C-206/80

(Case 206/80)

S P A CARATELLI

and T H E MINISTRY OF FOREIGN TRADE

(Case 207/80)

SNC ENRICO E LUIGI SAQUELLA and T H E MINISTRY OF FOREIGN TRADE

(Case 209/80)

J. Mertens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges,

Advocate General: Sir Gordon Slynn Registrar: P. Heim gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure provisions in the moneury and foreign trade spheres, provides that advance payments for goods which are to be The facts of the main actions may be imported are to be subject to the lodging summarized as follows: by the importer of security amounting to 5% of the amount of such payments with the Ufficio Italiano dei Cambi Four Iulian undertakings, the plaintiffs [Iulian Exchange Office] and that a in the main actions, imported goods bank guarantee may be substituted for which came either from non-member such security. The return of the security countries or from another Member State. or the release of the guarantee is made on presenution of the document proving Cases 206 and 207/80 concern goods that the goods have been imported coming from non-member countries, within the period prescribed by the carob beans from Cyprus and maize current legal provisions. from Argentina respectively, and Cases 209 and 210/80 concern goods already in free circulation in other Member If evidence is not furnished that the States, coffee from the Netherlands and importation was completed within the cotton meal from the Federal Republic prescribed period, fixed at 30 days after of Germany respectively. the advance payment by Ministerial Order of 20 January 1973 published in the Gazzetta Ufficiale [Official Gazette] Article 1 of Iulian Law No 1126 of No 19 of 23 January 1973, the Ministry 20 July 1952, containing supplemenury of Foreign Trade declares the security

wholly or partially forfeit, unless the In the grounds for its decision the importer shows that the failure to Tribunale Civile states that those rules, observe the time-limit is due to circum- which are intended to discourage stances beyond his control. financial speculation in foreign ex- change, are not contrary to Community law, but it expresses its doubts as to the The four plaintiffs in the main actions all correct interpretation of the word sought and obtained a bank guarantee to "importation": does it refer to the time cover the amount of the security at which the goods reach national required in order to make advance territory, as the Corte d'Appello [Court payment for the goods which they of Appeal], Rome, held in a judgment of intended to import into Italy.

lack of space in the customs warehouses (Cases 207 and 210/80), or the need to substitute for a consignment of coffee It considers as a result that the question from Indonesia another consignment arises "whether in relation to the from the Netherlands (Case 209/80), Community rules on the free movement although the goods had reached Italian of goods it is lawful to provide that the soil within the 30-day period. security shall be forfeit on the sole ground that although the goods were

They of reasons the Tribunale Civile, Rome, based their request on the unlawfulness considers that these cases raise a number of the decision declaring the security of questions concerning Community law: forfeit, on the ground that not only were the rules governing the time-limits The interpretation of the Italian laws contrary to Article 23 of the Italian adopted by the Ministry of Foreign Constitution and to the Community Trade affects intra-Community trade rules, but, even if they were valid, they and mas creates discrimination against had been misapplied, for the expiry of Italian importers; the period must coincide with the time of

ORLANDI v MINISTRY OF FOREIGN TRADE

result of the loss of the security, consti- rules is to discourage imponers into tuting either a measure having an effect Italy from choosing the most equivalent to a quantitative restriction or appropriate date to release those a tax having an effect equivalent to a goods to the market, amount to a customs duty. measure having an effect equivalent to a quantitative restriction or a charge having an effect equivalent It also places Italian importers at a disad- to a customs duty, when they are vantage as far as imports subject to the interpreted as meaning that for- levy svstem are concerned (Case feiture by the Ministry of Foreign 207/80)'; Trade of the security which is required of importers into Italy of goods in free circulation in the Finally, as far as imports from other Community in order to obtain the Member States are concerned, it foreign currency necessary for the infringes Article 106 of the Treaty, payments in advance against concerning freedom of payments documents, may be made on the connected with the movement of goods basis of the date on which the or capital. goods themselves are registered upon importation rather than the date on which the goods reached the national territory, in view of the In view of the problems raised the First particularly short period after the Civil Chamber of the Tribunale Civile, date of the foreign currency pay- Rome, made four orders on 14 July 1980 ment, within which the operation of staying the proceedings and referring the obuining customs clearance must following two questions to the Court: be carried out?

