COSTA

v

ENEL

seeing
respect

that

the

Member

States
have
the
as

which national courts must protect.

those obligations
upon

which

been

imposed
and

them

by
them

9. Article

53

of

the

EEC

Treaty
of

is

Treaty
States
rights,
part

which

bind

satisfied so subjects

long

as no new measure
na­

without

creating individual
obligation on

the

establishment

but
the

this

the
not

tionals
more

of other

Member States
than those

to

of

Commission
the
right

does

severe

rules

pres­

give

individuals

to allege,

cribed

for

nationals of

the country
the

of

in

Community
either

law

or under

Article

establishment,
system

whatever

legal

177,

failure

by
of

the

State

governing

the

undertakings.

concerned to

fulfil any

its

obliga­

tions or breach of
of

duty

on

the

part

10. Article 37
constitutes
of

(2)
in

of

the

EEC

Treaty
creat­

the

Commission.
102
no of

all

its

provisions a rule
of

5.

Article
contains

the

EEC

Treaty
are rights

Community law capable ing individual rights which
courts

national

provisions

which

must

protect.

capable of creating

individual

which national courts must protect.

11. 11.

The
the

provisions

of

Article 37
as

(2)

of

6.

Article 93
tains
able no

of

the

EEC

Treaty
are

con­

EEC Treaty have

their

object

provisions

which

cap­

of

creating

individual

rights

which national courts must protect.

the prohibition of any new measure contrary to the principles of Article 37 that is any measure having as (1), its object or effect a new discrimina­ tion

7.

A Member State's
the

obligation under
which

between

nationals

of

Member

EEC Treaty,
to

is

neither

States regarding
which goods

the

conditions

in

subject

any

conditions
or

nor,

as

are

procured

and

regards

its

execution
of

effect,

to

marketed,
or

by

means

of monopolies

the adoption

any

measure

either

bodies

which

must,

first, have
capable

as

by the States or by the Commission, is legally complete and consequently
capable
on
of

their
a

object

transactions
product

regarding
of

commercial

the

relations and

producing direct effects between Member individuals.

being

the subject

of competition and

trade between

Member

States,

and

States

Such

an
part

obligation
of

becomes an integral
system
of

secondly must play in such trade.

an effective part

the legal
and

the

Member
their

It is
with

a

matter

for the

court

dealing
in
each

States,
own

thus
and

forms
in

part of

the main action to assess
whether

law,

directly
whose

concerns

case

the economic
relates

activity
such of

their

nationals

favour it

under

review

to

a

has

created

individual
must

rights which

product

which, the

by

virtue or

its

national

courts

protect.

nature

and

technical

inter­

national

conditions

to

which

it is

8.

Article

53
a

of

the

EEC

Treaty
cap­

subject,
part

is

capable of
or

constitutes
able of

Community

rule

in imports
of

playing such a exports between

creating

individual

rights

nationals

the

Member States.

In Case 6/64

Reference

to the

Court

under a

Article

177

of

the

EEC

Treaty by

the

Giudice

Conciliatore, Milan, for
that court

preliminary ruling in

the action

pending before

between
587

53 and aforementioned Treaty. incorporated into Italian distribution an of electric energy (or and law by Law No 1203 of 14 October to the of alle­ created zionale organization. Van Houtte gives the following JUDGMENT Issues I of fact and of law — Facts and procedure order of 16 January decided 1964 acceding to as this request. before the Giudice shareholder of ary 14 March 1963) 37 of infringe Articles the Conciliatore. 53 and 37 of the said Treaty THE COURT composed of: A.1964 — CASE 6/64 flaminio Costa and ENEL (Ente Nazionale Energia Elettrica the Edison (National Electricity Board). Rossi. 93. Lecourt (Rapporteur) W. Trabucchi. No 36 of No 138 of 25 Febru­ No 219 of invoice for electricity between Flaminio Costa and ENEL. he alleged. 93. Presidents and of Chambers. Advocate-General: M. Strauß. M. a company 102. by received in Court Registry 588 . 1963 and 15 December 1962. requested the court to apply Article 177 of the EEC file be transmitted of the copy of the Court of Economic Justice the European Treaty of so as to obtain an interpretation Community in This was Luxembourg. Lagrange Registrar: A. L. the payment of an In proceedings about 4 February 1963. Hammes and A. gation and having the regard Energia Elettrica ENEL) which that Law No 1643 6 Decem­ (National the Electricity Board) the electricity to ber 1962 and presidential of decrees assets of undertakings issued in 1670 of execution that Law (No were transferred. Mr Costa.JUDGMENT OF 15. the stays Court hereby the proceedings affected an by the nationalization. 53 and 37 of the said Articles. and as and orders that a certified to electricity consumer. R. as a Edison Volta. had application for a preliminary ruling of transmitted by the the Registrar to the the been infringed by the Law of 6 Decem­ Giudice Conciliatore was Court and on ber 1962. the Ente Na­ 1957. Delvaux. Milan. The Giudice Conciliatore.7. L.' Articles Treaty. formerly on Volta undertaking) of Articles the interpretation 102. 93. Donner. President. follows: By and Law No 1643 subsequent of 6 December 1962 the decrees the Italian Having regard to Article 177 of the Treaty of 25 March 1957 establishing the Republic and nationalized production EEC. R. Ch. which 102. Judges.

