C-43/71

JUDGMENT OF 14. 12. 1971 — CASE 43/71

4. The concept of a 'charge having 5. The provisions of Articles 14 (1) and equivalent effect', as employed in 18 (1) of Regulation No 20 came into Article 14 (1) and 18 (1) of Regula­ effect on 30 July 1962 as regards live tion No 20 which prohibit the levy­ swine and pig carcasses, and on 2 ing of such charges on imports of September 1963 as regards the other pigmeat from Member States and products referred to in that regula­ third countries, is equivalent to the tion. same expression employed in Article 9 et seq. of the Treaty and in other The provisions of Articles 17 (2) and regulations on the organization of 19 (1) of Regulation No 121/67/EEC agricultural markets. came into effect on 1 July 1967.

In Case 43/71

Reference to the Court under Article 177 of the EEC Treaty by the President of the Tribunale di Torino for a preliminary ruling in the action pending before that court between

Politi S.A.S., Robecco sul Naviglio,

and

Advocate-General: A. Dutheillet de Lamothe Registrar: A. Van Houtte

gives the following

POLITI v ITALY

JUDGMENT

Issues of fact and of law

I — Provisions applicable Article 14 (1) of that regulation pro­ during the periods in hibits 'the charging of any customs duty question or charge having equivalent effect' on imports from Member States, as being The provisions applicable during the 'incompatible with the intra-Community period in question were the following: levy system'. Similarly, Article 18 (1) 1. Regulation No 20 which, according of the regulation provides that 'The to Article 1 (1) was applicable to the application of the levy system to imports following products: from third countries shall entail the abolition of all customs duties or charges Common having equivalent effect, on imports from Customs Tariff Description of goods third countries'. heading No 2. Regulation No 121/67/EEC of the Council has replaced Regulation No 20. 01.03 A II Live swine, of domestic It lays down a prohibition in Article species, other than pure­ 19 (1) (as regards the internal trade of bred breeding animals, of whatever age the Community) and in Article 17 (2) (as regards trade with third countries), on the 'levying of any customs duty or 02.01 A Meat of domestic swine charge having equivalent effect'. Under III a Article 32, 'The system established by ex 02.0- B II Offals of domestic swine this regulation shall apply from 1 July 1967 ...'; by virtue of the same article, ex 02.05 Unrendered pig fat free of 'Regulation No 20 and the provisions lean meat, fresh, chilled, frozen, salted, in brine, dried adopted in implementation thereof shall or smoked be repealed with effect from 1 July 1967'. 02.06 B Meat and edible meat offals of swine, salted, in brine, II — Facts and procedure dried or smoked

