1.

As the plaintiffs seek to derive the inapplicability of the German Law on transport tax chiefly from Article 4 of the Council Decision referred to in conjunction with Article 1 of the First Council Directive, the question immediately arises whether measures of this kind addressed to Member States can at all create rights for individuals which the courts must protect or whether they can in principle displace conflicting national law. The German Government has firmly taken the view that there is no question of direct applicability. On the other hand, the Commission, after presenting all the reasons which might argue for or against direct applicability, reached the conclusion that there are no objections in principle to and no compelling argument against direct applicability, and that it is not impossible in general for certain provisions contained in decisions addressed to Member States to have this kind of effect. The viewpoint of the plaintiffs in the main actions is very similar. It must be acknowledged immediately that the problem raised is of great and fundamental importance. The acceptance of the direct applicability of many decisions addressed to the Member States, that is, the direct implementation of this kind of Community law, is eminently suited to promote integration and to strengthen the legal protection of the citizens of the Market in the national courts (that is, to achieve an affect that has been stressed as important in Cases 26/62 [1963] ECR 1 and 28/67 [1968] ECR 143 which came before the Court for preliminary rulings). In the case of the opposite viewpoint, in the event of a failure to observe decisions made under Community law there only remains in fact the lengthy procedure under Article 169 of the EEC Treaty to establish that a Member State has failed to fulfil an obligation, over which private individuals cannot exercise any legal influence and as regards the consequences of which it may be doubted whether they are equally as valuable to citizens of the Market as the consequences of the direct implementation of Community law (in the event of a condemnation ol the Member States). As all the parties concerned have correctly stressed, in the treatment of this important problem no direct assistance can be obtained from our previous case-law. Nevertheless, there seem to be some indications in this case-law which point in favour of the plaintiffs' theory and it seems appropriate to make use of them. Thus, firslty, it is illuminating to find that in the case-law on directly applicable provisions of the Treaty, secondary importance was attached to the wording of the articles in question in so far as it expressed that it was directed to the Member States. I refer here to the judgments on Articles 12, 31, the first paragraph of Article 32, Articles 37 (2), 53 and the first and second paragraphs of Article 95. All these cases concerned provisions merely containing obligations on the Member States to do something or to refrain from doing something. Nevertheless, the Court has not seen in this any obstacle to the acceptance of a direct reflex effect in favour of individuals, that is, direct applicability, provided that the rest of the content of the provisions in question seems calculated to produce such an effect. Accordingly, a similar conclusion might be indicated in the case of a secondary law which takes that form, that is, in the case of decisions addressed to Member States obliging them to do or to refrain from doing something. In other words, it might seem tenable in such cases similarly to let the formal aspects take second place and merely ask whether they are by their content and their nature capable of creating direct rights for individuals. I must now refer to the case-law on Article 173 of the EEC Treaty, which as is well known makes the right of action for private individuals when challenging decisions directed to other persons dependent on such individuals' being directly affected by the decision. Such a right of action was also recognized in respect of decisions addressed to Member States. The fact that in this connexion (I refer to the judgment in Joined Cases 106 and 107/63 [1965] ECR 556) reference was made to ‘directly applicable’ decisions of the Commission is worthy of remark, although being directly concerned within the meaning of Article 173 and direct applicability cannot, of course, be equated. A third interesting feature which was mentioned by both the Commission and the second and third plaintiffs is the judgment in Case 38/69 ([1970] ECR). There the Court stated with reference to the so-called Acceleration Decision of the Council of 26 July 1966 : ‘Although formally addressed to the Member States alone this decision is intended to have repercussions on the Common Market as a whole and it conditions or prepares for the implementation of measures which are directly applicable within the Member States as a consequence of Article 9 (1) of the Treaty and, as regards relations with third countries in particular, of Regulation No 950/68/EEC of the Council of 28 June 1968 concerning the Common Customs Tariff’. It is true this statement was made in a case under Article 169 of the EEC Treaty and in respect of a decision made under Article 235 of the Treaty in order to supplement the Treaty. However since the case concerned secondary Community law in the wider sense it does not seem erroneous to conclude from this judgment that the Court is prepared to adopt a similar attitude also to decisions clearly taken under Article 189 of the Treaty and addressed to the Member States. Finally this contention is also supported by the judgment of German courts on the direct applicability of decisions addressed to States which have been cited by the second and third plaintiffs