C-48/71

1. The attainment of the objectives of the 2. The grant made by Member States to Community requires that the rules of the Community of rights and powers in Community law established by the accordance with the provisions of the Treaty itself or arising from procedures Treaty involves a definitive limitation which it has instituted are fully ap­ on their sovereign rights and no provi­ plicable at the same time and with sions whatsoever of national law may identical effects over the whole territory be invoked to override this limitation. of the Community without the Member States being able to place any obstacles in the way.

In Case 48/71

Commission of the European Communities , represented by its Legal Adviser, Armando Toledano-Laredo, acting as Agent, with an address for service in Luxembourg at the office of its Legal Adviser, Émile Reuter, 4 boulevard Royal,

applicant,

v

Italian Republic , represented by its Ambassador, Adolfo Maresca, acting as Agent, assisted by Pietro Peronaci, Deputy State Advocate-General, with an address for service in Luxembourg at the Italian Embassy.

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure measures to conform to the decision of the Court of Justice, the situation has re­ The facts and procedure may be sum­ mained unchanged. marized as follows: By letters dated 2 June 1969 and 1 October On 7 March 1968 the Commission of the 1970 the President of the Commission European Communities brought an action demanded that the Government of the against the Italian Republic before the Italian Republic apply the measures Court of Justice for a declaration that necessary to repeal the aforesaid tax. the Italian Republic had failed to fulfil the Since id did not consider the submission to obligations imposed on it by Article 16 the Italian Parliament of a draft law of the EEC Treaty by continuing to levy, providing, inter alia, for the abolition of after 1 April 1962, the progressive tax the tax in question as satisfactory, the provided for by Law No 1089 of 1 January Commission, by letter of 21 December 1939 on exports to other Member States 1970, gave the Italian Republic an op­ of the Community of objects of artistic, portunity to submit its observations and historic, archaeological or ethnographic on 18 May 1971 delivered a reasoned interest. By its judgment of 10 December opinion under Article 169 of the EEC 1968 the Court declared that the Italian Treaty calling on it to take the necessary Republic, by continuing to levy after 1 measures within one month to put an January 1962 the tax in question had failed end to the infringement in question. to fulfil its obligations under Article 16 of Since the Italian Government neither the EEC Treaty. replied to the reasoned opinion of the Since the Italian Republic did not as from Commission nor adopted the necessary 10 December 1968 adopt appropriate measures within the time-limit prescribed,

After hearing the report of the Judge- Rapporteur and the views of the Advocate- General, the Court decided to open the III — Submissions and arguments oral procedure without any preparatory of the parties inquiry. The oral submission of the parties were heard on 17 May 1972. The submissions and arguments of the The Advocate-General delivered his parties may be summarized as follows: opinion on 22 June 1972. The applicant maintains that since the By telegram of 4 July 1972 confirmed by Italian Republic did not adopt the measures letter of 10 July 1972 the Government of necessary to comply with the judgment of the Italian Republic informed the Court 10 December 1968 in Case 7/68, it failed that it had adopted Decree-Law No 288 to fulfil the obligations imposed on it by of 5 July 1972 (Gazetta Ufficiale of 6 Article 171 of the EEC Treaty. July 1972, No 172), which in compliance In the exercise of the powers conferred on with the judgment given by the Court it by Article 155 of the EEC Treaty, the in Case 7/68 formally abolished as from Commission drew the attention of the 1 January 1962 the levying of the tax on State concerned to the necessity of com­ the export of works of art to other Member plying with the aforementioned judgment States and declared that the taxes levied and of the gravity of the precedent which after that date would be reimbursed on such a failure would constitute. application by those concerned. The Since the Italian Government did not react defendant is of the opinion that there is no to the invitation made to it to take the longer any purpose in the action. necessary measures, the Commission con­ By telegram of 10 July 1972 the Com­ siders that the conditions required for mission informed the Court that it would bringing the action provided for in the no longer pursue the action when the second paragraph of Article 169 of the aforementioned decree-law was made a EEC Treaty are fulfilled. formal law. The defendant in answer says that the Commission disregarded the fact that the abolition of the tax in question is closely II — Submissions of the parties linked with the approval of the Italian Parliament and the implementation of The applicant considers that the Court rules calculated to ensure proper protec­ should tion for the artistic, historic, archaeological and ethnographical national heritage (a) Declare that the Italian Republic in hitherto protected by the tax provided for failing to comply with the judgment by Law No 1089 of 1 June 1939. given by the Court of Justice on 10 The Italian Government complied with December 1968 in Case 7/68 has the judgment of the Court of 10 December failed to fulfil the obligations imposed 1968 since it submitted for consideration on it by Article 171 of the EEC by the Italian Parliament, a draft law Treaty; providing inter alia for the abolition of the tax referred to in Article 37 of Law No (b) Order the Italian Republic to bear the 1089 of 1 June 1939. The reorganization costs. of the whole area of law relating to the protection of a considerable cultural The defendant considers that the Court heritage is involved in the present case. A should reasonable period is necessary to effect the

