6.

In the third question of the first group the German court asks : “Does a breach of a Community regulation give directly applicable rights to a person whose rights have been adversely affected by provisions laid down by the law or administrative action of a Member State or the implementation thereof which are inconsistent with the provisions of that regulation so that he may bring an action before a national court for the application of measures contravening Community law to be discontinued or for the provisions of Community law to be complied with?” This question, as it is worded, appears to be tautologous. If indeed it is accepted that persons enjoy rights under a Community regulation and such rights are adversely affected by the law or administrative action of a Member State which is contrary to the regulation, there is no doubt that such persons are entitled to protect their rights by taking action to enforce the regulation in the national courts (the regulation must take precedence over conflicting national provisions). Nevertheless, it is necessary to have regard to the facts of the case brought before the Finanzgericht Hamburg and to clarify the meaning of the question in the light of those facts. In substance, then, the point to be settled is whether, when a Member State has granted exemptions from customs duties which according to Community law it was not entitled to grant and has thereby infringed the regulation on the Common Customs Tariff, traders who suffer loss through the effects of such exemptions may apply to the national courts for an injunction restraining the customs authorities from applying the internal provisions concerning exemptions or, in the alternative, requiring them to comply with the provisions of the Common Customs Tariff. In its observations the Commission referred to the judgment of 22 January 1976 in Case 60/75 Russo ν ΑΙΜΑ ([1976] ECR 45) in support of the proposition that a Community provision may be relied upon by individuals only when the purpose of that provision is to protect their interests. However, the judgment in question concerned a case in which a producer of cereals instituted proceedings before the national courts on the ground that there had been a breach of Community law by the Azienda di Stato per gli Interventi sul Mercato Agricolo [the Italian intervention agency] in order to justify a claim for damages aginst that body. In its decision the Court held that the Community provisions conferred a right upon individual producers and ruled that, if damage is caused by an infringement of Community law on the part of the State, “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”. In the present case the plaintiffs are not claiming damages for the loss incurred by them as a result of the exemptions granted to importers of goods sold during the butter-buying cruises, but are merely asking that the normal provisions of the Common Customs Tariff should be applied to such importations; that is to say, they are merely requesting the proper application of Community law. The question which we are now considering concerns, as I have said, the right of traders who have suffered loss through the practical effects of the exemptions to request the courts to order the customs authorities to discontinue such exemptions (or to comply with the Common Customs Tariff). In my view, in order to resolve that problem it is necessary to proceed on the basis of two considerations of a general nature. The first concerns the relationship between a legal rule, a personal right and an interest in the application of the rule. Of course every legal rule provides for a particular type of situation and a legal relationship arises between the persons who in fact come to be in that situation; one of those persons, within the framework of binding legal relations, acquires a personal right. Naturally, that applies also to provisions of Community law created by regulations; thus, as regards the Common Customs Tariff, the right to invoke it arises out of a specific importation or exportation and the person entitled is the person who effects that operation. There is accordingly no doubt that every importer is entitled to the proper application of the tariff by the customs authority, as regards himself and that that right arises out of his act of importation. It is another matter to speak of the rights of importers as a class to demand compliance with the tariff; if the matter is put in these terms it remains at a general and hypothetical level and does not extend to identification of a specific right, that is to say to the creation of a specific legal relationship. It is yet another matter to speak of an interest in the proper application of a provision, for example, the interest of traders in seeing that customs duties are properly applied in relation to imported goods which compete with those produced or distributed by them. In fact every legal provision does of course by its nature reflect collective interests, even beyond the classes of persons to whom it applies; thus persons who have an interest in the enforcement of a particular provision are much more numerous than those who have a right, or who may be able to claim a right, under that provision. The second consideration concerns the procedural aspect of the question. In order to be entitled to institute proceedings before the courts (for example for an injunction requiring another person to fulfil certain obligations) the plaintiff must be personally entitled to the right which the proceedings are specifically intended to uphold. In fact, court proceedings are not employed to provide general and hypothetical confirmation of the content of a rule but to apply it within the framework of a particular relationship. Accordingly, a person who merely has an interest in the enforcement of a rule, or more precisely, a person who does not stand in a specific legal relationship based on the rule, is not entitled to rely upon that rule before the courts. These general considerations must now be applied to the problem raised by the Finanzgericht Hamburg. I observe first of all that the unlawful grant of exemptions from customs duties by a Member State involves, or at any rate appears to involve, a twofold breach of Community law: on the one hand, there is an infringement of the rule which precludes the State from legislating in a field reserved to the Community legislature; on the other hand, there is a failure to apply the Common Customs Tariff. The first infringement fails to observe the division of powers between the Community and the Member States; the right to have that division observed belongs to the Community, and as far as procedure is concerned, to the Commission. The second infringement is merely a consequence of the first; in fact there has been no specific case of the improper application of the tariff to an importer (for example, the application of a customs duty at variance with the Common Customs Tariff), but the scope of the Tariff has been unlawfully restricted by a legislative measure in breach of the duty of ¡the State to apply the customs duties fixed by the Community to imported products. From this point of view also, the right to demand that the Common Customs Tariff be applied in full belongs, in my opinion, to the Community and not to one or other private individual who happens to be a member of a class having an interest in the enforcement of the tariff. In conclusion, the proposition may be advanced that it is sufficient not to confuse, on the one hand, the personal right which arises in the context of a specific relationship on the conditions laid down in the provision in question and, on the other hand, the interest of third parties that the provision should be observed. Only the holder of the right, as opposed to a person who has an interest of the latter class, is entitled to bring legal proceedings in order to ensure that the provision is applied in relation to his particular situation. Any other view would entail allowing a kind of azione popolare [civil action serving as a test case on a matter affecting public interests] on the basis of directly applicable Community provisions; but that would be contrary to the legal traditions common to the Member States and would, moreover, threaten to give rise to serious practical difficulties in the administration of justice (one has only to think of the number of persons who might have some kind of interest in the proper application of certain Community provisions!). The conclusion at which I have arrived does not, however, rule out the possibility that persons having an interest in the enforcement of a regulation may be able to claim rights under the national legal system applicable to them where the action of the administrative authorities at variance with Community law is subject to an appraisal the basis of which includes provisions or principles of national law, provided that under such provisions or principles the persons in question are considered to have rights which may be enforced in the courts. The most obvious example is the right to damages for the loss resulting from an unlawful act of the administrative authorities: the matter dealt with in the above-mentioned judgment in the Russo ν ΑΙΜΑ case. However, there is nothing to preclude the view that, where there are provisions of national legislation at variance with Community law or with personal rights guaranteed by the constitution (where, for example, a national constitution extends protection of the right to equal treatment to persons engaged in economic activity), a private individual may rely upon such rights in order to have the provisions discontinued and thereby ensure, indirectly, that Community law is complied with.