also having regard to the more assisted by Giuliano Marenco, a member favourable system of Community of its Legal Department. levies, amount to a measure having an effect equivalent to a quanti- On hearing the report of the Judge- tative restriction or to a charge Rapporteur and the views of the having an effect equivalent to a Advocate General the Court decided to customs duty, when they are in- open the oral proceedings without any terpreted as meaning that forfeiture preliminary inquiry. by the Ministry of Foreign Trade of the security which is required of importers into Italy of agricultural goods and products which come II — Written observations sub- From non-member countries and mitted pursuant to Article are subject to the levy system in 20 of the Protocol on the order to be able to obtain the Statute of the Court necessary foreign currency for the payments in advance against documents, may be made on the A — Observations of the plaintiffs in the basis of the date on which those main actions goods are registered upon import- ation rather than the date on which the goods themselves reached the Before commencing an examination of national territory, in view of the the questions which have been raised by particularly short period, after the the national court the pkintiffs in the date of the foreign currency pay- main actions point out that other disputes ment, within which the operation of equally concerned with these questions obtaining customs clearance must have given rise to conflicting decisions by be carried out?" the Corte d'Appello [Court of Appeal], Rome, and the Iulian Corte Suprema di Cassazione [Supreme Court of Cassation]. The four orders making the references were lodged at the Court Registry on In that respect the plaintiffs in the main 23 October 1980. actions express their concern that not only did the Tribunale Civile refuse to By an order of 17 December 1980 the refer the matter to the Court of Justice Court decided to join the different cases on the ground that the questions was not relevant to a decision in the cases — a for the purposes of procedure and fact of which the Commission of judgment. the European Communities had been informed — but that the First Chamber Pursuant to Article 20 of the Protocol on of the Corte di Cassazione likewise the Statute of the Court of Justice of the refused to refer the questions to the EEC written observation were submitted Court of Justice on the ground that the by the plaintiffs in the main actions, cases in question showed no "essential represented by Nicola Catalano; by the legal basis on which the existence of a Italian Government, represented by question of interpretation to be referred Ennio Viola, State Advocate; and by the to the Court of Justice of the European Commission of the European Communi- Communities could be founded. Regard ties, represented by Rolf Wägenbaur, should be had in this matter to the fact Legal Adviser at the Commission of the that there is a clear distinction between European Communities, acting as Agent, interpretation and application of Com-

munity rules"; thus those rules which stood to mean the clearance through had been relied on in the case referred to customs of such goods the Italian the Cone di Cassazione had not, provision is undeniably incompatible with according to the latter, given rise to "any fundamental Community principles. doubt with regard to their interpretation, so that the only question to be decided was whether the internal (pre-existing) Whilst acknowledging that the Court of rules were compatible with Community Justice has no power to interpret regulations, a problem concerning, not national law the plaintiffs in the main the interpretation of that law, but its anions consider that it might be useful application". for the Court to know how the national rules, the incompatibility of which with provisions of Community law is being Before considering the questions raised alleged, may be interpreted in order to by the court making the reference the be in a better position to define the scope plaintiffs in the main actions express the of the Community provisions relied view that as far as the interpretation of upon. the word "importation" is concerned application should be made of the "doctrine of reasonableness" of the After those preliminary observations the Corte di Cassazione and in particular of plaintiffs in the main actions proceed to a decision given on 10 March 1971, examine the two questions raised by the Decision No 674, reported in Giust. Civ. court making the reference.

laws. The plaintiffs in the main action are anxious to emphasize that the court making the reference has not asked the In the opinion of the plaintiffs in the Court of Justice either to interpret main actions, in so far as "importation" national rules or to give a ruling on any is understood to denote the physical incompatibility between national rules arrival of the imponed goods on national and Community rules, but has simply soil, the Italian legal provisions cannot referred to the Court questions of in- be considered incompatible with any terpretation in the light of which it will provision of Community law whatsoever; be able itself to apply or not apply the in contrast, if "importation" is under- national rules.