preliminary ruling The Italian Government the trict pret Finally in complains not the that a judgment dated 7 March 1964 constitutional the to that res­ Italian court failed Giudice Conciliatore did itself to asking the Court to the Treaty but also asked whether was and inter­ apply this Article in a similar case and thus took a decision involving certain repercussions on it to the future of Com­ declare dispute the Italian law in the the munity law as a whole. He of asked the Court 'for an present proceedings the consequently before the Court of interpretation cular of the Treaty. set out the obligations of the observations in Mr Costa written his his on procedure possible is that Treaty. to subject Failure when to the Commission. In its statement of case lodged on 23 May Mr Costa claims on hand that of by the Treaty within jurisdiction the 1964. In to intervene'. allowing the initiative of a of Any other interpretation deprive consult with Article 102 would it of its purpose.COSTA v ENEL 20 February 1964. consulta­ have recourse to this of when. 93. questions or with of their importance for this case resemb­ The Court to also received an 'application the solution their the dispute. question and not as a mere of cannot a used as national court. 589 . questions. In its statement dated 23 May its of 1964. Community under obligation envisaged and as such Articles 169 It decide those and 170 — Observations under submitted is inadmissible. which was declared inadmissible II wording seems bear a lance to an action for failure as to fulfil a by order of 3 June 1964. Article 177 means ber State in right. other Articles 102. it is to for or the Court of Justice judge the facts day. also submitted that these there ques­ the considerations no grounds for raising of case the national court may have led to make its choice of which tions. to is however the for the Article of 20 of the Court from questions Statute the Court referred subject of relating solely to the interpretation as permitted by Commission points out On the admissibility of the reference for a Article 177. it is claimed. national court. A that conformity with because of this On the interpretation of Article 102 As to the interpretation of preliminary ruling is inadmissible. in parti­ Justice are 'absolutely the the inadmissible'. the the EEC Commission both on made finally the Commission raises the point Court's examination cannot that the concern observations the relevance itself with the court reasons which questions put and on the interpreta­ led the national to adopt its tion of the abovementioned Articles. Mr Costa tion with suggests that prior for the purposes deciding a dispute and the Commission should be it has only be to apply domestic law regarded as an obligation for the Mem­ not a provision of the a on Treaty. 53 and 37'. mitted the that Italian the Government for a sub­ Court depends request on the mere existence of a application was pre­ the liminary ruling 'absolutely inad­ 177 and it appears meaning of Article from the question involves a missible' and that there were no grounds submitted that of it the case not of for raising the questions referred. The only under Articles statement of case lodged 169 and 170 and 15 May 1964. national of a Member State. in Treaty. on interpretation the Treaty. in its statement of case lodged same were ENEL. procedure a cannot Article 102. of a consti- a law of that State to the procedure for a faced the of existence preliminary ruling for infringement of potential danger distortion. filed in the Registry on 20 May 1964.

