OPINION OF MR ADVOCATE-GENERAL WARNER

DELIVERED ON 25 JANUARY 1977

My Lords,

This case comes to the Court by way of a reference for a preliminary ruling by the Cour de Cassation of France. It raises a question of interpretation of Article 52 of Council Regulation No 3. The French text of that Article (there is, as Your Lordships know, no authentic English text of Regulation No 3) reads as follows:

‘Si une personne qui bénéficie de prestations en vertu de la législation d'un État membre pour un dommage survenu sur le territoire d'un autre État a, sur le territoire de ce deuxième État, le droit de réclamer à un tiers la réparation de ce dommage, les droits éventuels de l'institution débitrice à l'encontre du tiers sont réglés comme suit:

(a) Lorsque l'institution débitrice est subrogée, en vertu de la législation qui lui est applicable, dans les droits que le bénéficiaire détient à l'égard du tiers, chaque État membre reconnaît une telle subrogation;

(b) lorsque l'institution débitrice a un droit direct contre le tiers chaque État membre reconnaît ce droit.

L'application de ces dispositions fera l'objet d'accords bilatéraux.’

That last sentence can for present purposes be ignored. There is no bilateral agreement affecting the present case. It is, however, well established that Article 52 has direct effect even in the absence of any such agreement — see Case 31/64 ‘De Sociale Voorzorg’ Mutual Insurance Fund v Bertholet [1965] 1 ECR 81 and Case 33/64 Betriebskrankenkasse der Heseper Torfwerk GmbH v Koster, ibid., p. 97.

Another general point that has been made by this Court about Article 52 is that the rights conferred on national social security institutions by that Article constituted a logical and fair counterpart to the extension of the obligations of those institutions throughout the entire Community as a result of the provisions of Regulation No 3 — see the Judgment in the Bertholet case [1965] ECR at p. 86, that in the Koster case, ibid, at p. 103, and that in Case 44/65 Hessische Knappschaft v Maison Singer et Fils [1965] 2 ECR 965, at p. 972.

The present case arises from an accident which occurred at Mulhouse on 19 August 1968, in which the late Mr Töpfer was knocked off his bicycle by a ‘vélomoteur’ ridden by a Mr Weber. Mr Töpfer suffered a fractured skull, from which he died on 11 September 1968.

There is no dispute as to liability: by a Judgment of the Tribunal de Grande Instance of Mulhouse dated 25 June 1971 (against which there was no appeal) Mr Weber was declared wholly responsible for the accident.

Mr Töpfer was a German, married to a Frenchwoman. At the time of the accident he was living and working in Mulhouse, where he was insured for social security purposes. He had however previously worked for most of his life in the Federal Republic of Germany, where he was insured for social security purposes with the Landesversicherungsanstalt Rheinland-Pfalz (the ‘LVA’) to which, it seems, he continued to make voluntary contributions after leaving Germany.

Mr Töpfer was born on 21 March 1906, so that he was 62 when he died, and would have attained the age of 65 on 21 March 1971.

Following his death, his widow (whom I will call ‘Mme. Töpfer’) received benefits from the French social security institutions as well as from the LVA. These were a death grant of FF 2·889·33 from the Caisse Primaire d'Assurance Maladie of Mulhouse; a pension of FF 44·80 per month from the Caisse Régionale d'Assurance Vieillesse of Strasbourg, calculated under Article 351 of the French Code de la Sécurité Sociale at the rate of 50 % of the old-age pension to which Mr Töpfer himself would have become entitled in respect of his period of work in France had he survived to the age of 65; and a pension from the LVA of an amount equivalent to FF 349·65 per month calculated, in accordance with German law, at the rate of 60 % of the old-age pension to which he would have become entitled at that age.

Before Mr Töpfer's death, Mme. Töpfer, who was suffering from a long illness, had been in receipt of sickness benefit amounting to about FF 516 per month. Her right to such benefit ceased however on 17 June 1969, when she was declared ‘invalide du travail’. This prima facie entitled her, as from that date, to an invalidity pension but, under the relevant legislation, she could not draw both an invalidity pension and widow's pensions. The aggregate of her French and German widow's pensions being greater than the amount of her invalidity pension, she was not permitted to draw the On 21 May 1970 Mme. Töpfer brought an action for damages before the Tribunal de Grande Instance of Mulhouse against Mr Weber and his insurance company, ‘Le Phenix’ IARD, SA (whom I will hereafter together call ‘the defendants’).

