C-33/70

2. Community institutions — Common provisions — Directives — Direct applicability — Conditions (EEC Treaty, Article 189)

1. Articles 9 and 13(2) taken together, regard to all charges having equivalent involve, at the latest at the end of the effect, to which such provisions refer, transitional period, with regard to all rights which the national courts must charges having an effect equivalent to protect. customs duties on imports, a clear and precise prohibition on exacting the said 2. A directive the object of which is to charges, which is not subject to any impose on a Member State a final date reservation for the States to subject its for the performance of a Community implementation to a positive act of obligation does not concern solely the national law or to an intervention by relations between the Commission and the institutions of the Community. This that State, but also entails legal conse­ prohibition lends itself by its very quences of which both the other nature to producing direct effects in the Member States concerned in its per­ legal relations between Member States formance and individuals may avail and their subjects. Therefore, from the themselves when, by its very nature, end of the transitional period, these the provision establishing this obligation provisions confer on individuals, with is directly applicable.

In Case 33/70

Reference to the Court under Article 177 of the EEC Treaty by the President of the

1 — Language of the Case: Italian. 2 —CMLR.

JUDGMENT OF 17. 12. 1970 —CASE 33/70

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I— Facts and procedure to 0.5 % of their value. The dutiable value of the goods for the purpose of the appli­ The facts and procedure may be sum­ cation of that duty is determined in marized as follows : accordance with the rules in force for the application of ad valorem customs duty. 1. Italian Law No 330 of 25 June 1950 (Gazetta Ufficiale della Repubblica Italiana 2. Considering it to be a charge having an (Official Gazette of the Italian Republic) effect equivalent to a customs duty, the No 137 of 17 June 1950) established a duty Commission, in accordance with the pro­ for administrative services imposed on visions of Article 13(2) of the EEC Treaty, goods imported from abroad amounting determined by means of a directive of 22

(1) Following the adoption of Directive (a) The first question No 68/31 of 22 December 1967, published in the Official Journal of the (i) The Commission first makes the point European Communities No 12/8 of that the question concerns the direct 16 January 1968, are the provisions of applicability of provisions relating to the Article 13(2) of the Treaty of Rome obligation of Member States to abolish (or in any event, the provisions of between themselves customs duties and Directive No 68/31 itself) directly charges having equivalent effect. Since this applicable in the domestic legal system is an obligation to act, it is appropriate of the Italian State? to consider whether the Italian Republic has or has not a discretionary power (2) If the reply to Question (1) is in the enabling it wholly or partially to exclude affirmative, were rights conferred on the effects of the obligation. individuals as from 1 July 1968 of which Article 13(2) of the EEC Treaty which the national courts must take cogni­ imposes on Member States the obligation zance? to abolish progressively, during the transi­ tional period, charges having an effect 5. The order for reference was registered equivalent to customs duties on imports, at the Court of Justice on 9 July 1970. then refers, for the purpose of determining The Commission of the European Com­ the timetable for such abolition, to munities, SpA SACE and the German directives of the Commission. The obliga­ Government submitted written observa­ tion thereby imposed on Member States, tions. which is in itself clear and specific, is Having heard the report of the Judge- suspended until the end of the transitional

