C-50/83
ECLI:EU:C:1984:128
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JUDGMENT OF 27. 3. 1984 — CASE 50/83
State. If the authorities of the history for the period in which it was Member State of import take the view driven in another Member State, they that, in order to register such a may require production of such vehicle, they must not only subject it roadworthiness certificates as they to tests but also know its mechanical consider necessary.
In Case 50/83
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Alberto Prozzillo, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Oreste Montalto, Jean Monnet Building, Kirchberg, applicant,
v
ITALIAN REPUBLIC, represented by Arnaldo Squillante, President of Section at the Consiglio di Stato [State Council], Head of the Department of Contentious Diplomatic Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, defendant,
APPLICATION for a declaration that, by prohibiting the importation of used buses from another Member State which were constructed more than seven years prior to the date of the application for a roadworthiness test, the Italian Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty,
THE COURT
composed of: T. Koopmans, President of the First Chamber, acting as President, K. Bahlmann (President of Chamber), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and O. Due, Judges,
Advocate General : Sir Gordon Slynn Registrar: P. Heim
gives the following
COMMISSION / ITALY
JUDGMENT
Facts and Issues
The facts of the case, the course of the already within the country which were procedure and the conclusions, submis more than seven years old. sions and arguments of the parties may be summarized as follows: The Italian authorities replied in a letter dated 22 May 1981 that, having regard in particular to a circular of 20 July 1979 issued by the Transport Ministry, no I — Facts and procedure vehicle, if it had been constructed or reconstructed using parts essential for road safety (e.g. the chassis, brakes, or Article 1 of the Italian Ministerial steering) which were more than seven Decree of 10 July 1980 (Gazzetta years old, could be registered for the Ufficiale della Repubblica Italiana No first time in Italy, even if it had been 191 of 14. 7. 1980) provides that "used tested under Article 54 of the Italian buses which come from outside Italy may Highway Code, because the safety of not be tested with a view to registration, such buses on the roads could no longer if their proven date of construction is be assured. This policy was confined to more than seven years prior to the vehicles which carried a high element of application for a roadworthiness test." risk, measured in terms of their weight, This prohibition applies to vehicles which their size and the number of passengers are cleared through customs after 31 July travelling in them. The purpose of the 1980. Ministerial Decree of 10 July 1980 was to extend the same policy to include used buses from outside Italy which were The Commission considers that this more than seven years old. provision, which affects only imported buses, constitutes in effect a prohibition According to the Commission, this on their importation, since it is not statement of the facts confirms that conceivable that importation will take discrimination is being practiced between place when they cannot be admitted to imported buses exceeding seven years of the tests or, consequently, be registered. age, which are not even admitted to the In so far as it applies to used buses tests for registration, and similar buses of imported from other Member States, domestic construction, the prohibition of it constitutes a measure having an which is dependent on the result of tests equivalent effect to a quantitative re carried out under Article 54 of the striction on imports within the meaning Italian Highway Code. of Article 30 of the Treaty.
Taking the view that the ministerial In a letter dated 27 Februaiy 1981, the decree in dispute constituted a breach of Commission drew the attention of the Article 30 of the Treaty, it gave formal Italian authorities to this point and notice to the Italian Republic on 14 requested clarification concerning the December 1981, as provided in Article procedure for the registration of buses 169 of the Treaty, inviting the Italian
JUDGMENT OF 27. 3. 1984 — CASE 50/83
Government to submit its comments II — Conclusions of the parties within a period of one month.
