61984CJ0069_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 69/84
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CORTE SUPREMA DI CASSAZIONE ( SUPREME COURT OF CASSATION ), ROME, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
REMO PADOVANI AND OTHERS
AND
AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( STATE FINANCE ADMINISTRATION )
Subject of the case
ON THE INTERPRETATION OF ARTICLE 23 ( 1 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 33 ) AND OF ARTICLE 1 ( 3 ) OF REGULATION ( EEC ) NO 542/69 OF THE COUNCIL OF 18 MARCH 1969 ON COMMUNITY TRANSIT ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1969 ( I ), P . 125 ),
Grounds
1 BY ORDER OF 13 DECEMBER 1983 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 13 MARCH 1984, THE CORTE SUPREMA DI CASSAZIONE ( SUPREME COURT OF CASSATION ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 23 ( 1 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 33 ) AND OF ARTICLE 1 ( 3 ) OF REGULATION ( EEC ) NO 542/69 OF THE COUNCIL OF 18 MARCH 1969 ON COMMUNITY TRANSIT ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1969 ( I ), P . 125 ).
2 THOSE QUESTIONS WERE RAISED IN A DISPUTE BETWEEN THE HEIRS OF THE LATE OTELLO MANTOVANI, PROPRIETOR OF THE FIRM OF THE SAME NAME, AND THE AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( STATE FINANCE ADMINISTRATION ) CONCERNING THE RATE OF THE LEVY TO BE IMPOSED ON 27 040 542 KG OF MAIZE IMPORTED INTO THE COMMUNITY FROM BATON ROUGE ( UNITED STATES OF AMERICA ). ARTICLE 23 ( 1 ) OF REGULATION NO 120/67 PROVIDES FOR THE IMPOSITION OF A LEVY AT A REDUCED RATE WHERE CERTAIN FEED GRAIN, INCLUDING MAIZE, IS IMPORTED BY SEA INTO THE ITALIAN REPUBLIC .
3 IN THIS CASE, THE GOODS WERE CLEARED THROUGH CUSTOMS AT THE PORT OF LA SPEZIA ON THE COAST OF LIGURIA ( ITALY ) WHEN THEY WERE STILL ON BOARD SHIP . ON THE SAME DAY, TWO INTERNAL COMMUNITY TRANSIT DOCUMENTS WERE ISSUED AT THE REQUEST OF THE IMPORTER, MR MANTOVANI . SUBSEQUENTLY, THE CONSIGNMENTS OF MAIZE IN QUESTION WERE SHIPPED - WITHOUT BEING UNLOADED IN ITALY - TO ROTTERDAM AND WERE UNLOADED THERE . MR MANTOVANI AND HIS HEIRS CONTENDED THAT, IN THOSE CIRCUMSTANCES, THE CONDITIONS FOR THE IMPOSITION OF THE REDUCED RATE OF THE LEVY WERE SATISFIED .
4 IN ITS ORDER FOR REFERENCE THE NATIONAL COURT CONSIDERS THAT ENTITLEMENT TO A REDUCED RATE DEPENDS ON THE QUESTION WHETHER THE REASON FOR THE REDUCTION PROVIDED FOR BY REGULATION NO 120/67 LIES IN THE HIGHER COSTS OF UNLOADING IN ITALIAN PORTS OR SIMPLY IN THE FACT THAT THE VESSEL REMAINS IN ITALIAN PORTS FOR THE PURPOSES OF THE CUSTOMS OPERATIONS TO BE CARRIED OUT ON BOARD, EVEN WITHOUT THE GOODS BEING UNLOADED . ONCE THAT QUESTION HAS BEEN RESOLVED, THE NEXT QUESTION WHICH ARISES IS WHETHER THE CONDITIONS FOR INTERNAL COMMUNITY TRANSIT ARE SATISFIED, FOR THE PURPOSES OF ARTICLE 1 ( 3 ) ( A ) OF REGULATION NO 542/69, WHERE THE GOODS IN QUESTION HAVE NOT BEEN RELEASED FOR CONSUMPTION WITHIN THE TERRITORY OF THE MEMBER STATE IN WHICH THE CUSTOMS OPERATIONS WERE CARRIED OUT .
