C-168/82

JUDGMENT OF 17. 5. 1983 — CASE 168/82

decision in order to be able to give specific, existing legislative provisions. judgment, the conditions laid down In the absence of any particular by Article 41 are fulfilled. provision governing the preferential treatment in bankruptcy proceedings 2. Although the importance of the fiscal of debts owed to the Commission in powers conferred by Articles 49 and respect of levies, such preference 50 of the ECSC Treaty on the cannot be accorded. Commission in order to enable it to 3. Whilst it is true that a Member State carry out, in the best possible may not make the recovery of conditions, the task entrusted to it by Community charges subject to rules the Treaty cannot be denied, it does and procedures different from those not necessarily follow from the nature governing comparable domestic and purposes which those articles charges, the principle of equal confer upon the ECSC levies that, in treatment does not by itself mean that the event of the insolvency of the Member States are under a duty, in undertaking owing them, they must the event of the debtor's insolvency, automatically enjoy the same pref- to accord the same preference to erence as that accorded by the ECSC levies as that accorded to legislation of the Member States to similar debts owed to the State, in the similar domestic taxes. absence of a clear and precise In so far as the laws of the Member provision of law, adopted by the States treat certain kinds of debts Community legislature within the preferentially in bankruptcy pro- bounds envisaged by the ECSC ceedings, such preference, being Treaty, establishing inter alia the pref- contrary to the general principle that erential status of the levy and creditors should be treated equally, specifying the domestic tax to which it may be accorded only on the basis of should be compared.

ECSC v FERRIERE SANT'ANNA

that the debts owed by Ferriere Sant'Anna SpA to the ECSC (in respect of ECSC levies and interest thereon) must be regarded as "preferential debts ranking equally with similar debts owed to the State",

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, T. Koopmans, O. Due and K. Bahlmann, Judges,

Advocate General: P. VerLoren van Themaat Registrar: P. Heim

gives the following

At the hearing before the Tribunale di Milano on 4 April 1982 the ECSC submitted that by virtue of that decision its claim should be admitted as a pref- 3. The order for reference was erential debt or, in the alternative, that, registered at the Court on 14 June 1982. if that submission were not upheld, the Court of Justice of the European Communities should be requested to give a ruling on the validity of the decision pursuant to Article 41 of the ECSC Treaty. In accordance with Article 103 (3) of the Rules of Procedure written observations were lodged by the liquidator, of Ferriere Sant'Anna SpA, represented by Riccardo 2. The Tribunale di Milano considered Luzzatto, of the Milan Bar, by the that, as far as Italian law was concerned, Government of the Italian Republic, in only an application by analogy of the person of its Agent, Arnaldo Articles 2752 and 2759 of the Italian Squillante, Head of the Department for Civil Code, governing the preferential Contentious Diplomatic Affairs at the nature of debts owed to the State in Ministry for Foreign Affairs, represented respect of certain taxes, enabled a similar by Ignazio Francesco Caramazza, preference to be accorded to debts owed Avvocato dello Stato, by the United to the ECSC. However, it considered Kingdom, represented by R. N . Ricks, of such an application by analogy the Treasury Solicitor's Department, prohibited by Article 14 of the General acting as Agent, and by the Commission Rules of Law preceding the Civil Code of the European Communities, rep- because preferential rights constitute an resented by its Legal Adviser, Armando exception to the general rule laid down Toledano Laredo, acting as Agent, in Article 2741 of the Civil Code, which assisted by Giovanni Maria Ubertazzi provides that all creditors have the same and Fausto Capelli, of the Milan Bar. right to satisfy their claims out of the debtor's assets. It further considered that, apart from the decision of 10 December 1981 adopted while the proceedings were pending, there were no rules of Upon hearing the report of the Judge- Community law which accorded pref- Rapporteur and the views of the erence to debts owed to the ECSC. Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. It did however By an order of 22 April 1982 it therefore request the Commission to provide it submitted the following question to the with further information about certain Court of Justice : aspects of the case.

