C-267/81

and

S P A MICHELIN ITALIANA (SAMI), whose registered office is in Turin (Cases 268 and 269/81),

on the jurisdiction of the Court of Justice to interpret the General Agreement on Tariffs and Trade (GATT), the effects of the substitution of the Community for the Member States with regard to the fulfilment of the obligations laid down by that agreement and the interpretation of several provisions of GATT with regard to the duty for administrative services levied on goods imported into Italy under Law N o 330 of 15 June 1950,

THE COURT

composed of: J. Mertens de Wilmars, President, P. Pescatore, A. O'Keeffe and U. Everling (Presidents of Chambers), Lord Mackenzie Stuart, G. Bosco, O. Due, K. Bahlmann and Y. Galmot, Judges,

Advocate General: G. Reischl Registrar: P. Heim

The General Agreement on Tariffs and According to the first paragraph of Trade (GATT) was provisionally Article 4 of the Law, the duty for brought into force between the original administrative services was to take effect Contracting Parties from 1 January 1948 from the date of the entry into force of by virtue of the Protocol of Provisional the new customs tariff; by virtue of the Application signed at Geneva on 30 second paragraph of Article 4, however, October 1947. from 30 May 1950 until the entry into force of the new tariff, in respect of goods included in Schedule XXVII The Italian Republic acceded to GATT attached to the Annecy Protocol of 10 by a Protocol signed at Annecy on 10 October 1949, the total amount of the October 1949; GATT was brought into customs duties provided for by the tariff force in Italy by Law N o 295 of 5 April in force and the licence duty was not to 1950 (Supplemento Ordinario, Gazzetta exceed the amount of the duties fixed by Ufficiale No 130 of 9 June 1950), which agreement in that protocol. entered into force on 30 May 1950.

There were fresh negotiations on the XL (EEC) Schedule during the 1964 to 1967 Since the Italian Republic did not abolish Trade Conference (the "Kennedy the duty for administrative services by Round"), the results of which were 1 July 1968, the Commission brought an contained in the Geneva Protocol of 30 action before the Court on 7 March June 1967 and were ratified by Decision 1970 under Article 169 of the EEC 68/411 of the Council of 27 November Treaty for a declaration that the Italian 1967 on the conclusion of multilateral Republic had failed to fulfil its obli- agreements signed at the end of the 1964 gations. By judgment of 18 November to 1967 Trade Conference (Official 1970 in Case 8/70, Commission v Italian Journal, English Special Edition, Second Republic [1970] ECR 961, the Court Series, I. External Relations (2), p. 228). held that by levying a duty of 0.5% for The Geneva Protocol and the revised XL administrative services on imports from (EEC) Schedule entered into force on 1 other Member States the Italian Republic January 1968. had failed to fulfil its obligations under the combined provisions of Article 189 of the Treaty and various regulations of the On 22 December 1967, the Commission Council on certain common organ- adopted Directive 68/31 fixing a time- izations of the agricultural market and table for the abolition of the 0.5% duty also under the combined provisions of for adminmistrative services charged by Article 13 of the Treaty and Directive the Italian Republic on the importation 68/31 of 22 December 1967. of goods from other Member States (Journal Officiel, L 12, p. 8). According to Article 1 of the directive, in respect of By its judgment of 17 December 1970 in imports from other Member States, the Case 33/70, SA CE v Ministry of Finance duty for administrative services was to be of the Italian Republic, [1970] ECR 1213, abolished by 1 July 1968, by means of the Court decided inter alia, in response successive reductions of the rate applied to a request for a preliminary ruling on 31 December 1957. made by the President of the Tribunale [District Court], Brescia, that the obligation to abolish the duty for In accordance with Decision 66/532 of administrative services contained in the Council of 26 July 1966 on the Directive 68/31, in conjunction with abolition of customs duties and the Articles 9 and 13 (2) of the Treaty and prohibition of quantitative restrictions with Decision 66/532 of the Council, between Member States and the had direct effect in the relations between implementation of the duties in the the Member State to which the directive Common Customs Tariff for products was addressed and those subject to its other than those listed in Annex II to the jurisdiction and conferred on them from Treaty (Journal Officiel 165, p. 2971) 1 July 1968 rights which the national and Regulation No 950/68 of the courts must protect. Council of 28 June 1968 on the Common Customs Tariff (Official Journal, English Special Edition, 1968 The duty for administrative services was (I), p. 275), the Community achieved the abolished by Law No 447 of 24 June

