5.

Lastly we must determine whether Directive No 77/728 of 7 November 1977, Article 12 of which, as I have already said, provides that Member States must introduce the necessary laws, regulations and administrative provisions by November 1979 at the latest, has direct effect before that date, from the date of its notification in fact, since Article 9 thereof provides that: ‘Member States shall not prohibit, restrict or impede, on the grounds of classification, packaging or labelling as defined in this directive, the placing on the market of dangerous preparations which satisfy the requirements of this directive and the annexes thereto.’ That is correct in the view of the accused in the main action because the said article merely imposes on the Member States an obligation to refrain from action, which leaves absolutely no margin of discretion and requires no legislative measures. He relies in this context — as may be gathered from the way in which the question is formulated — inter alia on the protection of the legitimate expectation of undertakings which have complied with the directive before expiry of the aforesaid period. Apart from that, he considers any other interpretation intolerable because, with regard to imports from Member States which have already implemented the directive, it would constitute an obstacle to the free movement of goods. The problems raised can be approached by establishing in the first place that Directive No 77/728 contains provisions which correspond to those of Directive No 73/173 and therefore, because they are clear and complete and leave the Member States no margin of discretion, judging from the manner in which their contents are set out, satisfy the requirements for direct effect. The provisions in question are Articles 3, 5, 6, 7 and 9. However, it is important to remember a point which I emphasized at the beginning of my opinion, namely that, as far as directives are concerned, direct effect is hardly an automatic consequence, but merely a reflex effect: it occurs when a Member State does not comply with its obligations and consists in the fact that the State is deprived of the possibility of relying as against individuals and undertakings on its failure to comply with Community law. Accordingly the fact that a directive becomes binding on its notification is not sufficient to produce that legal consequence, rather is it the expiry of the period laid down in the directive for the adaptation of national law which is material. But since that has not occurred in the present case and since therefore the Italian State cannot be accused of a failure to fulfil its obligations which would also justify the institution of proceedings under Article 169 of the EEC Treaty, it is not possible at present to ascribe direct effect to the said provisions. Having first established that, we must ask ourselves — and this constitutes the real problem of the fifth question — whether a different solution may apply as regards the obligation contained in the aforesaid Article 9. Such a line is argued strongly by the accused in the main action. In particular he submits that a rational interpretation of Article 12 of the directive would hold that the period laid down therein applies only to Member States' obligations to take action, hence only when it appears necessary to amend internal law and account must be taken of the fact that the undertakings affected thereby need time to adjust to the new legal provisions. That, says the defendant, surely cannot be relevant as regards the obligation to refrain from action contained in Article 9. However, I am no more persuaded of the correctness of that point of view than were the Council and the Commission. In fact Article 12 cannot be interpreted so narrowly as the accused in the main action submits; it concerns not only provisions which affect the conduct of undertakings and other legal persons and which clearly require a period of adjustment. Article 12 embraces the entire conduct required of Member States by the directive and so must doubtless be taken to apply to Article 9 also. Here too one may properly speak of an obligation on Member States to take action because it is necessary for them to amend their law — in the present case the provisions of the Law of 15 March 1963, in particular its criminal provisions — not least in the interest of legal certainty and clarity. Moreover, considerations of principle — direct effect is not the rule in the case of directives — raise doubts about the attempt to isolate particular provisions of a directive in order to ascribe direct effect to them earlier than would otherwise be the case. In any event my conviction is that Article 9 of Directive No 77/728 does not permit that. In this respect I would recall something which I have pointed out with regard to Article 8, the corresponding provision of Directive No 73/173. In the same way Article 9 of Directive No 77/728 likewise has no independent value. It is, so to speak, nothing more than a reflection of the other provisions of the directive which impose obligations to take action. The stipulations which it contains seem obvious in view of the tenor and purpose of the directive; however, that legal consequence can be achieved only on attainment of the objective of harmonization, as is made explicit in certain provisions of the directive. Therefore direct effect cannot properly be ascribed to Article 9 in isolation, but only in conjunction with the other provisions of the directive which contain obligations to take action. But if direct effect is excluded in the case of those provisions because the period prescribed in Article 12 has not yet expired, the same must apply as regards Article 9. The foregoing applies to domestic marketing in the same way as to imports from other Member States. As regards the first point it is certainly not possible to plead the protection of the legitimate expectation of individuals who prematurely adapted their conduct in accordance with the provisions of the directive. To hold otherwise would be to mistake the legal nature of directives: they create obligations, not for individuals, but only for Member States, and, as has already been shown, individuals may acquire rights under directives only when Member States have failed to comply with their obligations. Admittedly as regards imports from other member countries it seems natural to hold that internal measures contrary to Article 30 of the Treaty can no longer be justified under Article 36 of the Treaty when a Community standard has already been laid down by means of a directive and that standard is already being observed in other member countries. But that would be to misunderstand the basic purpose of the directive, which is to bring about through harmonization the removal of obstacles to the free movement of goods, meaning that the obstacles to the free movement of goods are to disappear only with the unification of the law. So, where a directive prescribes a period for that harmonization, it follows that internal provisions may be retained during that time and they may be justified under Article 36 of the Treaty, since Member States remain competent to act thereunder in the meantime. Moreover, an examination of the case-law confirms that this view is correct. Thus, for example, it was emphasized in the judgment in Case 9/70 Franz Grad v Finanzamt Traunstein, [1970]2 ECR 825, that Member States retain their freedom of action until the time set for the harmonization is reached, and in Case 35/76 Simmenthal S.p.A. v Italian Minister for Finance, [1976]2 ECR 1871, it was held that national public health inspections only cease to be justified under Article 36 of the Treaty as from the latest date specified in a directive for the entry into force of the appropriate national provisions. In this respect, however, considerations of legal certainty are relevant, for that principle requires that internal provisions cease to be applied only when they have been replaced by provisions conforming to the directive or the period prescribed in the directive has expired. Besides, it should not be overlooked that to hold otherwise and to accept the argument put forward by the accused in the main action would lead to discrimination in favour of imports from other Member States, because of course only they could rely on Articles 30 and 36 of the EEC Treaty, whereas domestic marketing operated in accordance with the directive, could still be prohibited.