First, there can be no doubt that "to According to the plaintiffs in the main penalize any delay in clearing customs actions "the precise and detailed exam- by appropriating the security is a disin- ination of the problem in the orders centive to importation" especially as it making the reference does not require would be sufficient, for the achievement special comment, and to paraphrase it of the monetary objectives in question in is even less useful". They confine them- this instance, to ascertain that the trans- selves to illustrating the argument of the action in respect of which the authoriz- court making the reference with the ation to acquire foreign currency was concrete example which arose in the case granted is neither fictitious nor artifici- of the Carapelli undertaking. ally delayed; so dissuasive an influence would certainly have an effect similar to that of quantitative restrictions on trade which is constituted by that rule in the case-law of the Court of Justice. In conclusion the plaintiffs in the main actions ask the Court to "clarify and define the scope of the Community provisions in question as regards both importation from Member States of the Secondly, it is equally incontestable that Community of goods which are in free the unconditional obligation laid down circulation within the common market, in Article 106 of the Treaty has been and importation from non-member infringed because the liberation of countries, in order to enable the court exchange rates is accompanied by a which has made the reference to clause by virtue of which 5% of the establish whether such provisions are security will be forfeit in the event of a compatible or not with the national rules delay, not in the commercial transaction contained in Articles 1, 3 and 4 of Law in respect of which the currency has been No 1126 of 20 July 1952 and Article 2 of freed, but in clearing through customs Decree Law No 476 of 6 June 1956; and goods which have already been to state, in particular, whether they may imported. (in either one of these two cases, or in both) amount to measures having an effect equivalent to quantitative restric- tions and charges having an effect equiv- Thirdly, in so far as the delay, not in alent to customs duties or, at least, may importation but in clearing customs, contravene in either respect the entails an increase of 5% in the cost of Community provisions relied upon; and importing the goods into free circulation to sute, should it consider that appro- within the common market, it is difficult priate, whether the national rules are to deny that such a consequence incompatible or not with the Community "amounts in practice to a charge having provisions in view of the way in which an effect equivalent to a customs duty the national rules are interpreted and, in and constitutes discrimination contrary particular, in view of the meaning which

The Italian Government commences with a review of the national rules applicable in the four main actions and emphasizes 2. In so far as the Italian Government that as a result of the special monetary considers that the question which has scheme, "in no respect free and uncon- been raised is whether the Italian trolled", international trade is subject to measures in question amount to discrimi- control under both the commercial and nation on the ground of nationality and the monetary aspects. In the latter measures having an effect equivalent to a connection, that is to say, where goods quantitative restriction or charges having are purchased abroad, the delay in an effect equivalent to a customs duty, completing the transaction of import- "the only reply possible is in the ation has predominantly or exclusively negative". monetary repercussions. Therefore "the time-limit for each importation satisfies the concern of the State that the foreign 2.1. Relying on Article 104 of the EEC currency in question be utilized exclus- Treaty, which stipulates that "each ively for the transaction in respect of Member Sute shall pursue the economic which it has been granted and conse- policy needed to ensure the equilibrium quently fulfils the purpose of preventing of iti overall balance of payments and to the lapse of time (should no time-limit mainuin confidence in its currency", the have been imposed in respect of the Iulian Government maintains that the importation) from enabling the foreign measures which are being challenged fall currency to be used for speculative "squarely and exclusively within the purposes which are unrelated to payment context of moneury policy" and thus are for the imported goods". Hence by quite unconnected with the Community means of these rules the Italian legis- provisions referred to in the questions. In lature has determined that the proper fan the requirement that security be performance within the time-limit lodged, and the fixing of a specific imposed of the obligation to import period within which the goods acquired "constitutes legal proof of due with foreign currency allowed by the performance of the obligation to use the Sute and paid for in advance of the date foreign currency allowed exclusively for of importation must go through import the purpose envisaged". formalities are intended to avoid disequi- librium in the balance of payments, for the absence of such measures would facilitate speculative transactions to the First question detriment of the Iulian lira.