the products imported (this being a regulation, or on the dates of duty introduced by Italian Law No the entry into force of the various 330 of 15 June 1950); Council regulations which fixed — a statistical levy at the rate of Lit. 10 for the first time the amount of per quintal of the imported produces the Community levies; that it, on (cf. in particular, Article 42 of both 1 July 1962 for the products the Decrees of the President of the listed in Article 1 (1) (a) of Italian Republic Nos 1339 of 21 Regulation No 20, pursuant to December 1961 and 723 of 26 June Regulation No 51; on 30 July 1965) 1962 for the products listed in The Politi undertaking considered that Article 1 (1) (b) of Regulation these charges should not have been im­ No 20 and referred to in Regula­ posed and brought interlocutory proceed­ tion No 50; on 2 September 1963 ings before the President of the Tri­ for the products listed in Article bunale di Torino against the Ministry 1 (1) (b) of Regulation No 20 for Finance of the Italian Republic for and referred to in Regulation the purpose of obtaining a refund of No 87/63; on 2 September 1963 the sums paid. The undertaking main­ for the products listed in Article tains that the provisions of national law 1 (1) (c) of Regulation No 20, in question were not applicable to im­ pursuant to Regulation No ports of pigmeat into Italy because they 89/63? were incompatible with Regulations Nos 3. (a) Are the provisions of Article 18 20 and 121/67. (1) of Regulation No 20 directly 2. By order of 17 July 1971, the Presi­ applicable within the Italian dent of the Tribunale di Torino decided legal system? to refer the following questions to the (b) If so, do they create individual Court: rights which national courts 1. Do the duty for administrative ser­ must protect? vices and the statistical levy, which (c) In particular, did these rights were introduced by Law No 330 of come into existence on 21 April 15 June 1950 and the Decrees of the 1962, the date on which Regula­ President of the Republic Nos 723 tion No 20 came into force, or of 26 June 1965 and 1339 of 21 on 1 July 1962, 'the date of the December 1961 respectively consti­ introduction of the levy system', tute charges having an effect equiva­ according to Article 23 of that lent to customs duties within the regulation, or on the dates of the meaning of Regulation No 20? entry into force of the various 2. (a) Are the provisions of the first Council regulations which fixed indent to Article 14 (1) of Regula­ for the first time the amount of tion No 20 directly applicable the levies applicable to imports within the Italian domestic legal from third countries; that is, on system? 1 January 1963 for live swine (b) If so, do they create individual and carcasses, pursuant to rights which national courts must Regulation No 155; on 2 protect? September 1963 for the products (c) In particular, did these rights listed in Article 1 (1) (b) other come into existence on 21 April than pig carcasses, pursuant to 1962, the date on which Regula­ Regulation No 86/63 and on 2 tion No 20 came into force, or September 1963 for the products on 1 July 1962, 'the date of the listed in Article 1 (1) (c) of introduction of the levy system', Regulation No 20 pursuant to according to Article 23 of that Regulation No 88/63?

4. (a) Are the provisions of the first regards the pigmeat sector, Regulations indent to Article 19'(1) of Regula Nos 20 and 121/67 prohibit the levying tion No 121/67 directly applic of any such charges on imports from able within the Italian legal both Member States and third countries. system? The applicant undertaking refers to the (b) If so, do they create individual judgments of the Court of 4 April 1968 rights which national courts (Kunstmühle Tivoli v Hauptzollamt

system? ance with Article 189 of the Treaty and (b) If so, do they create individual the established case-law of both the rights which national courts Court of Justice and the Italian courts, must protect? the provisions of the regulations referred (c) In particular, did these rights to above confer rights on importers in come into existence on 1 July relation to the Member State concerned. 1967, either by virtue of Article 3. The order making the reference was 32 of Regulation No 121/67 or, received at the Court Registry on 23 at all events, because that date July 1971.

6. Have the individual ngnts, which Advocate-General, the Court decided correspond to the obligation on the that it was unnecessary to hold any pre Member States not to impose cus paratory inquiry. toms duties or charges having At the hearing on 17 November 1971 equivalent effect on imports of pro Politi, the Government of the Italian ducts covered by the common organization of the market in pigmeat Republic and the Commission submitted their oral observations. been in continuous existence as from The Advocate-General delivered his the dates applicable in accordance with Questions (2) and (3)?' reasoned opinion at the hearing on 30

As Maestripieri.

III — Summary of the ob which repealed the earlier provisions servations submitted governing the statistical levy and the under Article 20 of duty for administrative services. This the Protocol on the completely changed the legal context of Statute of the Court the present case, so that the national of Justice of the EEC court should be given the opportunity to reconsider the problems to be resolved These observations may be summarized and decide whether it is necessary to as follows: press for an answer to the questions referred to the Court.