case accepted nationalization referred incompatibility nationalization between and the Law on and to Article 222. and cerning nationalization the Italian Republic did The Italian Government the adopted. if The Commission has law in dispute but the conclusion studied the draft It seems to state however as there is any doubt be to its coming to that it is incompatible without existence. The Commission denies the distortion. as the former suffices to entitle under Commission 169. of a automatically results in the creation of a system in which hidden aid is granted to the sion Nationalization constitutes a Community best system and is the method of nationalized must sector. points that the establishment Mr Costa tion claims to see in nationaliza­ of a public service applies equally to all of a sector of the economy the above a measure those coming under the scheme. There the Article 93. Mr Costa of an that the ownership and the property is contrary No rule exempts a abolition of private to the above Article. that. and Commission. ENEL has nothing law. sector nationalized nationalization activity from the application of Article denial 53. cannot justify the legality of On the interpretation of Article 93 regard every of conceivable system of property With to the interpretation considers economic Article 93.1964 — CASE 6/64 tutes an irregularity.7. 590 .JUDGMENT OF 15. incompatible Article 222 with Article. out if the aid in question to be in­ points that compatible with the Treaty. is no distortion as a within meaning intended of The to establishment of with Article 102 setting up achieve long as it is a question of do Community public service to the objectives of public of indicated in Article 43 and as the utility Italian condi­ On the interpretation of Article 53 With regard constitution long are as not the to the interpretation of tions of competition adversely arguments Article 53 which prohibits States from the affected. con­ mission's relates the only question the time when disputed law was to the the matter of procedure notify. existence of a tion. introducing forward out similar any new restrictions on ENEL and puts right of establishment in their the territories. The Commis­ ac­ calculated to prevent enshrined the freedom accordingly intervene in establishment by of the said of cordance with the procedure prescribed Article other with regard to nationals both the by Article 93. The Commission States which Member state. when informed by a The Italian Government out ENEL point written question submitted by a German in this that the facts show that there is no deputy. then there would grounds with the Common Market. In the opinion Com­ for consulting at the Commission the and that. States 55 and na­ considers not that Member the pro­ tionalizing do respect Finally. the concerns failure to The Com­ action not respect mission reserves the right to take proves rule of procedure applicable in this case. retains to take action Article The the the exclusively concerned with latter exempting from the ambit of the the official powers of the State and not the power Commission power nevertheless to pursue an economic to bring the matter before activity. Article as cannot be considered visions of a Article 93 procedural committing infringement which itself the (3) are derogating is from Article 53. A Member State of Court of Justice in cases of where the cannot itself appreciate the likelihood without material incompatibility accompanied the aid in distortion a power unilaterally assuming not dispute is of by infringement considera­ which has been conferred the procedural rule under on it.

it is possible for the constitutional authorities and to the effect States in each to prescribe the goods of progressively any State mono­ services capable being con­ polies of a commercial character so as to avoid all of sidered as public property and which. such a Therefore. require­ free the market cannot of be concerned services. with imports as protective duties or quantitative restrictions. ­ the exercise of productive competition. is to the result This State principle is not infringed if a law the monopoly importation of similar render the goods produced not instituting a public service reserves to the relevant same sector of by foreign impossible. Con­ and con­ conditions cured and which goods are pro­ sequently. The rules of the Treaty safeguarding a being justified by in the sector technical question. The consequences estab­ nationality) which of the economy public of nationalization of a are identical to those the is not reserved to the legal monopoly. On the interpretation of Article 37 In 37 respect of prejudices as Article rules the 222 in no way in Member States owner­ the requirements that Member adjust of Article shall governing the system of property ship. the exclusion a sector of exports must marketed. the character of binding its deci­ deci­ In be support the same interpretation should and ENEL suggests that Article 53 sions. Articles 5 at 90 are aimed submits Article 37 alleviating the the consequences of resulting have nothing to do production the operation from operation sectors of ever the economy. with ments in system public Moreover. by the token alike and foreigners in excluding from this creating a commercial monopoly. in ineluctable power other words authorities. in the Treaty. nationailization is inconsistent and Rebutting Government this interpretation that with the Italian can of the Treaty.COSTA v ENEL The Italian Government on objects to this also to potential discrimination if its only existing and it interpretation 53 does not the ground that Article would were have to no effect purpose cases of State concerned apply where the Member leaves to free private as eliminate whilst discrimination enterprise (without any distinction that part to lishment of new allowing the ones. Mr Costa asks the imports in sidered not such be Court to interpret widely in such a every a measure by this provision very way that it refers to which a State confers in terms of of a commercial exercise of a activity but In rather the public service. such restrictions not necessarily limited number of producers. either on itself or on a monopoly which is body by its subject to it support of this the interpretation and position by the very nature reference to of Article 37 in commercial. when Article 222. sole power of of management. nationalizing Article 53 how­ restrictions on a public service nor with an article whose depends on limited to a natural applies to possible sources (themselves subject public the right of establishment of nationals of concession) which can only be used by a other States which might result from a case of nationalization. Article ENEL be considers specified The only said to Article applies. he claims. restrictive nationalization effect on has the same The Commission the considers regarded light not of that. the sions of in reaching those the the regarded as intended to place foreign­ as a nationals as to adopt criteria outside and field of of ers on the same footing economics exclusion regards activity. nationals sector. not actual cases of discrimination but 'commercial the said monopolies' to public or private 591 . tionals Member States regarding the under outside any rule on competition. By undertakings difficult if the economy. on remain discrimination between na­ the basis of objective decisions.

