not complied with the judgment, the 
Commission has commenced fresh infringement 
proceedings pursuant to Article 171 of the Treaty; 
(ii) as regards the transposal of the Third Council 
Directive (78/855/EEC) of 9 October 1978 on 
mergers and the Sixth Council Directive 
(82/891/EEC) of 17 December 1982 on demergers, 
the Commission terminated the proceedings against 
France, the United Kingdom, Greece, Ireland and 
Luxembourg after those Member States had brought 
their legislation into line with Community law. On 
the other hand, the Commission brought actions 
before the Court of Justice against Belgium and 
Italy for their failure to transpose the two directives; 
(iii) with respect to the incorrect implementation of the 
company law directives by the Member States, the 
Commission closed the file on two cases, one 
against Belgium in connection' with the Second 
Council Directive (77/91/EEC) of 13 December 
1976, and the other against the Netherlands in 
connection with the Seventh Council Directive 
(83/349/EEC) of 13 June 1983. On the other hand, 
the Commission commenced two new sets of 
proceedings against Germany in respect of the 
implementation of the First Council Directive 
(68/151 /EEC) of 9 March 1968 and the Seventh 
Council Directive. 
Company law 
95. In this field, 1988 saw a series of transposals of 
directives by the Member States. The Third and Sixth 
Directives, on mergers (78/855/EEC) and demergers 
(82/891/EEC) respectively, were transposed by Greece, 
the United Kingdom, France, Luxembourg and Ireland. 
The Seventh Directive, on consolidated accounts 
(83/349/EEC), was transposed by Luxembourg, and the 
Eighth Directive, on auditors' qualifications 
(84/253/EEC), was transposed by Spain. On the other 
hand, despite the judgment of the Court of Justice in 
Case 17/85, Italy has not yet transposed the Fourth 
Directive on company accounts (78/660/EEC). More 
specifically: 96. The Commission received complaints from 
Community nationals about restrictions in various 
Member States on the acquisition of shareholdings in 
companies. Most of these cases were brought to a satis­
factory conclusion. 
Intellectual and industrial property 
97. Of the two measures adopted, only the directive 
on the legal protection of microcircuits has entered into 
force; it has been transposed by eight Member States, 
the others being the subject of infringement proceedings. 
(') Decision 85/15/EEC, as amended by Decision 88/12/EEC 
(OJNoL5, 8. 1. 1988). 
(2) Decision 85/594/EEC, as amended by Decision 
88/600/EEC (OJ No L 325, 29. 11. 1988). A PEOPLE'S EUROPE 
98. Most of the measures taken in the drive towards 
the single market are of direct concern to the ordinary 
citizen, either because they help to protect his entit-
30. 12. 89 Official Journal of the European Communities No C 330/19 
lement to travel and to establish himself anywhere in the 
Community or because they enable him to make use of 
goods and services whose movement has been liberalized. 
99. As examples there are the steps already referred to 
aimed at 
— solving difficulties with the registration of motor 
cars, 
— ensuring freedom to import medicines for personal 
use, 
— securing the right to use dish aerials to receive 
satellite television broadcasts in Belgium. 
100. There are measures which have been taken speci­
fically to protect the rights of private individuals which 
can also be considered here. But it must be borne in 
mind that many other measures taken in this sphere have 
no binding force: examples are the introduction of the 
European passport, the health card, and the abolition of 
customs signs. 
Free movement of persons 
101. At the Community's internal borders there are 
still immigration controls and customs formalities as a 
constant public reminder of the extent to which the 
Community is still partitioned. The removal of these 
barriers is one of the most immediate and visible benefits 
which the Community can achieve for the individual 
European. It will be a first step towards a People's 
Europe, a positive Europe which helps its people in their 
daily lives rather than a Europe of rules and regulations. 
It must not be forgotten, though, that obstacles to the 
free movement of persons are not confined to difficulties 
at borders; they can arise out of national rules which 
have nothing to do with border controls and nevertheless 
constitute tangible barriers to the development of the 
business activities of nationals of other Member States. 
The right to cross borders freely 
102. The Commission receives many complaints and 
protests at red tape encountered when crossing borders, 
involving inspections of goods or identity checks. Too 
often airports and border posts are prey to queues 
caused by inadequate organization, and the image of the 
Community suffers as a result. These difficulties will also 
be apparent from the petitions received by the relevant 
Committee of Parliament. 
103. In many cases the Commission finds itself with 
no legal redress; the only legal instruments available are 
Article 7 of the Treaty and the movement and residence directive. Very frequently neither of these can be applied, 
either because it cannot be shown that there was 
discrimination or because the controls have been carried 
out in accordance with the wording of the directive. 
104. The Commission is nevertheless developing a 
dynamic approach to the application of existing 
Community law, illustrated for example in its challenge 
to systematic checks on the residence permits of 
travellers crossing the border between Germany and 
Belgium. The Court has now confirmed that there are 
limits to the national authorities' discretion here, without 
however curbing the inspection of residence permits as 
the Commission had hoped. 
105. After infringement proceedings had been 
initiated against Greece and Portugal, the two countries 
followed the other Member States in ending the practice 
of stamping the passports of Community nationals 
entering or leaving their territory. 
106. Denmark and Germany have dropped the rules 
which prevented other Community nationals from 
crossing the border at minor border posts. 
107. Lastly, the Commission brought an action before 
the Court of Justice to settle its difference of principle 
with the Netherlands over the extent of the powers of 
officials checking travellers at its borders. 
Taxation and the citizen 
108. The previous report (x) discussed the elimination 
of double taxation on the importation of second-hand 
goods bought by private individuals in another Member 
State, in accordance with the principles developed in the 
Gaston Schul judgments (2), which have now been 
confirmed by the Court's preliminary ruling in Drexl (3). 
109. Proceedings against the Netherlands were 
terminated in 1987, and 1988 saw the termination of 
proceedings against other Member States which now 
apply the rules correctly (Denmark, Germany, Ireland, 
Luxembourg and the United Kingdom). In the case of 
France there were points of detail which still required 
study. Reasoned opinions were sent to two more recent 
Member States, Greece and Spain. 
(') Fifth report, point 58. 
O Cases 15/81 and 47/84: OJ No C 13, 21. 1. 1986, p. 2. 
(3) Case 299/86. 
No C 330/20 Official Journal of the European Communities 30. 12. 89 
110. As regards the proper application of tax-free 
allowances for Community travellers, the Commission 
terminated proceedings against the United Kingdom, 
which has now amended the legislation which required 
presentation of a special form in order to qualify for 
tax-free treatment, whereas the directive requires only 
the invoice or an equivalent document. But in four cases 
Member States did not comply with a reasoned opinion 
and the Commission referred the matter to the Court. 
The Member States involved are Denmark and Ireland; 
the cases concern restrictions imposed by both Member 
States since April 1987 on the granting of tax-free 
allowances to short-term visitors, and quantitative limits 
on beer ('). 
111. In two cases proceedings were brought against 
Italy pursuant to Article 171 of the EEC Treaty (2), for 
failing to take steps to comply with Council Directive 
83/181 /EEC, which concerns exemption from VAT on 
the final importation of certain goods, notably samples, 
and Council Directive 83/183/EEC, which deals in 
particular with tax-free allowances for removals. 
112. Reasoned opinions were also sent to Greece and 
Spain in connection with the same removals directive. 
Greece does not apply the tax-free allowance to motor 
cars acquired by way of inheritance, and limits the 
amount of the allowance for motor cars with a cylinder 
capacity of over 1 800 cc; Spain requires payment of 
VAT if the rate in force in the country of origin is less 
than that applied by the Spanish authorities, whereas the 
directive calls for completely tax-free importation. 
Right of establishment and recognition of qualifications 
113. Of five measures adopted by the Council since 
the White Paper three have reached the date by which 
they must have been transposed into national law; these 
deal with recognition of the qualifications of phar­
macists, general practitioners, and architects; the other 
two concern the general system for the recognition of 
higher-education diplomas, which is to apply by January 
1991, and the equivalence of vocational training qualifi­
cations, whose implementation depends on the publi­
cation by the Commission of lists of qualifications in a 
(') Fifth report, point 58. 
(2) Earlier judgments in Cases 124/86 and 125/86 Commission 
v. Italy. number of fields. There is delay in implementing the 
directives on the qualifications of pharmacists in one 
Member State, while in the case of general practitioners 
there are delays in five Member States. 
114. The Commission also had to ensure the 
implementation of other directives dating from before 
the White Paper, which concerned the professions and 
other occupations. The Court delivered three judgments 
in 1988: in Case 427/85 Commission v. Germany, for 
failure properly to implement the lawyers' directive, and 
in Case 283/86 Commission v. Belgium and Case 310/86 
Commission v. Italy, which concerned the free movement 
of persons supplying services ancillary to transport. At 
the end of 1988 proceedings were at the reasoned 
opinion stage in two cases, France as regards the 
lawyers' directive and Greece in the case of the directive 
on services ancillary to transport. This number may well 
grow in 1989 if letters of formal notice for failure to 
implement or failure properly to implement the phar­
macists' and architects' directives, which were to have 
been transposed by October 1987 and August 1988 
respectively, are not followed by measures to regularize 
the position in the Member States concerned. 
115. For regulated occupations to which Community 
directives do not apply or do not yet apply the 
Commission is seeking to ensure that Member States 
comply with the principles set out by the Court of Justice 
in Case 222/86 Heylens (not yet reported). The Court 
there held that even in the absence of harmonization of 
the conditions of access to a particular occupation, 
Member States are required to assess the equivalence of 
a foreign diploma 'exclusively in the light of the level of 
knowledge and qualifications which its holder can be 
assumed to possess in the light of that diploma, having 
regard to the nature and duration of the studies and 
practical training which the diploma certifies that he has 
carried out' (Ground 13). 
Discrimination on grounds of nationality 
116. The Commission continued to follow up 
complaints lodged with it in the field of the professions 
and other occupations; it also took fresh steps to 
challenge discrimination in the national public services, 
along the lines indicated in its published notice on the 
application of Article 48 (4), (OJ No C 72, 18. 3. 1988, 
p. 2). 
30. 12. 89 Official Journal of the European Communities No C 330/21 
117. During the year, actions brought by the 
Commission ended with Court judgments censuring 
Greece in two cases, for allowing only its own nationals 
to practise as teachers (Case 47/86) and lawyers, 
architects, civil engineers or surveyors (Case 38/87), and 
one judgment against Italy for allowing only Italian 
citizens to benefit under an assisted mortgage scheme for 
housing built by the public authorities (Case 63/86). The 
Commission brought a Court action in a case of 
discrimination by France against Community nationals in 
certain overseas territories (Case 263/88). A case of 
discrimination by Greece concerning the purchase of real 
property in certain regions of the country had been 
referred to the Court in 1987 (Case 305/87). These two 
cases were pending before the Court at the end of 1988. 
118. The Commission initiated proceedings against 
Italy pursuant to Article 171 of the Treaty in view of its 
failure to comply with the 1986 judgment in Case 
168/85, which concerned nationality requirements for a 
number of occupations (journalists, pharmacists etc.). 
119. The Commission continued to pay careful 
attention to cases brought to its notice in parliamentary 
questions, both written and oral, and sent reasoned 
opinions to France, Greece and Italy for discrimination 
on grounds of nationality in the granting of authori­
zation to practise as a tourist guide. 
Other questions: driving licences 
120. Italy complied with the Court's 1987 judgment in 
Case 419/85 by taking the national measures necessary 
to incorporate Directive 80/1263/EEC into national law; 
the Community-model driving licence will be available in 
the course of 1989. Belgium has taken the necessary 
legislative measures following the Court's judgment of 
1987 in Case 9/86, and the Community model driving 
licence has been available there since 1 January 1989. 
After infringement proceedings were initiated against 
France it too implemented the directive, and the new 
model has been available since 6 February 1989. 
Although the United Kingdom and Ireland have 
transposed most of the provisions of the directive they 
have not yet introduced a Community-model driving 
licence. It is expected to be adopted in September 1989 
in Ireland and 1 January 1990 in the United Kingdom. 
121. This question continues to excite considerable 
attention on the part of individuals affected, which is 
reflected in the number of complaints to the Commission 
and petitions to Parliament. The bulk of these complaints arise out of an insufficient knowledge of the rules in 
Directive 80/1263/EEC. The Commission has been able 
to settle most cases. It sent Germany a reasoned opinion 
for faulty interpretation of the concept of normal 
residence referred to in Article 8 of the Directive as it 
applies to students. 
Employment social policy and education 
122. The Commission made strenuous efforts to 
ensure observance of the Treaty (Article 48 on the free 
movement of workers, Article 119 on equal pay for men 
and women) and the regulations adopted by the Council 
(e.g. regulations on the free movement of workers and 
the application of social security schemes to migrant 
workers). The Commission also continued proceedings 
against certain Member States which have still to incor­
porate directives into their national law: these directives 
concern the movement and residence within the 
Community of workers from Member States, equal 
treatment for men an women as regards employment and 
social security, and the protection of workers at the 
workplace. 
123. As regards the observance of the articles of the 
Treaty and the provisions of the regulations, the 
Commission commenced two actions in 1988 before the 
Court of Justice, one against France and one against 
Belgium. One other case is still pending before the 
Court. Two fresh infringements (France) formed the 
subject of reasoned opinions, one of which was followed 
by the commencement of an action before the Court. 
Two infringements, one on the part of Ireland and one 
on the part of Italy, were brought to an end, and the 
Commission closed these cases. 
124. As regards the failure to comply with Directives or 
their incorrect application, 11 infringements, relating in 
particular to the equal treatment of men and women, 
were brought to an end, and the cases were closed. 
125. The following points should be mentioned in this 
connection: 
— as regards entry controls and the residence permit or 
establishment permit for Community citizens 
enjoying the right of freedom of movement 
(Directives 63/360/EEC and 73/148/EEC) the 
Commission withdrew an action brought before the 
Court against Belgium (Case 23/88); another case is 
still before the Court, 
No C 330/22 Official Journal of the European Communities 30. 12. 89 
— in the field of Directive 76/207/EEC on equal 
treatment for men and women as regards access to 
employment, infringement proceedings were settled 
to the Commission's satisfaction in eight cases, which 
were consequently closed, 
— a reasoned opinion was sent to Greece for 
infringement of Directive 77/187/EEC; this case was 
subsequently referred to the Court, 
— a reasoned opinion was sent to Belgium for incorrect 
application of Directive 79/7/EEC concerning equal 
treatment of men and women as regards social 
security, 
— a court action was brought against Greece (Case 
53/88) for incorrect application of Directive 
80/987/EEC on protection of employees in the event 
of the insolvency of their employer; an action against 
Italy is still before the Court. 
126. As regards the failure to notify national measures 
implementing directives, the Commission terminated 
infringement proceedings in ten cases concerning 
Belgium, France, Greece, Ireland, Luxembourg, the 
Netherlands and the United Kingdom, all regarding 
health and safety at work. The Commission brought a 
Court action against Italy for failure to implement 
Directive 82/605/EEC concerning the protection of 
workers exposed to metallic lead; and neither Italy nor 
the Netherlands has yet notified national measures 
implementing Directive 83/477/EEC concerning the 
protection of workers exposed to asbestos. The 
Commission is particularly concerned that Italy has still 
not incorporated into its domestic law Directive 
75/129/EEC on collective redundancies, despite two 
Court judgments against it, in Cases 91/81 and 131/84. 