II — Written observations sub- The granting of preferential status affects mitted under Article 103 (3) an indefinite number of situations of of the Rules of Procedure concern to other persons (in this case the other creditors), who are accorded less favourable treatment; it may -therefore only be done under a legislative The liquidator of Ferriere Satit-Amta SpA instrument such as a so-called general observes first of all that the decision of decision or a regulation. 10 December 1981 was by no means necessary in order to give rise to the debts owed to the ECSC by way of Moreover, the decision itself considers levies. The claims had in fact already the debt preferential not as a result of been accepted by the competent auth- the adoption of the decision but because orities in the insolvency proceedings of the general nature of Community law. upon the application of the ECSC and The eighth recital in the preamble to the duly entered in the insolvent company's decision, which is repeated virtually statement of liabilities. word for word in Article 2 of the decision, states in fact that" . . . by their nature and purpose, debts due in respect The real purpose of the decision in of levies are equivalent to similar debts question was therefore merely to state owed to the State, especially as regards that debts owed to the ECSC are pref- their rank in the event of the insolvency erential debts. That statement however, of the company owing them". represents no more than an expression of the Commission's opinion. The liquidator of Ferriere Sant'Anna points out that the requirement that Even if it were assumed that the debts in respect of ECSC levies be Commission had the power (which it deemed "equivalent to similar debts does not) to decide itself upon the owed to the State" is in any case priority to be accorded to its claims extremely vague as far as preferential when the Commission itself causes them status is concerned. Not all tax debts to arise by virtue of a decision, that owed to the State are in fact preferential. would not be the case here since the Moreover, in domestic law there is no claim came into being by virtue of such thing as a debt in respect of various legislative instruments adopted "levies". This lack of clarity leads to the before the Commission's decision. conclusion that the decision does not constitute a rule capable of binding anyone. Furthermore, the decision in question is undoubtedly an individual decision and can therefore be binding only on the The Tribunale di Milano was therefore undertaking to which it was addressed, perfectly entitled to consider that it was namely Ferriere Sant'Anna SpA. Even if not a question of disregarding a one disregards the fact that at the time Commission decision but simply of not when the decison was adopted that following an opinion which the company was already in the process of Commission had expressed and which, as being wound up, it is not possible in any such, was not binding. However, with circumstances to imagine it having any commendable conscientiousness it effect beyond the relations between the decided to refer the matter to the Court Commission and Ferriere Sant'Anna. of Justice, although, in the view of the

Be that as it may, a preliminary ruling on this point is precluded by Article 41 of But even if, for the sake of argument, the the ECSC Treaty, which restricts the decision could be construed in that way, jurisdiction of the Court of Justice to there would still be no escaping the questions as to the validity of acts. conclusion that it is invalid. Under the ECSC Treaty, as under the other treaties, the Commission has only such powers as are expressly conferred upon The liquidator of Ferriere Sant'Anna it and no provision empowers the none the less makes some observations Commission to determine the status of on this question also. its debts in the internal legal order of the Member States.

He observes first that, although it may well be desirable that there should be The liquidator of Ferriere Sant'Anna greater guarantees for the recovery of considers, however, that in adopting its debts owed to the Community, especially decision of 10 December 1981 the in the event of the debtor's insolvency, Commission was seeking not so much to that is nevertheless only a submission as establish new rules governing the to what the law should be. There is priority, under national law, of debts nothing to warrant the Commission's

ECSC v FERRIERE SANT'ANNA

The Government of the Italian Republic considers that the question which must That this is so is evidenced by the be asked in this case seems to be that of provisions of the ECSC Treaty itself. the nature — general or individual — of Article 50 (2), which lays down the the decision, considered in relation to procedure and criteria for determining the Community rules previously in force. the mode of assessment and collection of levies, and Article 92, which adopts the procedure for the enforcement of decisions of the High Authority imposing On the assumption that the decision is a pecuniaiy obligation, would be general in nature, then in general and unnecessaiy if it were true that levies

JUDGMENT OF 17. 5. 1983 — CASE 168/82

imposed by the Commission under Furthermore, at the Community level, it Article 49 of the Treaty automatically would be wholly inappropriate to require attracted the relevant domestic provisions Member States to confer on debts owed as to the collection and enforcement of to the ECSC the same preference as that domestic taxes. enjoyed by their domestic tax debts unless the tax debts in question were broadly comparable throughout the Community, which is not the case.

