C-34/73

AMMINISTRAZIONE ITALIANA DELLE FINANZE

on the interpretation of Articles 18 and 20 of Regulation No 19 of the Council of 4 April 1962 on the gradual establishment of a common organization of the market in cereals (OJ of 20 April 1962, p. 933) and of Articles 18 and 21 of Regulation No 120/67 EEC of the Council of 13 June 1967 on the common organization of the market in cereals (OJ of 19 June 1967, p. 2269) and on certain other questions relating to the direct application of these provisions,

THE COURT

composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents

VARIOLA v AMMINISTRAZIONE ITALIANA DELLE FINANZE

of Chambers, A. M. Dormer, J. Mertens de Wilmars, H. Kutscher, C. Ó Dálaigh, M. Sørensen (Rapporteur) and Lord Mackenzie Stuart, Judges,

JUDGMENT OF 10. 10. 1973 — CASE 34/73

1. Whether the meaning of 'charge 6. Whether the direct applicability of having equivalent effect' in Articles 18 Articles 18 and 20 of Regulation and 20 of Regulation 19/62 and 19/62 has conferred on private parties Article 18 and 21 of Regulation subjective rights which national 120/67 is the same as in Articles 9 et courts must protect. seq. of the Treaty. 7. Whether, if Question 5 is answered in 2. Whether a tax (or pecuniary burden) the affirmative, such subjective rights which is imposed solely on imported still remain intact and have not goods — whether coming from ceased to have effect from 1 July 1962 Member countries or from third (or from any other date) following countries — by reason solely of the the entry into force of Regulation fact that they are unloaded in 120/67 which replaced Regulation national ports, constitutes a charge 19/62. having equivalent effect within the 8. Whether by an enactment of law meaning of Articles 9 et seq. of the enacted subsequently to the entry into Treaty and is therefore prohibited by force of the Community provision, a Articles 18 and 20 of Regulation Member State can modify 'ad libitum' 19/62 and Articles 18 and 21 of the date from which the prohibition Regulation 120/67 in the case of on imposing charges having importation of cereals either from equivalent effect, envisaged by Member countries or from third

— Question No 2 refers to the fiscal 4. Whether on the basis of Article 189 of charge on unloading imposed by the Treaty the insertion of the Royal Decree No 1592 of 21 abovementioned provisions into the December 1921 and by Article 27 legal order of the Member States — of Law No 82 of 9 February 1962; which would arise in general from the — on the question of the duty for national law ratifying the EEC Treaty administrative services and the — must be held to have been effected statistics duty, the Tribunal refers to in particular also by means of the judgments of the Court in Cases individual internal enactments which 24/68 and 8/70 in which these duties reproduce the content of the were held to be charges having Community provisions. equivalent effect to a customs duty;

— the Tribunal wishes to know whether The Advocate-General delivered his the prohibition on imposing and opinion at the hearing on 26 September maintaining charges having equiva­ 1973. lent effect on imports of cereals, coming from member countries or from third countries, became effective from 30 July 1962, the date II — Observations presen­ when Regulation No 19/62 came ted before the Court into force, or only from 1 July 1967, the date when Regulation No 120/67 came into force; These observations may be summarized as follows: — Question No 5 refers to the fact that the provisions of Regulation No 19/62 were applied to the Italian 1. On admissibility of the application State by Decree Law No 955 of 30 July 1962 and the provisions of The Variola company maintains that Regulation No 120/67 by Decree there can be no doubt about the Law No 59 of 20 February 1968; admissibility of the reference. According — Question No 8 refers to the fact that to Article 177 of the Treaty, a reference by a Law of 1971 (Law No 447 of 24 is not conditional on the existence of June 1971) the Italian State decided defended proceedings before the national (a) to abolish administration duties court. The latter can, therefore, ask for a on imports from member preliminary ruling in the case of countries as from 1 July 1968 summary proceedings, such as those and brought to obtain an injunction under Articles 633 et seq. of the Italien code of (b) to abolish administration and civil procedure. This contention is statistics duties on imports from confirmed by decisions of the Court, third countries only as from 1 particularly the judgment delivered in August 1971. Case 43/71 (Politi v Italian Ministry of 4. The order of the President of the Finance, Rec. 1971). Tribunal of Trieste was registered at the The submission of the Commission on Court of Justice on 27 February 1973. this point is substantially the same as In accordance with Article 20 of the that advanced by the Variola company. Protocol on the Statute of the Court of In addition, the Commission points out Justice of the EEC, written observations that Questions 4 and 5 do not seem to were submitted on behalf of the have a bearing on the provisions in Commission of the European Communi­ dispute because, at least as regards the ties by its legal adviser, Mrs W. Dona- prohibition against imposing on imports Viscardini, on 7 June 1973 and on 13 from third countries charges having June 1973 by Professor G. M. Ubertazzi equivalent effect to customs duties, these and Mr F. Capelli on behalf of the provisions have not been incorporated defendant in the main action. in the internal measures referred to After hearing the report of the by the national court. It is nevertheless Judge-Rapporteur and the opinion of the conceivable that the national court was Advocate-General, the Court decided to uncertain whether incorporation of cer­ open the oral procedure without any tain provisions of Community Regu­ preparatory inquiry. lations in domestic implementing instru­ The oral observations of the defendant ments did not have the effect of sub­ in the main action and of the ordinating everything within the scope Commission were made at the hearing of Community control to national legis­ on 12 July 1973. lation.

