- Case 72/83, Campus Oil Limited et al. v. The Ministry for Industry and Energy [1984] E.C.R. 2727, [1984] C.M.L.R. 544.
- Case 174/84, Bulk Oil (Zug) AG v. Sun International Limited, not yet reported. The Commission stated its views on the judgment in its reply to Parliamentary Question No. 2909/ 85, [1986] O.J.C. 330/4.
- Council Directive 68/414, [1968] O.J. L. 308/14, amended by Council Directive 72/425, [1972] O.J. L. 291/154, implemented by Council Decision 68/416, [1968] O.J. L. 308/19.
- Council Directive 73/238, [1973] O.J. L. 228/1.
- Council Directive 77/186, [1977] O.J. L. 61/23, amended by Decision 79/879, [1979] O.J. L. 270/58, implemented by Commission Decision 78/890, [1978] O.J. L. 311/13. Decisions 79/ 126, [1979] O.J. L. 30/19, and 79/135, [1979] O.J. L. 32/39, (extended by Decisions 79/397, [1979] O.J. L. 97/15, and 79/548, [1979] O.J. L. 148/52) have authorised systems in Belgium, France, Luxembourg and the Netherlands of licences of trade in crude oil and petroleum products between Member States. It should be noted that the Community as such is not a party to the International Energy Programme under which the International Energy Agency was formed. See also Commission Decision 83/671 of December 12, 1983, [1983] O.J. L. 376/30, exempting the allocation programme of the IEA from the application of the EEC competition rules. See Donald L. Holley, The IEA and EEC Emergency Oil Allocation System: Legal Problem, [1983] 1 J.E.R.L. 73–88. For a study of the Community oil policy, see Andrew Evans, “The developments of a Community policy on oil”, [1980] C.M.L.R. 371–394 and “EEC Oil Policy”, [1983] J.W.T.L. 54–63, as well as L. Carton, La politique de l'énergie,[1983] R.T.D.E. 523–545.
- Council Decision 77/706, [1977] O.J. L. 292/9, implemented by Decision 79/639, [1979] O.J. L. 183/1.
- Council Regulation 2603/69, [1969] O.J. L. 324/25, amended by Council Regulation 1934/ 82, [1982] O.J. L. 211/1.
- Council Decision 77/186 is based on Article 103 of the EEC Treaty, which provides that the Council may decide “upon the measures appropriate to the situation” in connection with the “conjunctural policies” of the Member States or if “any difficulty should arise in the supply of certain products.” It is generally agreed that, in certain circumstances, Community measures of conjunctural policy or supply policy based on Article 103 may create restrictions on inter-State trade in a way which would otherwise run afoul of Articles 30, 34 and 36. See P. Oliver, Free movement of goods in the EEC, London, (1982), p. 176 and references.
- Case 126/84 EC Commission v. Ireland, [1984] O.J. C. 149/6. The Commission contended that by requiring purchasers of petroleum products to buy national products only, up to a specified proportion of their needs, Ireland has introduced a restriction of imports. The restriction could not be justified, the Commission argued, since it serves an economic interest (by securing oil supplies and transferring the responsibility for the financing of the refinery from the public to the private sector). Also, in the Commission's view, the public security exception in Article 36 is limited to the need to protect essential services and does not extend to the maintenance of normal economic activity. Finally, the Commission argued that the Irish measure is unnecessary and ineffective since it presupposes a situation in which crude oil is available and refined products are not—a situation which, according to the Commission, has never arisen.
- The proceedings in Case 126/84 have been suspended pending the outcome of the Campus Oil litigation before the Irish courts.
- Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein, [1979] E.C.R. 649, 664.
- Case 8/74, Procureur du Roi v. Dassonville, [1974] E:C.R. 837, 852.
- Case 113/80, EC Commission v. Ireland, [1981] E.C.R. 1625, 1638.