— at the expiry of the transitional period (b) The second question for all other charges having equivalent effect; the expiry of the transitional The Commission observes that once it is period must, however be taken' to be accepted that the Community provisions 31 December 1969 and not 1 July 1968, at issue are directly applicable as from the the date fixed by the decision of the date fixed by the Commission's directive, Council of 26 July 1966 (OJ 2971, p. 66) then it must also be accepted that as from for the advance implementation of the that date individual rights have been customs union. created which the national courts must protect. ­ As from these dates Member States no The fact that the provisions in question longer have a margin of discretion in impose on Member States an obligation to performing the obligation devolving upon act cannot be used to rebut that argument. them by virtue of the Treaty and nothing In fact, the Court of Justice has stated that therefore stands in the way of the direct both obligations to act, such as those in applicability of the Community provisions Article 95, imposed by Community law in question. In this case in particular, the on Member States, and obligations to directive of the Commission; notified to refrain from acting may create individual the Italian Republic on 28 December 1967, rights (Judgment of 3 April 1968, Molkerei fixed 1 July 1968 as the date by which the Zentrale, Case 28/67 [1968] E.C.R. 143). imposition of the duty at issue had to come In both cases, the Court has defined in the to an end. Consequently, it must be same way the consequences deriving from considered that as from the expiry of the the direct applicability of a provision of said time-limit, the provisions of Article Community law. 13 (2) took full effect, without any exception The only essential factor is indeed the as regards the abolition of the 'duty for precision and the completeness of the rule administrative services', and became opera­ in question! Article 13 does not refer to tive in law between the Italian Republic an abstract obligation to refrain, but to and individuals. ­ an obligation to abolish charges having The Commission's argument is supported equivalent effect which, being limited by the case-law of the Court and, in objectively and territorially, had to be particular, by the judgment of 16 June 1966 defined by a directive which thus comple­ (Case 57/65 [1966] E.C.R. 205) and by that ments the enactment in Article 13. of 6 October 1970 (Case 9/70 Grad [E.C.R.] 1970).­ (ii) The Commission points out secondly (c) The Commission considers that, as that, because of the interpretation which regards the obligation to abolish the duty it gives to the provisions of Article 13(2), for administrative services levied in Italy it is not necessary to examine the problem in pursuance of Law No. 330 of 15 June of the direct applicability of the directive 1950, the provisions of Article 13(2) of the of 22 December 1967. EEC Treaty are directly applicable as from It states however that, for all practical 1 July 1968 in the Italian legal system and purposes, the direct effect of provisions create individual rights which the courts which, although contained in directives, must protect.

2 — Observations of the German Govern prescribes, in certain fields, the choice of ment form of the directive (as for example in Article 100) emphasizes the important (a) The German Government points out that point of principle which the signatory the problem posed by the Italian courts is States attached to the distinction between whether the directive by which the Com directives and other measures, a point which mission, acting within its powers, fixed would go by default if the directive were the time-limit for the abolition of the treated as a regulation. charge having equivalent effect at a date (ii) It is not permissible for individuals to in advance of that fixed by the Treaty itself plead the illegality of directives on the in Article 13(2) (expiry of the transitional grounds that they are addressed to Member period), has the same effect in relation to States, that they are not of general appli direct applicability as the fixing of time- cation and have no direct effect and that it limits determined by the Treaty itself. is for Member States to give effect to them. The German Government considers that (iii) Directives are not necessarily pub this question requires a reply in the lished in accordance with the first paragraph negative because, according to Article 189 of Article 191 as is the case with regulations. of the EEC Treaty, directives are only, If they were directly applicable, an essential addressed to Member States and because, condition of legal certainty would be by comparison with regulations, they are lacking.

their implementation. A directive cannot and 13(2) of the EEC Treaty which it therefore have the effect of making Articles entails, can concern only the duty for 9 and 13(2) of the EEC Treaty directly administrative services. The directive would applicable before the date prescribed. Such thus have the effect of dividing up the a result could only have been achieved if sphere of application of the general rule the time-limit were itself capable of being established by the Treaties and direct directly applicable. applicability would in the end be conferred not on the rule laid down in the Treaty (b) In support of its argument the German but solely on the directive, since it alone Government refers to the observations determines the material content of the which it submitted in Case 9/70 (Grad). prohibition and prescribes the time when Generally speaking, the direct applicability the prohibition comes into effect. of directives should be ruled out for several (ii) Furthermore, since the Italian Republic reasons : is the only party to whom the directive (i) The integration aimed at by the Treaties in dispute is addressed, direct applicability is brought about, on the one hand, by can only operate in that country.

the purpose. The fact that the Treaty directly applicable, the general principle

of the regulation of 15 April 1958, deter (a) Effects of the early realization of the mining the languages to be used in Com customs union munity measures and providing that for documents of general application the four 1. According to the undertaking SACE, languages are authentic, would be dis the Acceleration Decision of the Council regarded. of 26 July 1966 (OJ of 1966, p. 2971) caused all the provisions of Article 12 et seq. (d) The German Government also points of the Treaty, aiming to abolish the various out that the opinion which it is defending customs duties and, in particular, charges cannot be faulted by reliance on the having an effect equivalent to customs judgment of the Court of 18 February 1970, duties, to become directly applicable with Case 38/69 ([1970] E.C_R_). This Judgment effect from 1 July 1968.

