C-290/81

AMMINISTRAZIONE DELLE FINANZE DELLO STATO [Italian State Finance Administration],

on the interpretation of certain provisions of the General A g r e e m e n t on Tariffs a n d T r a d e ( G A T T ) ,

SINGER AND GEIGY v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

THE COURT

composed of: J. M e n e n s de Wilmars, President, P. Pescatore, A. O'Keeffe and U . Everling (Presidents of C h a m b e r s ) , Lord M a c k e n z i e Stuart, G. Bosco, O . D u e , K. Bahlmann and Y. Galmot, J u d g e s ,

Advocate G e n e r a l : G. Reischl Registrar: P. H e i m

JUDGMENT OF 16. 3. 1983 — JOINED CASES 290 AND 291/81

SINGER AND GEIGY v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

Advocate General, the Court decided to No 3616/76 of the Corte Suprema di open the orai procedure without any Cassazione [Supreme Court of preparatory inquiry. Cassation].

By order of 24 March 1982, the Court, In that judgment, the Corte Suprema di having established that Cases 290/81 and Cassazione stated in particular that it 291/81 concerned the same subject- should not be assumed that the Court of matter and were related, decided to join Justice has jurisdiction to interpret them for the purposes of the oral GATT in circumstances different from procedure and the judgment. those already considered by the Court.

On the basis of the considerations set out It states that such were the circumstances by the Corte Suprema di Cassazine, dealt with in the judgments of the Court Singer concludes that the Court of of Justice in Joined Cases 21 to 24/72 Justice does not have jurisdiction to give and in Cases 19/73 and 38/75. a ruling on the first question. However, it reserves the right to consider that In support of its point of view, Singer question, purely as a precautionary refers to long extracts from Judgment measure.

JUDGMENT OF 16. 3. 1983 — JOINED CASES 290 AND 29.1/81

Geigy further considers that those rights That conclusion can be drawn not only and obligations also include the position in relation to the first question but also of individuals in relation to Member in relation to the second, in view of the States as a result of the rules laid down fact that it cannot be maintained that the in GATT where there are no negotiation of the so-called "common" incompatible Community provisions, in schedule gave rise to special rules in view of the fact that according to the relation to what are generally known as case-law of the Court the validity of charges having equivalent effect. measures adopted by the institutions may be assessed in relation to a provision of In its observations the Government of the international law where that provision Kingdom of the Netherlands considers binds the Community and is capable of solely the question whether GATT may giving rise to rights upon which its be regarded as forming part of citizens may rely before the courts. Community law for the purposes of Article 164 of the EEC Treaty.

member countries and with international has not been implemented by the organizations by which the Community Community. is bound in its own right may themselves also be part of Community law in so far as they are capable of direct application. Those conditions are fulfilled in the case In the present cases, the national court of GATT. The Court of Justice, in stressed that the Court has ruled that it stating that it has jurisdiction to interpret has jurisdiction to interpret not only the international agreements which are Treaty of Rome but also international binding on the Community, has never rules such as GATT in so far as their distinguished between the case in which content (through the substitution of the the agreement in question was concluded Community for the Member States in by the Community itself, within the relation to obligations undertaken by the framework of its powers, and the case in latter in the framework of multilateral which agreements (such as GATT) were agreements) "is referable to Community concluded by the Member States but law". none the less relate to a sphere in which the powers of the Member States have been transferred to the Community by virtue of the EEC Treaty. The Commission of the European Communities notes that the existence, effect and scope of an obligation under GATT are Community questions in so far as the Community has been sub- It.should, however, be noted that up to stituted for the Member States with now the case-law of the Court has regard to the fulfilment of the always related to the examination of a commitments arising out of GATT. Community measure in relation to the international agreement in question (so far as GATT is concerned, the exam- ination in the light of GATT of the The Commission contends that, in order validity of provisions of secondary to determine whether the Court has Community law), whereas in these cases jurisdiction in these cases, it is therefore it is necessary to determine whether the necessary to examine whether the Court also has jurisdiction in a case in Commission has actually been substituted which no rule of Community law is for the Member States, over the period applicable. in question in these cases, with regard to the fulfilment of the commitments laid down in Article II (1) (b) of GATT concerning charges on imports other than ordinary customs duties. In that regard, the Netherlands Government considers that the Court's jurisdiction to interpret an international agreement cannot be subject to the The Commission considers that such existence of a Community regulation. substitution did in fact take place with Indeed, a provision of an international effect from 1 July 1968. It notes that, on agreement could also (provided that the the one hand, at international level the Community is bound by the agreement tariff commitments of the Kennedy and the provision is itself capable Round (1964 to 1967) were negotiated of affecting relations within - the and accepted by the Community alone, Community) be regarded as forming part and that within the Community, on the of the Community legal order even if it other hand, all powers in relation to