1971 (Gazzetta Ufficiale No 180 of at first instance; Michelin's claim was 17. 7. 1971), with retroactive effect from dismissed at first instance in relation to 1 July 1968 for imports from other the imports effected from 1965 to 1971. Member States of the EEC and with On appeal, the Corte d'Appello [Court effect from the entry into force of the of Appeal], Genoa, by judgments of 21 law for all other imports. June 1979 (case involving Petrolifera) and of 28 October 1977 (case concerning the imports effected between 1965 and Previously, the Amministrazione delle 1971 by Michelin) and the Corte Finanze dello Stato [hereinafter referred d'Appello, Turin, by judgment of 25 to as "the Administration"] had levied in February 1978 (case involving Michelin respect of the duty for administrative in relation to the imports effected in Services : 1973) ordered the Administration to refund to the companies in question the sums paid by them in respect of the duty A sum of LIT 101 286 380 from the for administrative services. Società Petrolifera Italiana [hereinafter referred to as Petrolifera], whose registered office is in Fornovo Taro, in The Administration lodged an appeal in relation to imports from Kuwait of crude cassation against those judgments before oi! and shale oil effected between July the Corte Suprema di Cassazione. The 1964 and December 1967; three appeals were initially assigned to the First Civil Division but were then transferred to the Combined Divisions. A sum of LIT 2 722 118 from Michelin Italiana SpA [hereinafter referred to as "Michelin"], whose registered office is in Before them, the Administration Turin, in relation to imports of synthetic contended that the prohibition laid down rubber and machines from several in Article II (1) (b) of GATT on countries which were parties to GATT increasing ordinary customs duties and between 1965 and 1971; all other duties or charges of any kind imposed on or in connexion with import- ation could not apply to products which A sum of LIT 4 560 087 also from had not been included in the schedule Michelin, in relation to imports of of original concessions applicable to various products, such as machine-wire, Italy (Schedule XXVII). Thus the valves, machine parts, speed-reducers introduction in 1950 of a duty for and hand tools, from several countries administrative services could not which were parties to GATT between constitute an increase in taxation in 15 October and 31 December 1963. relation to the customs binding which was the subject of the Protocol of 1962 The two companies brought actions containing the results of the Dillon before the competent Italian courts for Round, by which the schedules of the the refund of those payments, claiming Member States which were parties to essentially that the duty for ad- GATT were replaced by the single ministrative services was higher than the Community XL (EEC) Schedule. duties bound in the framework of GATT first by Italy and then by the Community. The defendants in cassation stated that in any event the introduction of new charges such as the duty for Petrolifera and Michelin (in relation to administrative services provided for by the imports effected in 1963) succeeded the Law of 15 June 1950 was contrary to

(B) If the foregoing question is The three orders dated 21 May 1981, the answered in the affirmative : What, if Corte Suprema di Cassazione referred to any, are the effects which follow, its earlier judgments, whereby the date within the legal order of the of reference for assessing the prohibition Community and within those of the on increasing customs duties on imports Member States, from the fact that and charges having equivalent effect, laid the Community has been substituted down in Article II (1) (b) of GATT, was for the Member States with regard to be the date of accession to GATT. to fulfilment of the obligations laid Furthermore, it stated that there was a down in GATT and that it disparity between its own judgments and negotiated the new common those of the Court of Justice in relation schedule, XL (EEC) ? If those effects to the effect of the provisions of GATT occur at different times, what is in the national legal order; consequently, their sequence? In particular, for the it decided to stay the proceedings in purpose of deducing therefrom a application of Article 177 of the EEC basis for the interpretation or a rule Treaty until the Court of Justice had for the application of later national given a preliminary ruling on the provisions which conflict with the following questions : provisions of GATT, is the national court obliged to take the view, having regard to the attribution of jurisdiction under Article 177 of the Treaty, that GATT, with specific reference to the provisions referred (A) By way of a preliminary point: Since to in the following questions, the Community has been substituted operates at the level of a mere inter- for the Member States with regard national obligation and has no direct to the fulfilment of the obligations effect internally, or else that it does laid down in GATT and since it have such effect with regard to negotiated the concessions and relations between parties, and, if the bindings made within the framework latter is the case, has GATT the thereof before 1 July 1968, do the same status as, or greater status provisions of GATT and the than, the conflicting national schedules thus negotiated fall (and if provisions? so, since when and subject to what limitation) within the measures on the interpretation of which the Court of Justice has jurisdiction to give a preliminary ruling under Article 177 of the Treaty, even (C) If an affirmative reply is given to where the national court is Question (A) and whatever the reply requested to apply them or to to Question (B), with a view to interpret them with reference to providing the national court with relations between parties for guidelines relevant to the interpret- purposes other than that of ation of the national provisions:

(1) Does GATT — and in In accordance with Article 20 of the particular the preamble (now Protocol on the Statute of the Court of Article 1 (2)) in conjunction Justice of the EEC, written observations with Articles II (now III) (1) (b) were submitted as follows: on 22 and (2), III (now IV) (2), VI December 1981 in each of the three and VIII — prohibit the intro- cases by the Commission of the duction for any product, European Communities, represented by whether or not included in the the Deputy Director General of its Legal schedules referred to in Article Department, Giancarlo Olmi, and its II (now III), of new customs Legal Adviser, Jacques Bourgeois; on 24 duties or other duties, or charges December 1981 in Case 267/81 by of any kind imposed on or in Petrolifera, represented by Guido Scarpa connexion with importation? and Francesco Nicoletti, of the Milan Bar, and Giuseppe Guarani, of the Rome Bar; on 12 January 1982 by the Government of the French Republic, represented by the Secretary General of (2) In the case of the products the Interministerial Committee on included in the schedule of Questions of European Economic concessions granted by a State Cooperation; on 15 January 1982 by after its accession to GATT — the Kingdom of the Netherlands, and in particular, with regard to represented by F. Italianer, General those States which are also Secretary in the Ministry of Foreign members of the European Affairs; on 18 January 1982 in each of Economic Community, in the the three cases by the United Kingdom, case of goods included in the represented by R. N. Ricks, Assistant XL (EEC) Schedule drawn up Treasury Solicitor; and on 19 January on conclusion of, first, the 1982 in each of the three cases by the Dillon Round and, secondly, the Government of the Italian Republic, Kennedy Round — is the time represented by Arnaldo Squillante, which must be used as a President of Section in the Consiglio di reference to determine the level Stato, Head of the Department for of the duties and other charges Contentious Diplomatic Affairs, Treaties on imports covered by the and Legislative Matters, assisted by prohibition on increases laid Sergio Lapona, Avvocato dello Stato. down in Article II (now III) (1) (b) of GATT the date of accession to GATT or the date of the protocol introducing the new concession?