abolition of. this tax in view of the difficulties levied three years after the judgment inherent therein. given by the Court. In such circum In its statement in reply the applicant stances it is obvious that Article 171 observes that the Court of Justice in its of the EEC Treaty is infringed. judgments in Cases 77/69 Commission v Kingdom of Belgium [1970] ECR 237 and The Commission considers that Article 171 8/70 Commission v Italian Republic [1970] should be understood as prescribing that ECR 961 clearly established that 'the the necessary measures be adopted within liability of a Member State under Article the shortest possible time.

irrelevant. January 1962 . . . Article 16 of the Treaty The Commission further draws attention has produced direct effects in the legal to the following facts: relations between the Member States and those persons subject to their jurisdiction — In 1966 the Italian Government had and has conferred on the latter rights submitted to Parliament a draft law on which the national courts must protect' the abolition of the tax in question, does not eliminate the infringement which draft was made abortive by the although the parties may enforce their dissolution of the Senate and the right not to pay the tax in question.

Since this propriate instructions to the depart was an event prior to the judgment of ments concerned with the levying of 10 December 1968, it cannot constitute a the tax in question etc.; factor to be taken into account in the present case, the sole object of which is the — The procedure actually followed by the alleged non-compliance with the aforesaid Italian Government by which an judgment. The Italian Government main unnecessarily complicated draft law tains that the procedure followed, that is was submitted to the Italian Parliament to say the drawing up of a draft law not — almost two years after the judgment limited to the simple abolition of the tax of the Court and without attention in question, is the only reasonable solution. being drawn to its urgent nature— The need to protect the cultural heritage resulted in the tax continuing to be requires that the abolition of the tax

2 In this judgment the Court had declared that the Italian Republic, by continuing to levy after 1 January 1962 the progressive tax laid down by Article 37 of the Law of 1 June 1939 No 1089 on the export to other Member States of the Com­ munity of articles of an artistic, historic, archaeological or ethnographic interest, had failed to fulfil the obligations imposed on it by Article 16 of the EEC Treaty.

3 The Italian Republic, while recognizing that it is bound to take measures to comply with this judgment, cites the difficulties which it met with in regard to parliamentary procedure aimed at abolishing the tax and reforming the system of protection of the national artistic heritage. These measures must necessarily be adopted in the form and according to the procedures provided for by its constitu­ tional law. Since the levying of the tax can cease only on its formal repeal and since the delays in effecting this repeal are due to circumstances outside the control of the competent authorities, there are no grounds for finding a failure to comply with the obligations under Article 171 of the Treaty.

4 The Commission maintains that the national provisions could have been repealed by more expeditious means.

JUDGMENT OF 13.7.1972 — CASE 48/71

5 Without having to examine the validity of such arguments, it suffices for the Court to observe that by judgment of 10 December 1968 it answered in the affirmative the question in dispute between the Italian Government and the Commission: whether or not the tax in questions was to be regarded as a tax having an effect equivalent to a customs duty on exports within the meaning of Article 16 of the Treaty. Further by another judgment of 26 October 1971 given in Case 18/71, Eunomia v Italian Republic, the Court expressly found that the prohibition contained in Article 16 produces direct effects in the national law of all Member States.

11 In a communication of 4 July 1972 the defendant has informed the Court that the tax has ceased to be levied and that it has been effectively eliminated as from 1 January 1962, the date on which the levy should have ceased.

COMMISSION v ITALY

Costs

12 It follows from the above that the application by the Commission was well founded. The failure complained of ceased only after the conclusion of the written and oral procedure. In these circumstances it is right to order the defendant to bear the costs.

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 Article 171; Having regard to the Protocol on the Statute of the Court of Justice of the Euro­ pean Economic Community; Having regard to the Rules of Procedures of the Court of Justice of the European Communities,

Delivered in open court in Luxembourg on 13 July 1972.

A. Van Houtte R. Lecourt

Registrar President