2. On the substance any way between rules to be applied within the Community and those appli On Questions 1 and 2 cable to third countries (see judgments in Case 43/71, already cited, and in According to the Variola company, the Case 84/71, Marimex v Italian Ministry fiscal charge on unloading possesses all of Finance, Rec. 1972). the characteristics of a charge having Recalling that, under the terms of Article equivalent effect to a customs duty. The 177 of the Treaty, the Court cannot company cites the judgment in Case apply Community rules to a specific 24/67 (Commission v Italy, Rec. 1969). case, the Commission maintains that the The charge was imposed on the goods Court can nevertheless rule that a charge imported for the sole reason that they imposed for unloading goods coming had entered the territory of the State.

required. Furthermore, the State renders by the Court, undoubtedly constitute a no discernible service in allowing charge having equivalent effect to a unloading of imported goods in Italian customs duty. The Commission ports. maintains that, even though the Court The Commission submits that the has not excluded the possibility that a concept of charge having equivalent monetary charge may represent effect has already been clearly defined by consideration for a service rendered by the Court: see judgments in Cases 24/68, the public administration, the effect of already cited, and 2 and 3/69 (Sociaal decisions taken by the Court is to make Fonds voor de Diamantarbeiders v identification of a charge as in fact Brachfeld and Sons and Chougol constituiting consideration of this kind Diamond Co., Rec. 1969). dependent on satisfying extremely strict The Commission has considered whether criteria. In the Commission's view, these criteria are not satisfied in the present the concept of a charge having

value. Importers certainly have an behind them is different in each case, the interest in seeing the ports maintained in prohibition on levying charges having equivalent effect to customs duties has good condition, but this interest is not peculiar to importers because it is the same meaning whether applied in the common to all industrial concerns, context of intra-Community trade or of trade with third countries. including those trading in national products. The Commission submits that the Court has already laid down that, in On Questions 3 and 6 Regulations concerning the organization of the agricultural markets, the concept The Variola company contends that the of 'charge having equivalent effect' has provisions of the Regulations cited in the the same meaning as in Article 9 et seq. application contain all the features of the Treaty, without distinguishing in entitling them, on the basis of decisions

of the Court, to be regarded as directly instruments of internal law creates applicable. The provisions are expressed confusion even if the national legislature in clear and precise terms, they are not did not intend to exclude the direct and subject to reservations or conditional on independent application of Community subsequent action by Member States or Regulations. National courts no longer Community institutions, and they are know which rule to follow, that of the outside the discretionary powers of Community Regulation or that of the Member States. corresponding national legislation.

On Questions 4 and 5 On Question 7 The Variola company maintains that the questions put by the Tribunal of Trieste With regard to the date on which the refer to a matter which is a serious form subjective rights recognized by Commu of infringement by the Italian nity Regulations were brought into Government of Community rules. In being, the Variola company maintains Italy, the practice is to implement that the prohibition on levying charges directly applicable Community rules by having equivalent effect was continued means of domestic legislation incorpor without modification by Regulation No ating the Community provisions in their 120/67, which wholly superseded entirety.

JUDGMENT OF 10. 10. 1973 — CASE 34/73

judgment can only confirm, as firmly date. The Commission accepts that and unreservedly as possible, the express repeal of previous national rules supremacy of Community law even over which are incompatible with directly a contrary enactment of later date. applicable Community law can be of The Commission points out that the issue use, and even desirable from the point of is not a new one as it was raised in Case view of legal certainty, but this must be 84/71 (Marimex v Italien Ministry of a mere formality without any practical Finance, cited above) specifically in effect. If the instrument of repeal is regard to this very Law No 447 calculated to produce different results abolishing the statistics duty and the from those envisaged by Community duty for administrative services. The rules, such as, for example, in the Court settled the question by deciding present case, on the question when rights that, as provided under Article 189 of are acquired under them, a conflict arises the Treaty, Regulations are effective which can only be resolved on the basis against any legislative measure which is of the principle that Community law incompatible with them, even if of later prevails over national law.

