61982CJ0168_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 168/82
REFERENCE TO THE COURT UNDER ARTICLE 41 OF THE ECSC TREATY BY THE TRIBUNALE DI MILANO ( DISTRICT COURT, MILAN ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
THE EUROPEAN COAL AND STEEL COMMUNITY ( ECSC )
AND
THE LIQUIDATOR OF FERRIERE SANT ' ANNA SPA
Subject of the case
ON THE VALIDITY OF DECISION NO C ( 81 ) 1887 DEF . OF 10 DECEMBER 1981 OF THE COMMISSION OF THE EUROPEAN COMMUNITIES IN SO FAR AS IT PROVIDES IN ARTICLE 2
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 ' ',
Grounds
1 BY AN ORDER DATED 22 APRIL 1982, WHICH WAS RECEIVED AT THE COURT ON 14 JUNE 1982, THE TRIBUNALE DI MILANO ( DISTRICT COURT, MILAN ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 41 OF THE ECSC TREATY A QUESTION AS TO THE VALIDITY OF DECISION NO C ( 81 ) 1887 OF 10 DECEMBER 1981, WHICH PROVIDES IN ARTICLE 2 THAT THE DEBTS OWED TO THE ECSC BY FERRIERE SANT ' ANNA SPA ARE PREFERENTIAL DEBTS RANKING EQUALLY WITH SIMILAR DEBTS OWED TO THE STATE .
2 THAT QUESTION WAS RAISED IN A DISPUTE CONCERNING THE ENTERING OF A DEBT OF LIT 27 383 405 AS A PREFERENTIAL DEBT IN THE STATEMENT OF LIABILITIES OF THE INSOLVENT COMPANY FERRIERE SANT ' ANNA SPA, AGAINST WHICH A WINDING-UP ORDER WAS MADE BY THE TRIBUNALE DI MILANO ON 14 MAY 1980 . THAT SUM IS OWED BY THE COMPANY TO THE ECSC IN RESPECT OF STEEL PRODUCTION LEVIES AND INTEREST FOR LATE PAYMENT .
3 AFTER THE COMPANY HAD BEEN DECLARED INSOLVENT, THE COMMISSION, BY A LETTER DATED 19 NOVEMBER 1980, NOTIFIED THE LIQUIDATOR OF THE AMOUNT OF THE DEBT AND REQUESTED THAT IT BE TREATED AS A PREFERENTIAL DEBT .
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 .
5 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 FERRIERE 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 .
7 AT THE HEARING BEFORE THE TRIBUNALE DI MILANO ON 4 APRIL 1982, THE COMMISSION, RELYING ON ITS AFORESAID DECISION, SUBMITTED THAT ITS CLAIM SHOULD BE ADMITTED AS A PREFERENTIAL DEBT OR, IN THE ALTERNATIVE, IF THAT SUBMISSION WERE NOT UPHELD, THAT THE CASE SHOULD BE REFERRED TO THE COURT OF JUSTICE FOR A RULING ON THE VALIDITY OF THE DECISION IN ACCORDANCE WITH ARTICLE 41 OF THE ECSC TREATY .
8 PURSUANT TO THAT PROVISION THE TRIBUNALE DI MILANO REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' ' IS DECISION NO C ( 81 ) 1887 DEF . OF 10 DECEMBER 1981 OF THE COMMISSION OF THE EUROPEAN COMMUNITIES VALID IN SO FAR AS IT PROVIDES IN ARTICLE 2 THAT THE DEBT OWED BY FERRIERE SANT ' ANNA SPA TO THE ECSC ( IN RESPECT OF ECSC LEVIES AND INTEREST THEREON ) MUST BE REGARDED AS ' A PREFERENTIAL DEBT RANKING EQUALLY WITH SIMILAR DEBTS OWED TO THE STATE ' ?
' '
9 WHEN ASKED BY THE COURT TO EXPLAIN, BEFORE THE HEARING, ' ' THE PURPOSE AND SCOPE OF ITS DECISION OF 10 DECEMBER 1981, PARTICULARLY ARTICLE 2 THEREOF, WITH RESPECT TO THE MAIN PROCEEDINGS ' ', THE COMMISSION REPLIED THAT ' ' THE
CLASSIFICATION OF THE DEBT AS A PREFERENTIAL DEBT HAS DECLARATORY, RATHER THAN LEGISLATIVE, EFFECT, SINCE ITS PREFERENTIAL NATURE IS CLEAR FROM THE PRINCIPLES AND RULES OF COMMUNITY LAW REFERRED TO IN THE COMMISSION ' S WRITTEN OBSERVATIONS ' ' .
10 IN VIEW OF THAT REPLY AND THE CIRCUMSTANCES IN WHICH THE COMMISSION ADOPTED THE DECISION IN ISSUE, THE UNITED KINGDOM AND THE LIQUIDATOR OF FERRIERE 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 .