In a letter dated 25 February 1982, the The Commission of the European Com- Italian Government replied that, in order munities claims that the Court should : to eliminate any provision which might have the effect of discriminating against vehicles from outside Italy, it was Declare that, by prohibiting the import considering the modification of the ation of used buses from another disputed ministerial decree by a measure Member State which were constructed which would provide as follows: "The more than seven years prior to the date application of the provisions contained in of the application for a roadworthiness the Ministerial Decree of 10 July 1980 test, the Italian Republic has failed to relating to the registration in Italy of fulfil its obligations under Article 30 of used buses which come from abroad the EEC Treaty. shall be extended to include all buses which require registration in Italy the The Italian Republic contends that the first time." Court should:
The Commission considered that such an amendment would not have the effect of Dismiss the application. putting an end to the infringement of Article 30 of the Treaty and, in a latter dated 13 October 1982, delivered a reasoned opinion to the Italian Republic, III — Submissions and argu as provided by the first paragraph of ments of the parties Article 169 of the Treaty, inviting it to comply with the opinion within a period of two months. The applicant) the Commission of the European Communities, reiterates certain The Commission, when it did not receive arguments already put forward ín the any response other than an acknowl course of the pre-litigation procedure. edgment of receipt from the Italian Government, brought an action before the Court, pursuant to the second In connection with the term "measures paragraph of Article 169 of the Treaty, having equivalent effect", it refers to claiming that the Italian Republic had Article 2 (2) of Commission Directive failed to fulfil its Community obligations. 70 / 50 / EEC of 22 December 1969 (Official Journal, English Special Edition, 1970 (I), p. 17), which states The application of the Commission was that this term covers inter alia measures lodged at the Court Registry on 29 which "make imports . .. subject tö a March 1983. condition •—· other than a formality — which is required in respect of imported Upon hearing the report of the Judge- products only, or a condition differing Rapporteur and the views of the from that required for domestic products Advocate General the Court decided to and more difficult to satisfy". open the oral procedure without any preparatory inquiry. It did, however, put certain questions to the parties, to which More specifically, the decree in dispute they replied within the periods pre may be classified in the category of scribed. measures which hinder the purchase by
COMMISSION / ITALY
private individuals of imported products of 7 January 1983), which provides in (Article 2 (3) (k) of the directive). general terms that buses which were constructed more than seven years pre viously will not be admitted to the tests with a view to first registration in Italy. Furthermore, Council Directive 77 / 143 / This decree draws no distinction between EEC of 29 December 1976, on the vehicles of domestic construction and approximation of the laws of the those of foreign origin. Thus there is no Member States relating to road longer any infringement of either Article worthiness tests for motor vehicles and 30 of the Treaty or Commission their trailers (Official Journal 1977, Directive 70 / 50 / EEC . L 47, p. 47) provides for a duty to make such vehicles undergo periodic road worthiness tests, with a clear definition of the compulsory items to be tested and In any event, there is no total ban on the frequency of the tests. A total ban on the registration of vehicles which were the registration of any bus which was manufactured more than seven years constructed more than seven years prior previously, nor therefore on such to the application for testing is therefore vehicles being driven if they have Italian not justified by the requirements of registration. Buses of foreign origin as roadworthiness. well as those of domestic construction are admitted to the tests for the purpose of registration provided that, subject to any modifications which may be In the view of the Commission, the required, they are intended and actually discrimination alleged by it is in no way used for purposes other than those which removed by the extension of the measure are specific to buses under the existing in dispute to include used buses of Italian provisions, namely the carriage of more origin as suggested by the Italian than nine persons. Government. After all, the possibility of a used bus of Italian origin being registered in Italy for the first time, when it is more than seven years old, is purely The Italian Government considers that hypothetical. What is more, any Italian the situation which is brought about by buses which have long been registered in the Decree of 14 December 1982 does Italy and are more than seven years old not constitute discrimination against will escape the prohibition. Hence the foreign products. It concedes that the rules as thus amended would retain their event of a bus being manufactured in discriminatory nature: only in a purely Italy and registered more than seven formal sense would they be applicable years later will seldom occur. However, without distinction to domestic as well as from the viewpoint of equal conditions imported products. of admission to the registration pro cedure, it is inappropriate to treat buses which have yet to be registered on the same footing as buses which have The defendant, the Italian Government, already been registered. Furthermore, the begins by declaring that the measure fact that a bus which has been registered which is disputed by the Commission has for more than seven years may, subject been replaced by a Ministerial Decree to inspections for road safety, remain dated 14 December 1982 (Gazzetta in service without having its papers Ufficiale della Repubblica Italiana No 6 cancelled is of equal benefit to buses
JUDGMENT OF 27. 3. 1984 — CASE 50/83
which have been imported into Italy and safety of individuals. A mechanical registered there before seven years have inspection would be an adequate method elapsed since they were built. Accord of ensuring such safety in the case of ingly, the circumstances which amount both foreign buses and buses of Italian to a measure having equivalent effect origin. In order to secure equality of contrary to Article 30 of the Treaty are treatment, the Italian Government not made out. should either admit both categories to the procedure for registration or exclude all buses which have been in service for more than seven years. The Italian Government argues further that the rules at issue were adopted for reasons connected with the need to ensure the safety of individuals. The In its rejoinder, the Italian Government preamble to the Decree of 14 December observes that the first indent of Article 3 1982 is addressed exclusively to this of Directive 77 / 143 / EEC allows the problem. It is this requirement that Member States to submit the vehicle for entails the need for a careful exami testing prior to registration. It considers nation of the mechanical safety of that such an inspection may be of a vehicles, particularly those with which different character from the road the decree is concerned. There was an worthiness testing of vehicles which are urgent need for the introduction of the already registered as required by the . disputed measure in view of the use of directive. Under the powers conferred on buses in public transport; moreover, the it by Article 36 of the Treaty, a Member same considerations of safety apply in State may therefore legitimately make the case of private use, owing to the registration subject to conditions which large numbers of people who are carried differ from those applied to vehicles by them. Accordingly, the disputed which are already registered and may measure is justified under Article 36 of even prohibit the registration of vehicles the Treaty. which were manufactured more than seven years previously.
