C-82/82

JUDGMENT OF THE COURT (FIRST CHAMBER) 9 DECEMBER 1982 ·

Ditu Italgrani v Amministrazione delle Finanze dello Stato (reference for a preliminary ruling from the Tribunale Civile e Penale, Florence)

(Post-clearance recovery of import or export duties)

Case 82/82

European Communities — Own resources — Post-clearance recovery of import or export duties — Reguktion No 1697/79 — Retroactivity — None (Council ReguLtion No ¡697/79)

Regulation No 1697/79 on the post- procedure involving the obligation to pay clearance recovery of import duties or such duties does not apply to payments export duties which have not been of import or export duties made before required of the person liable for payment the date on which it entered into force, on goods entered for a customs namely 1 July 1980.

JUDGMENT OF 9. 12. 1982 — CASE 82/82

on the interpretation of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of impon duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pav such duties (Official Journal 1979, L 197, p. 1),

T H E COURT (First Chamber)

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,

Advocate General: S. Rozès Registrar: J. A. Pompe, Deputy Registrar

gives the following

One of che reasons given for taking 2. If the answer to Question 1 is in the action to recover that balance was that affirmative, what meaning must be the Court of Justice, in its judgment of attached to the words 'take action to 15 June 1976 in Case 113/75 (Frecassetti, recover' in the first subparagraph of ECR [1976] 983), had held that agri- Article 2(1) with regard to levies not cultural levies were to be calculated collected in full if the provisions of consistently in accordance with the rate the succeeding subparagraph are to prevailing on the day when the import be understood as rendering unlawful declaration was accepted. an action for recovery commenced before 1 July 1980 but after the expiry of a period of three years By a summons served on 28 July 1977 starting from the date of the Italgrani contested the notice of assess- administrative measure determining ment and brought the Amministrazione the amount of the levy originally delle Finanze before the Tribunale in claimed from the person in question? Florence, arguing inter alia that the principle laid down in the Frecassetti judgment (mentioned above) was inap- plicable to situations which had already 3. If the answer to Question 1 is in the been settled. affirmative, do the provisions of Article 5(1) extend to the payment of agricultural levies at a rate lower than the amount legally due, where While court proceedings were still such payment was made, on the one pending, there came into force Council hand, on the basis of national Regulation (EEC) No 1697/79 of 24 provisions subsequently held not to July 1979 on the post-clearance recovery apply to this matter but which at of import duties or export duties which the time in question were consis- have not been required of the person tently applied by the national liable for payment on goods entered for administrative authorities in ac- a customs procedure involving the cordance with the criteria laid down obligation to pay such duties (Official in ministerial circulars and instruc- Journal L 197, p. 1). By an order of 25 tions and, on the other hand, in November 1981, registered at the Court compliance with the interpretation of on 5 March 1982, the Tribunale in the Community provisions followed Florence put to the Court a number of by the administrative organs of the questions on the interpretation of that Community and by the national regulation. Those questions run as courts but subsequently disregarded follows: by the Court of Justice?

In accordance with Article 20 of the Amministrazione delle Finanze dello Stato Protocol on the Statute of the Court of v Salumi and Others (judgment of 12 Justice of the European Economic November 1981 [1981] ECR 2735). Community, written observations were submitted by the Government of the They therefore request confirmation of Republic of Italy, represented by the that case-law. The Commission proposes Avvocato dello Suto, Ivo M. Braguglia, that the Court should reply to the first acting as Agent, and by the Commission question from the Tribunale in Florence of the European Communities rep- as follows: resented by Alberto Prozillo, a member of its Legal Department, also acting as "Council Regulation (EEC) No 1697/79 Agent. of 24 July 1979 is inapplicable in its entirety where import or export duties Upon hearing the report of the Judge- have been determined before 1 July Rapporteur and the views of the 1980". Advocate General the Court decided to open the oral procedure without any The remaining questions would then preparatory inquiry. By order of 29 June become irrelevant. 1982 the case was assigned, pursuant to Article 95(1) and (2) of the Rules of Procedure, to the First Chamber. Ill — Oral procedure At the sitting on 7 October 1982 oral argument was presented by the II — Summary of the written Government of the Italian Republic, observations submitted to respresented by I. M. Braguglia, acting as the Court Agent, and by the Comission of the European Communities, represented by The Government of the Italian Republic A. Prozzillo, acting as Agent. and the Commisiion of the European Communities point out that the facts The Advocate General delivered her of the dispute are identical to those opinion at the sitting on 11 November of Joined Cases 212 to 217/80 1982.

2. If the answer to Question 1 is in the affirmative, what meaning must be attached to the words 'take action to recover' in the first subparagraph of Article 2(1) with regard to levies not collected in full if the provisions of the succeeding subparagraph are to be understood as rendering unlawful an action for recovery commenced before 1 July 1980 but after the expiry of a period of three years starting from the date of the administrative measure determining the amount of the levy orginally claimed from the person in question?

3. If the answer to Question 1 is in the affirmative, do the provisions of Article 5 (1) extend to the payment of agricultural levies at a rate lower than the amount legally due, where such payment was made, on the one hand, on the basis of national provisions subsequently held not to apply to this matter but which at the time in question were consistently applied by the national administrative authorities in accordance with the criteria laid down in ministerial circulars and instructions and, on the other hand, in compliance with the interpretation of the Community provisions followed by the administrative organs of the Community and by the national courts but subsequently disregarded by the Court of Justice?

4. If the reply to Question 1 is in the negative, does the provision contained in Article 7 of the above-mentioned regulation extend to payments required subsequent to its entry into force, in connection with recoveries in respect of payments made at a rate lower than the amount legally due, in the circumstances described at 3, above, prior to 1 July 1980?"

s The costs incurred by the Italian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the action pending before the national court, the costs are a matter for that court.

On those grounds,

THE COURT (First Chamber)

in answer to the questions referred to it by the Tribunale Civile e Penale, Florence, by order dated 25 November 1981, hereby rules:

ITALGRANI v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

Council Regulation No 1697/79 of 24 November 1979 does not apply to payments of import or export duties made before 1 July 1980.