11 THAT ARGUMENT CANNOT BE ACCEPTED . ARTICLE 41 OF THE ECSC TREATY PROVIDES IN FACT THAT : ' ' THE COURT SHALL HAVE SOLE JURISDICTION TO GIVE PRELIMINARY RULINGS ON THE VALIDITY OF ACTS OF THE HIGH AUTHORITY AND OF THE COUNCIL WHERE SUCH VALIDITY IS IN ISSUE IN PROCEEDINGS BROUGHT BEFORE A NATIONAL COURT OR TRIBUNAL . ' '
EVEN IF IT IS NOT CONTESTED THAT BY VIRTUE OF ARTICLE 92 OF THE ECSC TREATY THE VALIDITY OF THE DECISION IN ISSUE IS NO LONGER OPEN TO CHALLENGE, AS REGARDS THE AMOUNT OF THE PECUNIARY OBLIGATIONS WHICH IT ENTAILS, NONE THE LESS IN ARTICLE 2 THE DECISION PURPORTS TO HAVE LEGAL EFFECT AS AGAINST THIRD PARTIES, IN PARTICULAR AS AGAINST OTHER CREDITORS OF THE UNDERTAKING CONCERNED, IN THE INSOLVENCY PROCEEDINGS COMMENCED IN THE NATIONAL COURT . SINCE THAT COURT CONSIDERED IT NECESSARY TO SUBMIT A PRELIMINARY QUESTION ON THE VALIDITY OF ARTICLE 2 OF THE DECISION IN ORDER TO BE ABLE TO RESOLVE THE MATTER, THE CONDITIONS LAID DOWN BY ARTICLE 41 OF THE ECSC TREATY ARE FULFILLED .
12 THE COMMISSION MAINTAINS THAT THE DECISION IN ISSUE MUST BE CONSIDERED VALID IN THE LIGHT OF THE RULES AND GENERAL PRINCIPLES OF COMMUNITY LAW, BY VIRTUE OF WHICH EACH MEMBER STATE IS REQUIRED TO ACCORD THE SAME PREFERENCE TO ECSC LEVIES AS THAT ACCORDED TO SIMILAR DEBTS OWED TO THE STATE .
13 IT POINTS OUT, FIRST, THAT ARTICLES 49 AND 50 OF THE ECSC TREATY EMPOWER THE HIGH AUTHORITY TO EXERCISE FISCAL POWERS WHICH INCLUDE THE RIGHT TO CREATE, FIX WITHIN CERTAIN LIMITS AND COLLECT DIRECTLY FROM UNDERTAKINGS A TAX THE PAYMENT OF WHICH MAY BE OBTAINED EVEN BY PROCESS OF ENFORCEMENT WITHIN THE MEANING OF ARTICLE 92 OF THE TREATY . ACCORDING TO THE COMMISSION, IT FOLLOWS THAT ECSC LEVIES MUST BE SUBJECT TO RULES OF SUCH A NATURE AS TO ENSURE EFFECTIVE RECOVERY IN ALL CIRCUMSTANCES AND THAT THEY MUST THEREFORE ENJOY THE SAME PREFERENCE AS SIMILAR TAXES LEVIED BY THE STATE .
14 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 .
15 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 .
16 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 .
17 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
COMMUNITY CHARGES AND DUES LESS EFFECTIVE THAN THAT FOR COLLECTING NATIONAL CHARGES AND DUES OF THE SAME KIND .
18 WHILST IT IS TRUE THAT A MEMBER STATE MAY NOT MAKE THE RECOVERY OF COMMUNITY CHARGES SUBJECT TO RULES AND PROCEDURES DIFFERENT FROM THOSE GOVERNING COMPARABLE DOMESTIC CHARGES, THE PRINCIPLE OF EQUAL TREATMENT DOES NOT BY ITSELF MEAN THAT MEMBER STATES ARE UNDER A DUTY, IN THE EVENT OF THE DEBTOR ' S INSOLVENCY, TO ACCORD THE SAME PREFERENCE TO ECSC LEVIES AS THAT ACCORDED TO SIMILAR DEBTS OWED TO THE STATE, IN THE ABSENCE OF A CLEAR AND PRECISE PROVISION OF COMMUNITY LAW ESTABLISHING INTER ALIA THE PREFERENTIAL STATUS OF THE LEVY AND SPECIFYING THE DOMESTIC TAX TO WHICH IT SHOULD BE COMPARED .
19 IT MUST THEREFORE BE CONCLUDED THAT IN THE ABSENCE OF SUCH A PROVISION, ADOPTED BY THE COMMUNITY LEGISLATURE WITHIN THE BOUNDS ENVISAGED BY THE TREATY, THE COURT OF JUSTICE CANNOT CONSTRUCT A RULE ESTABLISHING A PREFERENCE OF THE KIND CLAIMED BY THE COMMISSION . AS THE COURT STATED IN ITS JUDGMENT OF 5 MARCH 1980 IN CASE 265/78 H . FERWERDA BV V PRODUKTSCHAP VOOR VEE EN VLEES ( 1980 ) ECR 617 ), THE ABSENCE OF PROVISIONS WHICH WOULD NECESSARILY BE TECHNICAL AND DETAILED CANNOT BE MADE GOOD BY JUDICIAL INTERPRETATION .
20 IN THOSE CIRCUMSTANCES THE ANSWER TO THE QUESTION SUBMITTED TO THE COURT MUST THEREFORE BE THAT THE COMMISSION ' S DECISION OF 10 DECEMBER 1981 IS NOT VALID IN SO FAR AS IT PROVIDES IN ARTICLE 2 THAT THE DEBTS OWED BY THE INSOLVENT COMPANY IN RESPECT OF ECSC LEVIES ARE PREFERENTIAL DEBTS RANKING EQUALLY WITH SIMILAR DEBTS OWED TO THE STATE .
Decision on costs
COSTS
21 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 .
Operative part
ON THOSE GROUNDS,
THE COURT,
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE TRIBUNALE DI MILANO BY ORDER OF 22 APRIL 1982, HEREBY RULES :
THE COMMISSION ' S DECISION OF 10 DECEMBER 1981 IS NOT VALID IN SO FAR AS IT PROVIDES IN ARTICLE 2 THAT THE DEBTS OWED BY THE INSOLVENT COMPANY IN RESPECT OF ECSC LEVIES ARE PREFERENTIAL DEBTS RANKING EQUALLY WITH SIMILAR DEBTS OWED TO THE STATE .