Consumer protection 
127. There were no major developments as compared 
with the previous year. Consumers, who ought to be the 
first to benefit from a single Community market, 
continued to make little use of the legal remedies which 
Community law offers them to defend their rights, such 
as the complaint to the Commission. There were only 
eleven complaints to be investigated in the course of 
1988. Commission monitoring of the application of 
Community law was therefore confined mainly to 
checking that the Community directives had been 
formally incorporated into the law of the Member States. 
128. The Court's judgment in Case 152/84 Marshall 
confirmed that where a Member State fails to incor­
porate a directive into national law the directive can be 
relied upon before the courts by a private person against that state, but not against another (directives have no 
horizontal direct effect). We have already seen that 
consumers make little use of the other remedies open to 
them. 
129. The situation may be due in part to the fact that 
in Member States where consumers are well aware of 
their rights, domestic law provides a large measure of 
protection and redress, and Community directives have 
generally been properly transposed. There are other 
Member States where the transposal of the directives is 
less satisfactory, but in those countries consumers are not 
well informed about their rights. Then again, a barrier to 
trade within the Community may be a constant difficulty 
to a businessman, who may thus have an interest in 
taking action against some national rule, but a violation 
of an individual consumer's rights will affect the 
consumer only from time to time unless the article 
concerned is one he buys regularly. The consumer may 
therefore be unwilling to take steps to defend his rights. 
130. It should be pointed out here that the interests of 
consumers are also taken into account in monitoring the 
application of the law on the free movement of goods 
and services, the agricultural rules, the competition rules 
and the environmental rules (see the relevant sections of 
this report). 
II. OTHER QUESTIONS 
Statistical matters 
131. Quite specific features attach to the implemen­
tation of Community law governing a given statistical 
field since, where a Member State is obliged to supply 
figures at stated intervals and in accordance with a 
pre-established procedure, if the obligation is repetitive 
in nature its fulfilment may be called in question 
whenever any due date is reached. Moreover, where the 
Community provisions are enacted in the form of 
directives, their formal incorporation into national law is 
not an essential requirement for their implementation 
since such implementation may simply derive from the 
requisite data being supplied by the competent auth­
orities. 
132. In the final analysis, it is clear that failure to 
comply with the law in regard to statistics is relatively 
rare and that an occasional delay does not constitute, 
ipso facto, and in the absence of additional adverse 
factors, a breach which justifies initiating an 
infringement procedure. Nevertheless, virtually all the 
situations brought to light or in respect of which the 
Member States were censured have to do with unac­
ceptable delays and less often with the conditions under 
which data were compiled. 
30. 12. 89 Official Journal of the European Communities No C 330/23 
133. The infringement referred to in the preceding 
report has still not been brought to an end by the 
Member State concerned. Italy is still in breach of its 
obligations under Council Directive 78/564/EEC on the 
carriage of goods by road. It was censured by the Court 
in 1985 for failing to supply a complete statement 
regarding the carriage of goods by road by Italian 
carriers and proceedings have now been brought against 
Italy for its failure to implement a judgment of the 
Court. 
134. Apart from that case, the Commission had to 
examine various possible offences during the year under 
review and in three cases it initiated the infringement 
procedure by sending a letter of formal notice. In two of 
those cases, since no reply was received, the 
Commission's decision to send a reasoned opinion was 
taken at the end of 1988. In the third case, the answer to 
the letter of formal notice led to further requests for 
information which resulted in commencement of the 
subsequent stage of the procedure being deferred. 
Community staff 
135. On the question of pension rights, following the 
Court's judgment in Case 315/85 Commission v. 
Luxembourg, in which the Court rejected the 
Commission's argument that an official was in all cases 
entitled to require the transfer of the actuarial equivalent 
even if the national scheme provided only for the 
transfer of the contributions repaid, the Commission 
decided to withdraw that proceedings in respect of 
Germany (Case 146/86) and France (Case 303/85) 
which were essentially based on the same ground of 
complaint. The legislation in the Netherlands has been 
amended so as to permit the relevant transfer. This will, 
however, still require the conclusion of a formal 
agreement with the Commission. The negotiations with 
Belgium are close to a successful conclusion. 
136. On the question of overlapping family 
allowances, following the judgments in Cases 186/85 
and 189/85 in which it was held that Community family 
allowances are supplementary to national ones, nego­
tiations are under way with the Federal Republic of 
Germany aimed at determining the detailed 
arrangements for implementing the said judgments as far 
as the past is concerned. In the case of Belgium, the 
relevant arrangements have been agreed and they are 
being implemented. 
137. The various infringement procedures initiated in 
respect of Belgium in cases concerning the position of 
Community officials employed in Belgium were 
terminated in 1988. The agreement concluded with the 
Belgian authorities in April 1987 concerning inter alia 
recording the particulars of Community staff under a 
special heading in the municipal population registers made it possible to resolve the various problems which 
had arisen such as the tax on secondary residences, 
refusals to grant premiums in connection with the 
purchase and renovation of immovable property, and 
'non-resident' charges for sports and cultural clubs and 
for water consumption. 
138. Pursuant to Article 12 (e) of the Protocol on 
Privileges and Immunities, officials and other servants of 
the Communities enjoy the right, only upon transfer or 
termination of duties, to import (transfer) and reexport 
(termination of duties) a motor car with exemption from 
VAT. On account of difficulties encountered in 
connection with duty-free importation into Portugal of 
motor cars by former officials or servants of the 
Commission, a reasoned opinion was sent to the 
Portuguese authorities. In the case involving Belgium, 
the procedure initiated concerning the requirements laid 
down for exemption from VAT in connection with the 
importation of motor cars was terminated since the 
Commission's principal ground of objection did not 
appear well-founded. 
139. With regard to the procedure concerning the 
50 % reduction in the emoluments paid by the Belgian 
authorities to Belgian teachers seconded to the European 
schools, the Commission decided to bring proceedings in 
the Court of Justice. 
Budgetary matters 
140. The Commission terminated an infringement 
procedure concerning the non-payment of customs 
duties since Belgium paid the sums reclaimed. 
141. As regards default interest on late payment of 
own resources, the Commission brought proceedings in 
the Court in respect of one case involving Italy and, in 
regard to another case concerning that Member State, it 
delivered a reasoned opinion. An infringement procedure 
initiated on the same grounds was terminated as Greece 
paid the sums claimed. 
142. With a view to recovering unpaid VAT own 
resources, and default interest on the sums owing, 
resulting from infringements of Directive 73/388/EEC 
and Regulation (EEC) No 2892/77, as amended, the 
Commission delivered a reasoned opinion in respect of 
France and brought proceedings in the Court of Justice 
in respect of Germany. In this field, the Commission 
terminated three infringement procedures since the 
Member States in question (Ireland, the Netherlands and 
the United Kingdom) paid the VAT resources concerned 
and the default interest due. 
No C 330/24 Official Journal of the European Communities 30. 12. 89 
Environment policy 
143. The fourth Community action programme on the 
environment (x) stipulates that implementation of envi­
ronment law is one of the priorities for the years to 
come. This priority was expressly reaffirmed in the 
Council Resolution of 19 October 1987 (2) and was also 
acknowledged by the European Parliament. 
144. In 1988 the Court of Justice delivered a 
considerable number of judgments which will have a 
positive impact on the protection of the environment. 
Thus, for example, in Cases 227 to 230/85, the Court 
censured Belgium for the second time for its failure to 
take the measures necessary to implement the Council 
directives on waste (78/176/EEC, 75/442/EEC, 
75/439/EEC and 76/403/EEC). Faced with this totally 
unacceptable situation, the Commission will have to take 
all the steps that are necessary, within the scope of its 
powers, and will, in particular, examine the funding of 
Community projects on the environment in Belgium. In 
Case 322/86 the Court delivered a judgment adverse to 
Italy on the ground of its incomplete implementation of 
Directive 78/659/EEC (fresh waters needing protection 
or improvement in order to support fish life). This 
judgment provides the Commission with a sound footing 
in its endeavours to secure implementation of this 
directive in the 12 Member States. Lastly, in Case 
302/86 involving Denmark, the Court reaffirmed its 
ruling in Case 240/83, namely that the protection of the 
environment is an important matter of common concern 
which may justify certain limitations of the principle of 
the free movement of goods. 
145. In 1988, as in 1987, action taken by the 
Commission was marked by an increase in activity 
regarding patial compliance with and incorrect 
implementation of Community environmental legislation. 
146. The Member States are continuing to fail to 
transpose the directives on the environment into national 
law by the stipulated date and the Commission has had 
to send a considerable number of letters of formal notice 
to them for failure to communicate national measures 
implementing such directives. Special mention must be 
made of Directive 85/337/EEC on the assessment of the 
effects of certain projects on the environment. Despite 
their having had three years to incorporate this directive 
into national law, on the date on which it came into 
force (4 July 1988) only five Member States had 
informed the Commission of their national implementing 
measures. As far as waste is concerned, the result of the 
late incorporation of Community directives into their 
national law by a considerable number of Member States 
was that in the summer of 1988 public opinion in Europe 
and the third world became extremely agitated about the 
transport of toxic waste both within the EEC and to 
third world countries. Comprehensive and effective 
implementation of the existing Community directives, in 
O OJ No C 328, 7. 12. 1987, p. 1 
O OJ No C 328, 7. 12. 1987, p. 2 particular Directives 84/631 /EEC and 86/279/EEC, 
could have prevented the unlawful operations. 
147. With regard to the incomplete implementation of 
directives on the environment, attention must be directed 
primarily at national and regional legislation on hunting 
since in many Member States it is not in conformity with 
the provisions of the directive on the conservation of 
wild birds (79/409/EEC). In 1988 the Commission 
brought proceedings in the Court of Justice in the case 
of two Member States (Germany (Case 88/288) and the 
Netherlands (Case 87/399)) and sent a number of letters 
of formal notice and reasoned opinions. It has to report 
that, at present, the Member States, some of whose 
practices in regard to hunting or trapping wild birds 
were declared unlawful in judgments delivered by the 
Court in 1987 and 1988, have still not amended their 
legislation. The Commission has accordingly had to 
initiate new procedures against certain Member States. 
148. Probably the most serious situation concerns the 
failure to apply effectively existing Community and 
national legislation. It has to be recognized that the envi­
ronment throughout the Community would be in a far 
better state if existing legislation were, in fact, applied in 
all EEC countries. This applies to all environmental 
sectors — water, the atmosphere, waste, chemicals and 
chemical plant, the countryside and noise. Many 
Member States appear to experience special difficulties 
where a Community rule requires them to draw up and 
implement remedial projects and programmes. Likewise, 
the designation of special areas and the remedial, conser­
vation or supervisory measures which have to be taken 
frequently run into difficulties. In this regard mention 
must again be made of Directive 79/409/EEC where 
roughly one half of the special conservation areas for 
wild birds were designated and the Commission has 
found it necessary, on account of the management or 
business activities carried on within the habitats in 
question, to initiate a whole series of infringement 
procedures. It is to be feared that harm done to the 
habitats of wild birds will continue to pose a serious 
threat to the efforts to protect the countryside within the 
EEC. 
149. As far as waste is concerned, the Member States 
are all considerably behind in making public and 
forwarding to the Commission their plans for the 
disposal of toxic and dangerous waste. In 1988 the 
Commission reminded the Member States of their obli­
gations under Directive 78/319/EEC and drew their 
attention to the impact that completion of the internal 
market will have on policies for the disposal of waste. 
150. In the case of water, the effective implementation 
of a number of directives, namely 75/440/EEC (surface 
water), 76/160/EEC (bathing water), 80/68/EEC 
(groundwater), 80/778/EEC (drinking water) and 
78/659/EEC (fresh waters needing protection or 
improvement in order to support fish life) is far from 
satisfactory. In 1988 the Commission concentrated 
primarily on the directives on bathing water in regard to 
30. 12. 89 Official Journal of the European Communities No C 330/25 
which it decided to initiate infringement procedures in 
respect of all the Member States and on the directive on 
drinking water. As far as the latter is concerned, the 
failure by a considerable number of Member States to 
comply with the values indicated for nitrates and 
pesticides is giving rise to serious problems. It is difficult 
for the Commission to monitor implementation of the 
legislation as Directive 80/778/EEC contains no 
provision requiring information to be supplied to the 
Commission on implementation of the directive. 
151. There is scant monitoring of the implementation 
of the provisions of international conventions on water 
to which the EEC is party. Thus, Community maritime 
waters are not subject to monitoring by the Commission 
which is a shortcoming from the standpoint of the need 
to protect the Community environment effectively. 
152. The number of complaints further increased in 
1988 and reached almost 200. Most of them deal with 
protection of the countryside followed by water and 
atmospheric pollution. The Commission is pleased to 
note that complaints regarding the environment are 
lodged with it not only by private individuals and envi­
ronmental protection associations but also by political 
parties, political groupings in national parliaments and 
municipal authorities and embassies. The Commission 
considers that this trend is an expression of the fact that 
protection of the environment is of common concern. It 
regards the formal complaint as a valuable instrument in 
ensuring efficient monitoring of the effective implemen­
tation of Community environment law. 
153. At the end of 1988, following a complaint lodged 
by a private individual, the Commission brought 
proceedings in the Court of Justice aimed at bringing to 
an end an infringement concerning the treatment and 
disposal of dangerous waste in Spain (Case 21/89). The 
Commission takes the view that Spain has breached a 
number of directives on hexachlorocyclohexane; 
furthermore, the Spanish authorities are failing to 
cooperate as far as on-theTspot checks are concerned. 
Competition policy 
154. As regards the adjustment of national monopolies 
of a commercial character, the Commission had to deal 
with two cases, in particular. With regard to the Greek 
monopoly in petroleum products, the Commission was 
obliged to find that the adjustment measures proposed 
by Greece to bring it in line with the provisions of 
Article 40 of the Act of Accession were unacceptable and 
it therefore decided, on 8 June 1988, to bring 
proceedings in the Court of Justice. With regard to the 
Spanish monopoly in petroleum products which must be 
adjusted in accordance with the provisions of Article 48 
of the Act of Accession and Articles 30 and 37 of the 
EEC Treaty, the Commission took note of the under­
takings given by the Spanish Government on 25 January 
1988 regarding prompt compliance with the 
Commission's reasoned opinion of 22 December 1987. 155. With regard to measures taken by the State 
within the meaning of Article 90 of the EEC Treaty, 
particular mention must be made of the following cases: 
— by its judgment in Case 226/87 the Court of Justice 
censured the Hellenic Republic for its failure to 
adopt the measures necessary to comply with 
Commission Decision 85/276//EEC (*) concerning 
the insurance in Greece of public property and loans 
granted by Greek State-owned banks. Since the 
Greek Government has still not communicated the 
measures necessary to comply with the decision in 
question, the Commission is considering initiating a 
further procedure under Article 169 of the EEC 
Treaty on the ground of Greece's failure to comply 
with its obligations under Article 171 of the Treaty; 
— following adoption of Commission Decision 
87/359/EEC pursuant to Article 90 (3) of the EEC 
Treaty (2), concerning reductions in air and sea 
transport fares available only to Spanish nationals 
resident in the Canary Islands and the Balearic 
Islands, Spain took measures designed to extend 
eligibility for the said reductions to nationals of other 
Member States resident in the islands with effect 
from 1 January 1988. A similar solution was adopted 
in 1988 by Portugal with regard to its system of 
concessionary air fares. From now on, nationals of 
other Member States resident in the Azores and 
Madeira are eligible for the fare reductions that were 
formerly available only to resident Portuguese 
nationals. 
