C-110/76
ECLI:EU:C:1977:75
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JUDGMENT OF THE COURT OF 5 MAY 1977 1
Pretore of Cento
v A person or persons unknown (preliminary ruling requested by the Pretura of Cento)
Case 110/76
Community revenue — Payment — Claims — Legal proceedings — Capacity of the Member States
(Regulation (EEC, Euratom, ECSC) No 2/71 of the Council, Articles 1, 6(2) and (3), 7(1) and 13(2))
In the present state of Community law the purpose of claiming payment of only the Member States and their Community revenue constituting own authorities are empowered to take resources.
proceedings before national courts for
In Case 110/76
Reference to the Court under Article 177 of the EEC Treaty by the Pretura of Cento for a preliminary ruling in the action pending before that court between
PRETORE OF CENTO
and
A PERSON OR PERSONS UNKNOWN
on the interpretation of the Decision of the Council of the European Communities of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources (OJ, English Special Edition 1970 (I), p. 224) and of Regulation (EEC, Euratom, ECSC) No 2/71 of the Council of 2 January 1971 implementing the said decision (OJ, English Special Edition 1971 (I), p. 3),
1 — Language of the Case: Italian.
JUDGMENT OF 5. 5. 1977 —CASE 110/76
THE COURT
composed of: H. Kutscher, President, A. M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges,
Advocate-General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and issues
The order making the reference and the '1. Whether, by virtue of the Decision of written observations submitted under the Council of the European Article 20 of the Protocol on the Statute Communities of 21 April 1970, the of the Court of Justice of the EEC may injured party, in the case of a be summarized as follows: smuggling offence, is only the European Economic Community, or whether the EEC may assume the I — Facts and procedure capacity of injured party together with the individual national States to In October 1976, the Director of the National Centre for Customs Studies of which the levying of customs duties for and on account of the Genoa laid before the judicial authorities an information concerning the Community has been assigned. 2. Whether, as a result, the national smuggling into Italy of goods which had court must, in accordance with its thereby evaded payment of the prescribed customs duties and levies. own procedure, notify the Community that criminal The Pretore of Cento then declared proceedings have been instituted in criminal proceedings for smuggling open respect of the smuggling offence so against persons unknown. Since he was as to enable it to apply for recovery of required by Italian procedural law to give the customs duties payment of which notice of the commencement of the has been evaded.' proceedings to the injured parties, he decided, by order of 15 November 1976, The Council Decision of 21 April 1970 which reached the Court Registry on the allocates inter alia the levies and duties following 23 December, to refer the arising under the Common Customs following questions under Article 177 of Tariff to the Communities by way of own the EEC Treaty to the Court of Justice resources with effect from 1 January for a preliminary ruling: 1971.
PRETORE OF CENTO v A PERSON OR PERSONS UNKNOWN
By virtue of Article 6 (1) of the said Member States and of their authorities decision and of Article 1 of Regulation which are parties to the legal proceedings No 2/71 of the Council, own resources in relation to the reimbursement of are to be established, collected and made Community revenue evaded or of sums available to the Commission by the improperly paid, has not been affected by Member States in accordance with their the consequences of the attribution to own provisions laid down by law, the Community of its own resources.' regulation or administrative action, which are to be amended, where That interpretation by the Court is necessary, for that purpose. confirmed by the provisions of Regulation No 2/71 of the Council The combined provisions of Articles 1, 6 (Articles 1, 6 (1), 7, 13 (2) and (3) and 14 (2) and (3), 7 (1) and 13 (2) of Regulation (3) (a)). No 2/71 make it clear that the Member States are required not only to establish Thus it clearly appears from the all own resources, but also to make provisions mentioned above that the available to the Communities all own Community institutions do not have any resources so established, including any power to take proceedings for the which may not have been collected, collection of unpaid Community unless collection has been impossible for revenue. Therefore no direct relationship reasons of force majeure. between the Communities and individuals can arise in that respect. That Upon hearing the report of the solution, moreover, is to be found in the Judge-Rapporteur and the views of the aforesaid judgment. Advocate-General the Court decided to open the oral procedure without any preparatory inquiry. The Commission emphasizes the fact that by virtue of the Council Decision of 21 April 1970 the Communities' own resources belong direcdy, from the II — Summary of written ob beginning, to the Communities, which servations submitted under have exclusive control over them. Article 20 of the Protocol Agricultural levies and customs duties, on the Statute of the Court which are entered in the budget of the of Justice of the EEC Communities as specific and determined resources and not as the equivalent of The Government of the Italian Republic debts of the Member States to be points out that the solution to the determined on the basis of the latters' questions referred is clear from the revenue, are paid automatically such that wording of Article 6 (1) of the Council the national governments or parliaments Decision of 21 April 1970. are unable to interfere.