In order to understand the problem with which the Cour de Cassation is now confronted, it is, I think, necessary to examine in some detail, how Mme. Töpfer's claim in that action was formulated and how it was dealt with by the Tribunal de Grande Instance and later by the Cour d'Appel of Colmar.

In her ‘Acte introductif d'instance’ Mme. Töpfer claimed damages under four heads.

The first was ‘prejudice moral’ in respect of which she claimed the round sum of FF 30000, having regard in particular to the fact that as a consequence of her husband's death she suffered a nervous breakdown.

The second head was ‘préjudice matériel’, in respect of which she claimed FF 30507·43.

In calculating that sum she applied a convention which, it appears, is accepted by the French Courts, and according to which, in the case of a married couple living together; each spouse is deemed to keep one-third of his or her income and to contribute the other two-thirds to the household expenses. Applying this convention, Mme. Töpfer calculated that of her husband's net monthly earnings, which she put at FF 860, he kept for his own needs one-third, i.e. FF 286·60 and contributed the rest, i.e. FF 573·40 to the household. She for her part kept one-third of her sickness benefit of FF 516, i.e. FF 172, and contributed the rest, i.e. FF 344, to the household. The household resources thus amounted to FF 573·40 plus FF 344, i.e. FF 917·40 per month. From this she calculated that her own resources before her husband's death could be taken to have amounted to FF 172 plus half the household resources of FF 917·40, i.e. FF 458·70, making FF 630·70 per month.

Her resources after her husband's death consisted of her French and German widow's pensions amounting in the aggregate to FF 394·45 per month.

Her financial loss as a result of her husband's death was therefore FF 630·70 less FF 394·45, i.e. FF 236·25 per month, or FF 2835 a year. To this figure she applied an actuarial multiplier called ‘le prix du franc de rente’, which for a man of 62 was 10·761, and so she reached the figure of FF 30507·43.

Counsel for the LVA and Counsel for the Commission both told us at the hearing that in thus computing her ‘prejudice matériel’ Mme. Töpfer in their opinion fell into error. In their opinion, she should not have taken into account her widow's pensions as diminishing her loss and, if she had not done so, the problem that arises in this case would not have arisen, or at all events would not have arisen in so acute a form. Their opinion was based, as I understood it, on the view that, in French law, the total amount of the damages recoverable from the defendants ‘en droit commun’ took no account of any social security benefits to which Mme. Töpfer might be entitled, but that, that total amount having been determined, it was apportionable between Mme. Töpfer and the social security institutions.

That, my Lords, being a matter of French law, this Court is not called upon to express a view on it and I refrain from doing so. I observe however that in Doublet, ‘Sécurité Sociale’, 5th Ed., 1972, at p. 258, there is this passage:

‘La victime n'a droit à recevoir du tiers que la différence entre ce qu'elle a reçu de la Sécurité sociale et la réparation à laquelle les tribunaux judiciaires éventuellement les tribunaux administratifs ont condamné le tiers responsable (CE, 23 nov. 1966, CPSS des Bouches-du-Rhône; T GI Verdun, 7 mars 1969, D. 69; S. 123). Quant à l' organisme de Sécurité sociale, il a le droit de réclamer au tiers le remboursement des prestations indemnitaires qu'il a versées à la victime ou à ses ayants droit (CE, CPSSRP, 17 nov. 1965; CE, 20 mai 1966, Bérenger). Mais l'étendue des droits de cet organisme soulève des questions délicates qui ont donné lieu à un abondant contentieux (les responsables et les victimes d'accidents étant généralement assurés, les compagnies d'assurances ont cherché évidemment à faire restreindre l'étendue des remboursements auxquels prétendait la Sécurité sociale).’

So it may be that Mme. Töpfer was right in formulating her claim as she did, leaving it to the social security institutions concerned themselves to formulate their own claims, as they might be advised, against the defendants.

Mme. Töpfer's third and fourth heads of claim can be summarized by saying that they were for divers items of funeral expenses, amounting in the aggregate to FF 4479·12. From that sum she deducted the FF 2889·33 she had received from the Caisse Primaire d'Assurance Maladie by way of death grant, actually claiming only the balance.