5 IN ORDER TO RESOLVE THOSE PROBLEMS, THE NATIONAL COURT REFERRED TWO QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING ON THE INTERPRETATION OF :
' ( A ) ARTICLE 23 ( 1 ) OF REGULATION NO 120/67/EEC OF 13 JUNE 1967, SINCE IT IS NECESSARY TO ASCERTAIN WHETHER THE REDUCTION OF THE LEVY BY 7.5 UNITS OF ACCOUNT UNDER THAT PROVISION OF COMMUNITY LAW IN THE CASE OF CEREAL PRODUCTS IMPORTED FROM NON-MEMBER COUNTRIES INTO ITALY BY SEA ALSO APPLIES WHERE THE PRODUCTS THEMSELVES UNDERGO REGISTRATION ON BOARD SHIP IN AN ITALIAN PORT BUT ARE FORWARDED ON THE SAME VESSEL WITHOUT BEING UNLOADED TO ANOTHER PORT IN ANOTHER EEC MEMBER STATE ;
( B)ARTICLE 1 ( 3 ) ( A ) OF REGULATION ( EEC ) NO 542/69 OF THE COUNCIL OF 18 MARCH 1969, IN ORDER TO ESTABLISH WHETHER THE INTERNAL COMMUNITY TRANSIT PROCEDURE PROVIDED FOR AND GOVERNED BY THE ABOVE-MENTIONED REGULATION IS APPLICABLE TO AGRICULTURAL PRODUCTS IMPORTED BY SEA FROM NON-MEMBER COUNTRIES, CLEARED THROUGH CUSTOMS ON BOARD SHIP UNDER ITALIAN NATIONAL LAW AND SHIPPED, WITHOUT BEING UNLOADED IN ITALY, TO ANOTHER PORT IN ANOTHER MEMBER STATE OF THE COMMUNITY, WHERE THE COMMUNITY RULES PROVIDE FOR A REDUCTION OF THE LEVY IN RESPECT OF AGRICULTURAL PRODUCTS IMPORTED BY SEA INTO THE ITALIAN REPUBLIC . '
FIRST QUESTION ( LEVY AT A REDUCED RATE )
6 ARTICLE 23 ( 1 ) OF REGULATION NO 120/67, AS AMENDED BY REGULATION ( EEC ) NO 1601/68 OF THE COUNCIL ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( II ), P . 469 ) PROVIDES AS FOLLOWS :
' WHEN BARLEY, OATS, MAIZE, GRAIN SORGHUM AND MILLET ARE IMPORTED BY SEA INTO THE ITALIAN REPUBLIC AND UNTIL THE END OF THE 1971/72 MARKETING YEAR, THAT MEMBER STATE MAY REDUCE THE LEVY BY 7.5 UNITS OF ACCOUNT PER METRIC TONNE ON CONDITION THAT AN EQUAL SUBSIDY IS GRANTED FOR DELIVERIES OF THE SAME CEREALS BY SEA FROM MEMBER STATES, UNLESS THIS SUBSIDY HAS, AT THE REQUEST OF THE SENDER OF THE CEREALS, BEEN PAID TO HIM BY THE EXPORTING MEMBER STATE WHICH SHALL FORTHWITH INFORM THE ITALIAN REPUBLIC . THE LATTER SHALL ALWAYS KEEP ALL MEMBER STATES REGULARLY INFORMED OF THE AMOUNT OF THE SUBSIDY IN FORCE . '
7 IN ITS FIRST QUESTION THE NATIONAL COURT SEEKS TO ASCERTAIN WHETHER THE PHRASE ' IMPORTED BY SEA '
IN ARTICLE 23 ( 1 ) INCLUDES THE CUSTOMS CLEARANCE OF PRODUCTS ON BOARD SHIP IN AN ITALIAN PORT WHERE SUCH PRODUCTS ARE FORWARDED, WITHOUT BEING UNLOADED, TO A PORT IN ANOTHER MEMBER STATE .
8 IT IS CLEAR FROM THE INFORMATION PROVIDED BY THE ITALIAN GOVERNMENT AND THE COMMISSION THAT ARTICLE 23 ( 1 ), THE VALIDITY OF WHICH HAS BEEN EXTENDED ON A NUMBER OF OCCASIONS, WAS ADOPTED IN ORDER TO TAKE ACCOUNT OF THE HIGH PORT CHARGES IN ITALY AND TO GIVE THAT MEMBER STATE TIME TO ADAPT ITS PORT STRUCTURES TO THE REQUIREMENTS OF THE COMMON ORGANIZATION OF THE MARKETS IN CEREALS . THE SOLE RECITAL IN THE PREAMBLE TO COUNCIL REGULATION ( EEC ) NO 1157/77 OF 17 MAY 1977 ( OFFICIAL JOURNAL 1977, L 136, P . 12 ) EXTENDING THE VALIDITY OF THE TEMPORARY ARRANGEMENTS FOR THE REDUCTION OF THE LEVY STATES THAT IN SPITE OF THE EFFORTS MADE ' THE PORT STRUCTURES IN ITALY HAVE NOT BEEN IMPROVED AS EARLY AS EXPECTED '
AND, FOR THAT REASON, THE MEASURE WHICH SHOULD HAVE BEEN REPEALED AT THE END OF THE 1976/77 MARKETING YEAR WAS TO BE MAINTAINED FOR A FURTHER YEAR .
