C-27/78

JUDGMENT OF THE COURT OF 3 OCTOBER 1978 <apnote>1</apnote>

Amministrazione delle Finanze dello Stato v the Rasham undertaking (preliminary ruling requested by the Corte Suprema di Cassazione)

Сase 27/78

1. Customs union — Elimination of quantitative restrictions — "Acceleration decision " — Effect on the length of the transitional period — None (EEC Treaty, Art. 8; Council Decision No 66/532)

2. Commercial policy — Transitional period — Protective measures taken by Member States — Duty to notify — Effect (EEC Treaty, second para. ofArt. 115)

1. Council Decision No 66/532 of transitional period within the 26 July 1966 concerning the meaning of Article 8 of the Treaty. abolition of customs duties, the prohibition of quantitative 2. Although the notification prescribed restrictions as between Member by the second paragraph of Article States and the application of the 115 of the Treaty is compulsory, it is Common Customs Tariff duties for not a condition precedent of the products other than those set out in entry into force of the protective Annex II to the Treaty did not bring measures adopted by the Member forward the date of expiry of the Sutes.

JUDGMENT OF 3. 10. 1978 — CASE 27/78

on the interpretation of Articles 8, 115 and 235 of the EEC Treaty and of Council Decision No 66/532/EEC of 26 July 1966 concerning the abolition of customs dudes, the prohibition of quantitative restrictions as between Member States and the application of the Common Customs Tariff duties for products other than those set out in Annex II to the Treaty (Journal Officiel 1966, p. 2971),

THE COURT

composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A M. Donner, J. Mertens de Wilman, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges,

Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

By a document lodged on 19 September reaty pursuant to Article 235 of 1975 the Amministrazione delle Finanze the Treaty, be interpreted as brought an appeal in cassation against meaning that it brought forward the that judgment, and by a document date of expiry of the transitional lodged on 23 October 1975 Rasham period referred to in Article 8 of the replied to that appeal with a counter- said Treaty? appeal and in addition an application 2. If Question 1 is answered in the for a conditional interlocutory order affirmative, does the bringing (ricorso incidentale condizionato). forward of the date of expiry of the The Amministrazione delle Finanze transitional period for the aforesaid argued that Decision No 66/532 of purposes also entail the 26 July 1966 did not shorten the corresponding bringing forward of the date before which the Member transitional period, but merely decided that as from 1 July 1968 customs dudes States may, in the circumstances still existing between the Member States described in the first paragraph of would be abolished. Consequently even Article 115 of the Treaty and in after the above-mentioned date the case of urgency, themselves take the Member States were entitled to adopt necessary protective measures protective measures pursuant to the pursuant to the second paragraph of Article 115? second paragraph of Article 115 of the EEC Treaty. 3. If the answer to Questions 1 and 2 is to the effect that the Member Rasham argued that even if it were held that Italy was entitled to adopt States' power to take protective protective measures, the measure measures pursuant to the second actually adopted must be held to be paragraph of Article 115 of the unlawful in that it was not notified to Treaty continued to exist, must the the other Member States and the said provision, in providing that the Commission, since the second Member States are to notify the paragraph of Article 115 of the Treaty necessary measures which they themselves take to the other should be read as requiring such Member States and to the notification as a condition precedent for the validity and applicability of the Commission, which may decide that the States concerned are to amend measure concerned. or abolish such measures, be By an order of 2 December 1977, the interpreted as meaning that it makes Cone Suprema di Cassazione stayed the such notification a condition for the proceedings and referred the following validity of the applicability of the questions for a preliminary ruling: provision imposing the said "1 Must Decision No 66/532 of the measures?" Council of the EEC, under which the Member States provided that The order making the reference to the customs duties then existing Court was received at the Court between them on products other Registry on 3 March 1978.

Upon hearing the report of the Judge- The scope and purpose of Decision No Rapporteur and the views of the 66/532 of 26 July 1966 together with Advocate General, the Court decided to the principles which emerge from the open the oral procedure without any case-law of the Court do not admit of preparatory inquiry. the view that the acceleration decision brought forward to 30 June 1968 the date of expiry for the transitional period II — Summary of the written laid down in Article 8 of the EEC observations submitted to Treaty, and consequently require that the Court the first question in the order for reference should be answered in the The Italian Government argues that the negative. acceleration decision of 26 July 1966 This conclusion makes purposeless the refers only to the achievement of the second question, which was asked by customs union and to the simultaneous the national court in the event of the full application of the Common first question being answered in the affir­ Customs Tariff, as is clearly shown by mative. the recitals in the preamble to it. It had The Iulian Government argues that the to effect on the length of the third question is in reality purposeless, transitional period as laid down in since the protective measure concerned Article 8 of the Treaty. Hence there was was in point of fact adopted in no change in the Member States' agreement with the competent depart­ entitlement until the actual date expiry ments of the Commission and was duly of the transitional period to use the notified. The Iulian Government does powers granted to them by other provisions of the Treaty in order to not see any purpose in the Court of Justice giving a ruling on this point. attain objectives other those contained in the acceleration decision. Purely for the sake of completeness, the Iulian Government puts forward the The second paragraph of Article 115 of view that notification of a protective the Treaty concerns the common measure to the Member Sutes and to commercial policy, hence an aim which the Commission is not and cannot be a had not been achieved in fan even by condition for the validity or the 31 December 1969. Consequently, there applicability of the national measure. In is no reason to doubt that the second fact, it is no more than a means of paragraph of Article 115 of the EEC informing the other Member States and Treaty was applicable during the period a formality enabling the Commission to between I July 1968 and 31 December exercice the supervisory powers 1969 conferred on it. Moreover, the Moreover, this view is confirmed by the Commission could have issued instruc­ case-law of the Court of Justice, tions to amend or abolish the protective according to which it is certain that measure, even in the absence of the pre­ the transitional period ended on scribed notification.