156. The Commission also examined the refusal of the 
German Government to assist Commission officials in 
the enforcement of the competition rules. A reasoned 
opinion was sent on 4 June 1987 and the Commission 
decided to defer consideration of this matter pending the 
judgment in the Hoechst case. 
Agricultural policy 
157. Infringements of specific market organization 
measures intended to achieve the objectives laid down in 
Article 39 of the EEC Treaty are of two kinds: either 
there is delay in applying the Community rules (which 
have to be applied promptly if they are to attain the 
effects desired by the Community legislature), or they 
are implemented incorrectly. 
158. The Commission took action against delays in 
the application of the supplementary milk levy scheme in 
Italy, in the payment of abandonment premiums in 
respect of wine-growing areas in Italy, in the devel-
(') OJ No C 152, 11. 6. 1985, p. 25. 
O OJ No L 194, 15. 7. 1987, p. 28. 
No C 330/26 Official Journal of the European Communities 30. 12. 89 
opment of a computerized register of olive-growing data 
in Italy and Greece, and in the adoption of measures 
providing for penalties for infringements of the olive oil 
production aid scheme in France. 
159. Incorrect application of Community rules 
affected the operation of the common organizations of 
the following markets: 
— cereals and olive oil, in Greece, by reason of State 
measures relating to Community prices and the 
buying-in of cereals which do not meet the criteria 
laid down in the Community rules and, in particular, 
national measures regarding management of the 
cereals market that are contrary to the rules 
governing the common organization of the market 
through action taken by the KYDEP organization, 
set up by the Greek State, which covers the deficits 
of that body; 
— fruit and vegetables, milk and wine, in Italy, by 
reason of the absence of quality controls for fruit and 
vegetables, the setting of milk prices at a stage within 
the exclusive competence of the Community, and the 
unjustified inclusion of certain wine-growing areas in 
the Lago di Caldaro region; 
— wine, in Germany, by reason of the unlawful increase 
in the natural alcoholic strength of Moselle wines, 
the acceptance of quality wines psr from outside the 
specific regions, the ban on the use of rectified 
concentrated grape must in the preparation of local 
wines and quality wines psr and the failure to adopt 
legislation imposing penalties under the common 
organization of the market in wine to ensure that 
compulsory distillation measures are implemented; 
— wine, in Portugal, by reason of the incorrect 
implementation (e.g. failure to lay down 
supplementary requirements) of the Community rules 
on premiums for grubbing-up areas under vines; 
— eggs and poultry, in the Netherlands, by reason of 
the requirement that Netherlands' exporters estab­
lished outside Netherlands territory must, inter alia, 
indicate the number of an approved Netherlands' 
packing centre on egg packagings. 160. As regards harmonization, the fields covered are: 
phytosanitary rules, seeds and plants, and animal feed-
ingstuffs and veterinary law. 
161. The Commission initiated 130 new infringement 
procedures pursuant to Article 169 of the EEC Treaty in 
1988 for failure to inform the Commission of national 
measures implementing directives in the abovementioned 
fields. 
162. Although this figure represents a considerable 
increase, it is apparent that the Member States adopt 
national implementing measures without the Commission 
having to refer the matter to the Court of Justice. In 
1988 in 17 cases out of 19 the Member States complied 
with reasoned opinions delivered by the Commission 
before the month of December of that year. Proceedings 
were brought in the Court in one case only 
(furthermore, the infringement was brought to an end 
shortly after the matter was referred to the Court). 
163. As far as implementation of the Court's 
judgments in concerned, Italy (the only Member State 
concerned) adopted measures incorporating 11 directives 
(out of 16) into national law on the basis of an enabling 
law ('), in the case of the five remaining directives, the 
Commission initiated proceedings pursuant to Article 
171 of the Treaty. 
164. As far as the characteristic features of the 
infringements committed by Member States are 
concerned, the observations contained in previous 
reports are still valid (2). The absence of any significant 
changes in this regard makes it pointless to repeat them. 
165. In its last report (3), the Commission drew 
attention to the worrying failure on the part of Italy to 
comply with the judgment of the Court of Justice in 
Case 69/86, in which the Court censured Italy under 
Article 171 for failing to comply with its judgment in 
Case 322/82, holding that Italy was infringing the rules 
governing the monitoring of quality standards in regard 
to fruit and vegetables. 
166. That observation remains valid also since despite 
the Commission's many representations, Italy has still 
not complied with the two rulings delivered by the Court 
of Justice. The Commission must denounce such conduct 
which is detrimental to the proper functioning of the 
Community, which is founded on respect for the law. 
(1) The Enabling Law of 16 April 1987 (Official Gazette of the 
Italian Republic of 13 May 1987, No 109) conferred, for a 
period of one year, power upon the Italian Government to 
incorporate a number of Community directives into national 
law. In the meanwhile that law has ceased to have effect. 
(2) See, inter alia, the Fifth annual report to the European 
Parliament on Commission monitoring of the application of 
Community law, 1987. Document COM(88)425 final, 
13. 9. 1988, p. 42. 
(3) Fifth report to the European Parliament, op. cit., p. 47. 
30. 12. 89 Official Journal of the European Communities No C 330/27 
Fisheries 
167. With regard to the Community arrangements for 
the conservation and management of fish stocks, 
stringent monitoring by the Commissin in previous years 
led most Member States to introduce stricter measures 
aimed at securing compliance with technical conservation 
measures and catch quotas. The Commission is 
continuing to take action where catch quotas are 
exceeded; overfishing is an indication of inaction on the 
part of the Member States concerned as regards fishery 
inspections. Reasoned opinions were delivered in this 
connection to the United Kingdom (overfishing in 1985), 
the Netherlands (overfishing in 1986) and France 
(overfishing in 1985 and 1986). The case brought against 
the Netherlands in 1987 on the question of overfishing in 
1983, 1984 and 1985 is still pending before the Court of 
Justice. 
168. As regards compliance with the inspection 
procedures which Member States are required to 
establish, a procedure initiated in respect of Belgium was 
terminated. Another case that was examined, concerning 
France, involving unsatisfactory monitoring of 
compliance with technical conservation measures 
resulted, in the end, in the matter being referred to the 
Court of Justice. A reasoned opinion was sent to Spain 
on the same subject establishing a breach of the 
requirement to record catches of species subject to TACs 
or quotas; the said breach is liable to call in question the 
Commission's ability to ensure that the Member State 
concerned does not exceed its quotas. 
169. Application by Member States of the Community 
rules requiring the data specified under the common 
organization of the markets to be supplied to the 
Commission improved considerably. The Commission 
terminated the procedures in respect of Denmark, the 
Netherlands and the United Kingdom. France, Italy, 
Ireland and Greece continued to breach the abovemen-
tioned requirement and proceedings were brought in the 
Court of Justice regarding the latter three Member 
States. 
170. Lastly, as in the past, the Commission insists that 
each Member State must notify it of the national 
measures that it adopts on fisheries in accordance with 
the procedures and by the time-limits laid down. It can 
then monitor the conformity of such measures with 
Community law and is better able to ensure the 
consistency of Community policy. The last procedure 
initiated in this regard in respect of the Netherlands was 
formally terminated in 1988. 
171. The Commission continues to carry out routine 
monitoring of Member States' national legislation 
concerning fisheries in order that it may assess whether 
they are in conformity with the Community rules and 
prerogatives in force. In this connection the Commission 
decided to bring proceedings in the Court regarding 
Irish legislation which makes the granting of fishing 
licences subject to a nationality requirement, thus 
restriction freedom of establishment. The Commission also decided to bring proceedings in the Court in regard 
to a case concerning an extension of United Kingdom 
territorial waters which entails restrictions on certain 
specific rights vested in fishermen from other Member 
States that are laid down in the Act of Accession and 
basic Regulation (EEC) No 170/83. 
Transport policy 
172. Most of the measures adopted in the field of 
transport by road, air and sea take the form of directly 
applicable regulations and decisions; thus, three 
measures came into force in 1988 concerning, on the one 
hand, air services (Decision 87/602/EEC on the sharing 
of passenger capacity and access to the market and 
Regulation (EEC) No 3975/87 on the application of 
Articles 85 and 86 of the Treaty), and on the other hand, 
the carriage of goods by road (Regulation (EEC) No 
1841/88 on the Community quota). Only fares for 
scheduled air services between Member States were 
covered by a directive (Directive 87/601 /EEC), which 
had been in force since 31 December 1987 and had still 
not been incorporated into national law by most of the 
Member States one year later. 
173. Italy has still not complied with judgments by the 
Court of Justice concerning its failure to incorporate into 
national law three directives on admission to the occu­
pations of road haulage operator and road passenger 
transport operator and on the mutual recognition of 
qualifications for those occupations despite further Court 
judgments against Italy pursuant to Article 171 of the 
Treaty as far as the first two directives are concerned 
and a further reference to the Court on the basis of that 
same Article in the case of the last mentioned directive. 
The proceedings brought against Greece for failure to 
incorporate the same directives into national law are still 
pending before the Court. 
174. However, Italy adopted legislation concerning 
the tax reductions provided for in Directive 82/603/EEC 
concerning certain types of combined road-rail carriage 
of goods in compliance with the Court's judgment in 
Case 420/85. 
175. As regards Directive 86/544/EEC which 
concerns the same field, it has now been implemented by 
all Member States. 
176. At present Belgium is the only country which has 
failed to incorporate into its national law Directive 
82/714/EEC on technical requirements for inland 
waterway vessels. The Court has delivered judgment 
against it. 
177. In the important field of the weights and 
dimensions of road vehicles covered by Directive 
86/364/EEC, two countries complied with the 
Community legislation following letters of formal notice 
sent by the Commission. Measures still have to be taken 
No C 330/28 Official Journal of the European Communities 30. 12. 89 
two other Member States as is the case with the 
Directive on facilitating the crossing of frontiers 
(Directive 87/53/EEC). 
178. With the exception of the United Kingdom, 
which submitted draft legislation to the Commission, all 
the Member States incorporated into their national law 
the two directives concerning inter-regional air services. 
In the case of the directive on fares for scheduled air 
services between Member States, included in the air 
transport package enacted in December 1987, 
infringement procedures were initiated in respect of two 
Member States. An important case concerning implemen­
tation of Decision 87/602/EEC on capacity and access 
to the market, also included in the air transport package, 
arose during 1988. The Italian authorities refused Aer 
Lingus fifth freedom rights (the right to carry cargo and 
passengers between airports situated in States other than 
that in which the airline is registered) in respect of flights 
between Manchester and Milan on the Dublin/ 
Manchester/Milan route. The Commission referred the 
matter to the Court of Justice and particular attention 
was devoted by the press to this case. 
179. Another important infringement procedure was 
the subject of considerable comment by the media, 
namely that initiated in respect of Portugal concerning 
the implementation of Regulation (EEC) No 4055/86 on 
freedom to provide services to maritime transport 
(included in the maritime transport package of 
December 1986). At the beginning of 1987 Portugal 
adopted new rules governing the carriage of goods 
reserved for vessels flying the national flag, which 
increased the scope of the preference already enjoyed by 
such vessels and which extended it to vessels chartered 
by national shipowners, something clearly contrary to 
the derogations still allowed by the regulation. It would 
appear that this infringement may shortly be brought to 
an end through the promulgation of a new decree-law 
the text of which was approved by the Commission. 
Energy policy 
180. On 27 April 1988 the Commission adopted a 
Working Document on the internal energy market 
(COM(88) 238 final of 2 May 1988) which it sent to the 
Council and the European Parliament. The document 
sets out a list which is as exhaustive as possible of the 
obstacles which exist to completing the internal market 
in energy, and proposes four sets of measures which 
should enable the said obstacles to be removed. One of 
these sets of measures concerns the application of 
Community law. The Commission has, in essence, four 
sets of legal instruments at its disposal: those which 
ensure the free movement of goods and services; those 
which relate to State monopolies and exclusive rights; 
those governing the conditions of competition; lastly, 
those applicable to State aids. 181. In parallel with the adoption of its Working 
Document, the Commission entrusted its staff with the 
task of examining ways in which the legal instruments at 
its disposal could be rendered more stringent, with a 
view to securing compliance with Community law in the 
energy field. In carrying out this task, Commission staff 
have begun to examine, inter alia, the problems raised, in 
regard to intra-Community trade in electricity, by the 
German system of indirect aid in respect of coal used in 
electricity generating stations. They also commenced 
inquiries in five Member countries (Belgium, Germany, 
Spain, France, United Kingdom) intended to determine 
whether the terms and conditions of the contracts 
concluded by the coal mining and electricity industries 
are, inter alia, acceptable having regard to Articles 85 
and 86 of the EEC Treaty. 
182. On completion of this work, the Commission 
will decide in 1989 on the overall approach to be 
adopted. The measures which the Commission is to 
propose with a view to removing the obstacles to cross 
frontier purchases of electricity, as foreshadowed in its 
communication on a Community regime for 
procurement in the excluded sectors: water, energy, 
transport and telecommunications (COM(88) 376 final, 
11 October 1988, p. 97, paragraph 408) will be included 
in this general picture. 
External relations 
183. Pursuant to Council Decision 74/393/EEC 
establishing a consultation procedure for cooperation 
agreements between Member States and third countries, 
the Commission sent Greece a reasoned opinion on the 
ground of its failure to comply with the abovementioned 
obligations before negotiating a cooperation agreement. 
184. In another connection, the Commission decided 
in 1988 to send a reasoned opinion to France on account 
of the obstacles placed in the way of imports of 
fertilizers from Hungary. 
Development cooperation policy 
185. In this sphere, the Commission's monitoring of 
the application of Community law is essentially designed 
to ensure observance by the Member States of various 
protocols concluded in the context of the Lome 
Convention and of the Community acts arising from 
certain international agreements relating to products. 
186. Furthermore, in the context of EEC/OCT 
relations, the French authorities sent the Commission on 
22 January 1988 an affirmative answer indicating that 
the law in New Caledonia and French Polynesia is being 
amended in order to ensure respect for the principle of 
freedom of establishment for persons as regards the 
pursuit of five occupations in the field of health care. 
30. 12. 89 Official Journal of the European Communities No C 330/29 
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NETHERLANDS 
17. 9. 1987 Case 291/84 Protection of groundwater (A 71/83) Fresh infringement proceedings 
(A 532/88) 
13. 10. 1987 Case 236/85 Wild birds (A 125/84) Fresh infringement proceedings 
(A 60/89) 
UNITED KINGDOM 
21. 6. 1988 Case 416/85 Zero rating The judgment will be complied with when the 
new Finance Act for 1989 is adopted 
(A 203/81) 
30. 12. 89 Official Journal of the European Communities No C 330/53 
No 11 
Review of significant judgments of national courts of final instance 
In the fifth report, the Commission informed Parliament that it 
had carried out an in-depth study of the attitude of national 
supreme courts to Community law and that the study would be 
published. 