The solution is also to be found in the Any smuggling offence that may arise, judgment of the Court of 4 April 1974 enabling those assessable to agricultural (Joined Cases 178 to 180/73, Mertens levies and customs duties to evade [1974] ECR 383) according to which '… payment of those charges, constitutes a it continues to be the task of the Member direct violation of the rights of the States to undertake prosecutions and Communities, infringing at one and the proceedings for the purpose of the same time: system of levies and refunds and to — the interest of the Communities in continue to take steps to this end ensuring that obligations imposed on vis-à-vis the parties involved', and 'It individuals by Community law are follows from this that the position of the respected;
JUDGMENT OF 5. 5. 1977 —CASE 110/76
— the interest of the Communities in here. However, the interest of the the harmonious development of Communities, both in the existence of economic activities within their proceedings (between a State and territory, by the establishment of a individuals assessed to payment of common market and the progressive resources) to which they are not parties approximation of the economic directly, and in the outcome of such policies of the Member States; proceedings, is undeniable. Although the — the Communities entitlement to the power to take action lies, in the first revenue corresponding to the own instance, with the Member States, the resources, payment of which has been indirect interest of the Communities in evaded. proceedings against individuals could justify the intervention of the However, the Commission points out Communities in the action, provided that that since the rules for determining a the procedural rules of the Member State uniform basis for assessing value added in which the action is brought permit tax are not yet in force in any of the the presence of an intervener during the Member States, the budget of the proceedings. Communities is still balanced at the
present time by means of the payment of The Commission suggests that the contributions by the States. The total of questions referred should be answered as those contributions is equal to the follows:
difference between expenditure incurred '1. The offence of smuggling infringes, during the financial year and the own in different ways, both the rights of resources in fact available. Thus own the European Communities and resources, payment of which has been those of the Member State required to evaded, are balanced in the establish and collect the Community Communities' budget by a corresponding resources, payment of which has been increase in the contributions payable by evaded. During the transitional the Member States. Therefore in reality period of partial application of the the financial loss caused by tax evasion is system of contributions, the rights of borne by all the Member States. any other Member State may also be infringed by that offence. Never The Member States are under a duty to theless, as a matter of procedure, the bring full and accurate findings as to the Member States alone may be originating factors which establish the considered to be parties entitled to Communities' entitlement to own take proceedings against the accused resources, and to pay over all resources so to recover Community revenue, established, even where not collected, payment of which has been evaded. except when recovery has been 2. The national court is required to give impossible for reasons of force majeure. notice to the Community of the It may be concluded from the existence initiation of criminal proceedings for of these obligations and from the smuggling if the provisions of financial responsibility which goes with national law require it to give such them — without, however, adopting a notice not only to those parties which position on the particular situation are themselves entitled to take existing during the transitional period — proceedings against the accused, but that the rights of a Member State into also to parties whose interests could which goods subject to payment of justify an intervention in the case, customs duties or levies have been provided that national law makes smuggled are also infringed by the provision for intervention in such smuggling offence. proceedings.' The reasoning followed in Mertens During the oral procedure, which took (already referred to) should be followed place on 24 March 1977, the
PRETORE OF CENTO v A PERSON OR PERSONS UNKNOWN
Commission of the EEC was represented The Advocate-General delivered his by its Legal Adviser, Mr Campogrande, opinion at the hearing on 27 April acting as Agent. 1977.
