C-28/62

Summary

1. Preliminary ruling—National courts or tribunals of last instance—Duty to bring matter before the Court—Extinction in case of a question of interpretation already decided by the Court (EEC Treaty, Article 177) 2. Preliminary ruling—Jurisdiction of the Court and of national courts (EEC Treaty, Article 177) 3. Procedure—Preliminary ruling—Question of interpretation already decided by the Court—Fresh reference—Admissibility (EEG Treaty, Article Statute of the Court Justice the EEC, of of Article 20)

1. The obligation imposed by the third limits itself to deducing the meaning paragraph of Article 177 of the EEC ofCommunity rules from the wording Treaty upon national courts or tri­ and the spirit of the Treaty, it being bunals last instance may be de­ of left to the national court to apply in prived of its purpose by reason of the the particular case the rules which are authority of an interpretation already thus interpreted. given by the Court under Article 177 in those cases in which the question 3. Article 177 always allows a national

raised is materially identical with a court if it it or tribunal, considers

question which has already been the in­ appropriate, to refer questions of subject of a preliminary ruling in a terpretation to the Court again even similar case. if they have already formed the sub­

2. When ject of a preliminary ruling in a giving a ruling within the framework of Article 177, the Court similar case.

preliminary ruling in the actions pending before that court, between

Da Costa EN SCHAAKE N.V., Amsterdam, represented by H.G. Stibbe and L.F.D. ter Kuile, advocates of Amsterdam (Case 28/62),

Jacob Meijer N.V., Venlo, (Case 29/62),

HOECHST-HOLLAND N.V., Amsterdam, (Case 30/62),

and

NEDERLANDSE BELASTINGADMINISTRATIE­ , represented by the Inspectors of

able before 1 March 1960, an alteration which, although amounting to an increase from an arithmetical point of view, is, nevertheless, not to be regarded as prohibited under the terms of Article 12,

THE COURT

composed of: A. M. Dormer, President, L. Delvaux and R. Rossi (Presidents

of Chambers), Ch. L. Hammes, A. Trabucchi (Rapporteur), R. Lecourt and W. Strauß, Judges,

Advocate-General: M. Lagrange Registrar: A. Van Houtte

gives the following

toms declaration of that date, goods de­ that, in view of the prohibition imposed scribed in the import document as by Article 12 of the EEC Treaty, the Brussels Protocol of 25 July 1958, con­

'Frigen 11/12, No 5050, halogenous de­ cluded by the three Member States of rivatives of hydrocarbons, 50 per cent the Benelux Economic Union and ap­

dichlorodifluoromethane, 50 per cent trichlorod­ ifluorometha­ ne’. proved by the Dutch Law of 16 Decem­ ber 1959, cannot lead to the imposition According to the decision of 24 June on the products in dispute of an import 1960, No 328 B.T. of the Nederlandse higher duty than that which was ap­

Belastingadministratie, the product in 1 plied on January 1958, the amount question should, at the date of import, of which was nil. have been classified under heading The Nederlandse Belastingadministratie 38.19-b-6 of the tariff of import duties replied that Article 12 of the EEC then in force under the Brussels Proto­ Treaty does not have direct application col of 25 July 1958, ratified in the to nationals of the signatory States. Netherlands by the Law of 16 December 1959. (b) Case 29/62 38.19-b-6 fol­ Heading was worded as On 14 March 1960 the company Jacob lows: Meijer N.V. imported from the Federal 'Chemical products and preparations (in­ Republic its of Germany, according to

cluding mixtures of natural declaration bake­ products) customs of that date, manufactured by the chemical industries lite material for electro-technical equip­

or related industries and not mentioned ment (so-called 'galvanized boxes'), de­ or included elsewhere; residuary pro­ scribed in the import document as ducts of chemical industries or related 'bakelite junction boxes'. According to industries not mentioned or included the decision of 3September 1960, No elsewhere: b. others: 59 B of the Nederlandse Belasting­ e'

Chemical products and preparations (in­

Jacob Meijer N.V. appealed to the cluding those consisting of mixtures of

Tariefcommissie against this decision, natural products) manufactured by submitting that the increase caused by chemical industries or related industries this classification, as compared with the and not mentioned or included else­

import duty applied to the products in where; residuary products of chemical

question at the time the EEC Treaty industries or related industries not men­

entered into force, was incompatible tioned or included elsewhere

electric current (cut outs, switches, re­ product in question, Hoechst-Holland

lays,surge arresters, contact plugs and N.V. criticized the imposition of the

sockets, junction boxes and connexions, import duty of 9 per cent ad valorem

etc); resistances (other than heating re­ in this instance, in view of the fact that sistances), potentiometers and rheostats, on the date when Article 12 of the

automatic voltage regulators with resist­ EEC Treaty entered into force the pro­

duct in from im­ question was exempt ance, choke-coil, vibrating reed or motor

(c) Case 30/62 directly applicable to ordinary trade; that this point of view was supported

Trans­ by the provision in the first paragraph On 12 May 1960 N.V. Rhenus Treaty.' of Article 170 of the portmaatschappij imported from the

Federal Republic of Germany powder

products described in the customs (d) In all these cases declaration as 'Asplit CN'. According to the decision of 16 July The Tariefcommissie, in its hearings of 1960, No 585 Tar/1960 of the Neder­ 22 January and 21 May 1962, whilst landse Belastingadministratie, the pro­ holding that the products in question

duct, in question was to be classified should be classified under the headings at the date of import under heading indicated by the Belastingadministratie, 38.19-b-6 of the tariff of import duties considered that the arguments of the

then in force under the Brussels Proto­ parties raised a question bearing on the col of 25 July 1958, concluded by the interpretation of the EEC Treaty; it three Member States of the Benelux consequently suspended proceedings in Economic Union and approved by the the three actions and, in accordance with Dutch Law of 16 December 1959. On the third paragraph of Article 177 of

to the parties involved in the different Member States resulting from it is ac­ cases, to the Member States and to the cordingly applicable only in relation to Commission of the EEC under Article the other States. Conse­ contracting 20 of the Court of Justice of the EEC. quently only these States and the Com­

In accordance this mission, which has the task of applying writ­ with provision, ten observations were submitted on the it, can derive rights from it. three by the appellants in the cases With regard to the observance by the

main actions, by the Commission of the States of the obligations which arise

EEC and by the Government of the under Article 12 of the EEC Treaty, Federal Republic Germany. of their nationals, therefore, in relation to The Court, by Order of 24 January the State authorities, have only such

1963, considering that the questions of rights as belong to them under the con­

interpretation posed by the Tariefcom­ stitutional system of their own State. missie in the three cases were identical, In fact, since the above-mentioned

context of their mutual relationships, The observations presented under the

Article 20 of the but that they created a community with second paragraph of

Statute Court an independent existence. Objecting to Protocol on the of the

Justice be the formulation of the first question put of of the EEC may sum­

follows: to the Court by the Tariefcommissie in marized as respect of its reference to individual A—­ On the first question rights, Da Costa en Schaake N.V. as­

serts that, in order to decide upon the

Member States. plication of Community law from the

The use of the following criteria is sug­ jurisdiction of national courts, in view

gested by Da Costa en Schaake N.V. of the fact that Article 12 of the EEC in order to determine the cases in which Treaty lays down a provision which can the national court will act in order to as it stands be applied directly and ensure observance the law in inter­ the the of without any action on part of

preting and applying the Treaty: the national legislature; any person must be provisions at issue must not require able to require its application by the

action by national legislative authorities courts, even in respect of national legis­ or Community institutions; the charac­ lative provisions which are inconsistent ter or drafting of the provisions includ­ with this rule.

ing requirements or prohibitions must make evident the fact that there is an

into force of the Treaty all customs a specific product at the time of entry duties were identical with the duties into force of the Treaty? Referring in applied on 1 January 1957 (Article 14). this respect to what it pointed out under In addition, although relating not to II, ad. 2 (a) on page 28 of its statement nationals, but only to in Case 26/62, the Commission authori­ men­ national

it funda­ instance of Cases 28/62 ties, constitutes a clear and tions that in the

mental rule the infringement of which and 29/62, there is no difference of

would conflict with the fundamental opinion between the parties on the ques­ principles of the Community, with the tion which law was applied to the goods liable time implemen­ result that nationals to suffer concerned at the of the

damage as a result of such infringement tation of the Treaty. It was a question, must be protected. Lastly, the national in respect of Case 28/62, of a nil duty court may without difficulty apply and, in respect of Case 29/62, of a Article 12 direcdy, without taking ac­ duty of 10% ad valorem. Consequently, count of customs duties which have the duty imposed in the first case and been increased or introduced contrary the increase imposed in the second are