The Commission has decided, in the interests of keeping 
Parliament fully informed, to publish the study as an appendix 
to the present report. 
The approach adopted by Member States' supreme courts to the 
problems posed by conflicts between Community law and 
national law and the application by those courts of three basic 
principles of Community law (its primacy over subsequent 
national law, the direct effect of directives and the uniformity of 
judicial decisions) are analysed country by country with an indi­
cation of how the situation has changed over time. 
The conclusion drawn is that supreme courts are adopting 
non-conformist positions less and less frequently and are collab­
orating effectively in the implementation of Community law. 
The influence of the case law of the Court of Justice is making 
itself increasingly felt. In its judgment in Case 283/81 
CILFIT ('), the Court gave a definitive interpretation of the 
third paragraph of Article 177: a court or tribunal against whose 
decisions there is no judicial remedy under national law is 
required, where a question of Community law is raised before 
it, to comply with its obligation to bring the matter before the 
Court of Justice, unless it has established that: 
— the question raised is irrelevant; Thus, the number of references made rose from 144 in 1987 to 
179 in 1988. For 1988, they may be broken down by Member 
State and by court as follows (2): 
Member State 
Germany 
Belgium 
Denmark 
Spain 
France 
Greece 
Ireland 
Italy 
Luxembourg 
Netherlands 
Portugal 
United Kingdom Total 
34 (32) 
32 (15) 
4( 5) 
1 ( 1) 
37 (36) 
-(17) 
-( 2) 
28 ( 5) 
2( 3) 
25 (19) 
-(-) 
16 ( 9) References by 
courts of final 
instance 
8 (10) 
1 ( 3) 
2 ( 2) 
— (—) 
4( 3) 
— (—) 
— (—) 
— (—) 
2( 3) 
16 (14) 
— (—) 
2( 1) 
As in 1987, the Commission has carried out a review of the 
judgments of courts of final instance which highlight the 
problems that remain. 
In fact, with the limited resources at its disposal the Commission 
has unearthed only three cases worthy of mention, and these 
concern the Italian Consiglio di Stato and the French Conseil 
d'Etat (see below). The three judgments in question are 
particularly significant inasmuch as (a) no reference was made 
to the Court of Justice and (b) the two courts misinterpreted 
Community law. 
the Community provision in question has already been inter­
preted by the Court; 
— the correct application of Community law is so obvious as to 
leave no scope for any reasonable doubt; the existence of 
such a possibility must be assessed in the light of the specific 
characteristics of Community law, the particular difficulties 
to which its interpretation gives rise and the risk of diver­
gences in judicial decisions within the Community. In line with the suggestion made at point 4 of Parliament's 
resolution on the fifth report, the Commission is studying the 
possibility of introducing a system whereby it would be sent 
annual digests of all judgments delivered by national supreme 
courts. 
In view of the complexity of the undertaking and the organiz­
ational difficulties involved, the Commission is in favour of 
conducting a pilot experiment with the help of one or two 
Member States in order to gain the necessary experience before 
extending the system to all twelve. 
As far as 1988 is concerned, the Commission finds that the 
comments made in the fifth report still hold true. 
Generally speaking, the courts and tribunals of the various 
Member States apply Community law in full. They themselves 
give judgment on questions of Community law which have 
already been settled, where these arise, and they are increasingly 
referring matters to the Court of Justice for a preliminary ruling 
pursuant to Article 177 of the EEC Treaty. This is true on the 
whole as much of the lower courts as of courts of final instance. As regards, more particularly, cases in which national courts fail 
to appreciate the scope and terms of Article 177, the 
Commission has initiated infringement proceedings against 
France in connection with the judgment of the Cour de 
Cassation referred to at A.l. on page 44 of the fifth report. 
As already indicated in the course of the discussions on the 
latter, the Commission hesitates, given the universal principle of 
the independence of the judiciary, to find fault with a Member 
State on grounds of the conduct of one of its courts. 
(») 1982 ECR 3415. (2) The figures in brackets relate to 1987. 
No C 330/54 Official Journal of the European Communities 30. 12. 89 
In the case in point, the Commission took the view that, having 
made a mistake in prosecuting a firm for a crime which it had 
not in fact committed, the French authorities were not justified, 
under Community law, in relying on the judgment delivered in 
their favour, this being based on the same manifest error of 
application of Community law. 
The proceedings are currently at the reasoned opinion stage. 
1. Italian Consiglio di Stato. Sixth Chamber, — Judgment of 2 
December 1988, — Cooperativa Carrettieri la Rinascita 
This judgment is noteworthy both for the unjustified 
omission to make a reference to the Court of Justice and for 
the misapplication of Community law. 
The Consiglio di Stato had to rule on an appeal lodged by 
three Italian companies against a judgment of the Latium 
regional administrative court dismissing an action brought by 
the companies against a Ministry of Transport circular 
revoking all the measures taken pursuant to Law No 
815/1980 on aid for the purchase of vehicles by road haulage 
operators. 
The purpose of the circular was to implement the 
Commission decision of 20 July 1983 declaring the aid 
incompatible with Article 92 (1) of the Treaty. Since the 
repeal of the law to which the Commission objected called 
for the adoption of a new law, the Italian Government had 
therefore temporarily discharged its Community obligations 
by means of an administrative provision permanently freezing 
all awards of the aid in question. 
The Consiglio di Stato reversed the lower court's decision 
and declared the circular void on the ground that, as long as 
Law No 815/1980 was in force, the Italian authorities could 
not lawfully revoke the measures implementing it. According 
to the Consiglio di Stato, such revocation should have 
followed, and not preceded, the repeal of the 1980 law, the 
only measure capable of implementing correctly the 
Commission decision of 20 July 1983. 
The Consiglio di Stato thus dismissed, without valid reason, 
the Italian Government's argument that the conflict which 
that court had to settle was not between the Italian law and 
the Commission's Article 93 (2) decision, but between that 
law and Article 92 (1) of the Treaty itself. 
That argument was, moreover, entirely in keeping with the 
well-established case law of the Court of Justice on the 
subject (Case 77/72 Capolongo). 
As regards the legal effects of the Commission decision, the 
Consiglio di Stato stated that: 
— '. . . decisions, which — unlike regulations — do not have 
general application, have the same binding force as directives, which are addressed to States, do not have 
general application, are not specific and are not, 
therefore, as such directly applicable (in the Member 
States).' 
Moreover, 
—'. . . decisions of the Community institutions are . . . 
concrete and selective measures which, although binding 
on the State to which they are addressed as regards the 
obligations they impose, cannot be directly applicable in 
the national legal order as they do not contain provisions 
having general application.' 
These statements stand in sharp contrast with a long line 
of rulings by the Court of Justice on the legal effects of 
decisions. 
The position is, therefore, that the Consigliothat the 
Consiglio di Stato omitted to make a reference to the Court 
of Justice for a preliminary ruling despite the fact that all the 
parties to the action had advanced arguments based on 
Community law and despite its being expressly requested by 
the Italian Government to refer to the Court a question on 
the interpretation of Article 92 of the Treaty. In addition, it 
misinterpreted the Court's pronouncements on the 
Community rules on State aids and proved incapable of 
resolving correctly, along the lines set out both by the Court 
of Justice and by the Italian Constitutional Court in its 
landmark judgment in Case 170/1984 Granital, conflicts 
between domestic and Community law. As in its Judgment 
No 504 of 6 May 1980 concerning the effects of a directive 
in the domestic legal order, the Consiglio di Stato persists in 
refusing to recognize the direct effect of the acts of the 
Community institutions in national law. 
2. French Conseil d'Eteat — Judgment of 27 April 1988 — 9th 
and 10th sub-sections sitting together — 63.772 — Societe 
Bernard Carant 
In this case, the Conseil d'Etat not only omitted to make a 
reference to the Court of Justice but also adopted an unor­
thodox position with regard to the relationship between 
Community law and subsequent national law. 
The plaintiff company had sought the annulment of an 
Order of 31 August 1984 suspending for one year the manu­
facture, exportation, importation and placing on the market 
of india rubbers which by their shape, presentation and smell 
were suggestive of foodstuffs and which could easily be 
ingested. 
A question of Community law having been expressly raised, 
the Conseil d'Etat asserted that 'the plaintiff company cannot 
validly claim that the contested Order infringes Articles 30 
and 34 of the Treaty of Rome when it was issued under the 
abovementioned law of 21 July 1983, which was adopted 
after the said Treaty entered into force.' 
The ignorance of the principle of the primacy of Community 
law (in this case the Treaty itself, no less) is manifest. 
30. 12. 89 Official Journal of the European Communities No C 330/55 
3. French Cornell d'Etat — Judgment of 2 March 1988 — Asso­
ciation Club de chasse du Vert Galant — Req. Nos 25275, 
25276 and 57837 
This judgment highlights another strong point of the Conseil 
d'Etat as regards the exercise of its judicial function, namely 
the refusal to recognize what is known as the direct effect of 
directives. 
The dispute between the plaintiff association and the tax 
authorities was over the question whether the association's 
operating costs, which were covered mostly by flat-rate 
contributions from huntsmen, constituted income subject to 
VAT. Under national law the answer to this question was in the 
affirmative, but the plaintiff association maintained that 
imposition of the tax infringed the Sixth Council VAT 
Directive of 17 May 1977. The Conseil d'Etat, omitting once 
more to make a reference to the Court, asserted that, 
pursuant to Article 189 of the EEC Treaty, the national 
authorities were alone competent to decide on the appro­
priate means of enabling directives to take effect in domestic 
law. Thus, in its view, whatever they contain in the way of 
provisions addressed to the Member States, directives cannot 
be relied upon by nationals of those States in support of a 
claim in fields such as taxation. It found that, during the tax 
period in question, the measures needed to enable the Sixth 
Directive to take effect in domestic French law had not yet 
been taken: that being so, the directive had no bearing on the 
legislative provisions applicable in the present case. 
No C 330/56 Official Journal of the European Communities 30. 12. 89 
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30. 12. 89 Official Journal of the European Communities No C 330/59 
ANNEX A 
Infringements of the Treaties and of Regulations 
Contents 
Page 
External relations 62 
Economic and monetary policy 62 
Internal market and industrial affairs 62 
Competition 69 
Employment, social affairs and education 69 
Agriculture 70 
Transport 74 
Development 75 
Administrative questions 75 
Environment 76 
Fisheries 76 
Budgetary questions 78 
Customs union 78 
Indirect taxation 80 
Legal basis 
The indication of the legal basis provided here is derived from the document number in the Celex data 
base, which is itself derived from the act's own original number; it is made up as follows: 
— one figure identifying the documentary sector (e.g. 1 = Treaties establishing the Communities, etc.), 
— two figures identifying the reference year (year of publication, signature, etc.), 
— one or two letters identifying the legal form (e.g. E (in sector 1) = EEC Treaty), 
— a serial number representing the number given to the document on publication or the article number. 
Example: 3 80 R 2144 
Sector 3: secondary legislation 
Year of publication 
Regulation 
Regulation No 2144/80 
No C 330/60 Official Journal of the European Communities 30. 12. 89 
Sector 
1 
2 
3 
4 
5 Fo™ 
A 
B 
E 
F 
H 
K 
R 
G 
A 
B 
C 
D 
L 
R 
X 
Y 
A 
D 
X 
Y 
PC 
AP 
IP 
AC 
IC 
CC 
BP TREATIES ESTABLISHING THE COMMUNITIES; 
AMENDING AND ACCESSION TREATIES 
Euratom Treaty 
Accession Treaties for Denmark, Ireland, Norway and the United Kingdom 
EEC Treaty 
Merger Treaty 
Treaty amending certain budgetary provisions 
Accession Treaty for Greece 
ECSC Treaty 
Treaty amending certain financial provisions 
Treaty amending certain provisions of the statute of the EIB 
Greenland Treaty 
LAW RESULTING FROM COMMUNITY EXTERNAL RELATIONS 
Agreements with non-member countries 
SECONDARY LEGISLATION 
Budget 
Censure 
Decisions (except ECSC Decisions of general scope) 
EEC and Euratom Directives 
ECSC recomendations 
EEC and Euratom Regulations 
ECSC Decisions of general scope 
Other acts (resolutions, opinions, etc.), published in OJ 'L' series (or old 
single series) 
Other acts published in OJ 'C series 
COMPLEMENTARY LEGISLATION 
Intra-Community Agreements 
Decisions (of the representatives of the Governments of the Member State) 
Other acts published in OJ 'L' series (or old single series) 
Other acts published in OJ 'C series 
PREPARATORY DOCUMENTS 
Commission proposals 
EP Opinions (consultation) 
EP Opinions (own-initiative) 
ESC Opinions (consultation) 
ESC Opinions (own-initiative) 
Opinions of the Court of Auditors 
Acts preparatory to the budget 
30. 12. 89 Official Journal of the European Communities No C 330/61 
Sector 
6 
9 Form 
B 
C 
J 
O 
s 
T 
v 
X 
E 
H 
O 
P CASE-LAW OF THE COURT OF JUSTICE 
Observations 
Opinions of the Advocate-General 
Judgments 
Orders 
Attachment orders 
Third party proceedings 
Opinions of the Court of Justice 
Other acts 
PARLIAMENTARY QUESTIONS 
Written questions 
Questions arising during Question Time 
Oral questions 
Petitions 
Note: Sectors planned: 
7 — National implementing measures. 
8 — National case-law. 
10 — Academic writing. 
No C 330/62 Official Journal of the European Communities 30. 12. 89 
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ANNEX B 
Infringement of directives 
Contents 
Page 
Statistical questions 83 
Internal market and industrial affairs 83 
Competition 99 
Financial institutions and company law 99 
Employment, social affairs and education 101 
Environment, consumer protection and nuclear safety 103 
Agriculture 117 
Transport 135 
Energy 139 
Budgets 139 
Customs union and indirect taxation 139 
Telecommunications, information industries and innovation 145 
78/546 
(31. 12. 1980) 
blank 
yes 
n.m.n. 
n.p.i. 
n.p.a. 
1. 1. 1984 
A/74/82 
Case 171/84 
Judgment 18. 3. 1980 Explanation of entries 
number of directive 
deadline for incorporation of directive into national law 
no measures notified by 31 December 1988 although measures may in fact 
have been taken/measures notified by MS currently under study/infringe­
ment proceedings decided by not yet initiated 
national implementing measures notified 
proceeding initiated or pursued on the grounds that no measures have 
been notified 
proceedings pursued on the ground that the directive has not been pro­
perly incorporated into national law 
proceedings pursued on the grounds that the directive is not being properly 
applied 
deadline for incorporation by the particular Member State 
infringement number ( /82 = year in which proceedings were initiated) 
number of case on Court of Justice register 
date of Court judgment 
reasoned opinion 
30. 12. 89 Official Journal of the European Communities No C 330/83 
No C 330/84 Official Journal of the European Communities 30. 12. 89 
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Directive Subject DK UK EL IRL NL n 
78/176 
(22 2 1979) Waste from the 
titanium dioxide 
industry A 135/79 
nmn 
Judgment 
2 2 1982 
Case 
68/81 
A 169/84 
nmn 
Judgment 
14 1 1988 
227/85 yes yes yes yes yes yes yes yes yes 
78/319 Toxic and dangerous 
(22 3 1980) wastes A 169/83 
npi 
Judgment 
2 12 1986 
Case 
239/85 
A 111/87 
npa yes yes A 81/88 
npa 
ro yes yes yes A 286/87 
npa yes yes yes 1 1 1989 
m 
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1 
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78/659 Quality of fresh waters yes 
(20 7 1980) yes yes yes yes yes A 71/85 
npi 
Judgment 
12 7 1988 
Case 
322/86 yes yes yes 
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80/1263 
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n.p.i. yes A 123/87 
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? n 
No C 330/146 Official Journal of the European Communities 30. 12. 89 
APPENDIX 
The attitude of national supreme courts to Community law 
SUMMARY 
The effectiveness of Community law depends to a great 
extent on national courts. The reason for this is that 
(subject to reference to the Court of Justice of 
preliminary questions on interpretation or validity) the 
application of Community law falls within the juris­
diction of national courts in all cases where the 
Community is not a party. Cases where the Community 
is a party are reserved for the Court of Justice. 
