C-18/71

JUDGMENT OF THE COURT 26 OCTOBER 1971 1

Eunomia di Porro e C.

v Ministry of Education of the Italian Republic 2 (Reference for a preliminary ruling by the President of the Tribunale di Torino)

'Works of art'

Case 18/71

Summary

Ministry of Education of the Italian Republic,

on the interpretation of Article 16 of the EEC Treaty,

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

JUDGMENT OF 26. 10. 1971 — CASE 18/71

THE COURT

composed of: R. Lecourt, President, J. Mertens de Wilmars, Rapporteur and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco and P. Pescatore, Judges,

I — Facts and procedure Lit. 500 000 to the Federal Republic of Germany through the customs office at The facts and procedure may be sum­ Domodossola. An export tax of Lit. marized as follows: 108 750 was levied on this transaction 1. Law No 1089 of 1 June 1939 and paid by the exporter which, how­ (Gazetta Ufficiale, No 184 of 8 August ever, brought 'proceedings for a sum­ 1939) levied a progressive tax on the mary judgment' before the President of export of articles of an artistic, historical, the Tribunale di Torino (Turin Dis­ archaeological or ethnographic interest. trict Court) for the repayment of the The Commission considered that by sums which in its view had been im­ continuing to levy this tax after 31 properly levied by the Italian State. December 1961 the Italian Republic was 3. By a decision of 6 April 1971 the failing to fulfil its obligations under President of the Tribunale di Torino Article 16 of the Treaty and it there­ stayed the proceedings and under fore brought the matter before the Court Article 177 of the EEC Treaty, request­ of Justice under Article 169 for a de­ ed the Court to give a preliminary ruling claration to that effect. By a judgment on the following questions: dated 10 December 1968 (Case 7/68, (l)Does the provision in Article 16 of Commission of the European Com­ the Treaty of Rome constitute a munities v Italian Republic, [1968] ECR legal rule which is immediately ap­ 431) the Court declared that: 'The plicable and which has produced Italian Republic, by continuing to levy direct effects within the Italian State after 1 January 1962 the progressive as from 1 January 1962? tax ... on the export to other Member (2) If so, has that legal rule since that States of the Community of articles of date created against the Italian an artistic, historical, archaeological or State for all those subject to the ethnographic interest, has failed to fulfil jurisdiction of that State individual its obligations under Article 16 of the rights which Italian courts must Treaty.' Law No 1089 of 1 June 1939 protect? has not yet been expressly repcaled. 4. The order referring these questions Z. On 4 March 1970 tne Eunomia was received at the Registry of the company exported a painting valued at Court of Justice on 15 April 1971.

The Commission of the European Com­ January 1962. As from that date, this munities and the Eunomia company sub­ obligation was complete and legally per­ mitted written observations. fect. The Commission maintains that Upon hearing the report of the Judge- it must produce immediate effects and Rapporteur and the opinion of the create rights for individuals which the Advocate-General the Court decided national courts must protect. that it was unnecessary to hold any 2. Moreover, all the conditions attached preparatory inquiry. by the case-law of the Court to the The parties presented oral argument on direct applicability of the Treaty pro­ 21 September 1971. visions concerning the obligations on SAS Eunomia was represented by Pro­ the Member States are satisfied: fessor Ubertazzi and Mr Capelli. — In its judgment of 26 June 1966 The Commission was represented by its Alfons Lütticke GmbH v Haupt- Legal Adviser, Armando Toledano- zollamt Saarlouis, Case 57/65, [1966] Laredo. ECR 205 et seq.), the Court decided The Advocate-General delivered his as regards Article 95 that when a opinion at the hearing on 5 October general rule is provided with a sus­ 1971. pensory clause concerning the pass­ ing of a given period, the general rule emerges unconditionally into II — Observations submitted full force on the expiry of the said under Article 20 of the period. Protocol on the Statute — In its judgment of 19 December of the Court of Justice 1968 (SpA. Salgoil v Italian Ministry of the EEC for Foreign Trade, Case 13/68, [1968] ECR 461), the Court decided The observations submitted under that, in the case of positive obliga­ Article 20 of the Protocol on the tions, consideration must be given to Statute of the Court of Justice of the the question whether the Member EEC may be summarized as follows: States may in performing them exer­ cise any discretion such as to exclude A — Observations of the Commission of immediate applicability wholly or in the European Communities part. In the opinion of the Commission it 1. The Commission observes that the appears impossible for any such dis­ Treaty contains two series of provisions cretion to be reserved to the Member for the abolition of existing duties and States by Article 16, which must charges: have the same effect in all the — as regards duties and charges on Member States. imports: progressive abolition during — Finally, in a case concerning the the transitional period (Article 9 and obligation to abolish an import duty Articles 13 to 15); pursuant to Articles 9 and 13, the — as regards duties and charges on judgment in SpA SACE v Ministry exports: abolition by the end of the for Finance of the Italian Republic first stage at the latest, that is, by 31 (Case 33/70, [1970] ECR 1213) December 1969 (Articles 9 and provided that a prohibition oh the 16). levy of those duties lends itself to The duty to abolish duties and charges producing direct effects where it is on exports is thus made to depend upon clear and precise and is not subject the fulfilment of a condition precedent—­ to any reservation for the States to the end of the first stage of the transi­ subject its implementation to a posi- tional period—which was fulfilled on 1 tive act of national law. or to an