the goods, and it is calculated with equality of treatment is therefore reference to importation and not to the apparent. arrival of the goods on Italian soil, for the foreign currency is allowed for the importation of the goods. According to the court making the reference, there is also discrimination inasmuch as the Iulian importer is at a If that relationship did not exist disadvanuge vis-à-vis importers of the commercial operators would be able to same goods in other Member Sutes and divert the goods to another Sute without — with sole reference to Case 207/80, having first completed importation having regard to the system of formalities and thus without being Community levies laid down by Regu- obliged to go through any export for- lation No 120/67 — inasmuch as the malities whatsoever, so evading the Iulian importer cannot delay the import- monetary restrictions on such operations. ation to a date on which the incidence of Such an opening would bring about the Community levy would be less. "serious disturbances in the balance of payments" for foreign currency would have been spent without actual import- The Iulian Government ukes the view ation of goods into Italy. that a negative reply must be given to those two questions. With particular regard to the discrimination in relation to importers in other Member Sutes, the 2.2. In the opinion of the Italian Iulian Government asserts that discrimi- Government the measures in question nation may be assessed only in relation also do not infringe the prohibition of to an act performed in national termo-.· discrimination under Article 7 of the and not in relation to the situat! EEC Treaty, mainly because these existing in another Member Sta. , measures "do not fall within the Treaty's because the contrary view "would have sphere of application" in view of the fact the effect of subjecting in a negative that there is no Community legal manner the legal system of one Member provision which regulates, in a manner Sute to those of other Member Sutes". other than that used by the Government of the Iulian Sute, the holding of foreign currency by nationals of the Member Sutes of the European Indeed, the Treaty as a whole and in Economic Community. particular Article 3 thereof permit the assertion that Member Sutes are free to set up their legal systems with the sole reservation that they are bound to avoid Even if it were accepted that the any conflict which may arise with measures challenged did in fact apply in Community provisions; in that connec- a sphere falling within the scope of the tion the Iulian Sute mainuins that the Treaty, no question of discrimination provisions in question do not entail any can arise as Decree Law No 476 of 6 discrimination on grounds of nationality. June 1956 applies to "natural persons of foreign nationality and stateless persons residing in the territory of the Republic, to the extent only to which they carry on 2.3. Even if "in all absurdity" Anicie a gainful activity there" and provides 104 proved insufficient to exclude the likewise for legal persons; the absolute question from the scope of Articles 30

and 13 of the Treaty, its exclusion must different from that of trade in goods then follow from Article 36. between Member Sutes and secondly because they do not exceed the limits of what is necessary and appropriate in order to achieve the objective pursued by Indeed, that article allows measures to the provision: that objective, consisting hinder the free movement of goods in the safeguarding of the Sute's interest where such measures are justified in in the equilibrium of its balance of particular on grounds of public policy payments, would not be atuinable in the and do not constitute a means of absence of .any mandatory measure such arbitrary discrimination or a disguised as that in question. restriction on trade between Member Sutes. The concept of public policy, as the Court stated in its judgment of 23 November 1978 (Case 7/78 Regina v 2.4. The Iulian Government also Thompson [1978] ECR 2247), concerns asserts that the Iulian national provisions the fundamental interests of the Sute. in question are not contrary to Article 106 of the EEC Treaty on the ground that the imports were paid for in US dollars and therefore in the currency of a Furthermore, even on that assumption, Sute in which none of the creditors the national provisions in question are resided (leaving aside the imports justified by requirements for the concerned in Case 207/80). protection of public policy, since those measures, which are of a moneury nature, must be regarded as involving fundamenul interests of the Iulian Sute. 2.5. Finally, the Iulian Government Moreover, the rules do not constitute a mainuins that the measures challenged means of arbitrary discrimination — do not moreover constitute charges because all imports come within their having an effen equivalent to a customs scope — or a disguised restriction on duty. trade between Member Sutes — because they cover not the act of importation itself but a different act, namely the improper performance of the obligation In its opinion, that question — which to import within a specified period; on applies only to Case 206/80 — does not the contrary, they are necessary and arise in this case because the measures in appropriate for the atuinment of the question do not impose a duty on goods required objective. but are the penalty for the failure to perform an obligation; they apply therefore independently of the import- ation to the conduct of the importer. The Thus, not only do the national provisions Iulian legislation is thus designed to in question not constitute a quantiutive ensure not only the importation of the restriction on free movement, they do goods but also their importation within a not constitute a measure having equi- specified period. It thus meets the valent effect either. In fact, even if the Community requirement of the free atypical consequence of the measures movement of goods. was that they caused quantitative restrictions on trade, they would never- theless not be contrary to Article 30 of Consequently, the price distortion the Treaty, first on account of the fact resulting from the possible forfeiture of that they apply in a sphere which is the security is caused by the importer's

conduct and no causal link can be estab- uncertainties". The delay in importations lished with the importation, as can be does not endanger the Community's done in the case of customs duty. It is interest in safeguarding the cereal possible to speak of a charge having an production of the Member States, to the effect equivalent to a customs duty only extent to which that interest is in fact if the legislation in question also applied protected by the system of levies. where no blame was attributable for the failure to carry out the obligation to import. C — Observations of the Commission of the European Communities Second question The Commission considers each case The Italian Government refers essentially separately but in fact develops the same to its observations on the first question principal line of argument in the four and merely considers the problem raised cases, maintaining that the national rules by the reference to Regulation No in question constitute measures having 120/67 of the Council. an effect equivalent to quantitative restrictions. It merely states that in Cases 209 and 210/80, concerning imports In the opinion of the Italian from other Member States, it is the Government, the provisions in question provisions of the Treaty which apply, do not moreover infringe Regulation No and in particular Article 30, whereas in 120/67 because the choice of the date of the other two cases, 206 and 207/80, importation — and not the date on concerning imports coming from non- which the foreign goods are subjected to member countries, respectively carpb the import formalities — and of the date beans from Cyprus and maize from on which the levy is fixed, are a result of Argentina, Regulation No 827/68 of the the risk inherent in any commercial Council of 28 June 1968 applies to the transaction. For that reason the importer first case and Regulation No 120/67 of determines the date for importation the Council of 13 June 1967 to the himself, having regard to the obligations second. which he has assumed when the foreign currency was granted. The fact that the day thus chosen results in the levy being Having recalled the provisions of the fixed in a manner which does not suit Italian legislation which is challenged, the importer cannot have the effect of the Commission points out that .that transforming the Italian legislation into a legislation has given rise to various charge having an effect equivalent to a complaints by Italian importers and as customs duty. That is particularly so a result of those complaints the since the choice is not imposed by the Commission, by a letter of 13 August State, as for the above-mentioned 1980, initiated proceedings against Italv reasons it is made when the goods are for infringement of the Treaty, which, at purchased abroad. the ume when reference for a prelimi- nary ruling was made, had reached the stage of the reasoned opinion. Furthermore, "the delaying of import- ation does not amount to fixing the date of importation at the date which best suits the exporter, as the amount of the 1. The Commission asserts principalk levies is always dependent on future that the system of security put up by the

bank, laid down by the Italian legis- Iulian authorities have maintained in the lation, constitutes a measure having an past in response to that argument that, effect equivalent to a quantitative first, the obligation to lodge the security restriction. in question arises from monetary provisions and not from commercial provisions which alone are the subject of Directive 70/50 cited above and that, Having observed that advance payments secondly, that requirement meets solely are as a rule required in international the need to avoid speculative movements trade, the Commission takes the view of money and is not the result of protec- that the rules in question impose tionist considerations. particular burdens on commercial operators residing in Italy inasmuch as not only are they bound to comply with the formalities inherent in the system and The Commission observes in that regard to observe its procedures, but they must that the measure challenged would be also take on the "considerable financial compatible with Article 30 et seq. only if burdens entailed in lodging security or it could be justified under Article 36 or if providing a bank guarantee", which are it had been the subject of an authoriz- particularly heavy where the security is ation under Article 108 (3). forfeited because the period allowed is exceeded. Consequently, the importation of goods into Italy is made more difficult and more costly in comparison with With regard to Article 36, whilst not transactions carried out within other disputing that the Italian rules fit into a Member States where such burdens do not exist. Those rules therefore hinder monetary context, the Commission imports into Italy. however points out that that "argument is not included amongst the justifications listed in Article 36" and that inasmuch as that article, being an exceptive clause, must be interpreted strictly, the argument The Commission recalls in that regard cannot be accepted. In any event, there that under Article 2 of Directive are, according to the Commission, other 70/50/EEC of 22 December 1969 means of preventing advance payments (Official Journal, English Special Edition from leading to speculative dealings 1970 (I), p. 17) measures having an resulting in a loss of currency. Fur- effect equivalent to quantitative restric- thermore, it is not proper to draw a tions include measures which hinder distinction with regard to Directive imports which could otherwise take 70/50 between commercial provisions place, including measures which make and monetary provisions, because "the importation more difficult or costly than more or less monetary nature of a the disposal of domestic production, in national measure is immaterial to the particular measures which "require, for assessment thereof as a measure having imports only, the giving of guarantees or an effect equivalent to a quantitative making of payments on account" (Article restriction". 2 (3) (i)).