In the action thus initiated by Mme. Töpfer the LVA intervened claiming that, by the combined effect of paragraph 1542 (1) of the Reichsversicherungsordnung (the ‘RVO’) and Article 52 of Regulation No 3, it was entitled to be reimbursed by the defendants the widow's pension that it was paying to Mme. Töpfer. Its total claim amounted to DM 34386·40, of which DM 6331 represented the sums it had actually paid to Mme. Töpfer up to 30 September 1970 and the balance of DM 28055·40 represented the capitalized value of her pension at that date.

Paragraph 1542 (1) of the RVO provides, so far as material, that in so far as persons insured under that legislation or their dependants are entitled to claim, under any other legislative provisions, reparation for any damage suffered by them as a result of the sickness, injury, invalidity or death of the family breadwinner, that right ‘goes over’ (‘geht über’) to the social security institutions to the extent to which they are required to pay to the persons so entitled benefits under the RVO.

Your Lordships will remember that, at the hearing, the question was discussed whether that provision confers upon the social security institution concerned a right of subrogation coming within paragraph (a) of Article 52 or a direct right against the tortfeasor coming within paragraph (b). Counsel for the LVA, Counsel for the defendants, and Counsel for the Commission all thought that it created a right of subrogation, not a direct right, and it seems from his written observations that that is the view also of Counsel for Mme. Töpfer. More important, I think, is the fact that the question referred to this Court by the Cour de Cassation is framed on the footing that the right is one of subrogation. So I think that, for the purposes of this case at least, we must accept that view.

The Tribunal de Grande Instance of Mulhouse delivered its final judgment on 3 March 1972. It awarded Mme. Töpfer damages of FF 20000 for her ‘préjudice moral’; it accepted, or so it seems, her computation of her ‘prejudice materiel’, merely rounding down the amount she claimed under that head to FF 30000; and it accepted her calculation of the funeral expenses she was entitled to recover. In the result, after taking into account a sum of FF 10000 that she had received earlier under an interim award of damages, the Tribunal gave judgment in her favour against the defendants for a total of FF 41589·79. The Tribunal wholly rejected the claim of the LVA. It did so on the ground that widow's pensions were in the nature of old-age pensions and not in the nature of compensation (‘de caractère indemnitaire’) so that the social security institutions paying them could not claim reimbursement of them from the tortfeasor. Nor could they be deducted from the damages due to the victim or his dependants. The ground given in the judgment for the latter proposition is somewhat puzzling. One would have expected it to be that those pensions had already been taken into account in computing the damages. But the ground actually given was that to hold otherwise would be to allow the social security institutions to take away from the victim or his dependants that which had been paid for by contributions during his working life and which would have had to be paid at a higher rate if he had lived.

At all events, against that Judgment the LVA appealed to the Cour d'Appel of Colmar. Before that Court it contended that, by virtue of Article 52 of Regulation No 3, the nature and scope of its right of subrogation were governed by German law; that under German law a person causing an accident was bound to compensate the victim or his dependants without regard to their rights to social security benefits, but that they were not entitled to double compensation, so that the social security institution concerned was, in a case like the present, subrogated to the widow to the extent of her pension, since this was compensation for the loss of her right to be maintained by her husband; and that it was irrelevant whether the social security institution had itself suffered a loss as a result of the accident or indeed had profited from it in that, instead of having to pay the victim a full old-age pension, it need only pay his widow a reduced pension.

Before the Cour d'Appel the LVA reformulated its claim, which again was directed only against the defendants. It now claimed from them a sum of DM 15339·10 representing the aggregate of the payments of pension it had made to Mme. Töpfer up to 1 July 1973 and an order that it should be reimbursed by the defendants future instalments of the pension as and when they became due.