there no judicial remedy.1964 — CASE 6/64 organizations aiming. To fall within to the discretionary power prohibitions in Article 37 the impugned in the administering body. of That a could never Article 222. a parti­ poly cannot. the creation of a the objective public service. trade a tactual estimate of the article depends on international in existence respect of between the Member agreements and complex administrative procedures and States in question commodity in is by its very of nature must be taken into considera­ outside and the requirements Article 37 competi­ tion. By as the terms of this the present Article. exports to the field of the circulation of goods or of and services.JUDGMENT OF 15. is national courts against whose decisions. 'having regard to Article 177 of the Treaty of 25 March 1957 establishing the EEC. however. incorporated into Italian law by Law Conciliatore No 1203 No 1643 of of 14 October 1957. measure must be intended to operate Grounds Order dated of of judgment By 16 January 1964. 93. 53 and the aforementioned Treaty'. creation of a The State Commission should finally be an considers that character monopoly of a commercial is inconsistent with Article the Article 37 import applied whenever a exclusive right 37 (2). any provision relating to T here is no need to inquire whether the tion. by means of Article 177. where of importation and are establishes or to the exportation not of subject the said commodity export. as make a concentration calculated institutions. and having regard to the allegation that Law of 6 December 1962 … and the presidential decrees issued in 37 of execution that Law infringe Articles 102. the Giudice Milan. ofJustice so that a Treaty' preliminary ruling may be a question given upon the 'interpre­ raised of the provision whenever of interpretation is either of a before This gives or the to Court decide no jurisdiction to apply the of Treaty 592 to a specific case upon the validity provision . to the in case.7. the stayed the proceedings and ordered that the of Justice. a ruling the compatibility law with the Treaty. duly sent to the Court. moreover cular international trade in However. file be transmitted to Court On the application of Article 177 On the submission regarding the working of the question The complaint is made that the intention behind the on question posed was to of a national obtain. must refer the matter Court tation them. Although as nationalization permissible new may imports be to disturb the free be considered under mono­ movement of goods.

became an of integral the systems the Member States and which their courts are bound to apply. or it cannot empower either to investigate request the facts the case to criticize the grounds and purpose of the for interpretation. albeit within munity. On the submission that an interpretation is not necessary has interpretation The complaint is made that the Milan court requested an of the Treaty which was not necessary for the solution of the dispute before it. By its the creating own a Community plane of unlimited duration. but context upon the interpretation the abovementioned Articles in the the points of law stated by the Giudice Conciliatore. formulated the the of Court has power to extract from a question imperfectly to the given by national court those questions a which alone pertain interpretation Court only of the Treaty. its own legal capacity more capacity of representation on international of and. a national inasmuch as a national court which to apply law cannot avail itself of Article 177. make it impossible for the States. to accord 593 . on the treaties. On the submission that the court was obliged to apply the national law The Italian Government is submits that the request of the Giudice Conciliatore is obliged 'absolutely inadmissible'. as it would be possible for it to do Article 169. By its contrast with own ordinary legal international legal part system of which. particularly. real powers limitation sovereignty or a transfer of powers stemming from a from the States to the Com­ rights. Nevertheless. more generally the terms and the spirit the Treaty. Since. personality. and and have thus created a body of law which binds both their nationals themselves. The integration into derive from the of the laws of each and Member State of provisions which Community. the Member States have limited their sovereign limited fields.COSTA v ENEL domestic law in under relation to the Treaty. Article between latter national 177 is based and the upon of a clear separation of functions the courts Court of Justice. however. having its and own institutions. as a corollary. the EEC T­ reaty has created entry into force of the Treaty. validity Consequently of an of decision should be not upon the Italian law in relation to the by the Treaty.