In 1950, when Italy ratified GATT, the So far as the first question is concerned, tariff of conventional duties to be applied Singer observes that the preamble between the contracting parties was set contained in Annex I to GATT which, as out in Schedule XXVII. is stated in the law by which it was ratified, forms an integral part of GATT, requires the contracting parties sub- Singer notes that Article 9 of the Treaty stantially to reduce tariffs and other establishing the European Economic trade barriers. Community, ratified in Italy by Law No 1203 of 14 October 1957, gave rise to an obligation to adopt a common customs tariff in Member States' relations with That requirement, though in the nature non-member countries. Italy, in its of a programme since it implies the need relations with non-member countries for the adaptation of national provisions, which are parties to GATT (relations none the less contains a direct obligation governed by the tariff of conventional not to introduce new duties or new duties), therefore replaced Schedule charges having an equivalent effect. XXVII by the Common Customs Tariff, Indeed, if that were not the case, it which became Schedule XL, the schedule would have been or would be possible applicable to all the States in the for the contracting parties, on the one Community. hand, to choose whether or not to reduce the customs tariff and, on the other hand, subsequently to introduce Singer maintains that the question can charges having equivalent effect, so easily be resolved on the basis of those destroying the spirit of GATT. considerations. It considers that, since Schedule XL determined the maximum amount of customs duties to be imposed, The same could be said of Article II (1) the Court of Justice and then the (b) of GATT, which provide that the national court, in order to ascertain contracting parties are not to impose on whether Italy respected that prescribed imported products duties other than amount, must simply determine whether, customs duties which are in excess of at the time of importation, the products those imposed on the date of accession were subject to the maximum authorized to GATT. amount or a higher amount.

It therefore confines itself to setting forth a number of observations intended It adds that the duty for administrative to show that the purpose of the services also falls under Article VIII (1) schedules of concessions was and still is of GATT, which provides that "charges, merely to provide information on other than duties, imposed by concessions granted by the various governmental authorities . . . should be Member States and not to limit the limited in amount to the approximate principle that the "most favoured cost of services rendered and should not nation" clause is of general application represent an indirect protection to to all the other Member States. domestic products or a taxation of imports or exports for fiscal purposes". That provision, described in Article VIII (2) as being among the "principles" and Since the express objective of GATT was "objectives" of GATT, therefore imposes from the beginning the general a direct obligation on the contracting application of the "most favoured States. Consequently, there was an nation" clause, it was considered useful, absolute prohibition of the introduction in the absence of a schedule of of new charges other than customs duties concessions defining such treatment for after the entry into force of GATT, each Member State, to annex to GATT which applied generally and without any schedules which would make it possible reference to the schedules of for such treatment to be identified. concessions, with which the provisions of Article VIII have no connection. After the Community had been sub- stituted for the various Member States, the schedule was unified, but clearly the only function of the new schedule was The expression — in the nature of and still is to identify the tariff headings interpretation and not creating any new which together constitute the principle principles — contained in Article I (A) of from which the most-favoured-nation the Geneva Protocol of 1955 merely clause arises and thus to extend the most reaffirms all the commitments contained in GATT and recognizes that the favourable tariff treatment in each case principles which are set out therein, such to all States parties to GATT. as the principle expressly laid down in Article VIII, take effect from the beginning. It therefore does not mean Thus the schedules in question are that the obligations of States take any intended not to limit to goods listed in fresh effect, but must be interpreted as the schedules the prohibition of the

increase of the customs duties in force at original schedules of concessions by the the time of accession to GATT but solely inclusion of new products. to make known and give general effect to the concessions in force and consequently to apply them to all the For a party which had already acceded contracting States by reason of the most- to GATT, the effect of the accession of a favoured-nation clause. new State would then merely be to extend to that new State the treatment already reserved to the, other parties to It must therefore be concluded that GATT, treatment which — in that case Schedule XL did not have any new legal — would already involve a prohibition of effect which would justify the existence the increase of customs charges on of duties for administrative services, imported products of any kind; equally, which were prohibited from the outset the same obligation would arise for the by the provisions of GATT. new contracting State. But, if that were the case, it would be difficult to explain the purpose of the complex and The Government of the Italian Republic, laborious negotiations which precede the after pointing out that the preamble to accession of a new State to GATT and GATT reveals an intention to undertake, the purpose of a schedule of tariff inter alia, on a reciprocal and mutually concessions concerning the new party, advantageous basis a substantial containing a varying number of products. reduction of tariffs and other barriers to trade, observes that Article II of GATT lays down first, in relation to the It is therefore clear from international products described in the national practice in relation to negotiations in the schedules of each of the contracting framework of GATT that the parties parties, the maximum levels of customs to GATT have always, albeit tacitly, duties, which are not to exceed those understood Article II as applying provided for in the appropriate schedules exclusively to products in relation to annexed to GATT and then in relation which tariff concessions had been to the same products prohibits the granted and as such included in the increase of other frontier duties in force schedules annexed to GATT (or annexed in the importing country on the date of to the protocols of accession of the new GATT. States).

contracting party, clearly intends to Article II of GATT, in conjunction with ensure the constant functioning of the Article 5 (a) of the Protocol of Annecy principle of reciprocity, by virtue of of 10 October 1949, which provides'that which the sum of tariff concessions "where Article II of GATT refers to the granted by one party in relation to date of the said agreement, the date imports into its territory must always applicable in relation to the schedules correspond to the sum of the concessions annexed to this Protocol shall be that of obtained by that party in relation to this Protocol", shows clearly that the exports of its own products to the other prohibition of the increase of customs