and by the views of reputable writers also cited by these plaintiffs. (I do not wish to enumerate these views now; you will permit me merely to refer to the sources cited in the pleadings). Nevertheless the weight of the objections that were put forward against the Commission's view must not be ignored. They are derived in particular from the system applicable to secondary law under the Treaty, as laid down in Article 189. This article distinguishes between regulations having general application which are binding in their entirety and directly applicable in each Member State, directives, which are binding, as to the result to be achieved, upon every Member State to which they are addressed, whilst leaving the choice of form and methods to the national authorities and finally, decisions which are binding in their entirety upon those to whom they are addressed. It might in fact be deduced from these definitions that direct legislation by the Community institutions is only possible in the form of regulations because in respect of them alone is it provided that they apply directly in the Member States. In all other cases, on the other hand, it is only a measure of integration into the national law or a national implementing measure which creates directly applicable law in accordance with the directives and decisions. However, like the Commission and the second and third plaintiffs, I cannot agree that this sharp distinction with regard to direct applicability is absolutely conclusive. If the Treaty makes a distinction between one-tier legislation by the Community institutions and two-tier legislation involving the interposition of national authorities, then in my opinion in the latter case (which, as is well known, is the only one for which provision is made in a number of articles of the Treaty) what is chiefly envisaged is action for which a measure of integration into the national law or a national implementing measure is indispensable for the creation of applicable law, that is, for example, obligations requiring action to be taken which leave a measure of discretion to the States. Often, perhaps usually, this is the case with decisions and directives. However in addition there are undoubtedly also decisions or parts of decisions which do not require such an integrating measure (one need only mention the'so-called ‘standstill’ or ‘forbearance’ provisions). At least in such cases, and possibly (which may be left open) also in the case of obligations requiring action to be taken which leave no margin of discretion to the States, it seems in fact justifiable to assume that despite the imposition of obligations exclusively on the Member States there are side effects in favour of the citizens of the Market which, just like the corresponding provisions of the Treaty, must be directly guaranteed by the national courts in the case of clear, unambiguous and unconditional directions. With the second and third plaintiffs one may in fact say that in such cases one is faced, strictly speaking, with measures analogous to legislation. It is above all recognition of this fact, that is, of the real legislative nature of these measures, which therefore makes it possible to equate them in their legal effect — so far as direct applicability is concerned — with the Community regulations. The fundamental differentiation of the various measures of secondary Community law as laid down in the Treaty is certainly not thereby obliterated. Nor in my opinion is legal certainty jeopardized. At least it could be said that this danger is offset by the strengthening of the legal protection of individuals, that is, through an effect which, as I have already mentioned, was of particular importance to the Court in establishing the criteria to be employed for directly applicable provisions of the Treaty. Finally, no importance should be attached to the objection that the publication of decisions is not prescribed by the Treaty but is, on the contrary, expressly ordered from case to case by the issuing institution. It is contended that where there is no publication but the direct applicability of decisions is nevertheless accepted, the equality of legal protection is not ensured, for it depends on when the individual concerned happens to acquire knowledge of the issue of the decision. As against this, it is rightly pointed out that, when it is not expressly provided for, publication is not a pre-condition of legal validity and that it has above all a protective function, that is, that when it is omitted the measure in question cannot be employed against an individual affected. But the situation is precisely the opposite where an individual relies on such a measure in defence of his rights, that is to say, seeks to derive benefits from it. Moreover, apart from the fact that where there is no publication all those affected are, as far as the opportunity of acquiring knowledge is concerned, in principle in the same situation, it must also be observed that particularly measures like those at now under consideration are in view of their importance usually published and that this circumstance may actually justify the confidence of the citizens of the Common Market in direct applicability. The fact that the publication of decisions which are addressed to Member States is not expressly prescribed should not therefore lead to the conclusion that such decisions are never directly applicable. On the whole I would therefore finally support the view held by the Commission and the plaintiffs in the main actions that there are no compelling arguments in principle against the direct applicability of provisions of a decision addressed to a Member State if they are by virtue of their substantial content capable of creating rights for individuals.