9 THE ITALIAN GOVERNMENT AND THE COMMISSION CONSIDER THAT, IN THOSE CIRCUMSTANCES, THE PHRASE ' IMPORTED BY SEA '
INTO ITALY CAN REFER ONLY TO THE ACTUAL UNLOADING OF FEED GRAIN IN AN ITALIAN PORT . ONLY IN THAT CASE IS AN IMPORTER FACED WITH AN INCREASE IN COSTS RESULTING FROM THE SITUATION IN ITALIAN PORTS AND JUSTIFYING A REDUCTION IN THE LEVY .
10 THE COMMISSION POINTS OUT, MOREOVER, THAT THE SCOPE OF THE TERM ' IMPORTED '
IS NOT ALWAYS THE SAME IN COMMUNITY LAW . IN SOME CASES IT MAY MEAN RELEASE INTO FREE CIRCULATION, IN OTHERS IT MAY MEAN RELEASE FOR CONSUMPTION OR, IN OTHERS STILL, IT MAY MEAN THE PHYSICAL ACT OF BRINGING THE GOODS INTO CUSTOMS TERRITORY . HENCE, IN ORDER TO DETERMINE THE INTERPRETATION TO BE GIVEN TO THE TERM ' IMPORTED ', IT IS NECESSARY TO SEEK GUIDANCE FROM THE OBJECTIVES OF THE PROVISION IN QUESTION AND FROM THE GENERAL SYSTEM OF WHICH IT FORMS PART .
11 MR MANTOVANI ' S HEIRS RECOGNIZE THAT THE REDUCTION OF THE LEVY PROVIDED FOR BY REGULATION NO 120/67 WAS ESTABLISHED IN ORDER TO TAKE ACCOUNT OF THE HIGH PORT CHARGES IN ITALY AND TO ENABLE THE ITALIAN REPUBLIC TO IMPROVE ITS PORT STRUCTURES . HOWEVER, THEY CONSIDER THAT EVEN SHIPS CALLING AT ITALIAN PORTS IN ORDER TO HAVE THE GOODS CLEARED THROUGH CUSTOMS ON BOARD WITHOUT UNLOADING THEM MAY BEAR THE HIGH CHARGES CUSTOMARILY LEVIED IN THOSE PORTS . ACCORDINGLY, IN THEIR VIEW, THERE IS NO NEED TO DISTINGUISH BETWEEN IMPORTATION BY COMPLETING THE CUSTOMS FORMALITIES AND IMPORTATION BY UNLOADING THE GOODS .
12 THE VIEW EXPRESSED BY THE ITALIAN GOVERNMENT AND THE COMMISSION MUST BE UPHELD . IT IS ESTABLISHED THAT THE REDUCTION OF THE LEVY PROVIDED FOR BY ARTICLE 23 ( 1 ) OF REGULATION NO 120/67 CONSTITUTES A TEMPORARY ARRANGEMENT INTRODUCED SOLELY IN ORDER TO TAKE ACCOUNT OF THE HIGH PORT CHARGES IN ITALY PENDING AN IMPROVEMENT IN THAT COUNTRY ' S PORT STRUCTURES . IF THAT ARRANGEMENT APPLIES ONLY TO IMPORTS BY SEA INTO ITALY, THE LATTER PHRASE CAN REFER ONLY TO THE ACT OF BRINGING THE GOODS INTO ITALIAN TERRITORY FOLLOWING THE USE OF THE FACILITIES AND INSTALLATIONS OF A PORT . IT IS NOT ENOUGH MERELY TO COMPLETE THE CUSTOMS FORMALITIES .
13 THAT INTERPRETATION IS CONFIRMED BY THE ACTUAL WORDING OF ARTICLE 23 ( 1 ), ACCORDING TO WHICH A SUBSIDY EQUAL TO THE AMOUNT OF THE REDUCTION OF THE LEVY IS TO BE GRANTED FOR ' DELIVERIES '
OF THE SAME CEREALS BY SEA FROM MEMBER STATES . A CONSIGNMENT CANNOT BE ' DELIVERED '
UNLESS IT HAS BEEN UNLOADED .
14 ACCORDINGLY, THE ANSWER TO THE FIRST QUESTION MUST BE THAT ARTICLE 23 ( 1 ) OF REGULATION NO 120/67 MUST BE INTERPRETED AS MEANING THAT THE PHRASE ' IMPORTED BY SEA '
DOES NOT INCLUDE CLEARANCE OF PRODUCTS THROUGH CUSTOMS ON BOARD SHIP WHERE SUCH PRODUCTS ARE FORWARDED, WITHOUT BEING UNLOADED, TO A PORT IN ANOTHER MEMBER STATE .