By order of 5 May 1982, the Court applied by the courts of the Member decided to join Cases 267/81, 268/81 States. and 269/81 for the purposes of the oral procedure and the judgment. It is clear from the case-law of the Court that its jurisdiction to interpret inter- national law is justified by the need for uniform interpretation and application II — W r i t t e n o b s e r v a t i o n s sub- of Community law, which may be m i t t e d t o the C o u r t jeopardized by a rule of international law which is applicable within the Community legal order, where it might have priority over a provision of Community law. That may be the case Petrolifera, the respondent in the main only if the Community is bound by the action in Case 267/81, refers to the provision of international law in question case-law of the Corte Suprema di and if that provision is capable of Cassazione and the Court of Justice on conferring on those subject to the legality of the duty for administrative Community law the right to rely upon it services with regard to GATT and before the courts. In view of Article 234 Community law. It follows in particular of the EEC Treaty, the Court, when from the judgment of the Court of reference is made to it concerning the Justice of 13 December 1973 in Joined interpretation of a provision of an inter- Cases 37 and 38/73, Sociaal Fonds voor national agreement, has jurisdiction to de Diamantarbeiders v Indiamex, [1973] interpret that agreement in order to ECR 1609, that, since the duty for determine its effect in the Community administrative services is a charge having legal order. equivalent effect which does not apply to agricultural products and was introduced before the establishment of the Common Customs Tariff and even before the Agreements concluded directly by the entry into force of the EEC Treaty, it is Community either under Articles 113 not covered by any Community rules; and 114 or under Articles 238 and 228 of the problem whether it should be main- the EEC Treaty bind the Community tained or abolished should therefore be and the Member States thereof; they dealt with exclusively by reference to create directly-applicable rules, intended Italian legislation and case-law. to confer personal rights on individuals. The same applies to "communitarized" agreements and in particular, since the introduction of the Common Customs Tariff on 1 July 1968, to GATT. The first question

jurisdiction exists only in so far as Moreover, in its case-law the Court has according to the general scheme of the not accepted that the provisions of EEC Treaty the rule of international law GATT are capable of creating personal is bound to have priority over rights within the Community, inasmuch Community rules contained in the Treaty as they may be relied upon before a or in measures of secondary Community national court to defeat a rule contained law; it is a matter of avoiding the in a Community regulation. The problem possibility that a rule of international law raised before the Corte Suprema di may be interpreted differently in the Cassazione is on the contrary that of the various Member States, in contrast to a scope of a provision of GATT in relation rule of Community law, which should to a national duty introduced before the itself be applied in a uniform manner entry into force of the EEC Treaty; that throughout the Community. question does not fall within the Court's jurisdiction: under the general scheme of the EEC Treaty, the Member States are So far as "communitarized" agreements free to maintain or abolish such a duty, are concerned, their effects in relation to under their own national law, without the law applied by the national courts infringing any provision of Community arise when the Community officially law. implements them by a measure binding the Member States. Thus GATT took effect on the date of the introduction of the Common Customs Tariff on 1 July The third question 1968; the jurisdiction of the Member States in customs matters ended on that date in relations with non-member countries. (a) A reply by the Court to the first part of this Question may be only of a purely academic value. It would therefore be absurd in the framework of the main action in Case 267/81 to ask the Court to give a ruling even indirectly on the compatibility of In any event, it should be stated that the the duty for administrative services with relevant provisions of GATT introduce a the rules contained in GATT; that "standstill" rule, which has the same problem should be solved exclusively on scope as those contained in various the basis of criteria which may be drawn articles of the EEC Treaty, particularly from Italian national case-law. Articles 12 and 95; the case-law of the Court in this regard is confirmed in relation to GATT by the case-law of the Italian Corte Constituzionale [Constitu- The second question tional Court], the Corte di Cassazione and the Consiglio di Stato [State Council]. The duty for administrative services is charged on imports from non-member countries of products other than agri- cultural products; thus, according to the In its preamble, GATT imposes on the case-law of the Court, Community law is Contracting Parties an obligation sub- wholly inapplicable: it is for the Italian stantially to reduce customs tariffs and State to decide exclusively on the basis of other trade barriers; that obligation, its own legislation and case-law whether which admittedly is in the nature of a to maintain or abolish the duty. programme, nevertheless involves a

