Campus Oil Limited and others v Minister for Industry and Energy and others.
Date: 1984-07-10
10 AS THE COURT HAS HELD IN A NUMBER OF CASES ( SEE IN PARTICULAR THE JUDGMENT OF 10 . 3 . 1981 , JOINED CASES 36 AND 71/80 IRISH CREAMERY MILK SUPPLIERS ASSOCIATION ( 1981 ) ECR 735 ), IT IS FOR THE NATIONAL COURT , IN THE FRAMEWORK OF CLOSE COOPERATION ESTABLISHED BY ARTICLE 177 OF THE TREATY BETWEEN THE NATIONAL COURTS AND THE COURT OF JUSTICE BASED ON THE ASSIGNMENT TO EACH OF DIFFERENT FUNCTIONS , TO DECIDE AT WHAT STAGE IN THE PROCEEDINGS IT IS APPROPRIATE TO REFER A QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING . IT IS ALSO FOR THE NATIONAL COURT TO APPRAISE THE FACTS OF THE CASE AND THE ARGUMENTS OF THE PARTIES , OF WHICH IT ALONE HAS A DIRECT KNOWLEDGE , WITH A VIEW TO DEFINING THE LEGAL CONTEXT IN WHICH THE INTERPRETATION REQUESTED SHOULD BE PLACED . THE DECISION AS TO WHEN TO MAKE A REFERENCE UNDER ARTICLE 177 IN THIS CASE WAS THUS DICTATED BY CONSIDERATIONS OF PROCEDURAL ORGANIZATION AND EFFICIENCY WHICH ARE NOT TO BE WEIGHED BY THE COURT OF JUSTICE , BUT SOLELY BY THE NATIONAL COURT .
16 THE OBLIGATION PLACED ON ALL IMPORTERS TO PURCHASE A CERTAIN PROPORTION OF THEIR SUPPLIES OF A GIVEN PRODUCT FROM A NATIONAL SUPPLIER LIMITS TO THAT EXTENT THE POSSIBILITY OF IMPORTING THE SAME PRODUCT . IT THUS HAS A PROTECTIVE EFFECT BY FAVOURING NATIONAL PRODUCTION AND , BY THE SAME TOKEN , WORKS TO THE     DETRIMENT OF PRODUCERS IN OTHER MEMBER STATES , REGARDLESS OF WHETHER OR NOT THE RAW MATERIALS USED IN THE NATIONAL PRODUCTION IN QUESTION MUST THEMSELVES BE IMPORTED .
27 RECOURSE TO ARTICLE 36 IS NO LONGER JUSTIFIED IF COMMUNITY RULES PROVIDE FOR THE NECESSARY MEASURES TO ENSURE PROTECTION OF THE INTERESTS SET OUT IN THAT ARTICLE . NATIONAL MEASURES SUCH AS THOSE PROVIDED FOR IN THE 1982 ORDER CANNOT THEREFORE BE JUSTIFIED UNLESS SUPPLIES OF PETROLEUM PRODUCTS TO THE MEMBER STATE CONCERNED ARE NOT SUFFICIENTLY GUARANTEED BY THE MEASURES TAKEN FOR THAT PURPOSE BY THE COMMUNITY INSTITUTIONS .
32 AS THE COURT HAS STATED ON SEVERAL OCCASIONS ( SEE JUDGMENT OF 12 JULY 1979 , CASE 153/78 COMMISSION V GERMANY ( 1979 ) ECR 2555 , AND THE OTHER JUDGMENTS REFERRED TO THEREIN ), THE PURPOSE OF ARTICLE 36 OF THE TREATY IS NOT TO RESERVE CERTAIN MATTERS TO THE EXCLUSIVE JURISDICTION OF THE MEMBER STATES ; IT MERELY ALLOWS NATIONAL LEGISLATION TO DEROGATE FROM THE PRINCIPLE OF THE FREE MOVEMENT OF GOODS TO THE EXTENT TO WHICH THIS IS AND REMAINS JUSTIFIED IN ORDER TO ACHIEVE THE OBJECTIVES SET OUT IN THE ARTICLE .
33 IT IS IN THE LIGHT OF THOSE STATEMENTS THAT IT MUST BE DECIDED WHETHER THE CONCEPT OF PUBLIC SECURITY , ON WHICH THE IRISH GOVERNMENT PLACES PARTICULAR RELIANCE AND WHICH IS THE ONLY ONE RELEVANT IN THIS CASE , SINCE THE CONCEPT OF PUBLIC POLICY IS NOT PERTINENT , COVERS REASONS SUCH AS THOSE REFERRED TO IN THE QUESTION RAISED BY THE NATIONAL COURT .
34 IT SHOULD BE STATED IN THIS CONNECTION THAT PETROLEUM PRODUCTS , BECAUSE OF THEIR EXCEPTIONAL IMPORTANCE AS AN ENERGY SOURCE IN THE MODERN ECONOMY , ARE OF FUNDAMENTAL IMPORTANCE FOR A COUNTRY ' S EXISTENCE SINCE NOT ONLY ITS ECONOMY BUT ABOVE ALL ITS INSTITUTIONS , ITS ESSENTIAL PUBLIC SERVICES AND EVEN THE SURVIVAL OF ITS INHABITANTS DEPEND UPON THEM . AN INTERRUPTION OF SUPPLIES OF PETROLEUM PRODUCTS , WITH THE RESULTANT DANGERS FOR THE COUNTRY ' S EXISTENCE , COULD THEREFORE SERIOUSLY AFFECT THE PUBLIC SECURITY THAT ARTICLE 36 ALLOWS STATES TO PROTECT .
