Orsolina Leonesio v Ministero dell'agricoltura e foreste (93/71)

II —Observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

The observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:Mrs Leonesio states that the provisions of Regulations Nos 1975/69 and 2195/69 providing for the grant of slaughtering subsidies are of à “legally perfect” nature within the meaning of the decided cases of the Court relating to the direct effect of Community provisions. Under Article 9 of Regulation No 1975/69 the Commission alone is competent to determine the detailed rules of application to be observed for the actual payment of the subsidy. Article 10 of that regulation prohibits the national authorities from imposing additional conditions for the grant of subsidies without the prior authorization of the Commission. The Commission set out the detailed rules for application in rigid and comprehensive. terms and the national authorities were only empowered to collect the applications and to verify certain facts.In fact the Commission, not the Member States, had a discretionary power in that it was in a position to decide whether. applications made should be allowed to proceed or not (Article 5(1) of Regulation No 2195/69). However, once this decision had been taken, which was done by Regulation No 140/70, there remained no discrétionary power with regard to its execution, which was to be carried out by the national authorities. Indeed the payment of the subsidy which had to be carried out within the period laid down in Article 10 of Regulation No 2195/69 was only subject to the actual existence of milk cows, to the undertaking to cease milk production and to proof of slaughter. The relevant regulations do not provide that any authorization may be granted by the Member State concerned.In the final analysis the duty to pay the subsidy is enshrined in the Community legal order and therefore the intervention of the national authorities should go no further than establishing the existence of the fact giving rise to that duty.The action by a Member State of rendering the application of a regulation subject to the adoption of a national law is incompatible with Article 189 of the Treaty. It is true that there exists a theory in Italy that pecuniary rights against the State are only enforceable after the allocation of the necessary funds, irrespective of any period which may be fixed for their payment; however, lest discrimination be introduced between nationals of different Member States such a theory cannot be accepted with regard to financial obligations at a Community level. Further, the Court has stated that “The complexity of certain situations in a State cannot alter the legal nature of a Community provision which is directly applicable, and this is particularly the case considering that the Community rule must have the same binding force in all Member States”, and that the national courts must ‘protect the interests of those persons subject to their jurisdiction who may be affected by any possible infringement of the said provisions, by ensuring for them direct and immediate protection of their interests no matter what the existing relationship may be under national law between those interests and the public interest to which the question refers’ (Judgment of 19 December 1968, Case 13/68 Salgoil v Italy, [1968] ECR 453 at pp. 462 and 463).Whilst it is true that on 22 November 1971, that is, after the matter was referred to the Court of Justice, there was published in the ‘Gazzetta Ufficiale’ of the Italian Republic Law No 935 of 26 October 1971, the implementation of which may satisfy the claims of the applicant, nevertheless, in accordance with the judgment of the Court of 14 December 1971 (Case 43/71 Politi v Italian Ministry of Finance [1971] ECR 1039) this alteration in the domestic law has no effect on the jurisdiction of the Court to decide on the reference from the Pretore di Lonato.Finally therefore, in the applicant's view, the first question of the Pretore di Lonato should be answered in the affirmative. With regard to the second question the Court should rule that the provisions in question create individual pecuniary rights against the State such that national legislation can have no influence on the detailed rules for the application and the period for the execution of the duty imposed on the State and that they give to individuals entitled to subsidies the right to protection from the detrimental effects which might result from delay in compliance.The Italian Government states first that Law No 935, mentioned above, authorized the payments due from the Italian State under the regulations in question. Therefore the main action has in fact lost its purpose.Those regulations did not have immediate effect to the benefit of individuals because they required the adoption of implementing measures by the Member States, if only to determine the bodies empowered to apply them and to make the necessary funds available to the administration. In particular, Article 81 of the Italian constitution stipulates that any law providing for any new payment must make provision for the financial means to undertake it; the same also applies in respect of Community rules having the force of law in Italy. This is moreover an automatic requirement.As to the second question from the Pretore di Lonato, it may be understood as being merely a paraphrase of the first question. But it could also be interpreted as relating to the relationship between the Community rule and national law as it uses the expression ‘immediately enforceable pecuniary right’ which is contained in Article 633 of the Italian Code of Civil Procedure providing for a ‘decree of injunction’ (‘decreto ingiuntivo’) in favour of the person entitled to such a right. According to the Italian Government, this interpretation may be confirmed by a paragraph of the preamble to the order making the reference stating that, if the questions referred to the Court are answered in the affirmative, ‘the conditions required by the law for the execution of the injunction would be fulfilled since the action is based on written evidence’.If this interpretation is correct the question does not fall within the jurisdiction of the Court since it is thereby invited to interpret national law. Indeed the expression ‘immediately enforceable pecuniary right’ is not part of Community law and it might have a different meaning in the legal system of each Member State.Similar considerations would arise in so far as the Court as asked to rule whether ‘this pecuniary right may not be made subject to certain conditions’ by the State concerned. Either this question asks the Court to utter a truism, that is, that the legislature cannot extinguish subjective rights created by Community rules; or it seeks to know whether any national measure intended to determine the factual conditions for enjoyment of the individual right in question is incompatible with the Community provisions giving rise to that right. In the latter case, the question as it is put also exceeds the jurisdiction conferred on the Court by Article 177 of the Treaty since it asks the Court to rule on the compatibility of Italian legislation with Community rules.As to the substance of the case, the Pretore di Lonato seems to disregard the fact that whilst the regulations in question create individual rights as against Member States, nevertheless those rights can only be relied on within the context of national budgetary legislation. Measures adopted by the authorities of the Member States to permit the satisfaction of those rights are compatible with Community law.The Commission states first that in view of the substantial delay in the payment of the slaughtering subsidy on 21 June 1971 it sent to the Italian Government a letter initiating the procedure laid down by Article 169 of the Treaty.The questions put by the Italian court are not outside the jurisdiction of the Court.The answer to these questions is in the affirmative. In the abovementioned judgment in Politi the Court accepted that all Community regulations ‘have direct effect and are as such capable of creating individual rights which national courts must protect’. It is true that in this case it is for the Member States to take certain implementing measures. However, those measures may not constitute an obstacle to the direct applicability of the Community rule or influence in any way the rights which that rule grants to individuals. This is all the more so as Article 10 of Regulation No 2195/69 imposes on Member States the obligation to pay the subsidy within a period which is precisely fixed and may not be altered. It appears from the seventh recital of the preamble to Regulation No 2195/69 that the period was imposed particularly to ensure that the subsidy should be paid within the same period in all the Member States.Finally, no Member State made use of the opportunity provided by Article 10 of Regulation No 1975/69 of asking the Commission to authorize it to impose additional conditions for the grant of the subsidies in question.