intervention by the institutions of equivalent to a customs duty on the Community. exports. It was therefore impossible According to the Commission, to levy this tax after 1 January 1962 Articles 9 and 16, taken together, since Community law takes pre involve, as regards the levy of export cedence over national law. charges, a similar prohibition which (b) According to the case-law of the lends itself, as from 1 January 1962, Court of Justice, the following con to producing direct effects, particu ditions must be satisfied in order larly as, unlike Article 13, Article 16 that a rule of Community law may

However, as court. regards intervention by the Mem 2. As regards the substance of the case ber States, this does not ipso the Eunomia company considers that the facto deprive the Community direct effect of the Community legisla provision of its direct applic tion and, therefore, the inapplicability ability: this would only be the of the tax on works of art introduced by case if the subsequent interven the Law of 1939 result, first, from the tion of a Member State was ex decision of the Court of Justice of 10 pressly provided for by the Com December 1968 (Case 7/68, Commis

or did not take place within the public, loc. cit.) defined the nature prescribed period (Judgment of of the tax in question and demon 19 December 1966, Case 13/66, strated its unlawful nature. This SpA Salgoil, [1968] ECR 453), Judgment, in fact, declared that the rule of Community law re the customs union also applies to mains directly applicable; works of an artistic, historic, etc. — There must be no possibility of interest and that a tax on the export the Member States' having any of these articles had an effect discretionary power in its appli-

2 The decision making the order for reference shows that the national court is dealing with a request for the refund of sums paid on the export of a work of art to another Member State by way of the tax on the export of articles of an artistic, historic, archaeological or ethnographic interest, which was introduced by the Italian Law No 1089 of 1 June 1939.

3 As the Court of Justice found in its judgment of 10 December 1968 in Case 7/68, this tax constitutes a charge having an effect equivalent to customs duties on exports and is governed by Article 16 of the Treaty.

4 In the first question the Court is asked to rule whether Article 16 constitutes a legal rule which is immediately applicable and which reproduces direct effects within the territory of the Italian State as from 1 January 1962. Should the answer to the first question-be in the affirmative the Court is requested to rule whether, as from that date, this rule has created individual rights in relation to the Italian State which the courts must protect. As these two questions are closely connected they must be considered together.

JUDGMENT OF 26: 10. 1971 — CASE 18/71

5 According to Article 9 of the EEC Treaty, the Community is to be based upon a customs union which is to involve in particular the prohibition between Member States of customs duties and all charges having equivalent effect. Under Article 16 of the Treaty Member States are to abolish between themselves customs duties on exports and charges having equivalent effect by the end of the first stage at the latest.

6 Articles 9 and 16 taken together involve, at the latest at the end of the first stage, with regard to all charges having an effect equivalent to customs duties on exports, 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 those subject to their jurisdiction.

THE COURT

in answer to the questions referred to it by the President of the Tribunale di Torino by order of that court dated 6 April 1971, hereby rules:

Since i January 1962, the date on which the first stage of the transi­ tional period came to an end, Article 16 of the Treaty has produced direct effects in the legal relations between the Member States and those persons subject to their jurisdiction and has conferred on the latter rights which the national courts must protect.

Lecourt Mertens de Wilmars Kutscher

Donner Trabucchi Monaco Pescatore

Delivered in open court in Luxembourg on 26 October 1971.

1- —Translated from the German.