As regards national court. That court can therefore the arguments adduced by the Italian request a preliminary ruling without hav Government regarding the nature of the ing previously heard the opposite party proceedings in the main action, it is and during summary proceedings, such sufficient to note that the matter was as the 'interlocutory' procedure provided brought before the Court of Justice by for by Article 633 et seq. of the Italian a court or tribunal within the meaning Code of Civil Procedure. of Article 177. The Italian Government considers that,

ties. In this case, under Article 643 of condition or dependent upon the subse the Italian Code of Civil Procedure, the quent intervention of the Member States case is not pending at law until the or the institutions of the Community and moment when the decision (decreto) of are not covered by the discretionary the court to grant the request for an power of the Member States. interim order is notified to the opposite As regards the dates on which the in party. Moreover, this decision becomes dividual rights in question came into void once the opposite party has exer existence, close examination of the rules cised his right to oppose it. All these concerning the agricultural sector in factors show that the conditions for the Question shows them to be: application of the second paragraph of — 30 July 1962 for the products listed Article 177 of the Treaty are not satis in Article 1 (1) (a) of Regulation No fied in this instance. 20 and for pig carcasses: cf.

politi v italy

These criteria are clear (OJ of 30.6.1967, p. 2843), which fixed from previous decisions of the Court. In the amount of the levies as from 1 July addition to the judgments already cited 1967. by the Italian court, the Commission As regards Law No 477 referred to by refers to the judgment of 1 July 1969 the Italian Government, this abolished (Sociaal Fonds voor de Diamantarbei the administrative duty and statistical ders v SA Ch. Brachfeld et Sons and levy only with effect from 1 July 1968 Chougol Diamond Co., Joined Cases 2 and the date of its entry into force (2 and 3/69, [1969] ECR 211 et seq.). August 1971) respectively.

This chronological order in which laws are distinction was necessary in order to al enacted. In the circumstances, it is ad low the institutions to draw up, in the visable for the Court to reaffirm the intervening period, the implementing pre-eminence of Community law, even regulations relating to that system. over subsequent national provisions. Although the questions under considera The Italian Government merely points tion indicate three possible solutions it out that, in its opinion, it is not pos must be observed that there are, in fact, sible to define the concept of a 'charge only two: the 'date of the introduction having equivalent effect' in the same way of the levy system' had necessarily to at every stage of the gradual establish coincide, and did in fact coincide, with ment of the agricultural market in that of the entry into force of the question, since it is necessary on each various regulations 'which fixed for the occasion to take account of the his first time the amount of the Com torical context in which a particular munity levies'. These dates were as provision referring to this concept was follows: adopted. — 30 July 1962 for the products refer The Commission first recalls the de red to in Article 1 (I) (a) of Regula velopment of the common organization tion No 20, that is, live swine, and

subparagraph (b), as well as for the date of the implementation of the sys­ prepared or preserved meats referred tem of levies provided for by Regula­ to in Article 1 (1) (c) (cf. Regulations tion No 121/67 (cf. the third paragraph Nos 86 to 89/63). of Article 32 of that regulation). Thus, as from these dates the States Conclusions were no longer entitled to levy charges To sum up, the Commission suggests having an effect equivalent to customs that the following replies be given to duties on the products in question. This the questions referred: conclusion is prompted by: '1. Any pecuniary charge, however small — the wording of Articles 14 (1) and and whatever its designation and 18 (1) of Regulation No 20, which mode of application, which is im­ emphasize that the removal of ob­ posed unilaterally on domestic or stacles to intra-Community trade with third countries and the establish­ foreign goods by reason of the fact that they cross a frontier, and which ment of a system of levies were to is not a customs duty in the strict take place at the same time. This simultaneous effect is also referred sense, constitutes a charge having to in Article 14 (2) and (3); equivalent effect within the meaning of Regulation No 20, even if it is not — the third, fourth and fifth and the imposed for the benefit of the State, ninth, tenth and eleventh recitals of is not discriminatory or protective in Regulation No 20, which make it effect or if the product on which the clear that the protective measures charge is imposed is not in competi­ applied until then by the States were tion with any domestic product. to be replaced by a uniform system of levies; 2. The first indent of Article 14 (1) and Article 18 (1) of Regulation No 20 — the fact that, as the Council realized and the first indent of Article 19 (1) that the levies could not be applied and the first indent of Article 17 (2) to every category of pigmeat at the of Regulation No 121/67 are directly date originally set (30 July 1962: cf. applicable within the Italian legal sys­ Regulation No 49 of the Council, OJ tem and create individual rights which of 1.7.1962, p. 1571), it finally fixed national courts must protect. the date at 2 September 1963 in re­ spect of certain products (cf. Regula­ 3. As regards imports effected before 1 tion No 54/63/EEC of the Council, July 1967, the abovementioned rights OJ 27.6.1963, p. 1785). came into existence on the entry into force of the system of levies on the Questions 4 (c), 5 (c) and 6 products in question provided for in Regulation No 20, that is: As regards imports effected under the system established by Regulation No — on 30 July 1962 for the products 121/67, the prohibitions set out in referred to in Article 1 (1) (a) of Article 17 and 19 of that regulation came Regulation No 20 and for pig carcasses; into force on 1 July 1967, as is clear from Article 32 (2) of the regulation and — on 2 September 1963 for the other from the fact that Regulation No 205/67 products listed in Article 1 (1) (b) which fixed the amount of the levies also and (c) of Regulation No 20.