93 (3). by the Giudice Conciliatore regarding Articles directed first to enquiring whether these provisions produce direct are and create individual rights which national courts must protect. example it does this by clear and provisions Articles 15. are subject to a special authorization procedure (for Articles 8 (4). law is Article 189.7. Applications. whenever questions relating to the interpretation of the Treaty The and questions put 37 effects 102.1964 — CASE 6/64 precedence accepted to a unilateral and subsequent measure over a legal system by them on a with basis of reciprocity. be overridden out by domestic legal provisions. however framed. 93. 25. 594 what their . The executive force of Community subsequent of vary from without one State to another in deference to domestic laws. Such a measure cannot therefore be inconsistent law cannot that legal system. because of its special and original not. of against a subsequent unilateral act cannot prevail. nature. less if a which is subject to no reservation. by Member States for 17 authority to the Treaty (4). incompatible with the concept the Community of Consequently Article 177 is to be applied regardless any domestic arise.JUDGMENT OF 15. The transfer system the States from their domestic legal system to the the legal with the rights and obligations arising under Community Treaty carries which it a permanent limitation of their sovereign rights. obligations undertaken would not under the Treaty establishing the Community be unconditional. could law stemming from the Treaty. and 226) which would their purpose if the Member States could renounce their obliga­ tions by means of an ordinary law. lose the third subparagraph of Article 93 (2). be quite of a meaning­ The precedence of Community binding' confirmed by regulation 'shall be and 'directly applicable This provision. but merely contingent. if they could be called in question by subsequent legislative acts of the signatories. It follows from an all these observations independent source of law. law. with­ being of deprived of its character as Community into law and without the legal basis the Community itself being by of called question. 224 derogate from example and 225). would effects State could unilaterally nullify its by means legislative measure which could prevail over Community that the law. meaning is. Treaty set by Article The out in Article 5 jeopardizing (2) and giving rise the attainment of the objectives the to the discrimination prohibited 7. and. if so. Wherever the Treaty precise grants the States (for the right to act unilaterally. 73. 223. whereby a in all Member States'. 53. 26.

however slight. For this its part. the Commission. is States' to 'keep of under constant review all systems existing in those with a view to the adoption of appropriate measures required by the functioning By virtue of the Common Market. on the hand. either the framework State the Community law and by means of Article 177 breach failure by the concerned to fulfil any of its obligations or of duty on the part of Commission. the Commission is bound to ensure respect give for the provisions of right Article. if necessary. of Article 93 (3). from to prevent the individual States in the conduct their internal introducing new aids 'in any form whatsoever' 595 . to eliminate progressively existing and. plans the or Commission is to be alter informed. contained on in the section of the Treaty headed 'Aids granted by States'. By virtue of this provision. where 'there is fear' reason to that a provision laid by law may cause 'distortion'. These provisions. of a possible distortion. and. other affairs the one hand. in sufficient not time. with by agreeing to submit to an appropriate By binding themselves unambiguously to prior all procedure of consultation might the Commission in those cases where their projected the legislation create a risk. more is designed to nations with prevent the regard differences between the legislation objectives of the different to the the Treaty from becoming pronounced. national States have under­ taken an obligation to the Community which binds rights which them as courts States. the Member State desiring to proceed therewith shall 'consult the Commission'. This Article. have been completed. Member States have limited their freedom of initiative consultation. in cooperation with of aid Member States. but which does not create individual must protect. aids of are designed. the Commission has power to the Member States the adoption of suitable measures recommend to to avoid the distortion feared.COSTA v ENEL On the interpretation of Article 102 Article 102 down provides that. the Member State concerned being entitled to put its proposed measures into effect until the Community of procedure. On the interpretation of Article 93 Under Article 93 (1) and (2). placed in the chapter devoted to the 'Approximation of of Laws'. any to grant aid. any proceedings before the Court Justice. but within this obligation of does not individuals the to allege.