On behalf of Mme. Töpfer it was submitted that the sum of FF 41589-79 awarded to her by the Tribunal de Grande Instance did not represent the full damages to which she was entitled ‘en droit commun’. It represented only her residual loss after account had been taken of the pension that she received from the LVA. It could not therefore be subject to the LVA's right of subrogation. An alternative computation was put in on her behalf showing that her full damages ‘en droit commun’ would have amounted to FF 77248-22. Reference was also made on her behalf to a new French statute, No 73 — 1200 of 27 December 1973, which introduced a new Article L 397 into the Code de la Sécurité Sociale, providing, so far as material, that, in the case of an accident to an insured person followed by his death, so much of any damages awarded to his dependants as was attributable to their ‘prejudice moral’ should remain theirs, no social security institution being entitled to any recourse to it. The LVA objected that this piece of French legislation was here irrelevant, the scope of its right of subrogation being governed by German law. I should, I think, add, for the sake of completeness, that that new French statute appears also to have introduced a new Article L 398 into the Code de la Sécurité Sociale, affording the same immunity from recourse by social security institutions to ‘déboursés’, which I understand to include, among others, such items as the funeral expenses in respect of which Mme. Töpfer recovered judgment against the defendants.

Before the Cour d'Appel the defendants contended that the judgment of the Tribunal de Grande Instance made the total amount of their liability res judicata and that the LVA had no locus standi to challenge it on appeal. The Cour d'Appel made short shrift of that contention. For the rest the defendants seem to have concentrated their argument on supporting the reasoning of the Tribunal de Grande Instance and on contesting the LVA's interpretation of German law.

The Cour d'Appel delivered its final Judgment on 21 June 1974.

In that Judgment, after reciting the arguments of the parties, the Cour d'Appel began by recording that it was common ground between them that Article 52 of Regulation No 3, as had been held by this Court in the Hessische Knappschaft case (already cited), in no way modified the conditions governing the creation, or the limits, of extra-contractual liability. These remained subject solely to national law — meaning thereby, in the circumstances of the present case, the law of France, where the tort had occurred. The effect of Article 52 was limited to substituting the social security institution concerned for the beneficiary in any claim that the latter might have against the tortfeasor, in other words, to substituting a new claiment for the old. In this the parties and the Cour d'Appel were, in my opinion, unquestionably right. They could have referred also to Case 78/72 L' Etoile-Syndicat Général v De Waal [1973] 1 ECR 499 where this Court held the same to be true where paragraph (b) of Article 52 applied. The result of the decisions of the Court in the Hessische Knappschaft and L'Étoile-Syndicat Général cases is that the amount of the damages recoverable under the law of the country where the wrong occurred — the lex loci deliciti — is, under either paragraph of Article 52, the ceiling of the possible claims against the wrongdoer, whether of his victim or of that victim's dependants, or of any social security institution concerned. Indeed, that that must be so seems to me clear from the wording of Article 52 itself.

The Cour d'Appel went on to hold that the LVA could be subrogated to Mme. Töpfer's rights only to the extent to which it had paid her a pension between 11 September 1968, the date of her husband's death, and 21 March 1971, the date when he would have attained the age of 65, its reason for so holding being that, when he had attained the age of 65, he would have been entitled, under German law, to an old-age pension. Thus, as from that date, the liability of the LVA was, in the view of the Cour d'Appel, no longer a consequence of the accident. Only the benefits payable to Mme. Töpfer before that date had ‘un caractère indemnitaire’. These amounted to DM 7765 09, or about FF 13646.

On that footing the Cour d'Appel decided that the damages awarded to Mme. Töpfer in respect of her ‘prejudice materiel’ should be increased from FF 30000 to 40000.

In the result the Cour d'Appel reduced the total amount of the damages payable by the defendants to Mme. Töpfer herself by FF 3646, i.e. from 41589-79 to 37943-79, and ordered the defendants to pay to the LVA the equivalent in French francs at the date of payment of DM 7765-09.

Such is the judgment against which the LVA now appeals to the Cour de Cassation. Essentially the appeal is grounded on the propositions that Article 52 of Regulation No 3 entitles the LVA to exercise the right of subrogation conferred on it by German law and that, under that law, it is entitled to full reimbursement of the pension it pays to Mme. Töpfer.

By its order for reference the Cour de Cassation invites this Court to rule on the interpretation of Article 52 and in particular to say 'whether the action by way of subrogation which may be available, under the terms of that Article, to a social security institution in a Member State following an accident in the territory of another Member State involving a person insured with such institution, is governed, as regards its extent and the apportionment between the institution and the insured person or his dependants of the compensation payable by the person responsible for the accident, by the legislation of the State in which the said institution is established'.