35 IT IS TRUE THAT , AS THE COURT HAS HELD ON A NUMBER OF OCCASIONS , MOST RECENTLY IN ITS JUDGMENT OF 9 JUNE 1982 ( CASE 95/81 COMMISSION V ITALY ( 1982 ) ECR 2187 ), ARTICLE 36 REFERS TO MATTERS OF A NON-ECONOMIC NATURE . A MEMBER STATE CANNOT BE ALLOWED TO AVOID THE EFFECTS OF MEASURES PROVIDED FOR IN THE TREATY BY PLEADING THE ECONOMIC DIFFICULTIES CAUSED BY THE ELIMINATION OF BARRIERS TO INTRA-COMMUNITY TRADE . HOWEVER , IN THE LIGHT OF THE SERIOUSNESS OF THE CONSEQUENCES THAT AN INTERRUPTION IN SUPPLIES OF PETROLEUM PRODUCTS MAY HAVE FOR A COUNTRY ' S EXISTENCE , THE AIM OF ENSURING A MINIMUM SUPPLY OF PETROLEUM PRODUCTS AT ALL TIMES IS TO BE REGARDED AS TRANSCENDING PURELY ECONOMIC CONSIDERATIONS AND THUS AS CAPABLE OF CONSTITUTING AN OBJECTIVE COVERED BY THE CONCEPT OF PUBLIC SECURITY .
36 IT SHOULD BE ADDED THAT TO COME WITHIN THE AMBIT OF ARTICLE 36 , THE RULES IN QUESTION MUST BE JUSTIFIED BY OBJECTIVE CIRCUMSTANCES CORRESPONDING TO THE NEEDS OF PUBLIC SECURITY . ONCE THAT JUSTIFICATION HAS BEEN ESTABLISHED , THE FACT THAT THE RULES ARE OF SUCH A NATURE AS TO MAKE IT POSSIBLE TO ACHIEVE , IN ADDITION TO THE OBJECTIVES COVERED BY THE CONCEPT OF PUBLIC SECURITY , OTHER OBJECTIVES OF AN ECONOMIC NATURE WHICH THE MEMBER STATE MAY ALSO SEEK TO ACHIEVE , DOES NOT EXCLUDE THE APPLICATION OF ARTICLE 36 .
THE QUESTION WHETHER THE MEASURES ARE CAPABLE OF ENSURING SUPPLIES AND THE PRINCIPLE OF PROPORTIONALITY
37 AS THE COURT HAS PREVIOUSLY STATED ( SEE JUDGMENTS OF 12 . 10 . 1978 , CASE 12/78 EGGERS ( 1978 ) ECR 1935 , AND OF 22 . 3 . 1983 , CASE 42/82 COMMISSION V FRANCE ( 1983 ) ECR 1013 ), ARTICLE 36 , AS AN EXCEPTION TO A FUNDAMENTAL PRINCIPLE OF THE TREATY , MUST BE INTERPRETED IN SUCH A WAY THAT ITS SCOPE IS NOT EXTENDED ANY FURTHER THAN IS NECESSARY FOR THE PROTECTION OF THE INTERESTS WHICH IT IS INTENDED TO SECURE AND THE MEASURES TAKEN PURSUANT TO THAT ARTICLE MUST NOT CREATE OBSTACLES TO IMPORTS WHICH ARE DISPROPORTIONATE TO THOSE OBJECTIVES . MEASURES ADOPTED ON THE BASIS OF ARTICLE 36 CAN THEREFORE BE JUSTIFIED ONLY IF THEY ARE SUCH AS TO SERVE THE INTEREST WHICH THAT ARTICLE PROTECTS AND IF THEY DO NOT RESTRICT INTRA-COMMUNITY TRADE MORE THAN IS ABSOLUTELY NECESSARY .
51 THE ANSWER TO THE SECOND QUESTION SHOULD THEREFORE BE THAT A MEMBER STATE WHICH IS TOTALLY OR ALMOST TOTALLY DEPENDENT ON IMPORTS FOR ITS SUPPLIES OF PETROLEUM PRODUCTS MAY RELY ON GROUNDS OF PUBLIC SECURITY WITHIN THE MEANING OF ARTICLE 36 OF THE TREATY FOR THE PURPOSE OF REQUIRING IMPORTERS TO COVER A CERTAIN PROPORTION OF THEIR NEEDS BY PURCHASES FROM A REFINERY SITUATED IN ITS TERRITORY AT PRICES FIXED BY THE COMPETENT MINISTER ON THE BASIS OF THE COSTS INCURRED IN THE OPERATION OF THAT REFINERY , IF THE PRODUCTION OF THE REFINERY CANNOT BE FREELY DISPOSED OF AT COMPETITIVE PRICES ON THE MARKET CONCERNED . THE QUANTITIES OF PETROLEUM PRODUCTS COVERED BY SUCH A SYSTEM     MUST NOT EXCEED THE MINIMUM SUPPLY REQUIREMENT WITHOUT WHICH THE PUBLIC SECURITY OF THE STATE CONCERNED WOULD BE AFFECTED OR THE LEVEL OF PRODUCTION NECESSARY TO KEEP THE REFINERY ' S PRODUCTION CAPACITY AVAILABLE IN THE EVENT OF A CRISIS AND TO ENABLE IT TO CONTINUE TO REFINE AT ALL TIMES THE CRUDE OIL FOR THE SUPPLY OF WHICH THE STATE CONCERNED HAS ENTERED INTO LONG-TERM CONTRACTS .