2 (1) The Italian Government considers that, since Italian Law No 447, which was published on the same date as the order making the reference, has abolished the charges in dispute, the file should be returned to the national court without any reply being given to the questions referred, so that it may have the opportunity to consider whether it is still necessary to maintain the reference to the Court.

3 However, Article 177 of the Treaty does not entitle the Court to assess the immediacy of the relevance of questions referred with regard to the proceed­ ings pending before the national court, even where the domestic law with which the case is concerned has been modified. In any event, the repeal of national provisions which are acknowledged to have been incompatible with Community law leaves open the question of the legal consequences of such incompatibility during the period preceding the repeal.

4 (2) The Italian Government further maintains that the conditions required for the application of the second paragraph of Article 177 are not fulfilled, as the decision (decreto) which the President of the Tribunale di Torino is called upon to give is to be made at the conclusion of a special procedure on the basis of the plaintiff's allegations alone, without any prior discussion between the parties.

JUDGMENT OF 14. 12. 1971 — CASE 43/71

5 It is sufficient to note that the President of the Tribunale di Torino is performing a judicial function within the meaning of Article 177 and that he considered an interpretation of Community law to be necessary to enable him to reach a decision, there being therefore no need for the Court to consider the stage of the proceedings at which the questions were referred.

8 The Court is next asked whether the provisions of Articles 14 (1) and 18 (1) of Regulation No 20, as well as the first indent of Article 17 (2) and the first indent of Article 19 (1) of Regulation No 121/67 are immediately applicable within the national legal system and, as such, create individual rights which national courts must protect.

9 Under the terms of the second paragraph of Article 189 regulations 'shall have general application' and 'shall be ... directly applicable in all Member States'.

Therefore, by reason of their nature and their function in the system of the sources of Community law, regulations have direct effect and are as such, capable of creating individual rights which national courts must protect

POLITI v ITALY

The effect: of a regulation, as provided for in Article 189, is therefore to prevent the implementation of any legislative measure, even if it is enacted subsequently, which is incompatible with its provisions.

This applies to the provisions in question.

12 That date, which was originally fixed at 1 July 1962 by Article 23 of Regula­ tion No 20, was postponed until 30 July 1962 by Article 1 (1) (b) of Regula­ tion No 49.

As regards pig carcasses, the amount of the intra-Community levies was fixed for the first time by Regulation No 50, Article 2 of which states that that regulation came into force on 30 July 1962.

Article 2 of Regulation No 51 and Article 3 of Regulations Nos 52 and 53 provide that those provisions—which fixed for the first time the amount of the levies applying to pig carcasses imported from third countries (Regula­ tion No 51) and to live swine imported from other Member States (Regula­

JUDGMENT OF 14. 12. 1971 — CASE 43/71

tion No 52) and from third countries (Regulation No 53)-were to come into force 'on the date of introduction of the system of levies instituted in respect of pig carcasses by Regulation No 20 of the Council'.