Your Lordships will remember that paragraph (a) of Article 52 opens with the words: ‘Lorsque l'institution débitrice est subrogée, en vertu de la législation qui lui est applicable, dans les droits, etc…’ It is thus clear that it is to the legislation to which the institution is itself subject that one must look to see whether it is entitled to a right of subrogation of the kind with which Article 52 is concerned. Indeed this Court decided as much in case 27/69 ‘Entr'aide médicale’ v Assurances Générales [1969] ECR 405, where it held that the object of Article 52 was to secure the recognition by each Member State of any right of action created ( 1 ) by any of the others in favour of an institution liable for payment of benefit. It must follow, in my opinion, that it is to the same legislation that one must look to define the scope of the right. It is difficult to conceive a situation in which the existence of a right is to be determined by reference to one system of law but its content by reference to another.

I am comforted to find that Mr Advocate-General Gand took the same view. In the Hessische Knappschaft case he said — I quote from the original (Rec. 1965 (2) at p. 1209): ‘… et quelle est la portée de l'article 52? Il ne modifie pas les législations nationales antérieures; il en coordonne l'application. Il pose une règle en vertu de laquelle les États membres sont tenus de reconnaître, en plus des subrogations résultant de leur propre législation, celles qui sont fondées sur les législations des autres États membres, et dans la seule mesure où ces dernières les prévoient’. And in the Entr'aide medicale case he said (Rec. 1969 at pp. 416 — 417): ‘En premier lieu, la juridiction saisie de l'action en indemnité de la victime contre le tiers, doit, en vertu de l'article 52, reconnaître la subrogation égale ou le droit direct de l'institution débitrice, lorsque cette subrogation ou ce droit direct existe en vertu de la législation applicable à l' institution. Seule cette législation peut donc fixer ce qu'il faut entendre par ces deux notions, et c'est à elle que le juge doit se référer pour en apprécier la portée et le contenu exacts …’

To take the opposite view would entail accepting that Article 52 could not apply where the legislation of the Member State where the tort was committed conferred no right of subrogation or other recourse on that State's own social security institutions. That happens to be the position in the United Kingdom. It is true of course that Article 52 never applied to the United Kingdom, but its successor, Article 93 of Regulation No 1408/71, does. Suppose that the accident here in question, instead of having occurred in France in 1968, had occurred in England in 1973, the result of holding that the scope of the rights conferred on the LVA by paragraph 1542 (1) of the RVO was to be ascertained by reference to English law would be to render them non-existent.

I am therefore of the opinion that the provisions of French law which define the scope of the French social security institutions' rights of recourse, such as Articles L 397 and L 398 of the Code de la Sécurité Sociale, and the rule that those institutions can only recover in respect of benefits ‘de caractère indemnitaire’, are here inapplicable, at all events for the purpose of defining the scope of the LVA's right as such.

But that is not, in my opinion, the end of the case. It is an essential feature of subrogation that it can only be invoked where the liability of the person who claims to be subrogated is in respect of the same loss as that in respect of which the person to whom he claims to be subrogated has a right of action. Thus an insurer cannot claim to be subrogated to his insured in a right of action for a loss other than that covered by the policy — even though the two losses may flow from the same event. That principle is reflected in the opening words of Article 52: ‘Si une personne qui bénéficie de prestations en vertu de la législation d'un État membre pour un dommage survenu sur le territoire d'un autre État a, sur le territoire de ce deuxième État, le droit de réclamer à un tiers la réparation de ce dommage …’ in respect of which the beneficiary draws a social security benefit in the first Member State has to be the same as that in respect of which he has a right of action against the ‘tiers’ in the second.

The arguments of the LVA before this Court seemed to me to be based on the view that the relevant ‘dommage’ here was the death of Mr Töpfer. In my opinion that view is erroneous or, at all events, oversimplified. The death of Mr Töpfer, though obviously a ‘loss’ to Mme. Töpfer in colloquial sense, was, in the correct legal analysis, merely the event that caused her loss (or damage) under various heads. One can express these heads in human terms: his death caused her sorrow, to such an extent that she suffered a nervous breakdown; it caused her the loss of his financial support; and it caused her expense for his funeral. Or one can express those heads in legal terms. It seems that in French law they are called ‘prejudice moral’, ‘prejudice materiel’, and ‘frais et débours’ or déboursés In other systems of law they may be described differently, classified differently, and even compensated for differently.