Grounds of judgment

1 By order of 12 January 1973, lodged with the Registry on 27 February 1973, the President of the Tribunal of Trieste asked the Court for a preliminary ruling on the interpretation of Regulation No 19 of the Council of 4 April 1962 and Regulation 120/67/EEC of 13 June 1967 on the common organization of the market in cereals and on certain questions relating to the direct effect of the rules of Community law in the legal order of Member States.

There is no consideration which could justify different interpretations of the concept of 'charge having equivalent effect' as it appears in Article 9 et seq. of the Treaty, on the one hand, and Articles 18 and 20 of Regulation No 19/62 and Articles 18 and 21 of Regulation No 120/67, on the other.

On the second question

4 In the second question, the Court is asked to declare whether a charge imposed solely on imported goods (whether coming from member countries or from third countries) solely because they have been unloaded in the national ports constitutes a 'charge having equivalent effect to customs duties', which is prohibited under the abovementioned provisions of the Regulations.

5 The file discloses that the present case is concerned with the charge designated 'unloading charge' in Article 27 of the Italian Law No 82 of 9 February 1963 on the subject of maritime charges and duties levied on goods coming from abroad and unloaded in the ports, roadsteads and wharves of the State pending final or temporary importation.

For cereals, this disembarkation duty amounts to 30 lire per metric ton.

Income from the duty is devoted to the provision and maintenance of port installations.

Accordingly, owing to its very nature and its place in the system of sources of Community law, a Regulation has immediate effect and, consequently, operates to confer rights on private parties which the national courts have a duty to protect.

The answer to the question must therefore be in the affirmative.

On Questions 4 and 5

9 In the fourth and fifth questions, the Court is, in effect, asked to determine whether the disputed provisions of the Regulations can be introduced into the legal order of Member States by internal measures reproducing the contents of Community provisions in such a way that the subject-matter is brought under national law, and the jurisdiction of the Court is thereby affected.

10 The direct application of a Regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law.

By virtue of the obligations arising from the Treaty and assumed on ratification, Member States are under a duty not to obstruct the direct applicability inherent in Regulations and other rules of Community law.

13 Article 33 of Regulation No 120/67 provides that the arrangements set out therein were effective from 1 July 1967 and that Regulation No 19/62 was repealed with effect from the same date.

In the absence of valid provision to the contrary, repeal of a Regulation does not mean abolition of the individual rights which it has created.

Moreover, the prohibitions, contained in Articles 18 and 20 of Regulation No 90/62, against States levying charges having equivalent effect to customs duties, were repealed by Articles 18 and 21 of Regulation No 120/67.

It follows from this that the rights created in favour of private parties under Articles 18 and 20 of Regulation No 19/62 remained in force, without interruption, after Regulation No 120/67 came into effect.

On Question 8

14 In the eighth question, the Court is asked to declare whether, by a legislative provision enacted after entry into force of the Regulations in dispute, a

The freedom of each Member State to vary, in relation to itself and without express authority, the date on which a Community rule comes into force is excluded by reason of the need to ensure uniform and simultaneous application of Community law throughout the Community.

Costs

16 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as these proceedings are a step in the action pending before a national court, the decision on costs is a matter for that court.

VARIOLA v AMMINISTRAZIONE ITALIANA DELLE FINANZE

On those grounds,

Upon hearing the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Commission of the European Communities and the Variola company; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Article 177; Having regard to Regulation No 19 of the Council of 4 April 1962 on the gradual establishment of a common organization of the market in cereals, especially Articles 18 and 20; Having regard to Regulation No 120/67/EEC of the Council on the common organization of the markets in cereals, especially Articles 18, 21 and 33; 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,

JUDGMENT OF 10. 10. 1973 — CASE 34/73

On Questions 3 and 6

3. The provisions of Articles 18 and 20 of Regulation No 19/62 and of Articles 18 and 21 of Regulation No 120/67 prohibiting Member States from levying any charge having equivalent effect to customs duties are directly applicable in the legal order of Member States and accordingly confer rights on private parties which the national courts must protect.

On Questions 4 and 5

4. A legislative measure under national law which reproduces the text of a directly applicable rule of Community law cannot in any way affect such direct applicability, or the Court's jurisdiction under the Treaty.

On Question 7

A. Van Houtte R. Lecourt

Registrar President