4.

As far as general principles are concerned, reference has frequently been made, whenever the problem in question has been considered, to the theory of the acte clair, the concise meaning of which is that if a provision is unequivocal there is no need to interpret it. That theory has emerged within the French legal system, which entrusts the interpretation of international treaties exclusively to the executive (in particular, to the Ministry for Foreign Affairs) and merely allows the courts to apply them. In that context, in order to restrict the rôle of the executive and its interference with judicial activity, the courts developed the aforementioned theory, thus retaining the power to determine whether or not genuine difficulties of interpretation exist and thereby recovering a broad margin of discretion. Subsequently, the French Conseil d'Etat — and to a much lesser extent the Cour de Cassation — took the view that they could use that theory to curtail the scope of the obligation laid down by the third paragraph of Article 177 of the EEC Treaty. That theory was echoed in the opinion delivered by Mr Advocate General Lagrange in connection with Joined Cases 28 to 30/62 (Da Costa and Schaake v Nederlandse Belastingadministratie [1963] ECR 40, at p. 45). There it was stated inter alia that “if the provision is perfectly clear, there is no longer any need for interpretation but only for application, which belongs to the jurisdiction of the national court whose very task it is to apply the law”. However, it would be wrong to lift those remarks out of their context and use them as an argument in support of the view that a national court is empowered to determine whether a preliminary question raised by the parties is justified. In fact it is clear from the context of that opinion that the sole purpose which my illustrious predecessor had in mind was to demonstrate that a fresh interpretation by the Court of Justice was superfluous if the same question had already been resolved by the Court in a previous decision. Moreover, that approach, that is to say recognition of the “authority of the interpretation” provided by the Court, was upheld by the judgment in the Da Costa and Schaake case ([1963] ECR 31), which I shall refer to again in due course. In my opinion, the theory of the acte clair is of no assistance for the solution of the problem under consideration. If its origin and function are considered, it is easy to see that it was intended to rectify a situation obtaining in a specific Member State which cannot be compared with the situation under discussion. The distinction, with regard to provisions of international treaties, between the application of such provisions, which is a matter for the courts and the interpretation thereof, which is the prerogative of the Ministry for Foreign Affairs, is made in France but not in other Member States. Moreover, the claim for wider powers for the judiciary in relation to certain prerogatives of the executive is quite distinct from the division between the tasks of interpretation entrusted to the national courts of last instance, on the one hand, and those entrusted to the Court of Justice of the European Communities, on the other. Secondly, the basic concept of the acte clair theory does not seem to stand up to closer scrutiny. Before a provision can be applied to a specific case, it is always necessary, from a logical and practical point of view, to determine its meaning and scope, failing which it is impossible to establish whether it is applicable to the case in question or to infer from its terms all the implications for that case. It may tentatively be stated that when a provision is applied its interpretation and application are interwoven and merge, but it is inconceivable for a provision to be applied without there being any need to interpret it, unless the meaning of the word “interpretation” is distorted in such a way as to suggest that some difficulty is necessarily involved. In the final analysis, the oft-repeated latin maxim “in claris not fit interpretatio” should be abandoned, since it is through the interpretation of a provision that it is possible to ascertain whether its meaning is clear or obscure. Those considerations carry even more weight in a system whose provisions all exhibit the technical difficulty of being drafted in several languages and the inherent difficulty that they affect a state of affairs which is already governed by ten national legal systems. Finally, the evidence of the facts should not be ignored. The facts show that the acte clair theory, implemented in connection with Article 177, has been applied in a manner which I would not hesitate to describe as anomalous. The French Conseil d'Etat, the principal body to have applied that theory, ventured to affirm as early as 1967 that the concept of measures having an effect equivalent to quantitative restrictions on imports, within the meaning of Article 30 of the EEC Treaty — one of the most vexed questions arising in the Treaty, as is borne out by the decisions of the Court of Justice — did not require any interpretation (judgment of 27. 1. 1967, Syndicat National des Importateurs Français en produits Laitiers, Recueil Lebon, 1967, p. 41). Later, the Conseil d'État did not hesitate to interpret the following provisions: Articles 7 and 37 of the EEC Treaty (judgment of 27. 7. 1979, Syndicat National des Fabricants de Spiritueux Consommés à l'Eau, Recueil Lebon, 1979, p. 335); Article 113 of the EEC Treaty and Council Decision No 72/455 (judgment of 12. 10. 1979, Syndicat des Importateurs de Vêtements et Produits Artisanaux, Recueil Lebon, 1979, p. 373); Regulation No 950/68 of the Council Regulations Nos 3321/75 and 1541/76 of the Commission (judgment of 2. 10. 1981, Groupement d'Intérêt Économique Vipal, Recueil Dalloz-Sirey, 1982, Jurisprudence, p. 209); and Articles 34 and 37 of the Euratom Treaty (judgment of 23. 12. 1981, Commune de Thionville, Recueil Lebon, 1981, p. 484). Mention should also be made, in particular, of the judgment of 22 December 1978 in the Cohn-Bendit case (Recueil Lebon, 1978, p. 524), in which the Conseil d'État, interpreting Article 189 of the EEC Treaty, ruled out any possibility that directives might have direct effect (the case concerned the question whether a private individual might rely on a directive relating to freedom of movement for persons) in sharp contrast to the well-established case-law of the Court. That shows, in my opinion, that the acte clair theory has far-reaching consequences: its effect is, in substance, to deprive the third paragraph of Article 177 of any meaning. Accordingly, there is no possibility of giving a correct answer on the basis of that unfounded and ambiguous theory to the question submitted by the Corte Suprema di Cassazione.