In its reply, the Commission reaffirms its opinion that the difference in the In order to explain the reasoning behind treatment of buses imported from other the difference in the treatment of buses countries and buses registered in Italy more than seven years old which have persists even after the entry into force of already been registered and those which the new Decree of 14 December 1982. have not yet been registered, the Italian In practice, the Italian Government's Government emphasizes that the certi assertion that buses which come from ficates of mechanical inspection which outside Italy and are more than seven are issued in Italy allow the mechanical years old may be freely bought and sold history of the vehicle in question to in Italy can only be true of buses which be traced and thus provide a reliable are to be scrapped. guarantee of its roadworthiness year by year. A specimen of the certificate used to provide proof of regular inspection has been submitted to the other Member Secondly, it contests the view that the States and the Commission in accor measure in question is justified by virtue dance with Article 5 (2) of Directive of Article 36 for reasons relating to the 77 / 143 / EEC . These inspection certi-
COMMISSION / ITALY
ficates are, moreover, compulsory for tests provided for in the directive had buses which have been registered in Italy been carried out by all the Member for some years. States from 1 January 1983. At the request of the Court, it agreed to submit By way of contrast, it is impossible to be additional information on the frequency sure of the mechanical soundness of an of roadworthiness tests carried out on imported bus older than seven years, in the buses concerned in the present case the way in which this assurance is in the period prior to 1 January 1983. available for buses which have already been registered. Directive 77 / 143 / EEC , Article 5 (3) of which requires re The Italian Government, for its part, cognition of the proof that a vehicle pointed out that it would no longer be registered in another Member State has necessary to enforce stringent controls passed the roadworthiness tests required such as those in dispute, as soon as it by the directive, does not yet cover a was possible to be sure that buses period of seven years. imported into Italy satisfied appropriate criteria of safety, in particular those listed in Directive 77/143/EEC. As a result, the disputed measures would no longer be applied once there was proof IV — Oral procedure available, issued by the competent auth orities, to the effect that roadworthiness tests had been carried out in the other Oral argument was presented by the Member States in compliance with the parties at the hearing on 24 January directive. 1984.
In the course of the hearing, the The Advocate General delivered his Commission confirmed that, pursuant to opinion at the hearing on 21 February Article 7 of Directive 77 / 143 / EEC , the 1984.
Decision
1 By application lodged at the Court Registry on 29 March 1983, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that , by prohibiting the importation of used buses from another Member State which were constructed more than seven years prior to the date of the application for a roadworthiness test, the Italian Republic had failed to fulfil its obligations under Article 30 of the EEC Treaty .
JUDGMENT OF 27. 3. 1984 — CASE 50/83
2 It is necessary first of all to determine the scope of the application, in view of the fact that the reasoned opinion delivered pursuant to the first paragraph of Article 169 of the Treaty did not charge the Italian Republic with prohibiting the importation of old buses, but with prohibiting "the registration of used buses of foreign origin which were more than seven years old".
3 In its application, the Commission bases its action solely upon Article 1 of the Italian Ministerial Decree of 10 July 1980 (Gazzetta Ufficiale della Repubblica Italiana No 191 of 14 July 1980), which provides that "buses from outside Italy may not be tested with a view to registration, if their proven date of construction is more than seven years prior to the application, for a roadworthiness test". Indeed, the Commission has itself admitted that its application does not concern the importation of used buses which are not intended for registration but to be used for other purposes, for example as scrap metal.
4 It follows that the application may only be' considered in so far as it seeks a declaration that the Italian Republic has failed to fulfil its obligations by not permitting the testing, for the purposes of registration, of buses which are more than seven years old and come from other Member States.
5 With regard to the substance of the application, the Commission's case is that Article 1 of the above-mentioned ministerial decree of 1980 constitutes, to the extent to which it is applicable to buses imported from other Member States, a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the Treaty.
6 According to the Commission, the refusal to permit the testing of such buses for the purposes of registration has the result that it is impossible to import them into Italy for use as buses in road transport, whereas buses already registered in Italy are able to continue in service even after seven years from their date of construction.
COMMISSION / ITALY
7 In its defence, the Italian Government points out that, in the course of the procedure prior to the application to the Court, it had already declared its 11 t0 amend the 'u^j-r ? Provision at issue in such a way as to put an end to the difference in the treatment of domestic and imported buses. Accordingly the Ministerial Decree of 10 July 1980 has in the meantime been replaced by the Ministerial Decree of 14 December 1982 (Gazzetta Ufficiale della Repubblica Italiana No 6 of 7. 1. 1983), Article 1 of which provides in general terms that buses which are more than seven years old may not be admitted to tests with a view to obtaining their first registration in Italy.
s The Commission contests the view that the Ministerial Decree of 1982 introduced equal treatment for domestic and imported products. It maintains that only in the strictly formal sense is their treatment identical, since of buses which are more than seven years old only imported buses normally need to undergo the registration procedure. If the Italian Government really thinks that old buses are a danger to road safety, it should prohibit their use irrespective of their origin.
9 This argument of the Commission must be accepted. Rules under which imported buses manufactured more than seven years ago are subject to prohibitions or restrictions which are not applicable to buses which have already been used within the national territory constitute an obstacle to intra-Community trade prohibited by Article 30 of the Treaty.
io The Italian Government maintains, however, that in any event the rules in question are justified under Article 36 of the Treaty. The Ministerial Decrees ol 1980 and 1982 were prompted by considerations which related solely to road safety. In view of the use of buses for the transport of passengers, the roadworthiness of these vehicles is an essential prerequisite for the prevention or accidents and for safeguarding human lives.
11 The same considerations explain, according to the Italian Government, why less strict rules are applied to buses over seven years old which have already been used on Italian territory. The technical departments responsible for the
JUDGMENT OF 27. 3. 1984 — CASE 50/83
inspection and testing of motor vehicles are in a position to trace the mechanical history of any such vehicle if it has an Italian registration, primarily because of the inspection certificates which are regularly issued for vehicles which have already been registered. Similar mechanical details are not available in the case of imported vehicles.
i2 In that context it should be noted in the first place that, at the present stage of the development of Community law, it is the responsibility of Member States to ensure road safety within their territories and to arrange for such roadworthiness tests as they consider necessary for that purpose. However, if such requirements are to justify restrictions on imports, they must be necessary in order to attain the objective in view.
i3 The Commission has pointed out that Council Directive 77 / 143 / EEC of 29 December 1976, on the approximation of the laws of the Member States relating to roadworthiness tests for motor vehicles and their trailers (Official Journal L 47, p. 47), now governs the matter. By laying down an obligation to submit motor vehicles to periodic roadworthiness tests, the directive precludes any refusal to register a vehicle on grounds connected with road,· worthiness.
H This view cannot be accepted. The purpose of the directive, according to its fourth recital, is to harmonize as far as practicable the frequency of tests and the compulsory items to be tested. As is stated in Article 3, the directive does not prevent Member States from submitting any vehicle to a test prior to registration.
is The directive does, however, regulate the periodic tests which follow or, in cases where a used vehicle is imported, precede the test for registration. Under Article 5, Member States are to take the necessary measures to make it possible to prove that a vehicle has passed a periodic test in compliance with the directive; these measures are to be notified to the other Member States and the Commission.
COMMISSION / ITALY
i6 The Italian Government has stated that it has complied with this provision by submitting a specimen of the certificate which is periodically issued for vehicles registered in Italy. It has expressed its willingness to recognize, for the purpose of registering buses imported from other Member States, proof to the effect that such vehicles have passed the periodic roadworthiness tests prescribed in the previous country of registration in compliance with the directive. When the directive has been in force for a period of seven years it will no longer be necessaiy to retain the special rules applicable to old buses imported from other Member States.
i7 The Court considers, however, that even before the expiry of the period of seven years from the date on which the directive came into force, a total refusal to allow old buses to undergo the roadworthiness tests with a view to registration exceeds what is necessary to ensure road safety within the Italian territory.
is If the Italian authorities take the view that, in order to register a bus which was manufactured more than seven years previously, they must not only subject the vehicle to tests but also know its mechanical history for the period in which it was driven in another Member State, they may require production of such roadworthiness certificates as they consider necessary In such a case it is a matter for the discretion of the Italian authorities to appraise these certificates when they are not covered by the directive. It is not open to them, however, to refuse outright to allow buses older than seven years and imported from another Member State to undergo the test for registration.
i9 It follows that the Italian Republic, by not permitting the testing, for the purposes of registration, of buses from other Member States which were constructed more than seven years previously, has failed to fulfil its obligations under Article 30 of the Treaty, and that the remainder of the application is inadmissible.
JUDGMENT OF 27. 3. 1984 — CASE 50/83
Costs
20 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. Since neither party has asked for costs, each party should bear its own costs.
On those grounds,
THE COURT
hereby:
1. Declares that the Italian Republic, by not permitting the testing, for the purposes of registration, of buses from other Member States which were constructed more than seven years previously, has failed to fulfil its obligations under Article 30 of the Treaty;
2. Declares that the remainder of the application is inadmissible;
3. Orders the parties to bear their own costs.
Koopmans Bahlmann Pescatore
Mackenzie Stuart O'Keeffe Bosco Due
Delivered in open court in Luxembourg on 27 March 1984.
For the Registrar
H . A. Rühi T. Koopmans
Principal Administrator President of the First Chamber Acting as President