- The Irish Government had further advanced the argument that the 1982 Order in no way restricts imports inasmuch as, in any event, all oil, whether crude or refined, used in Ireland has to be imported. In other words, since Ireland has no domestic source of crude oil, the 1982 Order has the effect only of diverting a proportion of oil imports from the refined to the crude product. Article 30, the Irish Government submitted, only concerns measures which seek to protect or prefer domestic products. (Implied in this argument would seem to be the position that the “domestic products” whose protection would be prohibited by Article 30 only include those products that are fully produced in, and that use exclusively “domestic” base materials originating from, the Member State in question. If that interpretation of Article 30 were to be followed not much would be left of the rule of free movement.) To this argument the Court rightly replied that the 1982 Order favours national production of certain finished petroleum products and thus unmistakably works to the detriment of producers in other Member States, regardless of whether the raw materials used in the national production must themselves be imported.
- The significance of the Campus Oil judgment for the development of free movement law has been discussed in several case notes. See case comments by J. Minor, [1984] E.L.R. 340; K. Mortelmans, [1984] C.M.L.R. 687; Anonymous, [1984] E.C.L.R. 245; M. van Empel, [1985] S.E.W. 525; P. Oliver, “A review of the case law of the Court of Justice on Article 36 EEC in 1984,” [1985] C.M.L.R. 301. See also W. Gormley, “Prohibiting restrictions on trade within the EEC,” The Hague, 1985, at 134.
- See, e.g. Case 153/78, EC Commission v. Germany, [1979] E.C.R. 2564; and Case 35/76, Simmenthal v. Italian Minister for Finance, [1976] E.C.R. 1871.
- Such Community measures may stay within the limits of the EEC Treaty. They could not grant Member States more rights (i.e. impose more restrictions on inter-State trade) than Member States would have under Article 36. For a recent application of this principle, see Case 240/83 Procureur de la République v. Association de Défense des Bruleurs d'Huiles usagées, decision of February 7, 1985, not yet reported.
- Case 5/77, Tedeschi v. Denkavit, [1977] E.C.R. 1555, 1576–1577.
- See Case 4/75, Rewe-Zentralfinanz v. Landwritschafskammer, [1975] E.C.R. 843; Case 251/78, Denkavit Futtermittel v. Minister für Ernährung, Landwirtschaft und Forsten, [1979] E.C.R. 3369, 3389; Case 73/84, Denkavit Futtermittel v. Land NordRhein-Westfalen, decision of March 27, 1985, not yet reported.
- Here the Court seems to provide an interpretation of the “traditional patterns” rule under Council Decision 77/186 and the solidarity principles that are to underlie any action taken under that Decision.
- Case 35/76, see note 15
- Case 35/76, see note 15, at 1890.
- Case 73/84, see note 18.
- Case 30/77, Regina v. Boucherau, [1977] E.C.R. 1999, 2015. The Court held that “recourse by a national authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation to the social order which any infringement of the law involves, of a genuine and sufficiently serious threat affecting one of the fundamental interests of society.”
- See Case 7/78, Regina v. Thompson, Johnson and Woodiwiss, [1978] E.C.R. 2247. In Thompson, the Court held that a ban on exporting coins which are no longer legal tender with a view to preventing their being melted down or destroyed in another Member State is justified on grounds of public policy because such ban “stems from the need to protect the rights to mint coinage which is traditionally regarded as involving the fundamental interests of the State.”
- Case 34/79, Regina v. Henn and Darby, [1979] E.C.R. 3795, 3813. In Case 34/79, Regina v. Henn and Darby, which invovled a ban on the importation into the United Kingdom of obscene publications, the Court wrote that, “in principle, it is for each Member State to determine in accordance with its own scale of values and in the forms selected by it the requirements of public morality in its territory.” The Court adopted the same position in Case 121/ 85, Congate v. Customs and Excise, decided on March 11, 1986, not yet reported. See also Cases 115 and 116/81, Adoui and Cornuaille v. Belgium, [1982] E.C.R. 1665, 1708. In Cases 115 and 116/81, Adoui and Cornuaille v. Belgium, the Court wrote that “Community law does not impose upon the Member States a uniform scale of values as regards the assessment of conduct which may be considered as contrary to public policy.” (Adoui and Cornuaille involved “public policy” as the concept is used in Article 48(3) of the Treaty, i.e. encompassing “public morality.”)
- Case 231/83, Cullet v. Leclerq, decided on January 19, 1985, not yet reported.
- Case 7/61, Commission v. Italy, [1961] E.C.R. 317, 329.
- Case 95/81, Commission v. Italy, [1982] E.C.R. 2187.
- Case 238/82, Duphar v. Ministerie van Volksgezondheid en Milieuhygiene, [1984] E.C.R. 523.
- Case 7/78, see note 24.
- The major oil companies were at best prepared to agree to purchase petroleum products from the refinery concerned only at the lowest international spot prices prevailing at the time of purchase; even at those prices, the refinery would have been a marginal supplier only, with the result that the offtake of its products would be uncertain. Some companies, according to the Irish Government, even refused to purchase products from the refinery at any price.
- Contra: case comment in E.C.L.R. (see note 14), at 252, where it is stated that the Court in the final analysis prefers the restriction on competition over the restriction on intra Community trade.
- The outcome of such analysis under Article 92(3)(b) seems doubtful at first sight, since the object of the 1982 Order is not to remedy an existing disturbance but rather to prevent a disturbance occurring in the event of a future oil supply crisis. As concerns Article 92(3)(c), it has already been applied by the Commission in a case involving repayable subsidies to the German oil industry to encourage diversification of crude oil supply. See Bulletin of the EC [1969] No. 12, p. 28. The German case did not involve an increase or maintenance of EC refining capacity. The 1982 Order which led to the Campus Oil judgment, however, while not causing an increase in capacity did contribute to maintaining refining capacity. It remains open whether in light of the general overcapacity in the Community an Article 92(3)(c) analysis would lead to the conclusion that the granting of state aid to the Irish refinery does not adversely affect trading conditions in the EC (see the series of Commission decisions in the Antwerp refineries cases: Decisions 73/293, 77/260, 80/1157, 81/984 and 82/829).
- See note 29. We agree with J. Minor (see note 14, at p. 344) that such an objective, of an essentially economic nature, cannot be justified under Article 36.
- See Case 15/79, Groenveld v. Produktschap voor Vee en Vlees, [1979] E.C.R. 3409.
- The case also involved the question whether the May 11, 1975 Agreement between Israel and the Community ([1975] O.J. L. 136/1), which called for the progressive abolition of obstacles to trade between the two entities, prohibited the imposition of quantitative restrictions on the export of oil. The Court of Justice concluded that the 1975 Agreement does not prohibit the introduction of quantitative restrictions on exports or measures having equivalent effect on exports from a Member State to Israel.
- P. Oliver, see note 14, at 312.
- W. Gormley, see note 14, at 138.
- The maintenance of refining capacity and the financing thereof through mandatory purchases of the output of the refinery in question (which involves a restriction on imports) does, a priori, not endanger the workings of the Community's oil supply scheme, on the assumption of course that in times of shortages the Member State in question allows that output to be included in the products to be “shared” with fellow Member States. However, while basically complementary with the Community oil policy, the 1982 Order does affect the application of Council Decision 77/186 since it affects the “traditional patterns of trade” that, as discussed above, need to be preserved as far as possible. It will be recalled that the purpose of action taken in application of that Council Directive is to “maintain the normal channels of supply and the normal supply proportions between crude oil and petroleum products” and “guarantee fair treatment for all market operators as regards both prices and quantities.” Why, one may ask, should such interference be accepted during normal supply conditions if it is in principle prohibited by Community measures in the event of a crisis?
- It is submitted that the second permissible minimum requirement listed in the Court's holding, i.e. the minimum necessary to maintain the refinery or to enable the refinery to refine the crude oil for the supply of which Ireland has entered into long-term supply contracts, relates too closely to the facts of the Campus Oil case to allow for the inference of a general principle.
Journal of Energy & Natural Resources Law
Volume 5, 1987 - Issue 1