This report examines the manner in which the supreme 
courts of the Member States, which have the last word in 
cases and whose judgments provide guidance for the 
lower courts, have carried out their task of ensuring that 
Community law is observed. 
The report examines, State by State: 
1) the solutions given by the supreme courts to the 
problems arising in cases of conflict between Community 
law and the national constitutions; 
2) the implementation by such courts of three 
essential principles of Community law: primacy over 
subsequent national law, direct effect, particularly of 
certain directives, and unity of decisions (obligation to 
refer to the Court of Justice questions on interpretation 
of the provisions of Community law to be applied — 
unless the provision is clear beyond dispute or has 
already been interpreted by the Court — and the obli­
gation to comply with the Court's ruling). 
Examination of the situation shows that, despite the 
difficulty found at first in accepting the limitations of 
sovereignty imposed on the national legislature and 
national courts, the national courts have surmounted the 
initial difficulties and collaborate effectively in the 
implementation of Community law. There are however 
still some exceptions: the position of the French Conseil 
d'Etat, which considers that it cannot give primacy to 
Community law over subsequent national law, the 
reluctance of several courts to recognize the direct effect 
of directives, the abuse of the 'acte clair' theory and the 
failure to apply certain judgments of the Court of 
Justice. I. Introduction 
1. The effectiveness of Community law depends to a 
very great extent on the work of national courts: its 
application falls within their jurisdiction in all cases 
where the Treaties have not conferred jurisdiction on the 
Court of Justice, which means practically all those in 
which the Community is not a party — in other words 
all litigation between individuals, and between indi­
viduals and a Member State. In the administration of 
justice, just as in the legislative and administrative 
spheres, national authorities are required to cooperate in 
implementing the action taken by the Community 
institutions. This cooperation, mentioned particularly in 
Article 5 of the EEC Treaty, is essential for the very 
existence of the Community. 
A particularly important role is played by the supreme 
courts of the Member States, since their judgments not 
only amount to a final decision of the cases before them 
but also — by reason of their authority — provide 
guidance for the future decisions of the lower courts. 
This is why Articles 177 of the EEC Treaty and 150 of 
the Euratom Treaty, which authorize any national court 
to refer to the Court of Justice any question of interpre­
tation or validity of Community law where a decision on 
that question is necessary to enable the court to give 
judgment, make this an obligation for those national 
courts 'against whose decisions there is no judicial 
remedy under national law . . .'. 
In response to a request by the Legal Service (COM(87) 
Min 856 of 7 January 1987), this report examines the 
manner in which the supreme courts have carried out 
their task of ensuring that Community law is observed. 
2. The first question to be examined is how certain 
national courts have resolved the problems posed by the 
relationship between Community law and the national 
constitution. 
— Were the limitations of powers for the benefit of the 
Community imosed by the Treaties of Paris and 
Rome, and by the acts which have amended or 
supplemented them, possible without a revision of the 
national constitution? 
— Can the application of Community law be called into 
question if there is a conflict with the fundamental 
principles of the constitution? 
30. 12. 89 Official Journal of the European Communities No C 330/147 
It was certainly legitimate to pose the question of the 
constitutionality of the original Treaties and their 
subsequent amendments before the State, by means of its 
ratification, had assumed the obligations they imposed. 
Certain national courts were confronted with this 
question. 
On the other hand, once they have been ratified, the 
Treaties should no longer be open to discussion. It 
would in any case be unacceptable for a State to remain 
a member of the Community, benefiting from the 
advantages implicit in such membership, and yet refuse 
to accept certain restrictions following from membership. 
In its judgment in Costa v. EnelQ) the Court of Justice 
declared that '... the law stemming from the Treaty, an 
independent source of law, could not, because of its 
special and original nature, be overridden by domestic 
legal provisions, however framed . ..'. The ideal solution 
from the point of view of Community law would be that 
its primacy over national law was equally recognized as 
primacy over the constitution. Such a recognition cannot 
be found in any judgment of a supreme court, but when 
the question has been raised before them such courts 
have been able (apart from the exceptions to be 
considered) to hold that there was not in fact any 
conflict between the two legal orders; they have been 
assisted in reaching this conclusion by a provision which 
appears in the majority of the constitutions of the 
Member States providing expressly for the possibility of 
limiting the powers of the State for the benefit of an 
international organization. 
In the German and Italian systems the examination of 
the constitutionality of the law ratifying the Treaties did 
not take place exclusively before the adoption of that 
law, as -it did in France for example, but also after its 
adoption; normally it has taken place even a long time 
afterwards, as an incident arising in a particular case. 
Thus, the question of the constitutionality of the limi­
tations of competence implicit in the original Treaties 
was formally put to the German and Italian constitu­
tional courts after ratification of the Treaties. But in 
other Member States also, courts have been able to 
question the application of certain principles of 
Community law, such as its primacy over subsequent 
national law, by means of arguments based on their 
constitutions. 
3. The next question to be examined will be how the 
supreme courts have applied the essential principles of 
Community law. 
(a) Primacy over national law 
Every Community rule which has direct effect must 
have that effect 
— from its entry into force, despite the prior 
existence of any incompatible national law, and — as long as it remains in force, despite the 
subsequent adoption of any incompatible national 
law. 
National courts have had no hesitation in recog­
nizing the primacy of Community law over 
pre-existing national laws. Primacy over subsequent 
laws, however, has given rise to difficulties, 
particularly in Italy: Costa v. Enel judgment of 7 
May 1964 (see page 32, note 1). The Court of 
Justice enunciated the principle of this primacy in its 
judgment of 15 July 1964 between the same parties 
(see page 3, note 1). The Italian constitutional court 
then, in the ICIC judgment of 30 October 1975 (see 
page 32, note 2), accepted the necessity of according 
primacy to Community law, over subsequent incom­
patible national law, but claimed a monopoly of the 
power to remove this obstacle by a declaration of 
unconstitutionality, which it would adopt upon 
request by the court dealing with the main action. 
The Court of Justice in its Simmenthal judgment (2) 
ruled that the only solution compatible with 
Community law is that the court dealing with the 
main action should itself disregard the incompatible 
national law, even if adopted subsequently, 'and it is 
not necessary for the court to request or await the 
prior setting aside of such provisions by legislative or 
other constitutional means'. 
(b) Direct effect 
A considerable number of the rules in the Treaties 
and the acts adopted by the Community institutions 
have 'direct effect', that is to say they have direct 
legal effects on interested parties without* requiring 
any intervention by the national legislature, and they 
create rights and obligations which the national 
courts must protect. 
The Treaties laid down expressly the 'direct applica­
bility' of regulations but the Court of Justice has 
held that certain provisions of directives have direct 
effect where they impose clear and unconditional 
obligations on the States, so that individuals may rely 
upon them against those States which have not 
incorporated, or have incorrectly incorporated, them 
in their legislation. This is a (vertical) direct effect, 
less extensive than that enjoyed by regulations since 
the latter may also form the basis of legal actions 
against other individuals. 
National courts may thus be called upon: 
— to annul or disregard incompatible national 
provisions, 
(') Case 6/64 (1964) ECR 585. (2) Case 106/77 (1978) ECR 629. 
No C 330/148 j Official Journal of the European Communities 30. 12. 89 
to the extent that the latter provisions have 
already been applied, to order the State, or other 
parties who have benefited from such provisions, 
either to repay the amounts wrongly received in 
application of the national provisions or to pay 
damages. 
Whilst there is a substantial body of case law, both 
Community and national, on the repayment of sums 
improperly received, and the decisions of supreme 
courts are in conformity with those of the Court of 
Justice, relatively little has been said on the subject 
of damages. In the case of Russo v. AIMA (') the 
Court of Justice ruled that if an individual 'has 
suffered damage as a result of the intervention of the 
Member State in violation of Community law it will 
be for the State, as regards the injured party to take 
the consequences upon itself in the context of the 
provisions of national law relating to the liability of 
the State.' 
(c) Unity of decisions 
Within the States, unity of decisions is ensured by a 
supreme court with power to amend or to quash the 
judgments of the lower courts. In the Community 
the same objective is sought by the Court of Justice 
in another way: not by subordination of the national 
courts but by collaboration with them through the 
preliminary rulings procedure of Article 177 of the 
EEC Treaty and Article 150 of the Euratom Treaty. (bb) A distinction must be drawn between cases 
where the Community provision to be applied 
has not yet been interpreted by the Court of 
Justice and cases where the Court of Justice has 
already dealt with the point. In the first case the 
supreme court enjoys a measure of discretion: if 
it decides to interpret the provision itself, 
holding it to be clear, and not to refer a 
question to the Court of Justice, it will be 
difficult to find fault with this, even if on the 
first occasion it has the opportunity to do so the 
Court of Justice gives the provision a different 
interpretation. In the second case, on the other 
hand, the supreme court has merely the choice 
between complying with the interpretation 
already given by the Court of Justice or 
referring the question again and hoping to 
persuade the Court to change its mind. It would 
be a serious affront to the authority of the 
Court's decisions to refuse to refer a question 
to the Court and to give the provision an inter­
pretation different from the one the Court has 
already given. 
(cc) When the Court gives a preliminary ruling, it is 
binding on the parties in the case and on the 
court concerned with the case: not simply the 
court which referred the question but any court 
which, for example on appeal, gives a judgment 
in the same case. 
II. Situation in the member states 
(aa) Supreme courts are obliged to refer a question 
tp the Court of Justice if a question of interpre­
tation of Community law or of validity of an 
act of Community secondary legislation has 
arisen and its solution is necessary to enable 
them to give judgment. It is well known that 
such courts frequently avoid referring a 
question on interpretation to the Court of 
Justice by holding that the Community 
provisions to be applied do not need interpre­
tation because they are clear. In its Cilfit 
judgment (2) the Court of Justice took a 
cautious position on the acte clair theory, 
accepting that there is no obligation to refer a 
question 
— if the provision to be interpreted has already 
been interpreted by the Court of Justice and 
the national court intends to apply that 
interpretation, or 
— if 'the correct application of Community is 
so obvious as to leave no scope for any 
reasonable doubt.' 1. BELGIUM 
Recognition of the principles of primacy of Community 
law and its direct effect was confirmed by the Court of 
Cassation in its landmark judgment of 27 May 1971 
(Fromagerie Le Ski v. Belgian State) (3): 'Where a conflict 
exists between a rule of domestic law and a rule of inter­
national law having direct effect in the domestic legal 
order, the rule laid down by the treaty must prevail and 
the pre-eminence of that rule arises from the very nature 
of international treaty law.' 
'This is so a fortiori where the conflict exists, as in the 
present case, between a measure of domestic law and a 
rule of Community law; the Treaties which created 
Community law established a new legal order for the 
benefit of which the Member States have limited the 
exercise of their sovereign powers in the areas fixed by 
the Treaties...' 
So far, these points have not again been raised before a 
court. 
(') Case 60/75 (1976) ECR 45. 
O Case 283/81 (1982) ECR 3415. (3) Rev. trim, droit europeen 1971, p. 494. 
30. 12. 89 Official Journal of the European Communities No C 330/149 
Similarly, the use by the Belgian courts of the 
preliminary rulings procedure has not given rise to any 
specific problem. It should be mentioned however that in 
a case before the Conseil d'Etat, in which an 
infringement of Article 30 of the EEC Treaty was 
alleged, that court decided that it could resolve the 
dispute without referring a question for a preliminary 
ruling (Mees v. Belgian State) (1). This attitude has been 
criticized by academic writers. It is not clear however 
whether this case was decided purely on its own facts or 
whether it involved a decision of principle. 
2. DENMARK 
Although there has been no express judicial decision on 
the matter, the principles of primacy of Community law 
and its direct effect have not given rise to any particular 
difficulty of application. Similarly, apart from an isolated 
case in which the Supreme Court in 1980 (2) pronounced 
on the question whether the grounds given for the 
expulsion of a French national were sufficient without 
referring a question for preliminary ruling to the Court 
of Justice, the use by the Danish courts of the 
preliminary rulings procedure has not given rise to any 
specific problem. 
3. GERMANY 
1. Article 100 of the constitution or Grundgesetz (Basic 
Law) provides for the possibility of a review of the 
constitutionality of any legal rule enacted after the 
entry into force of the constitution. 
The judgment of the Bundesverfassungsgericht 
(Constitutional Court) of 18 October 1967 (3) rejected 
the possibility of such a review of Community regu­
lations since the provisions enacted by the Community 
— to which Germany had transferred sovereign 
powers by virtue of Article 24 (1) of the constitution 
— were not acts of a German public authority. 'The 
Community ... is ... an inter-State organization 
within the meaning of Article 24 of the Basic Law, to 
which the Federal Republic of Germany and the other 
Member States have transferred certain sovereign 
powers. A new authority has thus been created, 
autonomous and independent in relation to the 
authority of the various Member States; its acts 
therefore need not be confirmed or ratified by the 
States and so cannot be annulled by them.' 
The Constitutional Court had however left open the 
question whether Community law was in conformity 
with the fundamental rights guaranteed by the 
(') Journal des Tribunaux, 1987, p. 188 
O UfR, 1980, p. 504. 
(3) BverfGE, 22, 293; revue de droit europeen, No 1/1968, 203. constitution. This reservation was made explicit by the 
Constitutional Court in a judgment of 29 May 
1974 (4): the protection of fundamental rights was (it 
held) an essential and irreducible element of the 
constitution, which could not be limited even by a 
constitutional law (Article 24). It was true that the 
Court of Justice also protected fundamental rights; 
but there was no precise catalogue of fundamental 
rights drawn up with the participation of a parliament 
elected by universal suffrage. So long as these 
conditions remained unchanged the judge might apply 
to the Constitutional Court, which, if it considered 
that a fundamental right had been violated, would 
declare the regulation inapplicable in Germany. (It 
should be noted that in the case in point the Constitu­
tional Court rejected that contention.) 
It was unacceptable that a national constitutional 
court should subject a Community regulation to 
review and declare it, if not invalid, at least inap­
plicable within the country. A Community act can be 
challenged only before the Court of Justice (Articles 
164 et seq. EEC Treaty). 
The German court thus placed in jeopardy the unity 
and indivisibility of Community law. However, 
doubtless in the light of the growing sensitivity to 
fundamental rights shown by the Court of Justice, the 
declaration of the three political institutions of the 
Community in favour of fundamental rights and the 
election of the European Parliament by universal 
suffrage, there was a complete change of attitude 
(judgment of the Federal Constitutional Court of 25 
July 1979 (5) and of the Federal Administrative Court 
of 1 December 1982 (6) which found striking confir­
mation in the judgment of the Federal Constitutional 
Court of 22 October 1986 (7)- The latter court then 
declared that as long as the European Communities, 
and more particularly the decisions of the Court of 
Justice, guarantee effective protection for funda­
mental rights, the Federal Constitutional Court will 
refuse to rule on the applicability of secondary 
Community legislation. This judgment ist of 
considerable importance for the effectiveness of 
Community law in Germany. 
2. As a corollary of Article 24 of the Constitution and 
because of the long standing familiarity of German 
lawyers with the federal system, the recognition of the 
primacy of Community law over any subsequent law, 
and of its direct effect, has been achieved with relative 
ease. Foreshadowed by the abovementioned judgment 
of the Federal Constitutional Court of 18 October 
1967, the express recognition of the primacy of 
(4) BVerfGE37, S. 271. 
(5) Europaische Grundrechte-Zeitschrift, 1979, p. 547. 
(*) BVerwG 7 C 87.78. 
0 Europaische Grundrechte-Zeitschrift, 1987, p. 1 
No C 330/150 Official Journal of the European Communities 30. 12. 89 
Community law was achieved by the important 
decision of that Court of 9 June 1971 ('). The Court 
based itself on Article 24 (1) of the Basic Law which, 
by permitting transfer of sovereign rights to an 
inter-State organization, enabled Germany to 
participate in the creation of a Community endowed 
with an autonomous legal order, whose 'acts must be 
recognized by the entity which originally was the 
exclusive holder of the sovereign power.' 
The Court also recognized that it was not for it but 
for the court dealing with the main action, to 
disregard the subsequent law that was incompatible 
with Community law: 'the court must examine every 
rule to be applied to the particular case, above all 
from the point of view of its validity. In a case of 
contradiction between one rule and another that is 
superior, the court is bound not to apply the former 
rule to the case before it.' This is the only solution 
which is in full accord with the principles of direct 
effect and primacy, as the Court of Justice was to 
declare in the Simmenthal case on 9 May 1978. 
3. As regards direct effect, reference should be made to 
the recent decisions (28 August 1984 and 5 June 
1986) O of the Bundesverwaltungsgericht (Federal 
Administrative Court) given on certain provisions of 
directives. That Court based their direct effect on the 
principle of Treu und Glauben (good faith). Indi­
viduals are thus entitled to defend themselves against 
behaviour on the part of the Government which 
would be in contradiction with the obligations 
imposed on it by a Community directive. 
It must be pointed out however, also in connection 
with the direct effect of directives, that the judgment 
of another court, the Bundesfinanzhof (Federal 
Finance Court), of 25 April 1985 (5) disregarding the 
preliminary ruling given by the Court of Justice in 
Case 70/83 Kloppenburg v. Finanzamt Leer(4) refused 
to recognize that the provisions of directives can have 
direct effect. The Commission had initiated 
infringement proceedings against Germany on this 
matter (Case B 117/85), but was able to terminate the 
proceedings since the German administration gave 
instructions enabling all cases still open to be settled 
in conformity with Community law. 
The applicant thereupon made a constitutional com­
plaint based on the violation by the Federal Finance 
(») BVerfG31, 145. 
(2) BVerwG 70, p. 41 and Europarecht 1986, p. 372 
respectively. 
(3) Europarecht 1985, p. 191. 
(4) (1984) ECR 1075. Court of Article 101 of the Basic Law by failing to 
comply with the judgment of the Court of Justice, 
whereupon the Federal Constitutional Court, by a 
judgment of 8 April 1987, quashed the judgment of 
the Federal Finance Court of 25 April 1985 (5). 
4. Article 101 of the Basic Law declares that nobody 
may be deprived of his lawful judge (gesetzlicher 
Richter). 
By its judgment of 22 October 1986 (6) already 
mentioned, the Federal Constitutional Court 
recognized the Court of Justice as a lawful judge 
within the meaning of Article 101. By doing so it rein­
forces the effectiveness of the procedure pursuant to 
Article 177 of the EEC Treaty: a national court which 
omitted in an arbitrary manner to make use of this 
procedure, or failed to comply with the ruling of the 
Court of Justice, would risk having its decision 
quashed by the Federal Constitutional Court for 
violation of Article 101 of the Basic Law. This is a 
striking development in giving concrete shape to the 
duty of collaboration between the Court of Justice 
and national courts. 
The judgment of the Federal Constitutional Court of 
8 April 1987 quashing the judgment of the Federal 
Finance Court given on 25 April 1985 in the Klop­
penburg case is a first important application of this 
principle. 
In another judgment, given on 9 November 1987, the 
Federal Constitutional Court gave further details of 
typical cases which might constitute a violation of 
Article 101 (7). 
Referring to the Court's judgments on the interpre­
tation of Article 177 ("), the Federal Constitutional 
Court regards as a violation of Article 101 of the 
Basic Law not only cases where a court deliberately 
disregards the decisions of the Court of Justice, as the 
Federal Finance Court did in Kloppenburg, but also 
cases where the court in an indefensible manner (in 
unvertretbarer Weise) disregards the obligation to 
refer a question for a preliminary ruling. In that case 
the civil courts had to consider the alleged impact of 
the agricultural regulations governing cereals on the 
patents held by the applicant. The Federal Constitu­
tional Court ruled that the conditions for holding that 
Article 101 of the Basic Law had been violated were 
not satisfied. 
4. GREECE 
The principle of the primacy of international treaties 
over national law is expressly laid down by the Greek 
(5) Europarecht 1987, p. 333. 
(6) BVerfGE 73, 336, 339. 
(7) BVerfG, Europarecht 1988, p. 190. 
(8) E.g. Case 283/81 Cilfit (1982) ECR 3415. 
30. 12. 89 Official Journal of the European Communities No C 330/151 
Constitution (Article 28); it is not expressly stated that 
this applies to the Constitution itself, but no particular 
difficulties have so far arisen on this point. 
The principle of primacy and that of direct effect have 
been recognized in a particularly explicit manner by the 
Council of State since 1980 (Opinion 406/80 of the 
Administrative section). More recently the Council has 
confirmed this position in several decisions (Nos 
1886/1983, 4190/1983 and 815/1984 for the principle of 
primacy and No 1258/1985 for direct effect). 
As regards references for preliminary rulings the 
situation is more delicate. 
There have been only three references for preliminary 
rulings, of which one is from the Council of State 
(plenary session, Case 254/86), which has so far been 
rather reticent towards the preliminary rulings 
procedure. It has had several occasions when it might 
have referred a question to the Court but declined to do 
so, basing itself at least tacitly on the 'acte clair' theory 
(see Decision of the Council of State No 815/84 on the 
prohibition on the import of bananas into Greece) or 
basing its reasoning exclusively on national law in cases 
where the application of national law would achieve the 
same result as the application of Community law, which 
it examined in passing (see Decision No 520/1983) (') or 
even basing itself entirely on national law, the 
application of which just happened to attain the same 
result as Community law, which was not taken into 
consideration at all (see Decision No 1463/1986, where 
the question of Community law which was not raised 
related to Article 40 (3) of the Treaty in the context of 
the common organization of the olive oil market). 
For a time the stumbling point in the relations between 
the Council of State and the Court of Justice as regards 
the proper operation of the Article 177 procedure was 
Greek Law No 1470/1984, Article 1 (5) of which 
provided: 
'The reference of a case to the plenary session (of the 
Council of State) is . .. mandatory when the chamber 
considers that the Court of Justice of the European 
Communities should be asked for a preliminary ruling.' 
The fourth chamber of the Council of State applied this 
provision in its decision No 1258/1985 and referred the 
case to the plenary session, which, having decided that a 
preliminary ruling should be requested, referred 
questions to the Court of Justice for the first time (Case 
254/86). At the request of the Commission, this 
provision has been repealed. 
(') See also Judgment No 348/1985 of the Supreme Court. The prior obligation contained in Law No 1470/1984 is 
not considered by the Commission to be in conformity 
with the requirements of Article 177 of the EEC Treaty. 
This situation is the subject of internal infringement 
proceedings (Case B/85/140). 
Furthermore, the special Supreme Court in one case, 
despite the questions of Community law arising, failed to 
seek a preliminary ruling and in another case did not 
even examine the solutions offered by Community law. 
5. SPAIN 
1. There is a well established tradition among academic 
writers and the court in favour of the primacy of 
general international law over domestic law. This is 
also supported by the combined interpretation of 
Articles 96.1 and 9.3 of the 1978 Constitution. The 
same is true of the direct effect of rules of interna­
tional law. 
These principles have already been applied a fortiori 
to Community law. 
Thus in an Order dated 24 May 1988 (2), in the 
context of a case concerning the enforcement of a 
decision of the Commission requiring payment of 
ECSC levies by a Spanish firm, the Spanish court 
ruled, in reliance on the Court's judgment in Case 
26/62 Van Gend en Loos, that the European 
Communities involve a new legal order in interna­
tional law, for the benefit of which the Member States 
have limited their own sovereignty, and that this legal 
order is the source of rights and obligations not only 
for States but also for individuals. 
2. No particular difficulty has come to light regarding 
references for preliminary rulings, a procedure which 
has already been used in several cases by Spanish 
courts (3). 
3. The existence of a constitutional court with sole 
power to review the constitutionality of laws (Article 
163 of the Constitution) involves the risk that any 
conflict between Community law and a subsequent 
national law might be regarded as a question of 
constitutionality and considered as within the 
exclusive jurisdiction of that court. It has been seen 
(see introduction, point 3a) that such a view has been 
O Order of 24 May 1988 of the judge of first instance of 
Almendralejo (Badajoz). 
O See for example Cases 126/86 (Zaera v. INSS) and 170/88 
Ford Espana v. Spanish State). 
No C 330/152 Official Journal of the European Communities 30. 12. 89 
rejected by the constitutional courts in the other 
Member States and by the Court of Justice in 
Simmenthal as contrary to the principles of primacy 
and direct effect. It is to be expected that the 
orthodox solution will be reached in Spain also. In 
any case it is useful to inform the Spanish judiciary of 
these decisions. 
6. FRANCE 
1. The Treaties of Paris and Rome were signed, 
ratified and published in accordance with the 
Constitution and cannot, therefore, be challenged in 
French courts on the ground of unconstitu­
tionality ('). This was affirmed by the Conseil 
Constitutionnel in two decisions of 30 December 
1977 (2). With reference to provisions of finance acts 
applying Community regulations on isoglucose and 
milk, the Conseil Constitutionnel emphasized that 
the alleged infringements of parliamentary powers 
were but the consequence of international 
commitments made by France which have been 
absorbed into Article 55 of the Constitution. The 
Conseil also drew attention to Article 189 of the 
EEC Treaty and the force which it conferred on 
Community regulations: the binding force of such 
rules was not contingent upon action by the 
Member States. 
Invited on two occasions to rule on laws intro­
ducing significant changes to the original Treaties 
— in 1970 the treaty which strengthened the 
budgetary powers of the European Parliament and 
the own resources decision (3), and in 1976 the act 
concerning elections to the European Parliament on 
the basis of universal suffrage (") — the Conseil 
Constitutionnel did not adopt an obstructive 
approach, although the grounds for the second of 
its decisions did contain reservations that future 
progress on European integration might give rise to 
objections on its part on constitutional grounds 
(national sovereignty). 
2. Article 55 of the Constitution states that, once 
promulgated, treaties or agreements duly ratified or 
approved have ascendancy over laws, subject in each 
case to their being applied by the other parties. 
(') The Conseil Constitutionnel was set up under the new 
Constitution of 4 October 1958. Thus it was not even 
possible to examine the Treaties for consistency with the 
French Constitution. 
(2) Journal Officiel de la Republique Frangaise (JORF), 31. 12. 
1977, p. 6385. 
(3) JORF, 21. 6. 1970, and corrigendum of 23. 6. 1970. 
(4) JORF, 31. 12. 1976, p. 7651. This provision, which at first sight confirms the 
primacy of international law, was the subject of 
lively controversy. For a long time the French courts 
have confined themselves to applying this principle 
to conflicts between a treaty and an earlier law, 
though in such cases they could have arrived at the 
same result by arguing that the treaty abrogates the 
law. They have hesitated, however, to apply the 
principle to a subsequent law, since they are not 
prepared to defy the will of the legislative authority. 
They have, of course, tried to interpret subsequent 
laws in such a way that the scope of treaties is not 
restricted; where, in particular, a treaty is more 
restricted in scope than a domestic law, they have 
tried to reason as if the latter implicitly did not 
affect the application of the treaty. But such inter­
pretation was not always possible. 
The Cour de Cassation and the Conseil d'Etat have 
taken divergent views on this difficulty. 
The primacy of the Treaty over domestic law, 
including subsequent laws, was recognized by the 
Cour de Cassation in Administration des Contri­
butions v. Ramel (initial judgment of 22 October 
1970) (5). This position was confirmed and 
explained, on the grounds not only of Article 55 but 
of the special quality of Community law, in Vabre 
(judgment of 24 May 1975) (6) and, on the second 
ground only, in Von Kempis (judgment of 1 
December 1975) (7). The Conseil Constitutionnel in 
the meantime had, by its decision of 15 January 
1975 (8), made it easier for courts having substantive 
jurisdiction to resolve conflicts between laws and 
treaties, by declaring that such conflicts did not 
constitute cases of unconstitutionality and need not 
be submitted to the Conseil Constitionnel. The Cour 
de Cassation has not changed its thinking 
subsequently (for a recent example, see its decision 
of 15 May 1985 in Leclerc v. Syndicat des Libraires 
de Loire-Ocean (9). 
By contrast, the Conseil d'Etat consistently refused 
to adopt this line — see Syndicat General des 
Fabricants de Semoule (judgment of 1 March 
1968) (10) and Union Democratique du Travail and 
Election des representants de I'Assemblee des Commu-
nautes Europeennes (22 October 1979) (n). As its 
(5) Gazette du Palais, 1970, 6, No 343. 
(6) Cahiers de Droit Europeen, 1974, pp. 394 and, in particular, 
411. 
O Bulletin Civil, III, No 173, p. 282. 
(•) JORF, 1. 6. 1976, p. 67. 
(') Gazette du Palais, 1985, No 359. 
(10) Recueil Dalloz-Sirey, 1968, p. 285. 
(n) Actualites Juridiques de Droit Administratif (AJDA), 1980, 
p. 40. 
30. 12. 89 Official Journal of the European Communities No C 330/153 
chief reason, the Conseil d'Etat adheres to the tradi­
tional domestic-law notion that it is not for it, when 
hearing a dispute, to decide actions that question 
the validity of legislation. Despite severe criticism of 
its reasoning by legal commentators, the Conseil 
d'Etat has consistently maintained this line in later 
decisions, whereby subsequent laws constitute a 
'screen' blocking the exercise of judicial review, 
contrary to the principle of the primacy of 
Community law ('), once the Court of Justice has 
ruled that the measures in question constitute 
infringements (2). 
Review by the administrative courts of compliance 
of national measures with Community law is thus 
limited to executive measures whether they be 
adopted by virtue of autonomous regulatory 
authority (Article 37 of the Constitution) or the 
regulatory authority to implement laws. 
The Conseil d'Etat, however, has in part modified 
its position by stessing (3) that the law-as-screen 
theory is of limited application; thus, where a law 
enacted subsequent to the Treaty is simply a 
framework law attributing powers to the regulatory 
authority without laying down guidelines for their 
exercise, the court may, without ruling on the 
particular law itself, review an order to see if it is 
consistent with the Treaty (4). 
Attention must also be drawn to the Conseil d'Etat's 
negative attitude to the direct effect of provisions of 
directives that place specific, unconditional obli­
gations on Member States. In Cohn-Bendit 
(Judgment of 22 December 1978) (5), the supreme 
administrative court clearly took an opposite line to 
Court of Justice decisions by refusing to recognize 
the direct effect of Article 6 of the Council 
Directive of 25 February 1964. Relying solely on the wording of Article 189 of the EEC Treaty, it 
concluded that the national authorities were alone 
competent to decide in what form directives were to 
be implemented and to determine themselves, 
subject to review by the national courts, the appro­
priate means of giving them effect in domestic law; 
consequently, whatever provisions they may contain 
concerning Member States, directives cannot be 
invoked by nationals of those States in support of an 
appeal against an individual administrative act. 
By contrast, with regard to regulatory measures, the 
judgment in Cohn-Bendit admitted that the legality 
of such measures adopted by the French 
Government in order to comply with Community 
directives was open to challenge. 
The Conseil d'Etat applied this principle in its 
judgment of 28 September (6) and 7 December 
1984 (7) which annulled an Article of a decree of 
1 October 1980 and four ministerial orders of 20 
April 1982, deemed to contradict the objectives of, 
respectively, the Council Directives of 18 July 1977 
and 2 April 1979. 
It was stated in the introduction that there have 
been few rulings by national courts or one of the 
consequences of the direct effect of Community 
law: the award of damages for injury arising from a 
national measure which infringes Community law 
and occurring before such a measure was abolished. 
This rarity is probably explained in part by the limi­
tations placed by most Member States' legal systems 
on the award of damages against the State, 
especially where injury is attributable to an act of 
the legislative authority. 
In French law, compensation for injury as a result 
of a regulatory measure is widely recognized, 
provided that it can be regarded as vitiated by 
illegality and fault. 
O AJDA, 1986, p. 174. 
(2) See International Sales (Judgment of 13 December 1985), 
REcueil Lebon, p. 377, after Case 90/82 Commission v. 
France (fixing of retail selling prices of manufactured 
tobacco) (1983) ECR 2011. 
(3) Studies and documents by the Conseil d'Etat, June 1987, pp. 
128 and 129. 
(4) Conseil d'Etat, 19 November 1986, Smanor, AJDA, 1986, 
pp.714 and 681. 
(s) Dalloz, 1979, J 155. This position is now consistently 
adopted by the Conseil d'Etat: for the latest instance see 
Societe de Courtage d'Assurance /?enow^(Judgment of 10 June 
1986) and Cabinet Mantout (16 June 1986). The French administrative courts have had occasion 
to award damages for breach of Community rules. 
In Alivar v. Ministere du Commerce Exterieur, the 
Paris Administrative Court ordered the Government 
to pay FF 1 961 250 to an Italian firm adversely 
(6) Conference Nationale des Societes de Protection des Animaux, 
Revue Trimestrielle de Droit Europeen, 1984, p. 759. 
(7) Federation Francaise des Societes de Protection de la Nature, 
Revue Trimestrielle de Droit Europeen, 1985, p. 187. 
No C 330/154 Official Journal of the European Communities 30. 12. 89 
affected by a ban on the export of potatoes, 
resulting from the procedure requiring a declaration 
to be made prior to actual export, which procedure 
the Court of Justice had meanwhile declared to be 
in breach of Article 34 of the EEC Treaty (1). The 
Ministry appealed, and the Conseil d'Etat found 
that the measure had been taken for reasons of 
general interest based on the depressed state of the 
French potato market, and that consequently the 
Government was bound to compensate the company 
only if strict liability could be established and it 
could be shown that an extraordinary, specific loss 
had been incurred as a result of action by the 
French authorities. 
It recognized, however, that such loss had been 
confirmed the amount of damages awarded by the 
court of first instance. 
It is noteworthy, nevertheless, that in a case of this 
kind, the French administrative court did not apply 
the solutions generally valid for liability as a result 
of administrative acts, but the more restrictive rules 
concerning liability as a result of laws or interna­
tional treaties; this enabled it to avoid ruling on the 
legality of the measure in question (2). 
4.1. As regards references to the Court of Justice for a 
preliminary ruling, the Cour de Cassation is careful 
to follow the letter and the spirit of Article 177 of 
the EEC Treaty which seeks to ensure uniformity of 
decisions in the Community. 
Even if its criminal division seems somewhat 
reluctant to refer questions for a preliminary ruling 
— see Burdet and Others (3) and Poupon (judgments 
of 18 November 1986), and Malagutti (judgment of 
8 January 1985) (4), (5) — this supreme court, as a 
general rule, has readily resorted to the procedure 
provided for in Article 177 of the EEC Treaty and 
has always acknowledget the full binding force of 
the decisions of the Court of Justice. Recent 
examples include Direction Generate des Impots v. 
'<) Case 68/76 Commission v. France (1977), ECR 515. 
;2) See Droit Social (DS), 1986, p. 24. 
;3) Bulletin Criminel, 1986, No 9, p. 852. 
;4) DS, 1985, p. 586. 
;5) A few days after this judgment was delivered, the Dijon 
tribunal de police referred a similar problem to the Court of 
Justice for a preliminary ruling (Case 54/85 M. P. v. 
Mirepoix). Humblot (judgment of 16 July 1983) (6) and 
Administration des Douanes v. Roquette (judgment of 
10 December 1985) (7). 
4.2. The Conseil d'Etat, on the other hand, based itself 
on a particularly broad conception of the 'acte clair' 
so as not to invoke Article 177 of the EEC Treaty 
— on the first occasion in Societe de Petroles 
Shell-Berre (judgment of 19 June 1964) (8), which 
was concerned with a particularly difficult provision 
of the EEC Treaty, namely Article 37. Commen­
tators expressed reservations (9). Since that 
judgment, the Conseil d'Etat has several times 
affirmed provisions to be clear, which are suffi­
ciently controversial for the parties and the 
government advocate to press for interpretation (10). 
The broad conception of 'acte clair' is not, however, 
limited solely to the French supreme administrative 
court. 
A more serious breach of the principle of the 
uniformity of judicial decisions is that to be found 
in Cohn-Bendit and Smanor (judgments of 22 
September and 19 November 1986 respectiveley), in 
which the Conseil d'Etat adopted solutions contrary 
to the Court's decisions, without first trying to 
secure modification of the line taken by the Court 
by asking it again to interpret the particular 
question. 
Lastly, on other occasions, the Conseil d'Etat has 
not complied with the Court of Justice's judgment 
in the same case. In ONIC v. Huileries de Pont-
d-Mousson (judgment of 9 May 1980) (") and 
ONIC v. Maiserie de la Beauce (judgment of 26 July 
1985) (12) the Conseil d'Etat refused to give effect to 
judgments of the Court, which, faced with a request 
for a preliminary ruling, had limited the conse­
quences of the invalidity of Community regulations. 
Although there are some slight signs of change, the 
Conseil d'Etat's attitude remains at variance with 
the decisions of the Court of Justice on several 
important points. The Commission, for its part, has 
(') Bulletin, 1985, No 213. 
(7) DS, 1986, p. 250. This decision is particularly remarkable 
since the question referred to the Court concerned the 
consequences of the invalidity of Community regulations, as 
declared by the Court of Justice in its judgment of 15 
October 1980 (preliminary ruling). The Cour de Cassation 
unreservedly complied with the Court's decision, unlike the 
Conseil d'Etat in a similar case (see below). 
(8) Revue du Droit Public et de la Science Politique, 1964, p. 
1018. 
C) See the critical analysis of the 'obscure clarity of Article 37 
of the EEC Treaty' by M. le Doyen Colliard (Recueil 
Dalloz, 1964, report 263). 
(10) See recent decisions by the Conseil d'Etat: Consorts Genty 
(7 October 1987) and Griesmar (23 December 1987). 
(u) AJDA, 1980, p. 535. 
(") AJDA, 1985, p. 615. 
30. 12. 89 Official Journal of the European Communities NoC 330/155 
approached the French Government with a view to 
averting at least the consequences of this incon­
sistency and, while recognizing the principle of 
separation of powers, has insisted that, at the very 
least, the government advocate in cases before the 
Conseil d'Etat should defend a position which is 
substantively consistent with the decisions of the 
Court of Justice. 
7. IRELAND 
1. Unlike most other European constitutions the Irish 
one does not provide for any limitation of sovereign 
powers to allow precedence to those of an interna­
tional organization. In order to enable Ireland to 
accede to the Community, therefore, it was decided 
that a constitutional amendment would be necessary. 
A referendum held on 10 May 1972 approved the 
Third Amendment of the Constitution Act 1972, 
which inserted the following provision: 
'No provision of this Constitution invalidates laws 
enacted, acts done or measures adopted by the State 
necessitated by the obligations of membership of the 
Communities, or prevents laws enacted, acts done or 
measures adopted by the Communities, or institutions 
thereof, from having the force of law in the State.' 
When the Irish legislature, the Oireachtas, authorized 
ratification of the Single European Act, an ordinary 
citizen, Mr Crotty, succeeded in obtaining an interlo­
cutory injunction preventing the deposit of the 
instrument of ratification; his main action was 
dismissed by the High Court, but on appeal the 
Supreme Court held that Title III of the Single Act, 
which committed the Member States to working in 
political cooperation in external relations, was incom­
patible with the Constitution. The obligation to 
consult and to try to reach a common position in this 
new field, outside the scope of the original Treaties, 
was held to be a limitation of sovereignty which was 
not covered by the 1972 amendment. 
Ratification of the other provisions of the Single Act, 
however, was adjudged compatible with the 
Constitution. 
On this latter point the Court had to consider the 
constitutionality of the European Communities Act 
1986, the Act which set out to transpose into national 
law Article 3 (1), Title II, Article 31, Article 32 and 
parts of Article 33 and 34 of the Single Act. The 
Court concluded that there was no constitutional 
impediment to that legislation, as the 1972 
amendment to the Constitution authorized the State not only to accede to the Communities as they were 
in 1973 but also to accept amendments to the Treaties 
provided they did not substantially alter the scope or 
the objectives of the Communities. 
But in view of the Supreme Court's ruling on Title 
III, a referendum had to be held to amend the 
Constitution to allow the Irish Government to ratify 
the Single Act. The referendum took place in May 
1987; the amendment passed, enabling the 
Government to deposit the instrument of ratification 
on 24 June 1987. 
2. The principles of primacy and direct effect have not 
been called into question since accession. 
3. The use made by the Irish courts of the reference for 
a preliminary ruling has not given rise to any specific 
problem. The Supreme Court's 1983 judgment in 
Campus Oil is worth mentioning; the Supreme Court 
there held that a High Court order setting in motion 
the procedure laid down in Article 177 of the EEC 
Treaty was not open to appeal. This judgment is fully 
in accordance with the purpose of the procedure. 
8. ITALY 
1. In Italy, as in Germany, a law may be referred for 
consideration of its constitutionality even though a 
long time may have passed since it was adopted. This 
includes a law ratifying a Treaty. The Constitutional 
Court's Judgments No 98 of 27 December 1965 
Acciaierie S. Michele (') and No 183 of 27 December 
1973 Frontini (2) were delivered on references from 
courts which had expressed doubts as to the 
constitutionality of provisions of the ECSC and EEC 
Treaties which conferred judicial power on the 
Court of Justice and legislative power on the 
Council and the Commission, and limited the powers 
of the Italian judiciary and parliament. The 
Constitutional Court held that the Treaties were 
compatible with the constitution, on two grounds: 
— Article 11 of the Constitution states that Italy 
'shall accept, on equal terms with the other 
States, the limitations of sovereignty necessary to 
a legal order which ensures peace and justice 
between the nations', 
(') Foro it. 1966, I, 8. 
(2) Foro it. 1974, I, 314 and Journal des Fribunaux 1974, 409. 
No C 330/156 Official Journal of the European Communities 30. 12. 89 
— the way in which the Community is structured 
and has organized the exercise of its own powers 
is part of the Community legal order, which is 
independent of and separate from the national 
legal order and thus falls outside the constitu­
tional law of the State, including the rules which 
make the exercise of judicial and legislative 
powers a matter for the State only. 
In Acciaierie S. Michele the Court left open the 
question whether the protection of certain funda­
mental values underlying the Constitution, and 
especially fundamental rights, might not restrict the 
scope of the transfer of sovereign rights to interna­
tional organizations provided for in Article 11. In its 
later Frontini Judgment the Court said that there 
was indeed such a restriction, but nevertheless held: 
(a) that the Community legal order included a 
system of legal protection under which the Court 
of Justice has unrestricted judicial authority; 
(b) the sovereignty transferred to the Community in 
Rome Treaty, which was concluded by countries 
whose legal orders were all based on the rule of 
law and guaranteed the fundamental freedoms 
of the citizens, could not in any way whatsoever 
confer on the EEC institutions an inadmissible 
power of infringe fundamental principles or the 
inalienable rights of human beings; 
(c) that if ever Article 189 were to be given so 
aberrant an interpretation, the Constitutional 
Court's power of judicial review would remain, 
but would be exercised over the continuing 
compatibility of the Treaty with those funda­
mental principles; the Court could not review 
individual regulations. 
This approach has been confirmed in Judgment 
No 170 of 8 June 1984 (see below), which rules out 
any difficulty as long as the Community legal order 
is based on respect for fundamental rights; it is 
comparable to the view prevailing in Germany since 
the Federal Constitutional Court's judgment of 
22 October 1986. 
2. In Italy the courts at first had great difficulty in 
accepting that Community law took precedence over 
subsequently enacted national law. After an initial 
hostile judgment, No 14 of 7 March 1964 Costa v. 
Enel{1) the Constitutional Court embarked on a 
(') Foro it. 1964, I, 465. long march towards acceptance of the principle. 
Although it did not resolve all the problems, the 
judgment in Frontini (see point 1 above) laid the 
foundations for this recognition. It was followed by 
the same Constitutional Court's Judgment No 232 of 
30 October 1975 ICIC(2). The Court there held that 
a law incompatible with Community law was 
contrary to Article 11 of the Constitution, already 
referred to; such a law therefore could and must be 
held unconstitutional; but this also meant that the 
Court trying the case did not itself have power to set 
aside the national law in question, but had to refer 
the matter to the Constitutional Court for a ruling 
on its constitutionality. 
This arrangement was cumbersome and, as the 
Court of Justice pointed out in Case 106/77 
Simmenthal, ran counter to the principles of direct 
effect and primacy of Community law; it was finally 
abandoned in Judgment No 170 of 8 June 1984 
GranitalQ) which represents the last stage in the 
development of the case-law on this point. Basing it 
itself on the argument that the Community legal 
order was independent of and separate from the 
domestic legal order, the Court said it would not 
review the compatibility of a national law and a 
Community regulation. Domestic law could not 
encroach on the sphere governed by Community 
law; the Cummunity regulation had always to be 
applied, whether its adoptin followed or preceded 
that of an ordinary law which was incompatible with 
it; in the event of difficulty the national courts could 
avail themselves of the preliminary ruling procedure. 
This shift in the Constitutional Court's attitude has 
been confirmed in later judgments. 
The precedents set in more recent judgments of the 
Constitutional Court have been followed in a large 
number of judgments by the Corte di Cassazione, 
which has made constant use of its power to hold a 
national law incompatible with Community law and 
consequently to declare it inapplicable to the case 
before it (4). 
(2) Foro it. 1975, I, 2661 et Revue trim, droit europeen 1976, 
271. 
(3) Foro it. 1984, I, 2063. 
(4) See for example the judgments of the Corte di Cassazione 
settling in favour of Community law a conflict between 
Community law and Decree-Law No 688/1982: judgments 
No 5129, 18 October 1985; No 5235, 24 October 1985; 
No 2144, 26 March 1986; No 2145, same date; No 2339, 
4 April 1986; No 2415, 7 June 1986; No 2425, same date; 
No 2717, 16 April 1986; No 3061, 7 May 1986; No 3339, 
20 May 1986; No 4063, 18 June 1986; and No 4761, 
25 July 1986. 
30. 12. 89 Official Journal of the European Communities No C 330/157 
3. There is still a great deal of hesitation regarding the 
direct effect of directives, notably on the part of the 
Corte di Cassazione (judgments of 21 July and 
7 October 1981) (') and of the Consiglio di Stato 
(judgment 6 May 1980) (2). 
4. As regards operation between the national courts 
and the Court of Justice, there appears to be some 
reluctance on the part of the Consiglio di Stato to 
make use of the preliminary ruling procedure. 
The Constitutional Court on the other hand has 
reinforced the authority of Court of Justice 
precedent by holding, in Judgment No 113 of 
23 April 1985 BECA (3) that the obligation on a 
court to give directly applicable Community law 
precedence over national law, even where the 
national law was adopted more recently, which was 
outlined in the Constitutional Court's judgment of 
8 June 1984 Granital (see point 2 above), applied in 
the same way where the national law was contrary 
to a principle developed by the Court of Justice in 
preliminary rulings interpreting Community law. 
9. LUXEMBOURG 
On the question of primacy the Luxembourg courts 
follow a precedent established in a judgment delivered by 
the Cour Superieure de Justice on 14 July 1954 ("), 
which accepted that a Treaty ranked higher than 
domestic law and that in the event of conflict between an 
international treaty and a more recent national law, 
international law had to prevail over domestic law (for 
Cummunity law see Conseil d'Etat, Judgment of 21 
November 1984 Bellion v. Ministere de la fonction 
publique^). The direct effect of Community law has 
been expressly accepted by the Luxembourg courts 
(Conseil d'Etat, Judgment of 21 November 1984 already 
referred to, and Cour d'Appel, Judgment of 2 May 1985, 
BNP v. Stoffel(b). There has been no specific problem in 
the use made by Luxembourg courts of the preliminary 
ruling procedure. 
(') Judgments No 4686 and 5266. The Corte di Cassazione 
there held that directives bound only states, and had no 
direct effect within the domestic legal order. Any 
divergence between the national provision and the directive 
was a matter of the international responsibility of the state. 
(2) Judgment No 504. The Consiglio di Stato said that juris­
diction in disputes concerning the obligation of a Member 
State to adapt its legislation to EEC Directives lay with the 
international courts (sic). 
O Foro it. 1985, I, 1600. 
(4) Pas. Lux. XVI, p. 150. 
(5) Pas. Lux. XXVI, p. 174. 
(6) Pas, Lux. XXVI, 273. 10. NETHERLANDS 
1. The principle of the primacy of international treaties 
and of decisions of international organizations over 
national law is expressly laid down in Article 94 of the 
Constitution (last revised 1983). Article 94 states that 
national law is not to apply if it is incompatible with 
provisions of a self executing nature in treaties or 
decisions of international organizations. Under Article 
93 of the Constitution such provisions have binding 
force only after they been published. For Community 
rules, publication in the Official Journal of the 
Communities is sufficient (7). 
The superior courts in the Netherlands have accepted 
the primacy of Community law on the basis either of 
its nature (8) or of Article 94 ('). The primacy of 
Community law and the direct effect of secondary 
Community legislation, including directives, have not 
given rise to any great difficulty before the Dutch 
courts (10). 
2. The use made by the Dutch courts of the reference 
for a preliminary ruling has not raised any major 
problem from a European point of view. The Supreme 
Court (Hoge Raad) has applied the acte clair theory 
only very exceptionally (n). It was a question referred 
by that Court which led to the first application of the 
acte eclaire theory (12), according to which a national 
court is not bound to refer a question to the Court of 
Justice if the Court of Justice has already had 
occasion to rule on the point. 
11. PORTUGAL 
Theoretically there is a danger in the fact that the 
Portuguese Constitution of 1976, revised in 1982, allows 
O Article 7 of the Law of 22 June 1961, Stb. 207. 
(8) Cass. crim. 18. 5. 1962 (Bosch) N.J. 1965, nr. 115; direct 
effect of Articles 85 and 86 of trie EEC Treaty. 
C) Centrale Raad van Beroep, 19 November 1963, and Tarief-
commissie, 21 December 1965, cited by G. Bebr, 'How 
supreme is Community Law?' in Common Market Law 
Review 1974, 3. 
(10) The President of the Hague Gerechtshof, or Regional 
Court of Appeal, even ordered the national legislature to 
implement the Third Directive on social security (equal 
treatment of men and women) because it contained 
provisions having direct effect and the deadline for 
implementation had passed. This judgment was annulled on 
the ground that it disregarded the separation of powers: 
N.J. 1985, 262-263. 
(") H.R. 20 February 1985, BNB 1985/128. See further M.R. 
Mok, 'Experience of the Netherlands Courts in applying 
the preliminary proceedings of Article 177 EEC,' in Papers 
of the Asser Institute Colloquium on European Law, 15th 
session 1985. 
(") Cases 28, 29 and 30/62 Da Costa & Schaake (1963) ECR 
31. 
No C 330/158 Official Journal of the European Communities 30. 12. 89 
a posteriori review of the constitutionality of provisions 
of internal treaties or conventions (Article 280). But it is 
reasonable to suppose that if any objection of uncon­
stitutionality were to be raised before the Constitutional 
Court in respect of Community law the Court would 
dismiss it, as the Italian and German constitutional 
courts have done. 
The Portuguese Constitution explictly states that interna­
tional law is to have direct effect (Article 8). And the 
courts have generally accepted the principle of the 
primacy of international law (cf. e.g. the Constitutional 
Court's judgment of 19 June 1984 in Case 107/83 (1)). 
The only judgment on a question of Community law so 
far delivered by a Portuguese court (the Coimbra Court 
of Appeal, 13 July 1986) confirmed the principles of 
primacy and direct effect without qualification (2). 
It would be premature to comment on the use made of 
the preliminary ruling procedure at this stage; no 
reference for a preliminary ruling has yet been made. 
12. UNITED KINGDOM 
1. The UK constitutional practice with regard to treaties 
is based on a rigorous separation between the powers 
of the executive and of the legislature. The conclusion 
of an international treaty is within the exclusive 
competence of the Crown, but without Parliamentary 
involvement a treaty has effect in international law 
only. To give effect to it in domestic law a specific 
Act of Parliament is required. In order to accede to 
the Communities, therefore, the Accession Treaty had 
first to be ratified by the Queen, and Parliament had 
then to pass the European Communities Act, which 
made the Treaties part of the domestic legal system. 
The Act sought to overcome difficulties in the 
implementation of Community law which derived 
from the dualist tradition and the principle that a 
parliament cannot bind a future one. Section 2 (1) of 
the European Communities Act affirms the principle 
of direct applicability. The principle of primacy is 
given effect in pragmatic terms by Section 2 (4), 
which obliges the authorities to construe and apply 
national legislation, even later legislation, in such a 
way that Community law has effect. Section 3 (1), 
which stipulates that questions of Community law 
must be determined in accordance with the judgments 
of the 
(') D.R. II, 29 December 1984, p. 11.681. 
(2) It is interesting to note that the Community legislation in 
question was a directive which had not yet been transposed 
into Portuguese law. Court of Justice, not only affirms the principle of the 
uniformity of judicial interpretation of Community 
law but also strengthens direct applicability and 
primacy, as principles laid down in the judgments of 
the Court. The only weak point in the structure is 
that the European Communities Act could itself be 
repealed or amended by Parliament. 
In Blackburn v. Attorney General (1971) (3) and 
McWhirter v. Attorney General (1972) (") the Court of 
Appeal dismissed two actions brought in respect of 
the accession procedure, the first one based on the 
partial but irreversible abandonment of sovereignty 
and the second on an alleged incompatibility with the 
1688 Bill of Rights. In Gibson v. Lord Advocate 
(1975) (5) the Scottish Court of Session dismissed an 
action against the European Communities Act based 
on the intention that it was contrary to the Act of 
Union of 1707. 
2. The primacy of Community law has been upheld by 
UK courts on the basis of the European Communities 
Act. The first such judgment was that of the 
Chancery Division of the High Court in Aero Zipp 
Fasteners v. YKK Fasteners, (1973) (6). In the judgment 
of the Court of Appeal in Shields v. Coombes 
(1978) (7), Lord Denning referred not to Section 2 (4) 
but rather to Section 3 (1), which obliges the courts 
to act in accordance with the principles laid down by 
the Court of Justice; these include direct applicability 
and primacy. In the judgment of the Court of Appeal 
in Macartbys v. Smith (1979) (8) Lord Denning reaf­
firmed the principle, but remarked obiter that if one 
day Parliament were deliberately to pass legislation 
with the intention of repudiating the Treaty, or any 
provision of it, and to say so in explicit terms, he 
would have taken the view that the duty of UK courts 
was to follow that legislation. This qualification 
appears primarily to be a mark of respect for the 
traditional principle of the sovereignty of Parliament. 
In any event the situation described has never yet 
arisen. 
The House of Lords applied the EEC Treaty in a case 
of apparent conflict with a subsequent Act of 
Parliament in Garland v. British Rail Engineering 
(1982) ('). 
(3) Common Market Law Reports 1971, 784. 
(4) Ibid. 1972, 882. 
O Ibid. 1975, 563. 
(6) Ibid. 1973, 819. 
O (1978) I WLR 1408. 
(') (1979) 3 All ER 325; Case 129/79 (1980) ECR 1275; The 
Times, 18 April 1980. 
O (1982) 2 WLR918. 
30. 12. 89 Official Journal of the European Communities No C 330/159 
But the thinking in that decision was not in terms of 
primacy. Lord Diplock simply pointed out that legis­
lation was as far as possible to be interpreted in 
accordance with international obligations (a principle 
which applied a fortiori in the case of obligations 
imposed by the Community Treaties referred to in 
Section 2 of the European Communities Act). And the 
disputed provision could be interpreted in accordance 
with the Treaty without unduly straining the ordinary 
meaning of the language used. 
3. UK courts have not generally had any difficulty with 
the principle of direct effect. 
But although they do accept the principle, the courts 
have not awarded damages for loss caused by an act 
of general scope which was contrary to the Treaties. 
In Bourgoin v. Ministry of Agriculture, Fisheries and 
Food (1985) O the Court of Appeal dismissed such a 
claim submitted by producers and importers of French 
turkeys who had suffered loss as a result of an import 
ban imposed by the Ministry of Agriculture which 
was stated to be necessary on health grounds but 
which was in reality contrary to Article 30 of the EEC 
Treaty. The Court said that domestic law did not 
attribute any liability to the Government in such 
circumstances, and observed that the Court of Justice 
itself limited the liability of the Community 
institutions. The applicants appealed to the House of 
Lords, but accepted compensation of about 
£ 3 500 000 in an out-of-court settlement. 
4. Initially the UK courts were slow to make use of the 
reference for a preliminary ruling, but they have since 
come to use it very frequently, particularly in order to 
establish whether some Community provision has 
direct effect in cases where national law may be 
incompatible with it: they seek to rely on the Court's 
authority before declining to apply an act of 
Parliament. 
As far as compliance with judgments of the Court of 
Justice is concerned there is one case of apparent 
incompatibility (Santillo v. Home Secretary, 1980) (2) 
but it seems that what happened here was rather that 
the national court was taking a position within a 
margin of discretion allowed it by the judgment of the 
Court of Justice. 
(') (1985) 3 WLR 1027. 
(2) Common Market Law Reports, 7 October 1980, 212. III. Conclusions 
Without the loyal cooperation of the national courts, the 
Treaties and acts of the Community institutions would 
not have been satisfactorily applied. But if there were to 
be such cooperation on the part of an institution of the 
State as independent as the judiciary the judges had to 
understand the significance and purpose of the new 
Community reality and give their own assent to the 
changes it imposed. 
The process was not an easy one. The Member States 
had never previously accepted such far-reaching limi­
tations on their sovereignty. In countries with a dualist 
tradition such as Germany, Italy or the UK, but in others 
too, it was not easy at the outset to accept that 
Community law was to have direct effect and to prevail 
over national law. Supposedly supreme courts were 
everywhere unhappy at the obligation to seek an inter­
pretation of the law from another court outside their 
own legal order which would then be binding on them. 
This explains why there was some resistance: the 
German Constitutional Court claimed the authority to 
declare inapplicable Community acts which infringed 
fundamental rights; the Italian Constitutional Court 
initially refused to accept the primacy of Community 
law, and the French Conseil d'Etat still does so; the acte 
clair theory has been abused; there has been a reluctance 
to accept the direct effect of directives; the French 
Conseil d'Etat and the German Bundesfinanzhof have 
refused to recognize the binding character of some 
decisions of the Court of Justice. 
Today most of these heterodox positions have been 
abandoned. Some less fundamental breaches persist such 
as the abuse of the acte clair theory; others, such as the 
Bundesfinanzhof's approach, are disappearing; and lastly 
there is the well-known refusal of the French Conseil 
d'Etat to allow Community law to prevail over more 
recent domestic law and to accept certain Court 
judgments. 
The overall picture is thus a very positive one, 
particularly if the present situation is compared with the 
initial hesitant approaches; in retrospect one can see just 
how much progress has been made. 
But worrying conflicts persist. This raises the question of 
the remedies available to the Commission. 
In the positions it defends in relation to the Member 
States, even pursuant to Article 169 of the EEC Treaty, 
No C 330/160 Official Journal of the European Communities 30. 12. 89 
the Commission avoids any challenge to the inde­
pendence of the judiciary. It confines itself to demanding 
that in court proceedings councel for the government 
should defend positions in line with Community law, and 
that if the judgments of national courts depart from 
Community law governments should take all appropriate 
measures to eliminate any practical effects incompatible 
with Community law. 
The Commission also encourages judicial interpretation 
in the Member States to develop in the right direction by promoting studies, articles, lectures, seminars and 
debates aimed at informing and convincing judicial 
circles. Since 1986 the European Parliament has had 
significant judgments of national courts of final instance 
brought to its attention in this review of the subject in 
the annual monitoring report. 
These efforts to improve the situation must be pursued 
unremittingly, particularly as the single market 
approaches; it is vital that Community rules be enforced 
in the national courts.