The Court has on several occasions Article II (1) (b) of GATT prohibits the stated that, in so far as by virtue of the Contracting States from imposing on EEC Treaty the Community, in the imported products duties or charges in application of GATT, exercises powers excess of the customs duties applicable at which previously belonged exclusively to the date of accession of GATT. That the Member States, it has been sub- prohibition is defined more closely in stituted for the Member States in relation Article II (2), which provides that the to the fulfilment of the commitments Contracting States may impose on the provided for by GATT; the other importation of a product only counter- Contracting Parties have accepted that vailing duties, anti-dumping duties and position. fees for services rendered; none of these cases applies to the duty for administrative services, which constitutes In so far as such substitution has actually a classic example of a charge having an taken place, the Court must have effect equivalent to a customs duty. jurisdiction to give preliminary rulings concerning the interpretation of the provisions of GATT affected by the sub- The provisions of GATT referred to in stitution, in order to check whether the question put by the Corte Suprema competing rules are compatible with one di Cassazione lay down a "standstill" another; it must therefore, by analogy rule, prohibiting the Contracting States and in order to meet the obvious from introducing any charge having requirement of uniform application of equivalent effect on any imported the law, be regarded as having product whatsoever, whether or not that jurisdiction directly to interpret those product appears in the original schedule provisions when they are directly annexed to GATT or in a subsequent relevant to the settlement of a dispute. schedule by which the original schedule was replaced.

The reply to the question put in this case Article XXVII seeks to ensure the by the Corte Suprema di Cassazione constant application of the principle of must be sought in the light of the need reciprocity and balance between the sum for a uniform application of GATT in of the tariff concessions granted by one the Community. party in relation to imports into its territory and the sum of the concessions obtained by it for exports of its own products into the territory of the other The preamble to GATT makes it clear parties; the machinery of GATT, that it seeks to achieve, by means of resulting from the combined provisions reciprocal and mutually advantageous of Articles II and XXVII, is therefore arrangements, on the one hand, the sub- indissoluble from the schedule of stantial reduction of tariffs and other Concessions. barriers to trade and, on the other, the elimination of discriminatory treatment in international commerce. In relation to Article XXVIII of GATT, which the first point, Article II of GATT first provides for the withdrawal of sub- of all fixes, in relation to the products stantially equivalent concessions, points described in the national schedules of to the same conclusion. each of the Contracting Parties, the maximum level of customs duties, which may not exceed the level provided for in Thus the prohibition on the introduction the corresponding schedules annexed to of any new customs duties or the GATT, and then prohibits for the same incresse of those in force on a certain products any increase in all other import date applies under the provisions of duties in force in the wording of those GATT exclusively to the products provisions that the prohibition of the appearing in the schedules of tariff imposition on products of any new concessions. customs duties or other charges on importation applies only to products included in those schedules. The third question

Agreement" ; Artide 5 (a) of the Annecy were not previously subject thereto Protocol of 10 October 1949, whereby contain a clause which is wholly identical Italy acceded to GATT, provides that: to Article 5 (a) of the Annecy Protocol "In each case in which Article II of the and defers to the date of the respective General Agreement refers to the date of protocols the entry into force of the that Agreement, the applicable date in prohibition on the increase of customs respect of the schedule annexed to this duties on products which by virtue of protocol shall be the date of this those protocols are for the first time protocol." Those two provisions, read covered by tariff concessions. In relation together, clearly show, on the one hand, to the products which did not appear in that the prohibition on the increase of the original Schedule XXVII but were customs duties applies only to the later included, for example, in the products which are covered by tariff schedule annexed to the Torquay concessions and as such appear in the Protocol of 21 April 1951, the limit schedule relating to each country and are beyond which, by virtue of Article II of subject to the customs rules contained in GATT, the duties on importation may GATT, and on the other, that Article II not be increased must therefore be of GATT, inasmuch as it contains an determined by the reference to the tax obligation not to increase charges on rules applicable to those products in the importation other than customs duties Italian legal order on 21 April 1951; which existed in the Italian legal order those products, which have been lawfully on 10 October 1949, excludes the subject to the duty for administrative possibility of imposing on products services since the entry into force of the subject to the rules of GATT duties such law by which they were introduced, as the duty for administrative services, continue to be lawfully subject thereto which was introduced after the date of after 21 April 1951, since the resulting the signature of the Annecy Protocol; customs charge, which was already in conversely, there was nothing to prevent force on that date, cannot represent an Italy from imposing on products which increase in the customs levy applicable to do not appear in Schedule XXVII those products on that date. Similar negotiated at the time of the Annecy considerations apply to the schedules of Protocol and which therefore do not fall concessions negotiated by the under the special customs rules laid Community, particularly during the tariff down by Article II of GATT new duties conferences of the Dillon Round and the higher than those in force on 10 October Kennedy Round, since the measures or 1949. protocols in question clearly excluded any retroactive effect.

appearing in Schedule XXVII, were According to Article 113 of the EEC included in the schedule of concessions Treaty, jurisdiction with regard to the negotiated by the Community; in common commercial policy has been relation to the latter, it must be regarded exercised by the Community since the as legitimate to impose the duty for end of the transitional period. From administrative services which, since it that internal jurisdiction, an external existed in the Italian legal order prior to jurisdiction has been inferred, which 1963, cannot constitute a prohibited enables the Commission to negotiate in increase in the level of charges on im- the framework of GATT on behalf of portation. The same applies to the the Member States which have remained products covered by the tariff Contracting Parties. However, it has concessions which were negotiated by been possible to exercise that jurisdiction the Community in the framework of the only with effect from 1 July 1968; any Kennedy Round, which ended in 1967. interpretation by the, Court of the provisions and schedules of GATT may consequently apply only to facts which have arisen since that date.