JUDGMENT OF 15. the undertaken to create any more. For its part. to keep under constant give however. hand. within the framework of Com­ review munity law to fulfil any and by means of Article 177. is neither subject to any conditions. in and thus became the an part of system of the Member forms part of law those States and directly concerns their whose favour it has created individual rights which national courts must protect. to the adoption mission. in cooperation with Member States. By of so expressly undertaking to inform the Commission 'in plans time' sufficient any for aid. On the interpretation of Article 53 By Article Member 53 the Member States undertake not to introduce any new restric­ tions on the right of establishment in their territories of nationals of other States. of of any measure either complete by States by the Com­ It is therefore legally express producing direct effects on in itself and is consequently capable the relations between Member States and which individuals. nationals. existing systems of aids.7. T he interpretation of Article 53 which is sought requires that it be considered in it the context of the occurs. Chapter relating to the right of establishment in which After enacting in Article 52 that 'restrictions on the freedom of establishment of nationals of a Member State in the territory of another 596 . and is required. to ack­ distort competition. obligations or either failure by the State of concerned of its breach of duty on the part the Commission. save as on the other otherwise in Article 93. save as otherwise provided in the Treaty. the States have as entered into obligation the Community. This obligation does not. The obligation not thus entered which into by the States simply amounts legally the to a duty its or to act. which threaten. the even potentially. States. nor. and by accepting the an procedures with laid down in Article 93. as regards execution or effect. in the case which of binds them States but creates no individual is not rights except question the final provision of Article 93 (3). the Commission is bound to this ensure respect for the provisions of Article. Such an prohibition came into force integral of with the the Treaty legal throughout the Community. individuals the right to plead. which in in the present case.1964 — CASE 6/64 which are likely directly an or indirectly and of to favour certain undertakings or products in appreciable way. they have for the merely to submit themselves to appropriate procedures aids and abolition of existing introduction of new ones. By virtue Article 92. Member States have the nowledged that such aids are incompatible not with Common Market and have thus provided agreed in implicitly the Treaty.

therefore. forms part of law States and direct­ ly concerns their whose favour it creates individual rights which 597 . The question is. it is stated that freedom of establishment shall include and the right to take up and pursue activities as undertakings self-employed conditions persons to set up and manage own nationals 'under the where laid down for its is by the law of the country such establishment effected'. Such a clearly expressed prohibition which came into force integral of those with the Treaty legal throughout the system of the Community. This obligation is not accompanied by any reservation which might make its implementation subject which to any positive capable of act of national law. where the nationals of other with Member States have of a right of establishment. this not chapter goes on new in Article 53 to restrictions on other provide that 'Member States shall introduce any the right of establishment in their territories on what of nationals of conditions Member States'. the introducing any new is contrary to the principles laid down in Article 37 (1). Article 53 is therefore lishment satisfied so long as no new measure subjects the estab­ of nationals of other Member States to more severe rules than those whatever prescribed for nationals of the country of establishment. the legal system governing the undertaking. Thus. This is dealt by the second paragraph Article 52. The interpretation is of the second obligation together with any aspects of the first necessary for this interpreta­ tion. This prohibition is essentially one is producing direct effects on the legal relations between Member States and their nationals. in and so became the an part of the Member States. one an active one undertaken a dual obligation: in the first to adjust State monopolies. On the interpretation of Article 37 Article 37 (1) provides that Member States character' shall progressively adjust any 'State monopolies of a commercial discrim­ so as to ensure that no mar­ ination regarding the conditions under which goods are procured and nationals of keted exists between Member States. Member States measure which are under an obligation to refrain from By Article 37 (2). nationals. Member States have place. Article 37 (2) contains an absolute prohibition: not an obligation to do something but an obligation to refrain from doing something. in the second place.COSTA v ENEL Member State shall be abolished by progressive stages'. a requested passive to avoid any new measures.