3. With regard to the questions concerning the levy system and the 2. In the two cases (209 and 210/80) concept of a tax having an effect concerning imports coming from other equivalent to a customs duty, the Member Sutes, the Commission Commission takes the view that it is not considers the question concerned with necessary to consider those questions, the interpreution of Article 106 of the since the requirement of security put up Treaty. by the bank constitutes in itself a measure having an effect equivalent to a quantiutive restriction. Consequently, the Commission proposes that the That article, which provides that the following reply should be given to the Member Sutes undertake to authorize, Tribunale Civile, Rome: in the currency of the Member Sute in which the creditor or the beneficiary resides, any payments connected in In Case 206/80: particular with the movement of goods, to the extent that the movement of goods between Member Sutes has been "Rules subjecting the advance payment liberalized pursuant to the EEC Treaty, for carob beans intended for import from constitutes "the fifth freedom of the Cyprus to the lodging of security or the common market". Thus, is so far as provision of a bank guarantee constitute payment in the currency of the creditor measures having an effect equivalent to remains possible, it cannot be maintained quantitative restrictions prohibited by that a Member Sute infringes that Regulation No 827/68 of the Council of Community provision by creating an 28 June 1968." obsucle — in the form of a security in favour of the Ufficio dei Cambi — to the advance payment for goods acquired In Case 207/80: abroad and intended for import. However, a question of commercial credit is involved, and Article 67 of the "National rules subjecting the advance Treaty and the directives adopted in payment for maize intended in 1973 for implemenution thereof unconditionally import from Argentina to the lodging of liberalized "the granting and repayment security or the provision of a bank of short-term and medium-term credits guarantee constitute measures having in respect of commercial transactions in an effect equivalent to a quantitative which a resident is participating" (Annex restriction prohibited by Regulation No I, List A, to the First Directive of 11 120/67 of the Council of 13 June 1967." May 1960, Official Journal, English Special Edition 1959-62, p. 49, added to and amended by the Second Council In Cases 209 and 210/80: Directive of 18 December 1962, Official Journal, English Special Edition 1963-64, "National rules subjecting the advance p. 5). Therefore, since the payments payment for goods from another made before the delivery of the goods Member Sute which are intended for amount to the granting of credit in import to the lodging of security or the respect of a commercial transaction, provision of a bank guarantee constitute

2 The questions arose in the course of four actions brought against the Italian Ministry of Foreign Trade by Italian undertakings which had imported agri- cultural products. Cases 206 and 207/80 concerned products from non- member countries, namely carob beans from Cyprus and maize from Argentina respectively, and Cases 209 and 210/80 concerned goods already in free circulation in other Member Sutes, namely coffee from the Netherlands and cotton meal from the Federal Republic of Germany.

3 As required by the Italian legislation in force at the material time, the four plaintiffs requested and obtained, in order to make advance payment in US

JUDGMENT OF 9. 6. 1982 — JOINED CASES 206, 207, 209 AND 210/80

dollars for the goods in question, a bank guarantee to cover the 5% security required in respect of all advance payments for imported goods. Under the same legislation the security (either provided by the importer or guaranteed by his bank) is forfeit to the Treasury if proof is not given that the import­ ation has been effected within a period laid down by ministerial order, which was at that time 30 days from the date of the advance payment.

4 In the four main actions the imported goods reached Italian territory before the expiry of the 30-day period provided for by the Iulian legislation in force at the time, but parts, or in some cases the whole, of the consignments could not be released for consumption until after the 30 days had elapsed. Considering that the 30-day limit had been exceeded, the Italian Ministry of Foreign Trade decided to confiscate so much of the security as corresponded to the quantity of goods in respect of which the declaration of importation had been made after the period had expired.