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SPI AND SAMI

developed the principle of the external The decision-making process: Decisions jurisdiction of the Communities in within the framework of GATT are spheres governed by the Treaties. It has taken by agreement, on the basis of also stated that it has jurisdiction to negotiations of a political nature; interpret GATT; in order to found that without prejudice to the need for judicial jurisdiction, it has developed two review of the legality of measures, a conditions referring to criteria peculiar decision of a court cannot affect a to Community law: the Community must political decision adopted by an inter- be bound by a provision of international national body; law which may affect the validity of a Community measure and that provision must be capable of conferring on citizens of the Community the right to reply on The method of settlement of disputes: it before the courts. this is by negotiation between States.

The Government of the Kingdom of the Netherlands considers that the questions In fact, GATT is based according to its submitted by the Corte Suprema di preamble on the principle of negotiation Cassazione, Italy, concern the limits of undertaken "on a reciprocal and the Community legal order; basically, it mutually advantageous basis" and is is necessary to determine whether GATT characterized by the great flexibility of may be regarded as forming part of its provisions, in particular those Community law within the meaning of concerning possibilities of derogation; Article 164 of the EEC Treaty. moreover, GATT does not set up any international organization and under its legal rules national parliaments retain their powers. The Community legal system is an open system: certain provisions of inter- national agreements concluded by the Community with non-member countries The fact that GATT does not create any or with international organizations, by rights for individuals follows more parti- which the Community as such is bound, cularly from : may form part of Community law, in so

JUDGMENT OF 16. 3. 1983 — JOINED CASES 267 TO 269/81

The provisions of GATT generally and the provisions referred to in the The Court of Justice has ruled that it has questions submitted to the Court in jurisdiction to interpret international particular do not have direct effect agreements which "bind" the Com- because of the language and the munity, without distinguishing between intention of GATT itself and because of agreements which have been concluded the case-law of the Court of Justice. by the Community itself within the limits of its powers and agreements concluded by the Member States relating to a sphere in which the Member States' GATT is primarily concerned with powers have been transferred to the reciprocal arrangements for the Community by virtue of the EEC Treaty. reduction of tariffs and other barriers to trade; by contrast, the intention and purpose of the EEC Treaty is not merely to facilitate trade between Member The jurisdiction of the Court to interpret States but also to create a single a particular provision of an international economic Community with its own legal agreement cannot be made conditional order, its own institutions and its own

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SPI AND SAMI

machinery for its interpretation and 38/75, Douaneagent der NV Nederlandse implementation. Spoorwegen v Inspecteur der Invoerrechten en Accijnzen, [1975] ECR 1439.

When the effect of an international agreement is considered, the ordinary That substitution of the Community for meaning must be given to the terms of the Member States in relation to the the Treaty in their context and in the fulfilment of commitments arising out of light of its object and purpose. In several GATT creates a situation in the Com- of its judgments, applying that principle, munity legal order comparable to that in the Court stated that the provisions of which an international agreement was GATT are not capable of conferring on originally concluded by the Community citizens of the Community rights which itself. they may invoke before the courts.

(a) The Community has now been substituted for the Member States in Under those circumstances the existence, relation to the fulfilment of the effect and scope of a Member State's commitments arising out of GATT: the obligation to comply with GATT have Court· of Justice has confirmed that on undoubtedly become questions of several occasions, in particular in its Community law, as a result of the sub- judgment of 19 November 1975 in Case stitution of the Community for the

JUDGMENT OF 16. 3. 1983 — JOINED CASES 267 TO 269/81

Member States, those questions must States were subject, in relation to necessarily fall within Article 177 of the customs tariffs, to procedural and sub- EEC Treaty, since otherwise part of stantive rules which at international level Community law would be deprived of had a counterpart in the negotiation and the guarantee of uniform interpretation conclusion by the Community of the provided by the procedure for pre- protocol of the Dillon Round. liminary rulings.

The fact nevertheless remains that in the Moreover, within the Community the Community's internal order the Member Member States were still able to use

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SPI AND SAMI

charges on importation as an instrument The situation also changed within the in trade with non-member countries, Community: after the Dillon Round, except in relation to agricultural according to the provisions of the Treaty products. The Court held that the themselves, no proper common customs prohibition on the modification of duties tariff yet existed during the transitional in the Common Customs Tariff by the period and, although the Member States Member States by means of charges were obliged progressively to align their added to those duties applied only with tariffs with the common tariff, within the effect from the introduction of the limits and conditions provided for by the Common Customs Tariff on 1 July 1968; Treaty, they retained some room for furthermore, that prohibition covered the manoeuvre; on the other hand, after the introduction of new charges on imports Kennedy Round, the bound duties which or any increase in the level of charges had been negotiated were reproduced in which existed on that date. the Common Customs Tariff, which was fully to enter into force on 1 July 1968, and from that date all powers in relation to tariffs were fully and wholly exercised by the Community.

(c) In the main action in Case 268/81, the duty for administrative services was still levied after the agreements of the The existence, effect and scope of Article Kennedy Round, which in relation to II (1) (b) of GATT in relation to charges tariffs resulted in the early entry into on importation other than customs duties force of the Common Customs Tariff on therefore became questions of Com- 1 July 1968. As a result a new situation munity law as from 1 July 1968. arose in relation to the substitution of the Community for the Member States in the fulfilment of the commitments provided for in Article II (1) (b) of GATT concerning charges on import- (d) The following reply should be ation other than customs duties. given to the first question put to the Court:

consequently, their interpretation does the Community and agreements such as not fall within the Court of Justice's GATT, for the purpose of whose jurisdiction to give a preliminary ruling. implementation the Community has been substituted for the Member States; that caution is based, on the one hand, on the nature and objectives of such In Case 268/81: agreements, which differ from those of the EEC Treaty, and, on the other, on In relation to duties and charges other the need to maintain a proper balance of than customs duties imposed on or in advantages and disadvantages between connexion with the importation of the parties to agreements such as GATT, industrial products, the Community was which are based on reciprocity. substituted for the Member States with regard to the fulfilment of commitments arising out of Article II (1) (b) of GATT only with effect from the introduction of In interpreting a provision of GATT, the the Common Customs Tariff. It is only court of one Contracting Party might be from that date that the legal effect of induced to give to it a wider scope than those commitments must be assessed with that which the Contracting Parties regard to the relevant provisions of the attribute or might be induced to attribute Community legal order and that their thereto; judicial interpretation relates to interpretation falls within the jurisdiction a subject which the signatories of GATT to give a preliminary ruling laid down in left to subsequent bilateral or multilateral Article 117 of the EEC Treaty. negotiations or to questions capable of being settled by a procedure for the settlement of disputes, which also includes negotiation. Second question (Case 268/81)

Third question (Case 268/81) The preamble also fails to support the argument of a "standstill": it reveals that (a) It follows from the actual text of the objective of GATT is not the Article II (1) (b) of GATT that the elimination of customs tariffs and other obligation regarding charges on im- trade barriers but their reduction "on a portation other than customs duties reciprocal and mutually advantageous concerns only products in relation to basis". which a Contracting Party has accepted the obligation regarding customs duties, in other words, "bound" products. (b) The date to be taken into consideration in order to determine the date from which a party to GATT is That provision sets out the objective of under an obligation not to impose on GATT: the object of the sentence imports duties or charges "in excess of concerning other charges on importation those imposed on the date of this is to prevent a Contracting Party from Agreement" is as a general rule that of introducing such charges so as to reduce the protocol concerning the new the value of the concessions set out in its concession. That follows from the actual schedule; the second paragraph of terms of Article 5 (a) of the protocol of Article 4 of Law No 330 introducing the the Dillon Round and from the normal duty for administrative services shows practice in relation to GATT. that that was indeed the idea of the Italian legislature. With regard to the special case of the withdrawal of the concessions of the GATT does not contain any implied Member States — which the obligation not to introduce new customs establishment of a customs union such as duties or new charges on importation, in the EEC involved — and the offer of addition to the express obligation not to concessions by the Community, it was increase customs duties on the products agreed in the Dillon Round that the date bound by a Contracting Party's schedule. applicable for each product which was covered by a concession described in the Community schedule was to be, on Articles V and VIII tend rather to importation into one of the Member contradict the idea of a "standstill": they States, the date of the instrument by permit the introduction of certain which the product, if it appeared in Part

Ill — Oral procedure The agreement concluded in the Dillon Round was not expressly renewed in the framework of the Kennedy Round, probably because a special clause was no longer regarded as necessary in relation At the sittings on 27 and 28 October to the obligations of the Community. 1982 oral argument was presented and The general clause in the protocol of the questions asked by the Court were Kennedy Round provides that: "In each answered by the following: Guido case in which paragraph 1 (b) and (c) of Scarpa, for Petrolifera; Ivo van Bael of Article II of the General Agreement the Brussels Bar, for Michelin; Mr refers to the date of that Agreement, the Laporta, for the Government of the applicable date in respect of each Italian Republic; Alexandre Carnelutti, product which is the subject of a Secretary of Foreign Affairs in the concession provided for in a schedule Ministry of External Relations, for the annexed to this protocol shall be the date Government of the French Republic; and of this protocol, but without prejudice to Mr Olmi, for the Commission. any obligations in effect on that date."

accepted, because of the special nature of otherwise. The nature of the contested the charge to which the dispute related. charge and its status under Community The duty for administrative services had law had remained unchanged throughout been found by the Court itself to be a the period in which it had been in force. charge having an effect equivalent to a The question of the charge's customs duty; in this case that charge compatibility with GATT was therefore was levied on imports from non-member governed exclusively by Italian law both countries. It followed from the judgment before and after 1 July 1968. in Diamantarbeiders v Indiamex that the effect of the entry into force of the In addition, the dispute in the main Common Customs Tariff was solely to action did not involve any Community prohibit the Member States as from 1 interest and an examination at July 1968 from introducing unilaterally Community level of the substantive' any new charges and from raising unilat- questions raised by the dispute would erally the level of charges in force; the amount to interference in an area falling charges in existence on 1 July 1968 could within national jurisdiction. lawfully be levied on imports from non- The Advocate General delivered his member countries as long as the opinion at the sitting on 14 December Community authorities had not decided 1982.

Decision

1 By three orders dated 21 M a y 1981, which were received at the C o u r t o n 6 O c t o b e r 1981, the C o r t e Suprema di Cassazione [Supreme C o u r t of Cassation] referred to the C o u r t for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y three questions concerning:

B a c k g r o u n d to the dispute

3 It should be noted that Italy acceded to GATT by the Annecy Protocol of 10 October 1949, which was brought into force by the Law of 5 April 1950. The tariff concessions granted by Italy at that time are contained in Schedule XXVII, annexed to GATT. The schedule was renegotiated during several tariff conferences which took place between 1950 and 1960.

4 At the end of the "Dillon Round", which took place from 1960 to 1961 and in which the Community took part for the first time, Schedule XL (EEC) was drawn up to replace the earlier schedules of concessions of the Member States, including Italy's Schedule XXVII. The protocol containing the results of those negotiations was concluded jointly by the Community and the Member States on 16 July 1962. It appears that that protocol was not published in the Official Journal of the Communities.

s There were fresh tariff negotiations on Schedule XL (EEC) during the "Kennedy Round", which took place between 1964 and 1967 and the results of which, contained in the Geneva Protocol of 30 June 1967, were ratified by a decision of the Council of 27 November 1967 (Official Journal, English Special Edition, Second Series, I. External Relations (2), p. 228). The success of those negotiations made it possible to introduce the Common Customs Tariff on 1 July 1968, that is to say earlier than was planned.

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SPI AND SAMI

Ć It is clear from the foregoing that the duty for administrative services was introduced at a time when Italy had already acceded to GATT and bound a number of customs duties in the framework of the original version of Schedule XXVII, but before the negotiation by the Community of the first Tariff Protocols and before the introduction of the Common Customs Tariff.

JUDGMENT OF 16. 3. 1983 — JOINED CASES 267 TO 269/81

Protocol of 30 June 1967. Finally, the contested charges in Case 268/81 were wholly confined to the period of the Tariff Protocol of 16 July 1962.

n It is clear from the orders for reference that the Administration in substance contended that because the duty for administrative services was introduced before the Community Schedule, XL (EEC), its imposition could not be regarded as an increase in customs duties, contrary to Article II of GATT. In order to resolve that dispute, the Corte Suprema di Cassazione referred to the Court for a preliminary ruling three questions, which are identical in all three cases. They are worded as follows:

(A) As a preliminary point: Since the Community has been substituted for the Member States with regard to the fulfilment of the obligations laid down in GATT and since it negotiated the concessions and bindings made within the framework thereof before 1 July 1968, do the provisions of GATT and the schedules thus negotiated fall (and if so, since when and subject to what limitations) within the measures on the interpretation of which the Court of Justice has jurisdiction to give a preliminary ruling under Article 177 of the Treaty, even where the national court is requested to apply them or to interpret them with reference to relations between parties for purposes other than that of determining whether or not a Community measure is valid?

(2) In the case of the products included in the schedule of concessions granted by a State after its accession to GATT — and in particular, with regard to those States which are also members of the European Economic Community, in the case of goods included in Schedule XL (EEC) drawn up on conclusion of, first, the Dillon Round and, secondly, the Kennedy Round — is the time which must be used as a reference to determine the level of the duties and other charges on imports covered by the prohibition on increases laid down in Article II (now III) (1) (b) of GATT the date of accession to GATT or the date of the protocol introducing the new concession?

C o n s e q u e n c e s of t h e s u b s t i t u t i o n of t h e C o m m u n i t y for t h e M e m b e r S t a t e s in r e l a t i o n t o c o m m i t m e n t s u n d e r GATT ( Q u e s t i o n (A))

u The Corte Suprema di Cassazione refers first to the case-law of the Court of Justice on the substitution of the Community for the Member States in relation to the fulfilment of the commitments under GATT and on the Court's jurisdiction under Article 177 of the Treaty to interpret the provisions of agreements binding the Community (in that regard it mentions in particular the judgments of 12 December 1972 in Joined Cases 21 to 24/72, International Fruit Company v Produktschap voor Groenten en Fruit, [1972] ECR 1219, of 24 October 1973 in Case 9/73, Schlüters Hauptzollamt Lörrach [1973] ECR 1135, of 30 April 1974 in Case 181/73, Haegeman v Belgian State, [1974] ECR 449, and 11 November 1975 in Case 38/75,

is It follows that the jurisdiction conferred upon the Court in order to ensure the uniform interpretation of Community law must include a determination of the scope and effect of the rules of GATT within the Community and also of the effect of the tariff protocols concluded in the framework of GATT. In that regard it does not matter whether the national court is required to assess the validity of Community measures or the compatibility of national legislative provisions with the commitments binding the Community.