The crux is that, whilst it is, under Article 52, at all events in my opinion, and for the reasons I have explained, for the legislation of the Member State to which the social security institution concerned belongs to define the nature and scope of its right of subrogation (if any), it is, under the same Article, for the law of the Member State where the wrong was committed to prescribe what damages are recoverable from the wrongdoer. This includes prescribing what heads damages may be recovered under, and the measure of damages under each head. It is only if and to the extent that, under that law, a sum is recoverable for the same detriment — call it ‘loss’ or ‘damage’ in English, ‘prejudice’ or ‘dommage’ in French — as the detriment in respect of which the social security benefit is payable that Article 52 applies.

May I illustrate what I mean by reference to the facts of the present case, even though, in so doing, I may seem to stray dangerously near to the field of the application of Community law (as I conceive it to be) to those facts — such application being of course a matter for the French Courts?

As I have already mentioned, it seems that, before the Cour d'Appel of Colmar, it was said on behalf of the LVA itself that, in the eyes of German law, a widow's pension was compensation for her loss of her husband's obligation to maintain her. This is readily credible. Let me assume that it is right, though it will of course be, on my view, for the French Courts to determine definitively whether it is.

Let me also assume that the heads of damage recoverable by Mme. Töpfer from the defendants under French law are as they appear to be from the judgments of the Tribunal de Grande Instance of Mulhouse and of the Cour d'Appel of Colmar.

On those assumptions it seems clear that the detriment for which Mme. Töpfer draws her pension from the LVA is not the same either as the detriment for which she was awarded damages by the French Courts in respect of ‘prejudice moral’ or as the detriment for which she was awarded damages by those Courts in respect of funeral expenses. So, on those assumptions, the LVA can have no recourse to the sums to which she is entitled under either of those heads of damages.

There remains her ‘prejudice materiel’. As to this I think that the answer must depend, again, on the view taken by French law.

There seem to be three possibilities.

The first is that, under French law, the defendants are liable only to Mme. Töpfer and, to her, only to the extent to which she is not compensated under social security legislation, whether French or German. In that case the LVA can have no remedy, because, then, the loss to Mme. Töpfer made up to her by the defendants is only her residual loss after account has been taken of her widow's pensions.

The second possibility is that, under French law, the defendants are liable to Mme. Töpfer for the loss of her husband's financial support, without regard to the pensions payable to her by the social security institutions, whether French or German. In that case the LVA must be entitled, under Article 52, to exercise its right of subrogation over the sum that the defendants are liable to pay to her as damages under the head of ‘dommage matériel’.

The third possibility is that French law recognizes, on the part of the defendants, on the one hand a liability to pay to Mme. Töpfer herself so much as is needed to make up for her loss in so far as she is not compensated for it by social security benefits and, on the other hand, a direct liability to any social security institution that may itself be liable to her. This is the most difficult case, because the wording of Article 52, taken literally, does not fit it. It is the case where, in the language of that Article, the law of the Member State to which the social security institution concerned belongs confers on it a right of subrogation, but the law of the Member State where the wrong was committed confers on social security institutions a direct right against the wrongdoer. For my part I think that, in such a case, Article 52 can only be interpreted as meaning that the social security institution in the first Member State is ‘subrogated’ — in a rather special and extended sense — to the rights that any social security institution in the second Member State would have had, so that, in the present case, the LVA would be entitled to exercise against the defendants such remedies, but only such remedies, as a French social security institution in its position could exercise against them. This, I realize, means bringing in through the back door just those provisions of French law which, in my view, could not be allowed in through the front door. But, having regard to the wording and structure of Article 52, I do not see how that can be avoided.

In the result I am of opinion that Your Lordships should answer the question referred to this Court by the Cour de Cassation by declaring that the nature and scope of any right of subrogation that may be available to a social security institution in a Member State under Article 52 of Council Regulation No 3 are to be determined by reference to the law of the Member State to which that institution belongs, but that such a right may be exercised only over so much of the compensation payable, under the law of the Member State where the accident occurred, by the person responsible for the accident, as is attributable to the same loss as that by virtue of which the relevant social security benefit is payable.

( 1 ) The text of the Judgment in the ECR has, at pp. 411 and 413, ‘pursued’ instead of ‘created’. This is a mistranslation of ‘institué’ in the (authentic) French text (authentic because French was the language of the case). Cf. the alternative translation in [1973] 1 ECR at p. 507.