customs union. From this date all the (e) The German Government considers, transitional provisions of Articles 9 to 35 therefore, that Directive No 68/31 cannot lapsed and all the rules laid down in those be directly applicable and that in order to articles became directly applicable. confer, before the date prescribed, direct applicability on Articles 9 and 13(2) of the — This argument is not, however, correct, EEC Treaty, the fixing of time-limits should SACE observes, unless the abovementioned itself have been capable of direct applica

to 1 July 1968. The second concerns the designation of the charges in question. direct effects of Article 13 (2) of the Treaty Furthermore the interpretation proposed in conjunction with Directive No 68/31 of derives also from the fact that the Ac 22 December 1967. celeration Decision clearly refers to the

realization of the whole customs union. repealing the duty for administrative This general interpretation follows from services the recitals in the Acceleration Decision itself and from the declarations made by Two forms of arguments are put forward the institutions, especially in the General in this connexion by SACE. Report for the year 1967 (p. 39). (i) The first concerns the direct applica Finally, the similar nature of customs bility of the provisions of Article 13(2) in duties proper and charges having equivalent conjunction with those of Directive No effect operating as 'charges levied at the 68/31. frontier' within the meaning of the judgment For reasons of expediency Article 13 was of the Court in Case 24/68 leads to the left partly 'blank' by the authors of the

From body of rules, as emerges from the judgment the time of issue of this directive, Member of the Court in Case 9/70 (Grad). States no longer have any discretionary The decision of 26 July 1966 provides in power in the observance of the Community Article 1 that: 'Member States shall abolish precept. customs duties still existing as between them In Case 57/65 [1966] E.C_R_ 205, the Court on products other than those listed in recognized, by its judgment of 16 June 1966, Annex II to the Treaty by applying on 1 July that the third paragraph of Article 95 of the 1967 a reduction to lower the duty on each Treaty became applicable on the date (the product to 15% of the basic duty and by beginning of the second stage) set in that abolishing these duties on 1 July 1968'. provision for the repeal or amendment There can be no doubt that this decision, of certain national laws. which is clear and precise, which requires In the opinion of SACE, there is no reason no Community or national action to be for distinguishing between Article 95 which taken and which has been accepted by all lays down expressly the date by which Member States, is directly applicable. The internal taxation must be abolished and Court has moreover confirmed it by Article 13(2) whereby the Commission implication in its judgment in Case 38/69 is empowered to determine the date for (Judgment of 18 February 1970, [1970] the abolition of charges having equivalent E.C_R_). effect. To render the rescinding provision of the Power was only delegated to the Com Acceleration Decision directly applicable, mission for technical reasons and on it is therefore sufficient that Directive grounds of political expediency, but power No 68/31 merely declares that the duty for to repeal none the less derives directly from administrative services constituted, by Article 13. virtue of its nature and its effects, a charge (ii) The second set of considerations relied levied at the frontier which had to be upon by SACE concerns the direct applica abolished following the realization of the bility of the directive as such. customs union on 1 July 1968.

JUDGMENT OF 17. 12. 1970 — CASE 33/70

Grounds of judgment

1 By a decision of 4 July 1970 which reached the Court Registry on 9 July 1970, the President of the Tribunale, Brescia, referred to the Court of Justice under Article 177 of the Treaty establishing the European Economic Community, two questions

SACE ν ITALIAN MINISTRY FOR FINANCE

relating to the interpretation of Article 13 of the EEC Treaty and of Directive No 68/31 of 22 December 1967 (OJ 1968 L 12, p. 8).

2 In the first question the Court is asked to rule whether, following the adoption of Directive No 68/31 of 22 December 1967, the provisions of Article 13 (2) of the Treaty or, in any event, the provisions of Directive No 68/31 itself are directly applicable in the domestic legal system of the Italian State.

3 If the reply to the first question is in the affirmative, the Court is asked to rule, in addition, whether rights of which the national courts must take cognizance were conferred on individuals as from 1 July 1968.

JUDGMENT OF 17. 12. 1970 — CASE 33/70

9 Article 13 (2) imposes on Member States the obligation to abolish progressively 'during' the transitional period charges having an effect equivalent to customs duties on imports.

Although the Commission had to. decide the rhythm with which such charges had to be abolished during the transitional period, nevertheless it appears from the very wording of Article 13 that these, duties had in any event to be eliminated at the latest at the end of the said period.

Therefore from the end of this period Article 9 must have its full effect on its own.