In conclusion, the Italian Government commercial policy, in that it excluded proposes that the Court should rule their power to alter customs duties and that: to impose such duties upon a product in "... Decision No 532 of the Council of free circulation within the Community. the EEC of 26 July 1966 did not have This view is confirmed by an argument the effect of bringing forward the date based on a literal construction of the of expiry of the transitional period laid third paragraph of Article 115. If down in Article 8 of the EEC Treaty; measures adopted unilaterally by the and, if it is found necessary also to Member States must take into account answer the third question referred to the need to expedite the introduction of the Court by the national court, that the the Common Customs Tariff, then a notification prescribed in the second fortiori they must respect the said tariff paragraph of Article 115 of the EEC once it has been established. Treaty was not a condition for the validity or the applicability of protective As to the third question, the measures adopted by national auth­ Commission points out that in general the notification of a measure has no orities during the transitional period." The Commission observes first of all influence upon its validity. that the Council and the Commission In conclusion the Commission proposes did not make use of the power provided the following answer to Questions 1 in Article 8 (5) of the EEC Treaty to and 2, Question 3 then becoming curtail the second and third stages of purposeless; the transitional period. The Council "Decision No 66/532/EEC did not Decision of 26 July 1966 had no effect curtail for all purposes the transitional beyond its purpose, and did not shorten period laid down in Article 8 of the the transitional period generally (last EEC Treaty, but it did restrict the sentence of paragraph 22/25 of the power granted to Member States during decision of 18 June 1975 in Case 94/74 the said period by the second paragraph IGAV v ENCC [1975] I ECR 699, at p. of Anide 11 5 of the EEC Treaty to the 711). power of adopting such measures as are The Commission proposes that the not incompatible with the aforesaid answer to the first two questions should decision." be that the transitional period was not curtailed by Decision No 66/532/EEC and that in June 1968 the Member III — Oral procedure Sutes were still entitled to adopt the measures which under the Treaty they The Commission of the European were allowed to take during the said Communities, represented by Alberto period Prozzillo, a member of the Legal However the Commission points out Service of the Commission, submitted that under the second paragraph of oral observations at the hearing on Article 115 a Member State may take 13 July 1978. only such measures as are not At that hearing the Commission pointed incompatible with the Community out, in connexion with the notification measures in force at the time of the of the protective measure, that it adoption of the national measures Thus appeared from its archives that the the application of the Common measure had not been notified. Customs Tariff referred to in the aforesaid Council decision resinned the The Advocate General delivered his Member States powers in the field of opinion at the same hearing.

5 The first question asks whether the Council Decision of 26 July 1966 must be interpreted as meaning that it brought forward the date of expiry of the transitional period referred to in Article 8 of the Treaty.

« If that question is answered in the affirmative, the second question asks whether the bringing forward of the date of expiry of the transitional period entails a corresponding curtailment of the period referred to in the second paragraph of Article 11 5 of the Treaty.

AMMINISTRAZIONE DE L E FINANZE DELLO STATO v RASHAM

7 Adopted under Articles 14 and 235 of the Treaty, the Council Decision of 26 July 1966 is intended to "accelerate the pace of the achievement of the objectives of the Treaty, in particular in the field of the customs union and the abolition of quantitative restrictions" (first recital).

8 For that purpose, Article 1 of the decision provides that:

"Member States shall abolish customs duties still existing as between them on products other than those listed in Annex II to the Treaty, by applying on 1 July 1967 a reduction to lower the duty on each product to 15% of the basic duty and by abolishing these dudes on 1 July 1968;"

13 The provision at issue implies that the unilateral adoption of protective measures and the notification of the Commission and the other Member States should take place at the same time or immediately after one another.

JUDGMENT OF i. 10. 1978 — CASE 27/78

14 However, it cannot be inferred from the wording of the provision that notification is a condition precedent of the entry into force of the measures adopted.

15 It follows that although the duty to notify protective measures which is laid down in the second paragraph of Article 115 of the Treaty is absolute, compliance therewith cannot be a condition precedent of the entry into force of the protective measures adopted.

16 The answer should be in these terms.

Costs

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v RASHAM

compliance therewith cannot be a condition precedent of the entry into force of the protective measures adopted.

Kutscher Serensen Bosco Donner Mertens de Wilmars

Pescatore Mackenzie Stuart O'Keeffe Touffait

Delivered in open court in Luxembourg on 3 October 1978.

A. Van Houtte H. Kutscher