are not recoverable and as these proceedings main far as the to the action are concerned.JUDGMENT OF 15. There not remain to be considered the means envisaged of by Article 37 (1). a the Giudice Conciliatore. the conditions nationals of under which goods are Member States'.7. under this prohibition the State monopolies and bodies in a question first. By reason of the complexity of the wording and requested the fact that Articles 37 (1) and 37 (2) overlap. It is a matter for the court dealing with the main action to assess in each case to such a product whether the economic activity under review relates or which. the interpretation makes occur. Milan. . Thus. . it necessary to examine them as a part of the Chapter in This Chapter deals with the 'elimination of quantitative object of (1)' which they 'the restrictions between Member States'. It is therefore first new the conditions a matter under which goods are for the is court dealing with the main action whether to examine whether this objective being hampered. but merely those 'of commercial character'. in so far as they tend to introduce the cases of discrimination referred To fall must. effective in imports or exports Costs The incurred costs ity ies the and the by the Commission of the European Economic Italian Government. Article 37 order (1) sets out in this objective might be thwarted in to prohibit them. Member States and marketed that is any discrimination between under nationals of regard­ ing the conditions which goods will are procured results from the disputed measure itself or be the consequence thereof.1964 — CASE 6/64 national courts must protect. step in the action pending before decision on costs is a matter for that court. any in so new monopolies or bodies in Article 37 (1) are prohibited far as they tend to introduce new cases of procured discrimination regarding and marketed. in so Commun­ to the part­ Court. It does a prohibit the creation any State monopolies. and then only to. which have submitted observations are. have capable transac­ as their object tions regarding in commercial product of being the subject of competition and trade such between Member States. by specified the reference in Article 37 (2). is between capable nationals of the ofplaying Member States. and secondly must play an effective part trade. 598 . The principles of the reference in Article 37 (2) to laid down in paragraph is thus to prevent the establishment any new procured and 'discrimination regarding between marketed . the ways Having which specified the objective in this way. which by virtue of its nature and the technical an international part conditions to it is subject.

the Govern­ mission of the European Economic Community and the Italian Upon ment. 102 on the 177 of the Treaty of establishing European Economic regard Community. whatever the legal system governing the 4. Article 102 contains no provisions which which are capable of creating protect. 53. Upon Upon hearing the opinion of the and Advocate-Gnral. Having the regard to Articles 37. hearing the report of the Judge-Rapporteur. to the are admissible in so far as they relate of provisions of the EEC Treaty. 3. Article 53 constitutes a rights Community national which rule capable of must creating individual prohibits ment which courts protect. undertakings. and also rules: 1. Upon reading the pleadings. Procedure of the Court ofJustice of the Euro­ THE COURT Ruling upon As a the plea of inadmissibility based unilateral on Article 177 hereby declares: subsequent measure cannot take precedence over Community law. individual rights national courts must 2. Milan. Those individual relates portions of Article 93 to which the question equally contain no such provisons. Article 37 (2) is in all its provisions a rule of Community law 599 . Rules of Having regard to the pean Communities. It any new measure of other subjects the establish­ of nationals Member States to for nationals more severe of rules than those prescribed of the country establishment.COSTA v ENEL On those grounds. 93. interpretation the questions put by the Giudice Concili­ in this case atore. Statute of Having to the Protocol the Court Justice of the European Economic Community. Com­ hearing the observations of the parties to the main action.

have trade as their object capable transactions regarding a commercial product of being the subject and of competition and between Member in such States. He objected 1—Translated from the French. by of monopolies or bodies must. M. first. pronounce this case. that is. Delivered in open court in Luxembourg on 15 July A. claims that he is not longer a question of social an obligation to pay an invoice Regulation No 3. any having goods as its object or effect a new discrimination conditions means between in nationals of Member are States regading the and which procured which marketed.OPINION OF MR LAGRANGE — CASE 6/64 capable of must creating individual protect. in tation respect of which your requested interpre­ by the 'Ente Nazionale per l'Energia to this is in circumstances Elettrica (ENEL)'. lawyer practising in under Milan. Members of the are such as to bring in issue the the consti­ Court. but number rather of a certain of of provisions the Treaty that amounting to 1925 lire demanded of him in respect of the supply of electricity itself. Van Houtte Registrar A. question a upon tutional relations between European Economic The preliminary you have to give 177 of which Community you and its Member importance States. In so far as the prohibits rights which national courts question put of to the Court is concerned. Donner Hammes Trabucchi Delvaux Rossi Lecourt Strauß 1964. This highlights of the ruling under Article for the judgment in are called upon to the EEC from Treaty a does not. The facts a are once. further declares: The decision the on the costs of the present action is a matter for Guidice Conciliatore. Milan. Donner President OPINION OF MR ADVOCATE-GENERAL LAGRANGE DELIVERED ON 25 JUNE 1964 <ap note>1</ap note> Mr President. and secondly must play an effective part trade. and it is no security or of known to you: Mr Costa. it the introduction of any new measure contrary measure to the principles Article 37 (1). Italian one. come but from an Netherlands court. 600 .

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