10 Articles 9 and 13 (2) taken together, involve, at the latest at the end of the tran­ sitional period, with regard to all charges having an effect equivalent to customs duties on imports, a clear and precise prohibition on exacting the said charges, which is not subject to any reservation for the States to subject its implementation to a positive act of national law or to an intervention by the institutions of the Community.

It lends itself, by its very nature, to producing direct effects in the legal relations between Member States and their subjects.

For this purpose, it is necessary to consider not only the form of the measure at issue, but also its substance and its function in the system of the Treaty.

14 The appointing by the Commission, under Decision No 66/532, of a date prior to the end of the transitional period has in no way changed the nature of the obligation imposed on Member States by Articles 9 and 13 (2).

This obligation is therefore capable of producing direct effects, as it would have done at the end of the transitional period.

15 Directive No 68/31, the object of which is to impose on a Member State a final date for the performance of a Community obligation, does not concern solely the relations between the Commission and that State, but also entails legal consequen­ ces of which both the other Member States concerned in its performance and individuals may avail themselves when, by its very nature, the provision establishing this obligation is directly applicable, as are Articles 9 and 13 of the Treaty.

16 This interpretation is all the more imperative since in its judgment of 18 November 1970 the Court declared that the Italian Republic had failed to fulfil its obligations under the Treaty by continuing to levy the charge in question after 1 July 1968.

17 By reason of the notification of the directive in Italian, the interests of the party given notice of the obligations defined by the measure—in the present case the Italian State—are fully protected.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the parties to the main action, the Government of the Federal Republic of Germany and the Commission of the European Com­ munities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 9, 13, 14, 177 and 235; Having regard to Regulation No 1 of the Council of the EEC of 14 April 1958; Having regard to Directive (EEC) No 68/31 of the Commission; Having regard to Decision (EEC) No 66/532 of the Council; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities ;

THE COURT

in answer to the questions referred to it by the President of the Tribunale, Brescia, in accordance with the order made by that court on 4 July 1970, hereby rules:

(1) From the end of the transitional period Article 13 (2) of the EEC Treaty confers on individuals, with regard to all charges having an effect equivalent to customs duties on imports, rights which the national courts must protect;

(2) The obligation to eliminate the duty for administrative services contained in Directive No 68/31 of the Commission of 22 December 1967, in conjunction with Articles 9 and 13 (2) of the Treaty and with Decision No 66/532 of the Council has direct effect in the relations between the Member State, as the

SACE ν ITALIAN MINISTRY FOR FINANCE

OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 10 DECEMBER 1970<apnote>1</apnote>

Mr President, judgment) and that the directive (which Members of the Court, has not been challenged by the Italian Government) issued by the Commission The action pending before the Tribunale, pursuant to Article 13 (2) of the EEC Treaty Brescia, concerns Italian Law No 330 of gives rise to the obligation to reduce 15 June 1950. Because this law has not progressively such charges in so far as they been repealed, the Court held recently in relate to imports from Member States and Case 8/70, brought by the Commission to abolish them completely by 1 July 1968 under Article 169 of the EEC Treaty, that at the latest (which, wrongly, has still not the Italian Republic had infringed Article been done). SACE further considers that 13(2) of the EEC Treaty in conjunction the provisions of Article 13(2) of the with Commission Directive No 31/68 of EEC Treaty in conjunction with those of the 22 December 1967. This Law, may I remind Commission directive, which leaves the you, provides for a duty for administrative Italian Government no discretion but services to be levied on imported goods contains a clear stipulation as to the time- amounting to 0.5% of their value. This limit allowed for the abolition of the charge, duty was levied on the undertaking SACE are seen as to confer rights directly on when, on 17 September 1969, it imported individuals which the latter may invoke goods from a Member State into Italy. in national courts against contrary pro­ In compliance with a customs decision visions of national law. This is why SACE taken by the Bergamo customs office, it instituted proceedings before the President had to pay levies amounting to lit. 50 995 of the Tribunale, Brescia, against the on the value of the goods. Ministry for Finance of the Italian Republic SACE considers that the demand for this for an order ('decreto inguintivo') for sum is unjustified. It maintains that this repayment of administrative charges im­ is a charge having an effect equivalent to posed unlawfully. Since this order for a customs duty (which was in fact the payment depends essentially on questions finding by the Court in the aforementioned of Community law, as I have mentioned,