13 Thus, Regulations Nos 51 to 53 referred to the entry into force of Regulation No 50 which was adopted on the same day and published in the same issue of the Official Journal.

• The second paragraph of the same article provides that 'The system estab­ lished by this regulation shall apply from' that date, with the exception of certain measures which are not relevant to this case.

It follows that the prohibition on the charges in dispute, which is repeated in Articles 17 and 19 of the new regulation and, therefore, the individual rights arising therefrom, came into existence on 1 July 1967.

Therefore, as regards the system established by Regulation No 121/67, the provisions in question came into effect on 1 July 1967.

POLITI v ITALY

17 (3) It follows from the above considerations that, under the system establish­ ed in Regulation No 20, the prohibition on the imposition by the Member State of the charges in question was concomitant with the obligation to impose the levies provided for in that regulation.

It follows also that this obligation came into effect on 30 July 1962 or 2 September 1963, according to the products involved.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Government of the Italian Republic, the Commission of the European Communities and the Politi undertaking; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Com­ munity, especially Articles 9,12, 13, 177 and 189; Having regard to Regulation No 20 of the Council on the gradual establish­ ment of a common organization of the market in pigmeat, especially Articles 14 and 18; Having regard to Regulation No 121/67/EEC of the Council on the common organization of the market in the same sector, especially Articles 17 and 19;

JUDGMENT OF 14. 12. 1971 — CASE 43/71

Having regard to the Protocol on the Statute of the Court of Justice of the European Communities, 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 di Torino by order of that court dated 17 July 1971, hereby rules:

On the first question:

4. The provisions of Articles 17 (1) and 19 (1) of Regulation No 121/67/EEC came into effect on 1 July 1967.

5. The effects in question came into existence on 30 July 1962 or 2 September 1963, according to the products involved.

Lecourt Mertens de Wilmars Kutscher

Donner Trabucchi Monaco Pescatore

POLITI v ITALY

Delivered in open court in Luxembourg on 14 December 1971.

Mr President, at different rates, both to imports from Members of the Court, the Member States of the Community and to imports from third countries. The facts which gave rise to the present since the entry into torce of Regulation case are auite straightforward. No 121/67, levies apply only to products In 1966 the Politi company imported imported from third countries. into Italy chilled pork from Sweden and In order to enforce the rights which it frozen pigmeat and ham from Belgium. considered it held under these regula­ In 1969 it imported two consignments, tions, the applicant company brought one of meat and meat offal of swine interlocutory proceedings as provided for from France and the other of chilled in Article 633 of the Italian Code of pigmeat from Ireland. Civil Procedure against the Italian State. When these various imports were effec­ These are summary proceedings by ted the Italian tax authorities required which a creditor asks a court to recog­ the company to pay two charges, known nize the existence of a debt and to respectively as a 'statistical levy', and a order the debtor to pay it. 'duty for administrative services'. The President of the Tribunale Civile The Politi company considered that the imposition of these charges was prohibi­ di Torino considered that these proceed­ ted, first, as regards the imports effected ings raised a certain number of pre­ in 1966, by the provisions of Articles 14 liminary questions concerning the inter­ and 18 of Regulation No 20/62 on the pretation of provisions of the Com­ gradual establishment of a common or­ munity regulations referred to and, ganization of the market in pigmeat and, under Article 177 of the Treaty, he re­ secondly, as regards the imports effected ferred the questions which are before you in 1969, by the provisions of Articles 17 today. (2) and 19 of Regulation No 121/67, Before beginning my consideration of which replaced Regulation No 20. these questions, I should like to make As you are aware, the provisions or the two preliminary observations concerning regulations under discussion prohibit the certain points which have been raised levying by Member States of any charge in the course of the proceedings and in having an effect equivalent to a customs particular during the recent hearing. duty after the entry into force of the system of levies. 1. In his oral arguments the representa­ tive of the Government of the Italian In the original scheme provided for by Regulation No 20 this system of levies Republic questioned the applicability of applied, although on different terms and Article 177 of the Treaty in this instance.