C-8/70
ECLI:EU:C:1970:94
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JUDGMENT OF THE COURT 18 NOVEMBER 19701
Commission of the European Communities v Italian Republic
Case 8/70
Summary
Member States — Obligations — Failure to fulfil — Liability — Extent Constitutionally independent institutions (EEC Treaty, Article 169)
The liability of a Member State under of the failure to fulfil its obligations, even Article 169 arises whatever the agency of the in the case of a constitutionally independent State whose action or inaction is the cause institution.
In Case 8/70
Commission of the European Communities, represented by Cesare Maestripieri, Legal Adviser to the Commission, acting as Agent, with an address for service in Luxembourg at the offices of Emile Reuter, Legal Adviser to the Commission, 4 boulevard Royal,
applicant,
V
Italian Republic, represented by Adolfo Maresca, Minister Plenipotentiary, acting as Agent, assisted by Pietro Peronaci, Deputy State Advocate-General, with an address for service in Luxembourg at the Italian Embassy,
defendant,
Application for a declaration that, by imposing an 0.50% duty for administrative services on goods imported from other Member States, the Italian Republic has failed to fulfil an obligation under the Treaty establishing the European Economic Community,
1 — Language of the Case: Italian.
JUDGMENT OF 18. 11. 1970 — CASE 8/70
THE COURT
composed of: R. Lecourt, President, A. M. Donner and A. Trabucchi, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars (Rapporteur), Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure the processing of agricultural products, the Commission considers that, in accordance 1. The Italian Law No 330 of 15 June 1950 with a provision which is found expressed Official Journal of the Italian Republic in similar terms in all the agricultural No 137 of 17 June 1950) introduced a duty regulations which it quotes in its conclu for administrative services which is imposed sions, as soon as a market organization on goods imported from abroad at the rate has been set up and without waiting for of 0.50% of their value. For the purposes the transitional period to come to an end, of applying this duty, the taxable value it is absolutely and immediately prohibited, of the goods is determined according to the for Member States to impose customs rules in force for the application of ad duties or charges having equivalent effect valorem customs duties. on imports of the products involved because these duties and charges have been 2. The Commission, which considered that replaced by a system of levies. this duty was a charge having an effect In these circumstances it initiated the equivalent to a customs duty on imports, procedure laid down in Article 169 against initiated two distinct procedures against the Italian Republic in a letter of 28 the Italian Republic on the basis of Article December 1967. 169 of the Treaty. The first concerned the After correspondence had been exchanged, charge in question in so far as it was during which the Italian Government imposed on agricultural products which announced its intention of laying a motion came within a common organization of before Parliament as soon as possible for markets and the second concerned the same the repeal of the duty in question and after charge in so far as it involved other goods the Commission had urged to no avail that or products imported into Italy from other the duty be abolished by 1 July 1968 at the Member States. latest, that is, by the end of the transitional period, it delivered a reasoned opinion on 3. As regards products which come within 20 January 1969 in which it stated that by a common organization of agricultural imposing the charge in question as regards markets and certain goods resulting from goods which come within common organi-
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zations of markets, the Italian Republic was by the Council of Ministers of the Italian failing to fulfil its obligations under the Republic and had been laid before Parlia Treaty and requested it to comply with that ment.
opinion within one month. The Commission waited until 7 March 1970 before lodging a single application at the 4. As regarded products which did not Court of Justice concerning both aspects come within a common organization of of the charge in question. agricultural markets, the Commission based The bill to abolish this tax was approved its action on Article 13 (2) of the Treaty by the Italian Senate on 29 April 1970 but a which provides for the abolition during the vote had not yet been taken on it by the transitional period of charges having Chamber of Deputies. equivalent effect, according to a timetable determined by means of directives. 6. The oral procedure followed the normal On 28 December 1967 it communicated course.