SECOND QUESTION ( INTERNAL COMMUNITY TRANSIT )
15 ARTICLE 1 ( 3 ) OF REGULATION NO 542/69 PROVIDES AS FOLLOWS :
' THE PROCEDURE FOR INTERNAL COMMUNITY TRANSIT SHALL APPLY TO MOVEMENT OF THE FOLLOWING GOODS, IF THEY ARE SUBJECT TO CUSTOMS, TAX, ECONOMIC OR STATISTICAL MEASURES OR ANY OTHER MEASURES RELATING TO TRADE :
( A ) GOODS WHICH SATISFY THE CONDITIONS LAID DOWN IN ARTICLES 9 AND 10 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY . . . ;
( B)GOODS COMING UNDER THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY WHICH, UNDER THE TERMS OF THAT TREATY, ARE IN FREE CIRCULATION WITHIN THE COMMUNITY . '
16 IN ITS SECOND QUESTION THE NATIONAL COURT SEEKS TO ASCERTAIN WHETHER, FOR THE PURPOSES OF THAT PROVISION, AGRICULTURAL PRODUCTS IMPORTED BY SEA INTO ITALY WITH THE BENEFIT OF A REDUCTION OF THE LEVY ARE TO BE REGARDED AS GOODS WHICH SATISFY THE CONDITIONS LAID DOWN IN ARTICLES 9 AND 10 OF THE EEC TREATY, THAT IS TO SAY, ARE IN FREE CIRCULATION WITHIN THE COMMUNITY .
17 MR MANTOVANI ' S HEIRS, THE ITALIAN GOVERNMENT AND THE COMMISSION AGREE THAT GOODS CAN BE IN FREE CIRCULATION FOR THE PURPOSES OF ARTICLES 9 AND 10 OF THE TREATY EVEN WHERE THEY HAVE BEEN SUBJECTED TO A LEVY AT A REDUCED RATE IN ACCORDANCE WITH ARTICLE 23 ( 1 ) OF REGULATION NO 120/67 .
18 THE ANSWER TO THE SECOND QUESTION IS TO BE FOUND IN ARTICLE 10 ( 1 ) OF THE EEC TREATY WHICH PROVIDES THAT PRODUCTS COMING FROM A NON-MEMBER COUNTRY ' SHALL BE CONSIDERED TO BE IN FREE CIRCULATION IN A MEMBER STATE IF THE IMPORT FORMALITIES HAVE BEEN COMPLIED WITH AND ANY CUSTOMS DUTIES OR CHARGES HAVING EQUIVALENT EFFECT WHICH ARE PAYABLE HAVE BEEN LEVIED IN THAT MEMBER STATE . . . ' . THAT PROVISION DOES NOT DRAW A DISTINCTION ACCORDING TO WHETHER A LEVY HAS BEEN CHARGED AT THE FULL RATE OR AT A REDUCED RATE OR ACCORDING TO WHETHER OR NOT GOODS HAVE ACTUALLY BEEN UNLOADED FOR CLEARANCE THROUGH CUSTOMS .
19 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT ARTICLE 1 ( 3 ) OF REGULATION NO 542/69 MUST BE INTERPRETED AS MEANING THAT AN AGRICULTURAL PRODUCT IMPORTED BY SEA INTO ITALY WITH THE BENEFIT OF A REDUCTION OF THE LEVY IS IN FREE CIRCULATION WITHIN THE COMMUNITY FOR THE PURPOSES OF THAT PROVISION .
Decision on costs
COSTS
20 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC 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, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CORTE SUPREMA DI CASSAZIONE BY ORDER OF 13 DECEMBER 1983 HEREBY RULES :
( 1 ) THE PHRASE ' IMPORTED BY SEA '
IN ARTICLE 23 ( 1 ) OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 33 ) DOES NOT INCLUDE CLEARANCE OF PRODUCTS THROUGH CUSTOMS ON BOARD SHIP WHERE SUCH PRODUCTS ARE FORWARDED, WITHOUT BEING UNLOADED, TO A PORT IN ANOTHER MEMBER STATE .
( 2)AN AGRICULTURAL PRODUCT IMPORTED BY SEA INTO ITALY WITH THE BENEFIT OF A REDUCTION OF THE LEVY IS IN FREE CIRCULATION WITHIN THE COMMUNITY FOR THE PURPOSES OF ARTICLE 1 ( 3 ) OF REGULATION ( EEC ) NO 542/69 OF THE COUNCIL OF 18 MARCH 1969 ON COMMUNITY TRANSIT ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1969 ( I ), P . 125 ).