There too, the machinery for the constant and The Italian Government points out that, perfect balance of the mutual concessions on the occasion of the accession of other cannot be ensured if the customs rules countries to GATT, the schedules of relating to a certain group of products tariff concessions were amended and do not make it possible to check that the extended. In that regard it observes that sum of the concessions granted corre- all the protocols the object and effect of sponds to the sum of the concessions which was to extend the rules of GATT obtained. to goods which had not previously been subject thereto contain a clause wholly identical to that in Article 5 (a) of the Protocol of Annecy, which provides that So far as the second question is the prohibition of the increase of concerned, the Government of the customs duties on products which, as a Italian Republic observes that it asks in result of those protocols are ex novo particular whether the date to which it is included among those in relation to necessary to refer in order to determine which tariff concessions have been the level beyond which customs duties granted is to enter into force on the date may no longer be increased by virtue of of the protocols in question. Article II of GATT is that of the date of the accession to GATT of the country concerned or that of the protocol With regard to the schedules of relating to a new concession. concessions negotiated by the European

According to the Commission the first Indeed, the purpose of the clause question should therefore be answered as concerning other charges is clearly to follows : prevent the introduction of such charges on importation by a contracting party "Article II (1) (b) refers, in relation to from undermining the value of the duties and charges on importation other concessions set out in its schedule. than customs duties, only to the products set out in the schedules referred to in Article II." In the Commission's opinion, GATT does not contain an express "standstill" obligation in relation to charges on So far as the second question is importation other than customs duties. concerned, the Commission takes the view that as a general rule the date on which the obligation not to increase It notes that Articles V and VIII of charges on importation arises is not that GATT permit the introduction or main- of a State's accession to GATT but that tenance of certain charges, in so far as of the protocol on the new concession. they are "reasonable" or "limited in amount to the approximate cost of It observes that the practice adopted in services rendered", but do not provide relation to GATT is that, where later that any new charge may be introduced protocols add concessions to the existing by Italy after its accession to GATT. schedules, they usually contain a Moreover, binding in no way prevents provision to that effect. the withdrawal of concessions, for example under Article XXVIII on the modification of schedules or Article With regard to the special case of the XXIV (6) which provides for the sub- establishment of a customs union — stitution of the concessions of a customs which the Community constitutes for the union for those of the States parti- purposes of GATT — involving the cipating in it. withdrawal of the concessions of the

Decision

1 By t w o orders dated 6 July 1981, which were received at the C o u r t o n 16 N o v e m b e r 1981, the C o r t e d'Appello [ C o u r t of Appeal], Milan, referred to the C o u r t of Justice for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y two questions o n the interpretation of certain provisions of the General A g r e e m e n t on Tariffs and T r a d e of 30 O c t o b e r 1947 ( G A T T ) , in o r d e r to enable it to determine the compatibility with those provisions of the imposition of the ad valorem d u t y of 0.5 % for administrative services introduced by L a w N o 330 of 15 J u n e 1950 (hereinafter referred to as " t h e d u t y for administrative services").

2 T h o s e questions arose in the course of proceedings pending before t h a t c o u r t between the importers, the companies Singer and Geigy, a n d the

JUDGMENT OF 16. 3. 1983 — JOINED CASES 290 AND 291/81

Amministrazione delle Finanze dello Stato [Italian State Finance Administration] concerning the imposition of the duty for administrative services on various goods imported from countries parties to GATT between 1 October 1963 and 1 August 1971, the date with effect from which the duty for administrative services was abolished by Law No 447 of 24 June 1971 (Official Gazzette of the Italian Republic N o 180 of 17 June 1971).

3 Singer and Geigy, the plaintiffs in the main action in Cases 290/81 and 291/81 respectively, requested the Tribunale di Milano [District Court, Milan] to order the Amministrazione to refund the sums which they had paid in respect of the duty for administrative services over the period in question, on the ground that the charges were contrary to the provisions of GATT.

2. As a result of the substitution of Schedule XL (Common Customs Tariff) for Schedule XXVII, is the prohibition of the increase of pre- existing indirect charges on imports contained in Article II (1) (b) of GATT compatible, as from the effective date of that substitution (13 January 1963 in the case of Italy), with the charge for administrative services already in force if applied to goods not included in the original Schedule XXVII and included only in Schedule XL?"

6 Those questions are in substance identical to the questions submitted by the Corte Suprema di Cassazione [Supreme Court of Cassation] in Joined Cases 267 to 269/81 (Società Petrolifera Italiana and Michelin), in which a judgment has today been delivered.

7 In that judgment, the Court ruled that:

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

T H E COURT,

in answer to the questions submitted to it by the Corte d'Appello, Milan, by orders of 6 July 1981, hereby rules:

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

SINGER AND GEIGY v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

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 No 330 of 15 June 1950, in so far as it was already in existence on that date.