ECSC v FERRIERE SANT'ANNA

debt in respect of levies imposed under iament, commentaries on the ECSC Article 49 of the ECSC Treaty must Treaty), the Commission contends that enjoy the same preferential status as that Article 31 of the ECSC Treaty, which enjoyed by debts in respect of taxes due provides that "the Court shall ensure to the State must be answered in the that in the interpretation and application negative. of this Treaty, and of rules laid down for the implementation thereof, the law is observed", cannot be understood as meaning anything other than that the The Commission of the European Court of Justice has the widest Communities observes that, if, like the jurisdiction to interpret the provisions of Tribunale di Milano, one denies that the the ECSC Treaty, even in proceedings decision of 10 December 1981 has any brought under Article 41 of that Treaty. legal basis, then it is clear that the validity of that decision (regarding, of course, the classification of the debt as preferential) must be examined with After setting out those considerations, reference to the provisions of the Treaty the Commission approaches the question and the Community implementing of the validity of the decision and provisions from which the Commission examines its legal basis. derives its relevant powers. In order to assess the validity of the decision in question the Court of Justice must therefore determine the legal effect of It emphasizes the fundamental role those provisions. which ECSC levies play as a source of Community finance and the importance of its being able to recover those levies. As they are by far the most important financial contribution for the ECSC, it is Since Article 41 of the ECSC Treaty obvious that the legal and administrative does not expressly provide that the Court rules governing them at the Community has jurisdiction to interpret the level must be such as to ensure their provisions of the ECSC Treaty, the effective recovery, with a guarantee at Commission considers it expedient to set least equal to that accorded at the out the considerations which lead it to national level to the recovery of conclude that the Court does have such comparable debts (identical or similar in jurisdiction. nature) owed to Member States.

The Commission concedes that in theory On the assumption that the legal nature the obligation to accord equal treatment of ECSC levies is entirely comparable to to actions for the recovery of debts owed that of direct taxes collected by the to the Community is not necessarily State, it is for the Court of Justice to synonymous with an obligation to accord determine whether it is possible to debts owed to the Community the same conclude, on the basis of the principles treatment as comparable domestic debts underlying the ECSC Treaty and the in the same Member State. other European Treaties, that the recovery of ECSC levies in the Member States must be accompanied by the same It observes that, as far as Italy is guarantees as those available to the concerned for example, the point does Member States in the recovery of debts not arise in practive since the Italian owed to them in respect of identical or at customs legislation (Law No 43 of 23 least comparable levies. January 1973) already treats the duties governed by Regulation (EEC) No 1697/79 in entirely the same way as customs duties owed to the Italian State. An obligation upon Member States to For the purposes of its argument, treat ECSC levies in the same way as however, it considers what the position domestic taxes ensues from the principle would be if they were not so treated and of non-discrimination, one of the raises the question whether in such a fundamental principles of Community case the Italian State could refuse to law, which is enunciated inter alia in treat Community agricultural levies pref- Article 4 (b) and also in Articles 60 and erentially. In its view, the answer to that 63 of the ECSC Treaty. question can only be negative once it is established that the levies are comparable in nature to charges imposed by the State, since Member States are under an The Commission then considers the implied obligation to accord the same application of that principle to the treatment to the recovery of their own recovery, in the Member States, of debts charges and Community charges. of a Community origin. It observes that, in the sphere of the EEC Treaty, the Community has set out to regulate The same argument holds good in the uniformly the criteria for the collection case of ECSC levies which differ from of its own resources by adopting Regu- debts owed to the EEC only inasmuch as lation (EEC) No 1697/79 on the post- they are collected directly by the ECSC clearance recovery of customs duties, and not through the intermediary of the agricultural levies and other Community Italian State. A difference of treatment import duties or export duties which cannot however be justified by the fact have not been paid on declared goods in that the agent actually recovering the respects of which payment was debts is not the same in both cases.

Relying on a judgment delivered on 4 Italian Civil Code governing preference. March 1982 by the Tribunale di Milano An extensive interpretation is defined by in a case concerning the treatment for some writers as one which extends the tax purposes of bonds issued on the literal meaning of the words of a Italian market by the European Invest- provision in order to give them the ment Bank, the Commission contends meaning which the legislature intended. that in tax matters, which are strictly the In the present case to regard the ECSC State's province the Italian courts as a preferred creditor but only, of recognize the right of the European course, in the case of debts comparable Community to be treated in the same to those owed to the State and having way as the State treats itself. the same rank — would be to acknowledge that the legislature intended to put the ECSC on the same footing as the State in the recovery of As regards previous decisions of the debts, as it saw fit to do in the field of Court of Justice, the Commission points taxation when enacting Law No 1231 of out that on numerous occasions the 31 October 1961 and Law No 1333 of Court has fully upheld the principle that 16 August 1962, which were also given equal treatment should be accorded, in an extensive interpretation by the the courts of Member States, to the Tribunale di Milano in its aforesaid recovery of Community charges and of judgment of 4 March 1982. domestic charges. Member States must therefore not only observe that principle of equal treatment as far as procedures for the recovery of Community charges and of purely domestic charges are concerned but must also ensure that the European Communities are not discrim- The Commission contends that a further inated against when they themselves take argument supporting its proposition may proceedings in the national courts to be derived from the Vienna Convention recover sums due to them. on the Law of Treaties, which was ratified by Italy in 1974 and has been in force in that country since 27 January 1980. According to the Commission, it is Finally, the Commission denies that in possible to infer from the provisions of order to treat debts owed to the ECSC that Convention that national courts are in the same way as debts owed to the under a duty to construe rules of State it would be necessary to apply by domestic law in accordance with the analogy exceptional provisions, namely provisions of a treaty if, failing such a those governing preference, thereby construction, the application of those infringing Article 14 of the General rules would be incompatible with that Rules of Law preceding the Italian Civil treaty. Code, which provides that laws "dero- gating from general rules or from other laws shall apply only in the cases and within the periods stipulated therein".

