61983CJ0050_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
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,
Subject of the case
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,
Grounds
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 .
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 .
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 INTENTION TO AMEND THE 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 .
8 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 .
10 THE ITALIAN GOVERNMENT MAINTAINS, HOWEVER, THAT IN ANY EVENT THE RULES IN QUESTION ARE JUSTIFIED UNDER ARTICLE 36 OF THE TREATY . THE MINISTERIAL DECREES OF 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 OF 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
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 .
12 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 .
13 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 ROADWORTHINESS .
14 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 .
15 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 .
16 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 NECESSARY TO RETAIN THE SPECIAL RULES APPLICABLE TO OLD BUSES IMPORTED FROM OTHER MEMBER STATES .
17 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 .
18 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 .
19 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 .
Decision on costs
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 .
Operative part
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 .