Directive No 68/31 of 22 December 1968 The Court, after hearing the report of the to the Italian Government which fixed the Judge-Rapporteur and the views of the timetable for the abolition of the duty in Advocate-General, decided to open the oral question (OJ 1968 L 12, p. 8). procedure without a preparatory inquiry. According to this directive, the duty was The parties presented oral argument at the to be abolished by means of successive hearing on 20 October 1970. The Advocate- reductions of the rate applied on 31 General delivered his opinion at the hearing December 1957 so that it would be com on 28 October 1970. pletely abolished by 1 July 1968. The Italian Government did not challenge this directive but took no action to comply II — Conclusions of the parties with it so that the charge in question continued to be levied. In these circumstances, the Commission The applicant claims that the Court should : initiated the procedure under Article 169 in a letter of 22 January 1969. The Italian (a) declare that the Italian Republic, by Republic informed it once more that a bill levying under Law No 330 of 15 June to abolish the duty in question had been 1950 the duty of 0.50% for administra drafted. As no indication had been given tive services on goods which come as to the date on which the infringement within the regulations of the Council would be brought to an end, the Commis on certain common organizations of sion delivered a second reasoned opinion agricultural markets and on certain on 12 June 1969 finding that the Italian goods resulting from the processing of Republic had failed to fulfil an obligation agricultural products imported from under the Treaty and requesting it to comply other Member States, has failed to with this reasoned opinion within one fulfil its obligations under the pro month. visions of Article 189 of the EEC Treaty in conjunction with the following 5. The two procedures which had thus articles of the said regulations : been initiated and followed separately according to whether the products in — Article 12 (1) of Regulation No question came within the regulations 13/64/EEC, replaced by Article 22(1) relating to common organizations of of Regulation (EEC) No 804/68; agricultural markets had reached the same stage in June 1969 as regards the course — Article 12 (1) of Regulation No of proceedings laid down in Article 169. 14/64/EEC, replaced by Article 22(1) The Permanent Representative of Italy of Regulation (EEC) No 805/68; repeated in his letter No 3489 of 25 June 1969 the assurance that a bill to abolish — Article 3 (1) of Regulation No the duties in question had been approved 136/66/EEC;
JUDGMENT OF 18. 11. 1970 — CASE 8/70
— Article 13 (1) of Regulation No III —Submissions and arguments 159/66/EEC; of the parties
— Article 7 (1) of Regulation No 160/66/EEC, replaced by Article The applicant states that it has carried out 10 (1) of Regulation No 1059/69; all the formalities which must precede bringing the matter before the Court and observes that the duty for administrative — Article 12 of Regulation No 44/67/ services is imposed on imported goods but EEC, replaced by Article 35 (1) of not on domestic goods, and that there is Regulation No 1009/67/EEC; no internal taxation to justify the duty's being imposed under Article 95 of the — Article 21 (1) of Regulation No Treaty. 120/67/EEC; From this it deduces that the duty is a charge having an effect equivalent to a — Article 19 (1) of Regulation No customs duty on imports. 121/67/EEC; The defendant alleges in its statement of defence that the application no longer — Article 13 (1) of Regulation No reflects the existing legal situation in Italy 122/67/EEC; because in the meantime a bill to abolish the charge in question has been laid before the — Article 13 (1) of Regulation No Senate on 27 June 1969; therefore the 123/67/EEC; situation upon which the application of the Commission is based has been radically altered. — Article 8 (1) of Regulation No The applicant replies that the infringement 170/67/EEC; continues as long as draft Bill No 745 has not become a law of the Italian Republic — Article 23 (1) of Regulation No and that the introduction of this bill is not 359/67/EEC; enough to entitle the Italian Government to state that the Italian Republic has (b) declare that the Italian Republic, by fulfilled its obligations under Community levying the duty of 0.50 % for adminis law, especially since the charge is still being trative services laid down by Law No levied. 330 of 15 June 1950 on goods other than Failure to fulfil an obligation can be those to which the abovementioned ascribed to a state as such no matter what regulations apply which were made state agency caused the failure to fulfil the under Articles 43 and 235 of the EEC obligation by its action or inaction, even Treaty, has failed to fulfil its obligations if it is an institution which is constitutionally under the provisions of Article 189 of independent. (Case 77/69 of 5 May 1970, the Treaty in conjunction with Directive Commission ν Belgium, [1970] ECR). No 68/31/EEC of 22 December 1967; The applicant adds, moreover, that it only lodged a reply in order to enable the (c) order the Italian Republic to pay the defendant to put the situation in order costs. during the course of the proceedings. The defendant answers that the Government has done all in its power under the consti The Italian Republic contends that the Court tution of the State to eliminate the dis should: crimination in question: a bill was laid before the Senate which has passed it in the — dismiss the application of the Commis meantime and the bill has been sent on to sion of the European Communities ; the Chamber of Deputies. The reason why the examination of the bill — order the Commission to pay the costs. by the Chamber of Deputies has been
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delayed is that there has been a ministerial constitutional system of the Member State crisis and Parliament's work has been and this means that it cannot be declared suspended during the summer months. that the Member State has infringed the It is therefore an unavoidable case of force Treaty. majeure connected with the parliamentary
Grounds of judgment
1 By application lodged at the Court Registry on 7 March 1970 the Commission has brought before the Court under Article 169 of the EEC Treaty an action for a declaration that, by levying on imported goods the duty of 0.50% laid down by Italian Law No 330 of 15 June 1950, for administrative services, the Italian Republic has failed as regards goods which come within certain common organizations of agricultural markets to fulfil its obligations under Article 189 of the Treaty in con junction with various regulations relating to the common organization of markets and, as regards other goods, has failed to fulfil its obligations under the provisions of Article 189 of the Treaty in conjunction with Directive No 68/31/EEC of 22 December 1967 (OJ L 12 of 16. 1. 1968, p. 8).
2 The charge in question imposes an ad valorem duty of 0.50% on imported goods only. The Italian Government claimed during the preliminary proceedings that this duty represented conisderation for services rendered by the customs administration and could not be considered as a charge having effect equivalent to a customs duty but following this it announced in a note dated 23 April 1968 its intention of putting before Parliament the necessary legislation for the purpose of abolishing the charge in question. However the taxation in question has continued to be levied.
3 There is no dispute that the charge in question is imposed on imported goods owing to the fact that they cross the frontier. It is not alleged that it is a charge to com pensate for internal taxation, nor is it maintained that it is a consideration for services actually rendered. On the contrary, it must be regarded as a charge having an effect equivalent to a customs duty and it therefore comes within the prohibition in Article 9 of the Treaty.
4 Under Article 13 (2) of the Treaty this charge should have been abolished during the transitional period according to the timetable indicated in Directive No 68/31/EEC of 22 December 1967 in so far as it is imposed on products other than those to which the regulations relating to organizations of the agricultural market apply. According to this directive, the charge in question should have been abolished by means of successive reductions so as to have been entirely eliminated by 1 July 1968.
JUDGMENT OF 18. 11. 1970 — CASE 8/70
5 The charge in question therefore infringes Article 13 (2) of the Treaty in conjunction with Directive No 68/31/EEC of 22 December 1967 in so far as it is imposed on products other than agricultural products which come within a market organiza tion.
6 The duty in question, in so far as it is imposed on agricultural products which come within regulations relating to a common organization of the market, infringes the provisions of these regulations which prohibit as from the respective dates on which they enter into force the levying on the products to which they apply of any customs duty or charge having an equivalent effect.
7 Under Article 189 of the Treaty, these regulations are binding in their entirety and directly applicable in all Member States. The retention of the taxation in question is incompatible with these regulations.
8 The defendant does not dispute that the contested charge is contrary to the provisions of Community law but relies on the fact that it is willing to adopt the necessary measures to abolish it. To this end the Italian Government introduced a bill which the Senate approved on 29 April 1970 and which is at present before the Chamber of Deputies. According to the defendant the delay in examining this bill is due to force majeure which prevented Parliament from coming to a decision in good time in spite of the efforts made by the Italian Government.
9 The obligations arising from the Treaty devolve upon States as such and the liability of a Member State under Article 169 arises whatever the agency of the State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution.
10 In any case a Member State cannot justify itself by relying upon obstacles which not only did not emerge until long after the coming into existence of the obligations which it is alleged to have failed to fulfil, but only did so after the period laid down in the: reasoned opinion had expired.
11 The failure consists essentially in the actual levying of the charge in question.
12 In these circumstances, the Italian Republic, by continuing to levy an 0.50% duty for administrative services on imported products to which the regulations on the organization of agricultural markets apply after the dates on which those regula tions entered into force and on other goods imported from a Member State after
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1 July 1968, has failed to fulfil an obligation under the Treaty establishing the European Economic Community.
Costs
13 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. The defendant has failed in its submissions.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties ; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 9, 13, 43, 169, 171, 189 and 235; Having regard to Regulations Nos 13/64/EEC, 14/64/EEC, 136/66/EEC, 159/66/ EEC, 160/66/EEC, 44/67/EEC, 120/67/EEC, 121/67/EEC, 122/67/EEC, 123/67/ EEC, 170/67/EEC, 359/67/EEC, 1009/76/EEC, (EEC) 804/68, (EEC) 805/68 and (EEC) 1059/69; 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,
THE COURT
hereby:
1. Declares that, by levying an 0.50% charge for administrative services on imports from other Member States of goods which come within regulations of the Council on certain common organizations of the agricultural market and on certain goods resulting from the processing of agricultural products imported from other Member States, the Italian Republic has failed to fulfil
OPINION OF MR ROEMER —CASE 8/70
its obligations under the provisions of Article 189 of the EEC Treaty in con junction with the said regulations;
2. Declares that, by imposing an 0.50 % charge for administrative services on goods, other than those to which the abovementioned regulations apply, imported from other Member States, the Italian Republic has failed to fulfil its obligations under the provisions of Article 13 of the EEC Treaty in con junction with those of Directive No 68/31 EEC of 22 December 1967;
.3. Orders the defendant to pay the costs.
Lecourt Donner Trabucchi
Monaco Mertens de Wilmars
Delivered in open court in Luxembourg on 18 November 1970.
A. Van Houtte R. Lecourt
Registrar President
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 28 OCTOBER 1970<apnote>1</apnote>
Mr President, This it did in a letter of 28 December 1967 Members of the Court, as regards goods which come within regulations on the common organization In Italy a duty is levied on imported goods of agricultural markets or result from the at the rate of 0.50% of their value by processing of agricultural products, be Law No 330 of 15 June 1950 (Official Journal cause the relevant Community regulations of the Italian Republic No 137 of 17 June contain prohibitions to this effect in respect 1950). The relevant value of the goods in of these goods. Following this, Italy's this respect is determined according to the Permanent Representative stated in a letter rules to be observed in the application of 23 April 1968 that it was not intended of ad valorem customs duty. The Commis to submit observations on the Commission's sion regards these duties, in so far as they considerations but that on the contrary the are imposed on imports from other Member Italian Government was going to put before States, as charges having an effect equiva the national Parliament measures designed lent to customs duties which are no longer to bring to an end the infringements of permitted under Community law. There which complaint had been made. Because fore it initiated two procedures against the the Commission did not consider this Italian Republic to obtain declarations that argument to be sufficient, it repeated its it had failed to fulfil its obligations under request for the legal situation to be altered the Treaty. by 1 July 1968 at the latest, that is, by the
1 — Translated from the German.