Decision
1 By order of 15 November 1976, which reached the Court on the following 23 November, the Pretura of Cento has referred, under Article 177 of the EEC Treaty, two questions for a preliminary ruling on the interpretation of the Decision of the Council of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources (OJ, English Special Edition 1970 (I), p. 224) and of Regulation (EEC, Euratom, ECSC) No 2/71 of the Council of 2 January 1971 implementing the said decision (OJ, English Special Edition 1971 (I), p. 3).
Those questions have been raised in the context of criminal proceedings instituted against a person unknown for a possible smuggling offence in respect of goods subject to the Common Customs Tariff and to the agricultural levies.
2 Italian procedural law provides that all 'injured parties' must be given notice of the commencement of criminal proceedings.
With a view to applying that provision of national law it is asked whether, in the case of a smuggling offence, by virtue of the Decision of the Council of 21 April 1970, the 'injured party' is only the Community or the Community together with the Member States to which the levying of customs duties for and on account of the Community has been assigned.
More particularly, it is asked whether the national court must, in accordance with its own procedure, notify the Community that criminal proceedings have been instituted in respect of the smuggling offence so as to enable it to apply for recovery of the customs duties payment of which has been evaded.
3 Thus it suffices to examine whether the Community institutions are empowered to take proceedings for the recovery of the duties in question.
JUDGMENT OF 5. 5. 1977 —CASE 110/76
4 Article 6 (1) of the Decision of 21 April 1970 provides that the own resources allocated to the Communities, amongst which are included the duties under the Common Customs Tariff, 'shall be collected by the Member States in accordance with national provisions imposed by law, regulation or administrative action.'
5 The combined provisions of Articles 1, 6 (2) and (3), 7 (1) and 13 (2) of Regulation No 2/71 make it clear that the Member States are required not only to establish all own resources, but also to make available to the Communities all own resources so established, including any sums which may not have been collected, unless collection has been impossible for reasons of force majeure.
6 Thus it continues to be the task of the Member States to undertake
prosecutions and proceedings for the purpose of the recovery of own resources and to continue to take steps to that end in respect of persons liable for payment.
It follows that in the present state of Community law only the Member States and their authorities are empowered to take proceedings before national courts for the purpose of claiming payment of Community revenue constituting own resources.
Costs
7 The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable.
As these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT
in answer to the questions referred to it by the Pretura of Cento by order of 15 November 1976, hereby rules:
'In the present state of Community law only the Member States and their authorities are empowered to take proceedings before
PRETORE OF CENTO v A PERSON OR PERSONS UNKNOWN
national courts for the purpose of claiming payment of Community revenue constituting own resources'.
Kutscher Donner Pescatore Mertens de Wilmars Sørensen
Mackenzie Stuart O'Keeffe Bosco Touffait
Delivered in open court in Luxembourg on 5 May 1977.
H. J. Eversen H. Kutscher
Assistant Registrar President
OPINION OF MR ADVOCATE-GENERAL WARNER DELIVERED ON 27 APRIL 1977
My Lords, of meat smuggling may have been committed within the jurisdiction of that This case conies to the Court by way of a Court, but without saying by whom. reference for a preliminary ruling by the Professor Grassani is the Director of the Pretura of Cento, a small town in the 'Centro Nazionale di Studi Doganali' Province of Ferrara. The case is unusual (National Centre for Customs Studies) of in that there are no parties to it. In order Genoa and also the Secretary of the to understand how that has come about, Italian Committee for the study of it is necessary to have in mind certain customs and commercial problems at the provisions of Italian law relating to University of Bologna — but, so far as criminal procedure. the law is concerned, nothing turns on that.
First, it is, by virtue of Article 1 of the 'Codice di Procedure Penale' (the Code Secondly, it appears that the competent of Criminal Procedure) open to anyone, Italian Court may, upon receipt of such including a private person, to lay before an information, declare criminal the judicial authorities an information proceedings open against a person or ('denuncia') stating that there is reason to persons unknown, and ask the 'Polizia believe that a particular offence has been Guidiziaria' (a police force which, as I committed. The information need not understand it, is answerable to the however specify whom the guilty party is judicial authorities themselves) to alleged to be. In the present case investigate the case so as to establish, in such an information was laid before the particular, the identity of the guilty, if Pretura of Cento by a certain Professor any. That is what the Pretore did in the Antonio Grassani disclosing that offences present case.