States in which the creditor resides, any payments connected with the trade in goods in free circulation, and to Articles 9, 10, 13 and 30 to 36 of the Treaty on the free movement of goods in intra-Community trade, are the rules laid down by the Italian State and referred to in Articles 1, 3 and 4 of Law No 1126 of 20 July 1952, Anicie 2 of Decree Law N o 476 of 6 June 1956 convened into Law No 786 of 25 July 1956 and Anicie 2 of the Ministerial Order of 20 January 1973 compatible with the above-mentioned provisions and do they not, because the result of those rules is to discourage imponers into Italy from choosing the most appropriate date to release those goods to the market, amount to a measure having an effect equivalent to a quanti- tative restriction or a charge having an effect equivalent to a customs duty, when they are interpreted as meaning that forfeiture by the Ministry of Foreign Trade of the security which is required of imponers into Italy of goods in free circulation in the Community in order to obtain the foreign currency necessary for the payments in advance against documents, may be made on the basis of the date on which the goods themselves are registered upon importation rather than the date on which the goods reached the national territory, in view of the particularly short period, after the date of the foreign currency payment, within which the operation of obtaining customs clearance must be carried out?

of the particularly short period, after the date of the foreign currency payment, within which the operation of obtaining customs clearance must be carried out?"

7 The object of the questions which have been submitted is to discover first, whether the provisions of Community law which prohibit measures having an effect equivalent to quantitative restrictions in intra-Community trade and those concerning Member States' obligations regarding payments for such trade must be interpreted as covering the requirement to provide a security in the circumstances described above where goods imported from other Member States are paid for in advance, and secondly, whether the same in- terpretation is to be given to Article 18 of Regulation No 120/67 and to Article 2 of Regulation No 827/68 in the case of agricultural products covered by those regulations and imported into the Community from non- member countries.

I — Intra-Community trade

8 The measures to which the national court refers were the subject of another case concerning the intra-Community trade described in its first question, Case 95/81, an action under Article 169 of the EEC Treaty brought by the Commission against a Member Sute for failure to fulfil its obligations under the Treaty.

9 The question of law which was considered in Case 95/81 is identical in substance to that raised by the first question from the Tribunale Civile inasmuch as it appears from the files that the national court did not restrict its question solely to cases in which national law provides for forfeiture of the guarantees which have been given when the goods are detained for a time by the customs authorities at the port of entry, so that the question covers equally cases in which a trader is in danger of losing his security on the ground that more than 30 days have elapsed between the date of the advance payment and the arrival of the goods at the port of entry.

II — Trade with non-member countries

u As far as concerns the trade with non-member countries referred to in the second question from the national court, it must be remembered that Article 18(2) of Regulation No 120/67 of the Council, which appears under Title II, headed "Trade with third countries" and applies to trade in maize from Argentina, and Article 2 of Regulation No 827/68 of the Council, governing the market in carob beans from Cyprus, are in substance identical; the latter provides that:

"(2) Save as otherwise provided in this regulation, and save derogations decided on by the Council . . . the following shall be prohibited in trade with third countries:

JUDGMENT OF 9. 6. 1982 — JOINED CASES 206, 207, 209 AND 210/8C

The levying of any charge having an effect equivant to a customs duty; and The application of any quantitative restriction or measure having equi- valent effect . . ."

M From the files in the main actions it appears that in the cases under conside- ration the prohibitions laid down are not the subject of contrary provisions in the relevant rules, or of any derogation decided upon by the Council.

ORIUNDI v MINISTRY OF FOREIGN TRADE

On those grounds,

THE COURT

in answer to the questions referred to it by the Tribunale Civile, Rome, by orders of 14 July 1980, hereby rules;

1. The concept of measures having an effect equivalent to a quantitative restriction in Article 30 of the Treaty is to be understood as meaning that that provision covers a national measure requiring all importers of goods coming from other Member States to provide a security or a bank guarantee amounting to 5% of the value of the goods when payment is in advance, the words "payment in advance" referring not only to payments for speculative purposes but also to normal and current payments in intra-Community transactions. That applies regardless of the point in time at which the authorities of the Member State consider the importation to have been effected.

2. The concept of measures having an effect equivalent to quantitative restrictions has the same meaning when applied to imports from non- member countries of products covered by Regulations Nos 120/67 and 827/68 as it has when applied to trade between Member Sutes..