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SPI AND SAMI

i6 Because both the facts relating to these cases and the measures adopted by the Community evidencing its participation in the system of GATT were spread over some time, special problems arise in relation to the application ratione temporis of the principles established above.

i7 In that connexion it should be pointed out first, as the Court stated in its judgment of 12 December 1972 in the International Fruit case, cited above, that the substitution of the Community for the Member States in relation to commitments under GATT took place on 1 July 1968, following the intro- duction of the Common Customs Tariff. It was at that time that the Community, in advance of the time fixed for the end of the transitional period, assumed its full powers in relation to the sphere covered by GATT.

ie On the other hand, in relation to the matters governed by the Tariff Protocols, including the concessions and bindings agreed in the framework of Schedule XL (EEC) which forms an integral part of those protocols, the effect of the conclusion of those agreements was, by virtue of Article 228 of the Treaty, to bind the Member States in the same way as the Community itself. For the reasons stated above, and subject to the considerations set out below concerning the internal effect of the protocols, it is in any event important that they should be interpreted and applied in the same way throughout the Community.

22 If the effects within the Community of the rules of GATT and of the Tariff Protocols should occur at different times, the Corte Suprema di Cassazione also wishes to know their sequence.

23 In its judgments of 12 December 1972 and 24 October 1973, International Fruit Company and Schlüter, cited above, the Court answered in the negative questions concerning the direct applicability of two provisions of GATT, namely Article XI on the elimination of quantitative restrictions and Article II on the effect of schedules of concessions. The Court reached that conclusion on the basis of considerations concerning the general scheme of GATT, namely that it was based on the principle of negotiations undertaken on a reciprocal and mutually advantageous basis and was characterized by the great flexibility of its provisions, in particular those concerning the possibilities of derogation, the measures which might be taken in cases of exceptional difficulty and the settlement of differences between the contracting parties. The same considerations apply to the articles cited by the Corte Suprema di Cassazione.

24 So far as the Tariff Protocols concluded in the framework of GATT are concerned, it should be noted that those protocols are characterized by the fact that they refer, in the tariff schedules annexed thereto, to the customs tariffs of the parties concerned. Therefore those protocols can, by virtue of their general scheme and also of that of GATT, be effective only through the intermediary of the customs tariff of the contracting parties and thus, in this case, through the intermediary of the Common Customs Tariff.

28 Since no such provision has been adopted in relation to the disputed duty in so far as it applies to the importation of goods from non-member countries, it must be concluded that that duty could lawfully be charged during the period following the entry into force of the Common Customs Tariff until the repeal of Law N o 330.

29 In order to determine the legal position prior to the introduction of the Common Customs Tariff, it is necessary to consider the nature and effect of the Tariff Protocols by which Schedule XL (EEC) was substituted for the earlier national schedules of the Member States.

30 At that time, the Member States were engaged in the process of bringing their national tariffs into line with the Common Customs Tariff, in

JUDGMENT OF 16. 3. 1983 — JOINED CASES 267 TO 269/81

accordance with Articles 23 to 26 of the Treaty. It follows from that that both the Common Customs Tariff itself and the concessions and bindings contained in the Tariff Protocols negotiated at that time did not constitute a definite obligation for the Member States, but represented rather an objective by reference to which they were to direct their measures of alignment.

3i The answer to the question submitted should therefore be that, in relation to the period before 1 July 1968, the Tariff Protocols of 16 July 1962 and 30 June 1967 did not protect individuals against the imposition by a Member State of a charge on products imported from non-member countries and that, in relation to the period after 1 July 1968, no provision of Community law prevented the imposition on the same products of a charge such as the duty for administrative services, in so far as it was already in existence on that date.

1. Since the Community has been substituted for the Member States in relation to the fulfilment of the commitments laid down by the

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SPI AND SAMI

General Agreement on Tariffs and Trade with effect from 1 July 1968, the date on which the Common Customs Tariff was brought into force, the provisions of that agreement have since that date been amongst those which the Court of Justice has jurisdiction, by virtue of Article 177 of the EEC Treaty, to interpret by way of a preliminary ruling, regardless of the purpose of such interpretation. With regard to the period prior to that date, such interpretation is a matter exclusively for the courts of the Member States.

2. The Tariff Protocols of 16 July and 30 June 1967 are acts of the institutions of the Community within the meaning of subparagraph (b) of the first paragraph of Article 177 of the EEC Treaty and as such fall within the jurisdiction to give preliminary rulings conferred upon the Court of Justice.

3. In relation to the period before 1 July 1968, the Tariff Protocols of 16 July 1962 and 30 June 1967 did not protect individuals against the imposition by a Member State of a charge on products imported from non-member countries. In relation to the period after 1 July 1968, no provision of Community law prevented the imposition on the same products of a charge such as the duty for administrative services provided for by Law N o 330 of 15 June 1950, in so far as it was already in existence on that date.

Mertens de Wilmars Pescatore O'Keeffe Everling