to the provisions of this Article. incompatible with Article 12 of the EEC Jacob Meijer N.V. considers that the Treaty. With regard to Case 30/62, ac­ nationals of Member States can validly cording to the Commission, it is not base their claims to subjective rights, possible to see clearly whether the

sion considers that at the present The German Government, for its part, moment it is impossible to arrive at an mentions that the question whether nat­

indisputable conclusion as to: ional rules are inconsistent with the

(a) The duty which was to be levied obligation arising under Article 12 can­

on the product in question in accord­ not depend upon a decision of the Court ance with the old tariff; under Article 177 of the Treaty, be­

(b) The duty which, whether or not cause this question is not concerned

consonant with the answer provided with the interpretation of the Treaty.

Member States to observe the customs C—­ On the question whether the refer­

ences have lost their purpose provisions of theTreaty, as is apparent particularly from Article 37 (2); it is During the oral procedure, the Com­

impossible to see how any increase mission of the EEC maintained that, duties law­ whatever in customs can be following the judgment in Case 26/62 ful. given by the Court on 5 February 1963, Jacob Meijer N.V. points out that the which decided identical questions, the statement in reply, prepared following references in the present case had lost the examination of the draft of the new their purpose.

Grounds of judgment

The regularity of the procedure followed by the Tariefcommissie in request­

ing the Court for a preliminary ruling under Article 177 of the EEC Treaty has not been disputed and there is no ground for the Court to raise the

courts or tribunals of last instance and the power granted by the second

paragraph of Article 177 to every national court or tribunal to refer to the

Court of the Communities a question on the interpretation of the Treaty. Although the third paragraph of Article 177 unreservedly requires courts or

tribunals of a Member State against whose decisions there is no judicial

remedy under national law—like the Tariefcommis ie—to refer to the Court

every question of interpretation raised before them, the authority of an

Court by Article 177 of ensuring unity of interpretation of Community law within the six Member States. If Article 177 had not such a scope, the

procedural requirements of Article 20 of the Statute of the Court of Justice, which provides for the participation in the hearing of the Member States and the Community institutions, and of the third paragraph of Article 165 of the Treaty, which requires the Court to sit in plenary session, would not be justified. This aspect of the activity of the Court within the framework of

Article 177 is confirmed by the absence of parties, in the proper sense of

the word, which is characteristic of this procedure.

It is less that Article 177 court, if it con­ no true always allows a national

siders it desirable, to refer questions of interpretation to the Court again.

must protect.

2. In order to ascertain whether customs duties or charges having equivalent effect have been increased contrary to the prohibition contained in Article 12 of the Treaty, regard must be had to the duties and charges actually applied by the Member State in question at the date of the entry into force of the Treaty. Such an increase can arise both from a re-arrangement of the tariff resulting in the classification of the product under a more

highly taxed heading and from an increase in the rate of customs duty applied.'

The questions of interpretation posed in this case are identical with those

settled as above and no new factor has been presented to the Court.

In these circumstances the Tariefcommissie must be referred to the previous

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Commission of the European Economic

Community; Upon hearing the opinion of the Advocate-General; Having regard to Articles 9, 12, 14, 169, 170 and 177 of the Treaty estab­

lishing the European Economic Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the

European Communities; Having further regard to its judgment of 5 Feburary 1963 in Case 26/62;

OPINION OF MR M. LAGRANGE — JOINED CASES 28, 29 AND 30/62

Hammes Trabucchi Lecourt StrauB

Delivered in open court in Luxembourg on 27 March 1963.

A. Van Houtte A. M. Donner

Registrar President

OPINION OF MR ADVOCATE-GENERAL M. LAGRANGE <ap note>1</ap note> DELIVERED ON 13 MARCH 1963

Mr President, 1962 in Case 26/62 and 19 September Members of the Court, 1962 in the three other cases—those

the parties to the main actions and by dismissing the cases for lack of grounds. the Governments and the Commission A matter of principle is involved here are the same; finally, no new circum­ which is not without importance to the

stance has occurred since the judgment, future application of Article 177 and

no new argument has been between the Court presen­ and the relationships of

ted.The only difference from the pro­ Justice and the national courts which

cedural point of view is that reference flow from it. Court Tarief­ was made to the by the I think that this problem should be re­

commissie on different dates: 16 August solved by a normal application of the