2 T h a t question was raised in a dispute concerning the entering of a debt of L I T 27 383 405 as a preferential debt in the statement of liabilities of the insolvent c o m p a n y Ferriere Sant'Anna SpA, against which a w i n d i n g - u p o r d e r was m a d e by the Tribunale di M i l a n o o n 14 M a y 1980. T h a t sum is o w e d by the c o m p a n y to the E C S C in respect of steel p r o d u c t i o n levies and interest for late payment.

3 After the c o m p a n y h a d been declared insolvent, the Commission, by a letter dated 19 N o v e m b e r 1980, notified the liquidator of the a m o u n t of the debt and requested t h a t it be treated as a preferential debt.

ECSC v FERRIERE SANT'ANNA

4 By a decision of 20 May 1981 the official receiver (giudice delegato) admitted proof of the debt owed to the ECSC, but only as an ordinary debt.

s On 29 June 1981 the Commission appealed against the official receiver's decision under Article 98 of the Italian Law on Bankruptcy and requested the Tribunale de Milano to declare the debt owed to it a preferential debt or in the alternative, to refer the issue to the Court of Justice of the European Communities.

6 In the course of those proceedings the Commission, relying on Articles 49 and 50 of the ECSC Treaty, adopted an individual decision addressed to Fernere Sant Anna SpA. Article 2 of that decision provides that the debts in question are "preferential debts ranking equally with similar debts owed to the State . At the Commission's request, the competent Italian ministry appended an order for enforcement to that decision.

io In view of that reply and the circumstances in which the Commission adopted the decision in issue, the United Kingdom and the liquidator of Fernere Sant'Anna SpA have questioned whether the conditions permitting the application of Article 41 of the ECSC Treaty exist. They observe in particular that, if, as the Commission maintains, the purpose of the decision is simply to declare what the applicable Community law is, it should be treated as a mere opinion of the Commission and not as a genuine decision, which, in their view, means that the Court has no jurisdiction to deliver a preliminary ruling under Article 41 of the Treaty.

i4 The importance of the fiscal powers conferred by Articles 49 and 50 of the ECSC Treaty on the High Authority (now the Commission) in order to enable it to carry out, in the best possible conditions, the task entrusted to it by the Treaty cannot of course be denied. However, it does not necessarily follow from the nature and purposes which those articles confer upon the levies that, in the event of the insolvency of the undertaking owing them, they must automatically enjoy the same preference as that accorded by the legislation of the Member States to similar domestic taxes.

is A comparative study of the laws of the Member States shows in fact that, in so far as certain kinds of debts are treated preferentially in bankruptcy proceedings, such preference, being contrary to the general principle that creditors should be treated equally, may be accorded only on the basis of specific, existing legislative provisions. In the absence of any particular provision governing the preferential treatment in bankruptcy proceedings of debts owed to the Commission in respect of levies, such preference cannot be accorded.

i6 The Commission further contends that it follows from the general principle of equality that the ECSC should not be at a disadvantage in the recovery of levies in comparison with similar tax debts to which the Member States accord preferential status.

i7 In support of that proposition the Commission cites previous decisions of the Court, in particular the judgment of 27 March 1980 in Joined Cases 66, 127 and 128/79 (Amministrazione delle Finanze v Salumi [1980] ECR 1237), according to which Member States may not make the system for collecting

Costs

2i The costs incurred by the Government of the Italian Republic, the United Kingdom 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 proceedings before the national court, costs are a matter for that court.

ECSC v FERRIERE SANT'ANNA

On those grounds,

T H E COURT,

in answer to the question submitted to it by the Tribunale di Milano by order of 22 April 1982, hereby rules: