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certain circumstances, suspend implemen- may give a preliminary ruling on the tation of a decision challenged before them. following questions of interpretation:

6. After observing that the conditions '(1) May the appeal referred to in Arti- imposed by Articie 244 for suspending the cle 243(2) of Regulation (EEC) implementation of contested decisions No 2913/92 be brought directly before appeared to be met, the national court the courts without the matter being expressed doubts as to whether the provi- first referred to the customs authority? sion was applicable, owing to the fact that Kofisa brought the proceedings without first lodging an appeal before the customs authority, in accordance with Article 243 of the Code, and that Article 244 confers the power to suspend implementation of (2) Is the power to suspend the contested the contested decision only on the customs decision provided for in Article 244 of authority and not on the courts. Regulation (EEC) No 2913/92 con- ferred exclusively on the customs authority or also on the court before which an appeal has been brought?'

7. It therefore decided to stay the proceed- ings and refer two questions to the Court of Justice for a preliminary ruling in order to resolve the doubts concerning the interpre- tation of Articles 243 and 244 of the Code. IV. Community legislation

9. Article 243 of the Community Customs Code states as follows:

Where the disputed decision has the effect of causing import duties or export duties to be charged, suspension of implementation 2. The right of appeal may be exercised: of that decision shall be subject to the existence or lodging of a security. However, such security need not be required where such a requirement would be likely, owing to the debtor's circumstances, to cause serious economic or social difficulties.' (a) initially, before the customs authorities designated for that purpose by the Member States;

11. Finally, Article 245 establishes:

(b) subsequently, before an independent body, which may be a judicial authority or an equivalent specialised body, 'The provisions for the implementation of according to the provisions in force in the appeals procedure shall be determined the Member States.' by the Member States.'

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In connection with the second question 13. Kofisa maintains, first of all, that the referred for a preliminary ruling, Kofisa Court of Justice has jurisdiction in this states that the reply is to be found partly in matter, as a corollary to the judgments in the Court's judgment in the Factortame Dzodzi 3and Giloy. 4 In view of the fact case, 6since the primacy of Community law that the Italian customs authorities are requires a national court to disapply a rule responsible for collecting both the customs of national law which precludes the adop- duties and the turnover tax on imports and tion of interim measures. that the procedures for the purpose are identical, it follows, in Kofisa's view, that the relevant provisions should be inter- preted uniformly. Furthermore, Article 70 of the Italian VAT law 5 establishes that the provisions of the customs regulations relat- ing to duties received at the border shall apply to disputes concerning VAT on As to whether the court may order suspen- imports. sion of implementation, the applicant in the main proceedings considers that it would not be reasonable to allow the power of suspension only at the first stage of an appeal. Moreover, it believes it to be illogical for the courts to have the power With regard to the first question submitted, to annul a decision made by the customs Kofisa states that it cannot be inferred from authority but not to suspend its implemen- tation. In Kofisa's view, this argument is reinforced in cases such as that of the 3 —Judgment of 18 October 1990 in Joined Cases C-297/88 Italian legal order, under which an appeal and C-197/89 [1990] ECR I-3763. 4 —Judgment of 17 July 1997 in Case C-130/95 [1997] ECR 1-4291. 5 — DPR 633/1972 of 26 October 1972 (Gazzetta Ufficiale of 6 —Judgment of 19 June 1990 in Case C-213/89 [19901 ECR 11 November 1972, suppl. ord. No 1 ). I-2433.

14. The Italian Government deals, first of all, with the question of the jurisdiction of the Court of Justice. Pointing out that the subject-matter of the dispute, VAT on imports, lies outside the scope of the Code, 15. The United Kingdom Government it submits that the reference in Article 70 of points out, in its observations, that Arti- the Italian VAT law to the customs regula- cle 243 of the Customs Code establishes an tions with regard to disputes and penalties appeals procedure with a mandatory struc- concerning VAT on imports is restricted to ture of two consecutive stages, which the national laws relating to border duties means that an appellant may not have and dates from a 1972 provision, a time recourse to a court without first referring when there were no Community provisions the matter to the customs authority. This in this sphere. In short, unlike the Giloy two-stage system benefits both the appel- case, there is no provision in the Italian lant, by allowing him to challenge the legal system which renders the Code, in decisions of a customs authority using an particular Articles 243 and 244, applicable informal and inexpensive procedure, and to disputes in respect of VAT on imports; it the customs authority, by giving it the therefore deduces that the Court of Justice opportunity to rectify promptly a mani- does not have jurisdiction in this case. festly erroneous decision.

In the alternative, the Italian Government expresses a view on the questions referred On an ancillary basis, the United Kingdom for a preliminary ruling. With regard to the highlights the fact that the aforementioned first question, it emphasises that Arti- article leaves the opportunity of establish- cle 243 of the Code does not make it ing a procedure in two consecutive stages possible 'to skip' the prior administrative to the discretion of the Member States; stage and that, therefore, an appeal brought therefore, if a Member State introduces directly before the court must be declared such legislation, Article 243 may not be inadmissible. invoked in order to avoid the first stage.

The United Kingdom Government has not confers the power to suspend implementa- submitted observations in respect of the tion only on the customs authorities. How- second question. ever, it does not preclude the courts from ordering suspension under rules of proce- dure applicable in the national legal order. Furthermore, the Commission points out that, under the case-law of the Court of 16. Finally, the Commission raises, as a Justice, Community law affords individuals preliminary matter, the admissibility of the complete and effective judicial protection, questions referred for a preliminary ruling. which means, in particular, that interim Whereas in. the Giloy case, which also protection may be secured if it is necessary concerned VAT on imports, the Court in order to ensure full effectiveness of that underlined the fact that there was no doubt final decision. that the main proceedings had to be resolved by the application of rules of Community law, in the present case, in the Commission's view, that matter is in doubt, because the customs regulations are based on the current system of direct and indirect taxes, such as VAT, not the other way round. In short, according to the VI. Jurisdiction of the Court of Justice Commission, not all the criteria for stating definitively that the Court has to give a ruling are met. 17. I shall first consider whether the Court of Justice has jurisdiction to give a ruling on the questions referred for a preliminary ruling. In that regard, it must be stated that With regard to the first question referred the subject-matter of the main proceedings for a preliminary ruling, the Commission lies outside the scope of the Community maintains that Article 243 of the Code Customs Code. Under Article 4(10) of the should be interpreted as meaning that it Code, the concept of import duties is does not preclude the submission of a claim limited to customs duties and charges directly to a judicial body, without an having an effect equivalent to customs appeal having first been made to the duties, and to agricultural levies and other customs authorities. 7 import charges introduced under the com- mon agricultural policy or under other specific arrangements applicable in the agricultural sector. It does not include VAT on imports, which therefore lies out- As far as the second question is concerned, side the scope of the Code. the Commission believes that Article 244

provisions of the Community Code or, Thomasdünger case. 9 Subsequent cases consequently, the need to obtain an inter- were Dzodzi, 10 Gmurzynska-Bscher, 11 pretation of its provisions from the Court Tomatis and Fulchiron, 12 Kleinwort Ben- of Justice. On this point, it relies on the son, 13 Leur-Bloem 14 and Giloy. 15 To judgment in Giloy, 8whose subject-matter, these must be added the cases of Feder- turnover tax levied on imports, also lay consorzi 16 and Fournier, 17 concerning outside the ambit of Community law; in it references to Community law in contrac- the Court declared that it had jurisdiction tual clauses. owing to the fact that the contested provi- sions of German law applied without distinction to situations governed by domestic law and to situations governed by Community law, so that the provisions had to be interpreted uniformly. 21. According to this case-law, the Court of Justice has jurisdiction, under Article 177 of the EC Treaty, to interpret Community law in cases in which the national legisla- ture has decided to rely on Community provisions in order to regulate matters which lie within the scope of domestic law.

19. Thus, the question again arises whe- ther, under Article 177 of the EC Treaty, the Court of Justice has jurisdiction to reply 22. Significantly, this case-law has always to questions raised by a national court been opposed by the Advocates General in regarding the interpretation of Community their Opinions. In the Thomasdünger case law, when those questions arise in proceed- Advocate General Mancini concluded that ings in which Community law is not the Court of Justice should not reply to the applicable as such, but has been transposed questions raised because, although appear- by national legislation to a non-Commu- ing to interpret the provisions of the nity context. Common Customs Code, the Court would, in fact, be giving a ruling on the rules of domestic law into which those provisions had been incorporated, thereby losing their binding effect as Community provisions. 18

23. For his part, Advocate General Dar- General and, as I have already said, has mon stated, in his Opinions in the Dzodzi consistently held that it has jurisdiction and Gmurzynska-Bscher cases, that the aim under Article 177 of the EC Treaty, to of the preliminary-ruling procedure, interpret Community rules when they do namely to ensure the uniform effect of not directly govern the situation in dispute Community law, applies only within the but the national legislature has decided to scope of Community law, as defined by rely on their content. Community law itself and by itself alone. According to Advocate General Darmon, a reference made by a national law cannot extend the scope of Community law or, with it, the jurisdiction of the Court of Justice, since, in the final analysis, 'there is no Community law outside its field of application'. 19 26. The Court of Justice founds its jurisdic- tion in cases of this kind on three funda- mental points. It considers, first, that it is solely for the national courts before which the dispute has been brought, and which 24. Finally, in his Opinion in the cases of must bear the responsibility for the subse- Leur-Bloem and Giloy, Advocate General quent judicial decision, to determine, in the Jacobs, after reviewing the case-law on the light of the special features of each case, matter in great detail, reaches the conclu- both the need for a preliminary ruling in sion that the Court of Justice should rule order to enable them to give judgment and only in cases in which it is aware of the the relevance of the questions which they factual and legislative context of the dis- submit to the Court. 21 pute and in which that context is one contemplated by the Community rule. 20

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order to establish the rules applicable to a 29. The first, which is based on the division situation which is purely internal to that of judicial functions between the Court of State. 2 2 Justice and the national courts, sits unea- sily, in my view, with the principles estab- lished by the case-law of the Court regard- ing the admissibility of questions referred for a preliminary ruling.

Finally, the Court is of the opinion that it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken Accordingly, the Court considers that it is from Community law should be interpreted not for it to deliver advisory opinions on uniformly, irrespective of the circumstances general or hypothetical questions 25 and in which they are to apply. 23 rejects questions which plainly have no bearing on the real situation or on the subject-matter of the case in the main proceedings, 26 especially when the national court seeks the interpretation of Commu- nity rules which are not applicable to the case. 27 The Court has also held that 27. According to this case-law, a reference questions referred for a preliminary ruling for a preliminary ruling by a national court are inadmissible unless a reply is essential can be declared inadmissible only if it is to a resolution of the dispute in the main clear that the procedure laid down in proceedings. 28 Article 177 has been diverted from its purpose and is being used in fact to lead the Court to give a ruling by means of a contrived dispute, or that the provision of Community law referred to the Court for interpretation is manifestly incapable of 30. By accepting jurisdiction in cases in applying, either directly or indirectly, to the which a national court asks it to interpret a facts of the main proceedings. 24 Community provision in a context which is outside the scope of that provision, under the principle that the national courts have exclusive jurisdiction to decide on the

relevance of the questions referred, the Leur-Bloem, that the Court should rule Court of Justice runs the risk of acting only in cases in which the factual and inconsistently. It would be taking a more legislative context of the dispute is one stringent approach when assessing the contemplated by the Community rule. 30 admissibility of questions referred for a preliminary ruling in cases to be resolved under Community law in a Community context, than when assessing the admissi- bility of questions in which the subject- matter of the main proceedings lies outside 33. The second argument, that there is the scope of Community law. nothing, either in the wording of Arti- cle 177 or in the objective of the procedure laid down in that article, to suggest that the authors of the Treaty intended to exclude these references for a preliminary ruling from the jurisdiction of the Court, over- looks, in my view, one of the fundamental 31. Nor must we forget how important it is principles governing the distribution of for the Court of Justice to give an inter- competences within the Community, pretation in the proper context. In this namely the principle that powers are spe- regard, since the judgment in Telemarsi- cifically assigned. cabruzzo and Others, 29 the Court has been stricter in demanding that national courts clearly specify the factual and legal context in which a ruling is sought. That they do so is important not only to ensure that the Court provides a national court with a 34. Under Article 5 EC, the Community is reply that is useful for the dispute before it to act within the limits of the powers but also because it is often difficult or even conferred upon it and the objectives impossible to interpret a rule in abstracto. assigned to it by the Treaty. Article 7 EC provides that each institution is to act within the limits of the powers conferred by the Treaty.

35. Now, in my view, the Treaties do not entrust to the Court of Justice the task of resolving cases which lie outside the scope of Community law, and that is why I am 37. I believe, on the contrary, that there is not wholly convinced by the Court's state- no such Community interest which in such ment concerning the absence of a textual cases allegedly requires every Community argument to the contrary. Therefore, the provision to be given a uniform interpreta- jurisdiction of the Court of Justice to give a tion. As Advocate General Jacobs points ruling in this type of case may only be out in his Opinion in Giloy and Leur- inferred from a supposed Community inter- Bloem, the perceived threat to the correct est, which is the third argument put for- application of Community law in the State ward and which I believe is also unfoun- concerned would, at most, be only indirect ded. and transient. It would be clear that any interpretation given to a Community rule by a national court in such circumstances would not be based on a ruling from the Court of Justice and that, as soon as that interpretation was applied in a Community 36. Under the aforementioned case-law, context, it would be open to challenge. 32 that interest may be said to lie in the need to ensure a uniform interpretation of Com- munity law. In order to defend that view, it would first be necessary to determine the

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First, that circumstance appears to me to be also means that it may vary widely between in open contradiction with the case-law of the different Member States. It is difficult the Court, when it states 33 that it is to accept that the scope of a fundamental unacceptable that the answers given to the rule of Community law, such as Article 177 courts of the Member States are to be of the EC Treaty, should be determined in purely advisory and without binding effect, part by the various national legal systems. since that would be to alter the function of the Court of Justice, as conceived by the Treaty, namely that of a court whose judgments are binding.

33 — See, for example, in relation to the present case, the judgment in Kleinwort Benson, referted to in footnote 13 42. For those reasons, I share the view of above, paragraph 24. the Advocates General who have preceded

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me in their consideration of this matter, national court and, referring to Opinion that the Court of Justice does not have 1/91, 3 6declared that it could not be jurisdiction to reply to questions raised by a accepted that the rules given by the Court national court on the interpretation of of Justice to the courts of the Member Community law, when those questions States were to be purely advisory and arise in proceedings to which Community without binding effect, since that would law does not apply in a context within its be to alter the function of the Court, as field of application, but has been trans- envisaged in the Protocol of 3 June 1971, 37 posed by national rules to a non-Commu- namely that of a court whose judgments are nity context. binding. 38

44. In that case, the United Kingdom provisions did not make a direct and unconditional reference to Community law. Moreover, the United Kingdom courts 46. However, in the Leur-Bloem and Giloy were not required to decide the disputes cases, the Court of Justice does not apply before them by applying, absolutely and the criteria of the Kleinwort Benson judg- unconditionally, the interpretation of the ment and again considers whether it has Convention provided to them by the Court. Accordingly, the Court held that its inter- pretation would not be binding on the 36 —Opinion of 14 December 1991 [1991] ECR I-6079, point 61. 37 — Protocol on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and 34 — Judgment referred to in footnote 13 above. the enforcement of judgments in civil and commercial 35 — Convention of 27 September 1968 on jurisdiction and the matters. enforcement of judgments in civil and commercial matters. 38 — See paragraphs 23 and 24 of the judgment.

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jurisdiction under the previous case-law. will be settled by application of rules of The Court does not establish whether the Community law. reference by national law is direct and unconditional or whether the court refer- ring the question is bound by the Court's interpretation. Jurisdiction proves to be the rule and the presumption, whereas lack of 48. In the end, since the Court of Justice jurisdiction constitutes an exception limited does not have jurisdiction to interpret only to cases of contrived disputes or when national law, the position is that it is not it is clear that the Community provision is possible to ensure that the interpretation of not applicable in the main proceedings. the Community provisions which the Court has been asked to give is necessary to the resolution of the main proceedings.

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wished to introduce a sequence in the 59. If the original Proposal presented by appeal procedures. the Commission 40 is compared with the Code which was finally adopted, it becomes clear that this was the intention of the legislature.

39 — OJ 1991 C 60, p. 5, point 2.50. 40 — OJ 1990 C 128, p. 1.

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were to be made directly to the independent 64. According to the Commission, there is authority. an additional factor which supports this interpretation of Article 243 of the Code: it may be observed that the subject-matter of the appeal, before both the customs autho- rities and the judicial authorities, is the decision of the customs authorities relating to the application of customs regulations. If 61. The majority of those exhaustive pro- the aim had been to establish an appeals visions concerning appeals in customs mat- system in two consecutive stages, it would ters disappeared in the final version have been necessary to stipulate that the adopted by the Council. Instead, apart subject-matter of the second appeal, the from the aforementioned Article 243 and one brought before the judicial authorities, Article 244 relating to the interim suspen- was not the original decision of the customs sion of the contested decision (to which I authorities but the decision on the first shall refer when I consider the second appeal. question), it included only Article 245 which states laconically that the provisions for the implementation of the appeals procedure are to be determined by the Member States. 65. Therefore, Article 243 should not be interpreted as meaning that it imposes, at Community level, an appeals procedure in two consecutive stages. That article grants the Member States a discretionary power to introduce detailed rules and, with it, the 62. In short, the sparse nature of these rules opportunity to implement a two-stage pro- shows that the Community legislature has cedure. Thus, one Member State may created an appeals system which seeks only require proceedings to be brought initially to establish certain fundamental matters in before the customs authorities and subse- order to ensure that the rights of traders are quently before the judicial authorities, protected, but has left it to the Member whereas another may dispense with the States, in compliance with the Community first proceedings. provisions, to introduce detailed rules on the matter.

the Code in order to avoid the first stage cle 244 of the Code confers the power to and apply directly to the independent adopt the interim measure of suspending authority. implementation of the contested decision exclusively on the customs authority or also on the judicial authority before which the appeal has been brought. 67. For the reasons already stated, the reply must be in the negative. Given that, as I have said, the Code grants the Member States the power to organise the appeals procedure, taking into account the differ- ences between their various legal systems, it 70. Article 244 merely provides, so far as must also be held that, if a Member State relevant in this connection, that the cus- has introduced a procedure comprising two toms authorities are to order the total or successive stages, individuals must follow partial suspension of implementation of the that procedure and appeal to the customs contested decision where they have good authority before applying to the indepen- reason to believe that the decision is dent authority. inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned.

(Article 7 of the Code) which lays down On the other hand, under the Court's case- that, save in the circumstances specified in law on the possibility of courts suspending Article 244(2), the decisions adopted by the a national administrative act adopted pur- customs authorities are to have immediate suant to a Community rule 42 the judicial effect. authorities may order suspension only if, amongst other conditions, they entertain serious doubts as to the validity of the Community act and, at the same time, there is urgency, owing to the risk that the applicant may suffer serious and irrepar- able damage. In light of the fact that derogations from Community law are to be interpreted restrictively, the power to suspend imple- mentation of decisions, provided for in Article 244, should be conferred only on the authorities expressly mentioned in the 74. However, this interpretation of Arti- provision which, therefore, cannot be inter- cle 244 does not preclude the judicial preted widely so as to extend the afore- authorities seised of the case, pursuant to mentioned power, by analogy, to the judi- Article 243 of the Code, from ordering cial authorities. suspension of implementation of the con- tested decision in accordance with the rules of procedure applicable in the national legal order.

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the existence of the rights claimed under 77. For the reasons stated, I propose that Community law. the Court of Justice should state, in reply to the second question, that Article 244 of the Code should be interpreted as meaning that the power to order suspension of imple- mentation of the contested decision is 76. In short, Article 244 of the Code does conferred only on the customs authorities. not prevent the judicial authorities before However, that provision does not prevent which an appeal is brought under Arti- the judicial authorities seised of a case on cle 243 from ordering suspension of imple- appeal under Article 243 of the Code from mentation of the contested decision, either ordering suspension, either pursuant to pursuant to rules of procedure applicable in rules of procedure applicable in the the national legal order or in accordance national legal order or in accordance with with the full and effective legal protection the full and effective legal protection affor- afforded to individuals under Community ded to individuals under Community law. law.

VIH. Conclusion

78. In light of the foregoing considerations, I suggest that the Court of Justice declare that it has no jurisdiction to reply to the questions referred for a preliminary ruling by the Tribunale di Genova.

79. In the alternative, I propose that the Court of Justice give the following reply to the aforementioned questions: