Ill —

Moreover your Lordships have not been taken in by this “device”; although none of the Member States — not even the Italian Republic — nor the Commission have requested that the case be decided in plenary session, your Lordships have not made an order assigning it to a chamber. The Commission states in support of its observations that on 18 June 1976 it invited the Italian Republic to submit its observations and subsequently on 31 July 1978 the Commission gave the Italian Republic notice of a reasoned opinion pursuant to Article 169 and invited it to adopt, within a period of one month, the requisite measures to eliminate the differential taxation as far as concerns the application of the production tax and the State tax on alcohols. Since the reasoned opinion has not been complied with the Commission indicated in its observations of 12 November 1979 that it intended to bring the matter before the Court of Justice “in the near future”. Up to now and in spite of the fact that in the Commission's view the increase introduced by Article 3 of the Law of 1978 makes the fiscal discrimination worse, more than six months have passed without the Commission carrying out its “intention”. I can moreover well understand its attitude because, if the Commission succeeded in having the question decided by a national court at least in a similar case, there would be no need for it to bring the matter before the Court under Article 169. But, apart from the delicate situation in which the Advocate General of this Court might find himself if the Commission decided to bring the matter before your Lordships pursuant to that article after delivery of his opinion and prior to your Lordships' ruling, this course of conduct is not in keeping with the task with which the authors of the Treaty intended to entrust the Commission by enjoining it to “ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied” (Article 155). Although the procedure under Article 177 is certainly an autonomous legal process which enables individuals to obtain direct protection of their rights under the provisions of the Treaty that legal procedure and the action for failure to fulful an obligation are intermixed to an unacceptable degree where the procedure under Article 169 is initiated before the occurrence of the facts which give rise to the reference for a preliminary ruling. It is appropriate to draw attention at this point to the observations concerning the procedure for a preliminary ruling made by Mr Advocate General Gand in his opinion in Case 20/64, Sàrl Albatros v Société de Pétroles et des Combustibles Liquides (SOPECO) [1965] ECR 29 at p. 39, which he delivered on 2 December 1964. Concurring with Mr Advocate General Lagrange he drew attention to “on the one hand, the difficulty of tracing the boundary between interpretation and application of the Treaty, which is simultaneously the boundary of the respective jurisdictions of the Community Court and the national courts, the settlement of disputes over which has not been allotted to any court”. “On the other hand” he asks “is it necessary to take to its final conclusion the principle whereby the Court does not have the task of assessing the considerations upon which the national court based its reference for a preliminary ruling, even if the question put is clearly without any relation to the dispute in the main action? Must the Court nevertheless give in such a case an abstract, theoretical interpretation unconnected with the settlement of a dispute, but which it would nonetheless be possible to raise for other purposes and which might create conflicts with national courts or authorities? Perhaps you will one day have to fix a limit to what might appear an abuse of procedure”. By a very recent decision (judgment of 11 March 1980 in Case 104/79, Pasquale Foglia v Mariella Novello [1980] ECR 745, after Mr Advocate General Warner had delivered an opinion to the same effect) your Lordships have just set an initial limit to such abuses. Although it is perfectly true, as the order from the Pretura states, that “it is for the Court of Justice to determine whether the system in question is compatible with Community provisions”, the procedure under Article 177 is inadequate and unsuitable for the purpose of asking “the Court of Justice to rule whether the special State tax levied in Italy on alcohol to be denatured ... is unlawful” to use the words of this order. Only the plaintiff in the main action and the Commission have submitted observations. The defendant company has not defined its position. On 13 March 1980 the Italian Government submitted extremely detailed oral observations which could not be recorded in the report for the hearing but, since the proceedings under Article 177 are not adversary proceedings, that procedure does not permit your Lordships either to appraise correctly all the implications of the question or to obtain elucidation if necessary by measures of inquiry which might prove essential in such a technical field. Your Lordships held in your judgment of 11 March 1980 in the above-mentioned Foglia case that “The duty of the Court of Justice under Article 177 of the EEC Treaty is to supply all courts in the Community with the information on the interpretation of Community law which is necessary to enable them to settle genuine disputes which are brought before them. A situation in which the Court was obliged by the expedient of arrangements like those described above to give rulings would jeopardize the whole system of legal remedies available to private individuals to enable them to protect themselves against tax provisions which are contrary to the Treaty” (paragraph 11 of the decision). It continued: “This means that the questions asked by the national court, having regard to the circumstances of this case, do not fall within the framework of the duties of the Court of Justice under Article 177 of the Treaty” (paragraph 12 of the decision).