OPINION OF MR ADVOCATE GENERAL MISCHO

delivered on 17 June 1986 ( *1 )

Mr President,

Members of the Court,

In these proceedings the Commission seeks a declaration that by maintaining in force legislative provisions which do not comply with the principle of equal treatment between Italian nationals and nationals of other Member States of the Community with regard to access to certain occupations, the Italian Republic has failed to fulfil its obligations under Articles 48, 52 and 59 of the EEC Treaty.

Under the provisions in question:

(1) The treatment of nationals of other Member States in the same way as Italian nationals as regards access to various occupations in the field of tourism is subject to reciprocity (Article 11 of the Outline Law on tourism and measures promoting the extension and improvement of tourist services);

(2) The inclusion of foreign nationals on the special lists attached to the register of professional journalists and regular contributors to publications is subject to reciprocity and only Italian nationals may be entered in the register of trainee journalists (Articles 28, 29, 31, 33, 35, 36 and 38 of Law No 69 of 3 February 1963 on the profession of journalist);

(3) Only Italian nationals may participate in the competitions for the award of licences to operate pharmacies in private practice (Article 3 of Law No 475 of 2 April 1968 laying down ‘provisions regarding phamaceutical services’).

During the latter part of 1983, in reply to the Commisson's requests for explanations, the Italian Government provided it with several documents showing that, by means of administrative circulars addressed to the National Council of Journalists and to the Commissario del Governo [government representative] in each region, it had directed the competent authorities to treat nationals of other Member States in the same way as Italian nationals, in accordance with Community law, for the purposes of inclusion in the lists of journalists and access to competitions for the award of licences to operate pharmacies.

The Commission nevertheless brought the present proceedings.

In support of its application it put forward two main lines of argument:

(2) Administrative circulars are not sufficient to cure the incompatibility of a provision of national law with Community law; this is clear from a whole series of judgments. ( 1 )

The Italian Government, on the other hand, considers that:

(1) The reciprocity condition is of no importance since it is always automatically fulfilled by nationals of other Member States by virtue of the directly applicable provisions of the Treaty;

(2) Administrative circulars are appropriate means, not of expressly repealing the provisions of law in question, but of confirming that they cannot take precedence over directly applicable provisions of Community law.

The Italian Government does not deny that, strictly speaking, the legislation in question is not in conformity with Community law, but argues that it presents no real obstacle to the freedom of movement of persons or to the freedom to provide services in view, in particular, of the fact that Articles 48, 52 and 59 of the EEC Treaty are directly applicable.

Is the Italian Government correct in its view that in those circumstances there is no breach of the Treaty? I do not think so.

With regard to the illegality of the reciprocity clause, I need only refer to the judgment in Case 159/78, cited above, in which the Court held that a legal provision of a Member State containing a reciprocity condition from which nationals of other Member States were not exempted was contrary to Article 52 of the EEC Treaty (paragraph 23 [1979] ECR 3247 at p. 3264). It went on to state that the maintenance, without amendment, in the legislation of a Member State of a provision which is incompatible with a provision of the Treaty, even one which is directly applicable in the legal order of the Member States, creates an ambiguous state of affairs by maintaining the persons concerned in a state of uncertainty as to the possibility available to them of relying on Community law and that a Member State which maintains such a provision is therefore failing to fulfil its obligations under the EEC Treaty (paragraph 3 of the summary [1979] ECR 3247 at p. 3248; and also paragraph 22 at p. 3264).

As the Italian Government admits, an administrative circular certainly cannot amend a provision of statute law.

Although the judgments regarding administrative circulars quoted by the Commission all concern the incomplete implementation of directives or the failure to implement directives, there can be no doubt that the principles laid down in those judgments by the Court must be applied by analogy in the present case. ( 2 ) It follows that if the adaptation of national law to directly applicable provisions of Community law requires existing provisions of statute law to be amended, the amendments can be made only by means of ‘national provisions of a binding nature’ (Case 96/81 [1982] ECR 1791 paragraph 12 at p. 1804) which ‘have the same legal force’ (Case 102/79 [1980] 1473, paragraph 10 at p. 1486).

That is certainly not true of administrative circulars, which, as the Court has held in a number of judgments, ‘by their nature may be altered at the whim of the authorities and lack the appropriate publicity’.

However, the Italian Government now asks the Court to go beyond its judgment in Case 159/78 and, ‘in clear and unequivocal situations which give rise to no risk of confusion or of legal uncertainty’, to relieve Member States of their obligation to bring national law into strict conformity with directly applicable provisions of Community law.

For the Italian Government, the basic problem in these proceedings is practical, not legal, in nature: since the directly applicable provisions of the Treaty override contrary national legal provisions, it is unnecessary and burdensom to repeal or amend them expressly, especially since ‘in time, every Community citizen will know for certain what rights he may assert in Member States other than that of which he is a national’ (defence, p. 7). In particular, ever since the first judgments of the Court on the direct applicability of Articles 48, ( 3 ) 52 ( 4 ) and 59 ( 5 ) legal uncertainty has constantly diminished so that the rights of Community citizens under those articles are adequately guaranteed even if contrary national legal provisions are not expressly repealed and their retention therefore no longer constitutes a breach of the Treaty.

Let me point out first of all that this case concerns not only the retention of a provision incompatible with the Treaty but also the introduction of such a provision.

There is no doubt that the ‘degree of certainty acquired by Community citizens with regard to their rights in other Member States’ must have been at least shaken if not completely put in question by the fact that it was in 1983, more than 13 years after the end of the transitional period and almost 10 years after the Van Dnyn, Reyners and Van Binsbergen judgments, that the Italian Parliament adopted the Outline Law on Tourism.

Secondly, it would be dangerous to assume that most Community citizens now have a precise knowledge of their rights under the Treaty. The reasoning followed by the Court in Case 159/78 remains valid even today. A statute which contains a nationality clause or a reciprocity condition may tend to have a dissuasive effect on individuals who wish to pursue their occupation in the country in question because they may not necessarily be familiar with the case-law of the Court and will certainly not be familiar with the administrative circulars issued by the Member States. The retention of a provision contrary to Community law therefore also constitutes a breach of the Treaty inasmuch as it may jeopardize the attainment of its objectives (Article 5 of the Treaty).

Furthermore, the principle according to which a directly applicable provision does not release Member States from their obligation to bring their legislation into conformity with Community law was reaffirmed by the Court, in relation to regulations, as recently as 20 March 1986 (Case 72/85 Commission v Netherlands [1986] ECR 1229, at paragraph 20).

Finally, let me stress the specific nature of the Article 169 procedure, which provides for a finding that conduct on the part of a Member State is contrary to its obligations under the Treaty and for the cessation of such conduct.

From that the Court has concluded, as it has just re-emphasized in its judgment of 18 March 1986 (Case 85/85 Commission v Belgium [1986] ECR 1149), that ‘the existence of remedies available through the national courts can not in any way prejudice the making of the application referred to in Article 169 since the two procedures have different objectives and effects’ (paragraph 24). It there expressly refers to its judgment of 17 February 1970 in Case 31/69 Commission v Italy [1970] ECR 25 in which it rejected, on the same grounds, the defendant's argument that the sanction for a Member State's failure to implement directly applicable Community legislation did not come within the scope of Article 169 but fell within the jurisdiction of the national courts before whom the persons concerned might bring such matters (paragraph 7 [1970] ECR at p. 32).

In its judgment of 5 February 1963 in the Van Gend en Loos case (Case 26/62 [1963] ECR 1) which laid the foundation for the Court's case-law on the direct applicability of Community law, the Court held that ‘the vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted by Articles 169 and 170 to the diligence of the Commission and of the Member States [(1963] ECR at p. 13).

The logical conclusion to be drawn from the foregoing is that a Member State cannot use the existence of a directly applicable provision of Community law as an excuse for not bringing its own legislation, contrary to that provision, into conformity with it.

How could it be otherwise, if due regard is had to the basic reasons which have led the Court to hold that certain provisions of the Treaty are directly applicable, to lay down the principle that national courts must set aside any provision of national law which conflicts with Community law, whether such a provision was enacted before or after the Community rule, ( 6 ) and to hold that in certain specific circumstances ( 7 ) certain provisions of directives may have ‘direct effect’? ( 8 )

The objective in all these cases is to ensure, as a ‘minimum guarantee’, ( 9 ) that individuals can enforce their rights in the national courts despite the failure of the Member States to fulfil their obligations.

It would be thus be paradoxical, to say the least, if a principle laid down by the Court in order to protect individuals against the inaction of their governments could now be relied on by those governments as a means of prolonging their inaction or of relieving them entirely of the obligation to adapt their national law to the requirements of Community law.

In view of all the foregoing considerations I propose that the Court declare, in accordance with the Commission's submissions, that by maintaining in force the legislative provisions at issue, the Italian Republic has failed to fulfil its obligations under Articles 48, 52 and 59 of the EEC Treaty, and that it order the Italian Republic to pay the costs, pursuant to Article 69 (2) of the Rules of Procedure.

( *1 ) Translated from the French.

( 1 ) Judgments of 6 May in Case 102/79 Commission v Belgium [1980] ECR 1473; 25 May 1982 in Case 96/81 Commission v Netherlands [1982] ECR 1791; 25 May 1982 in Case 97/81 Commission v Netherlands [1982] ECR 1819; 15 December 1982 in Case 160/82 Commission v Netherlands [1982] ECR 4637; 1 March 1983 in Case 300/81 Commission v Italy [1983] ECR 449 and 15 March 1983 in Case 145/82 Commissions Italy [1983] ECR 711.

( 2 ) In Case 159/78 the Italian Government also relied on the existence of an administrative circular stating that nationals of other Member States were to be treated in the same way as Italian nationals.

( 3 ) Judgment of 4 April 1974 in Case 167/73 Commission v France [ 1974] ECR 359 and more particularly the judgment of 4 December 1974 in Case 41/74 Van Duyn v Home Office [1974] ECR 1337.

( 4 ) Judgment of 21 June 1974 in Case 2/74 Reyners v Belgian State [1974] ECR 631.

( 5 ) Judgment of 3 December 1974 in Case 33/74 Van Binsbergen v Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299.

( 6 ) Judgment of 9 March 1978 in Case 106/77 Amministrazione delle Finanze dello Stalo v Simmenthal [1978] ECR 629 at paragraph 21.

( 7 ) ‘In particular where a Member Stale has failed to take the implementing measures required or has adopted measures which do not conform to a directive’ — see the judgment of 6 May 1980 in Case 102/79 Commission v Belgium [1980] ECR 1487 at paragraph 12.

( 8 ) See the special section on the ‘direct effect’ of directives in general in the judgment of 19 January 1982 in Case 8/81 Becker v Finanzamt Münister-Innenstadt [1982] ECR 53.

( 9 ) For regulations, see paragraph 20 of the judgment in Case 72/85 cited above and, for directives, paragraph 12 of the judgment in Case 102/79 also cited above.