61981CJ0290_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 290 AND 291/81
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CORTE D ' APPELLO ( COURT OF APPEAL ), MILAN, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
COMPAGNIA SINGER SPA ( CASE 290/81 ) AND GEIGY SPA ( CASE 291/81 )
AND
AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( ITALIAN STATE FINANCE ADMINISTRATION ),
Subject of the case
ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE ( GATT ),
Grounds
1 BY TWO ORDERS DATED 6 JULY 1981, WHICH WERE RECEIVED AT THE COURT ON 16 NOVEMBER 1981, THE CORTE D ' APPELLO ( COURT OF APPEAL ), MILAN, REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE OF 30 OCTOBER 1947 ( GATT ), IN ORDER TO ENABLE IT TO DETERMINE THE COMPATIBILITY WITH THOSE PROVISIONS OF THE IMPOSITION OF THE AD VALOREM DUTY OF 0.5 % FOR ADMINISTRATIVE SERVICES INTRODUCED BY LAW NO 330 OF 15 JUNE 1950 ( HEREINAFTER REFERRED TO AS ' ' THE DUTY FOR ADMINISTRATIVE SERVICES ' ' ).
2 THOSE QUESTIONS AROSE IN THE COURSE OF PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN THE IMPORTERS, THE COMPANIES SINGER AND GEIGY, AND THE
AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( ITALIAN STATE FINANCE ADMINISTRATION ) CONCERNING THE IMPOSITION OF THE DUTY FOR ADMINISTRATIVE SERVICES ON VARIOUS GOODS IMPORTED FROM COUNTRIES PARTIES TO GATT BETWEEN 1 OCTOBER 1963 AND 1 AUGUST 1971, THE DATE WITH EFFECT FROM WHICH THE DUTY FOR ADMINISTRATIVE SERVICES WAS ABOLISHED BY LAW NO 447 OF 24 JUNE 1971 ( OFFICIAL GAZZETTE OF THE ITALIAN REPUBLIC NO 180 OF 17 JUNE 1971 ).
3 SINGER AND GEIGY, THE PLAINTIFFS IN THE MAIN ACTION IN CASES 290/81 AND 291/81 RESPECTIVELY, REQUESTED THE TRIBUNALE DI MILANO ( DISTRICT COURT, MILAN ) TO ORDER THE AMMINISTRAZIONE TO REFUND THE SUMS WHICH THEY HAD PAID IN RESPECT OF THE DUTY FOR ADMINISTRATIVE SERVICES OVER THE PERIOD IN QUESTION, ON THE GROUND THAT THE CHARGES WERE CONTRARY TO THE PROVISIONS OF GATT .
4 THE TRIBUNALE ALLOWED THE APPLICATIONS - BASED ON ARTICLE II ( 1 ) ( B ) OF GATT, WHICH PROHIBITS THE CONTRACTING PARTIES FROM IMPOSING CUSTOMS DUTIES IN EXCESS OF THOSE PROVIDED FOR IN THE SCHEDULES OF CONCESSIONS ANNEXED TO GATT ITSELF ( SCHEDULE XXVII FOR ITALY ) OR ANY OTHER DUTIES OR CHARGES HAVING EQUIVALENT EFFECT IN EXCESS OF THOSE INFORCE ON THE DATE OF THEIR ACCESSION TO GATT ( ON 10 OCTOBER 1949 SO FAR AS ITALY IS CONCERNED ) - IN RELATION TO THE IMPORTATION OF GOODS LISTED IN SCHEDULE XXVII . ON THE OTHER HAND, IT DISMISSED THE APPLICATIONS IN SO FAR AS THEY SOUGHT THE REFUND OF SUMS PAID ON THE OCCASION OF THE IMPORTATION OF PRODUCTS NOT CONTAINED IN SCHEDULE XXVII BUT NONE THE LESS INCLUDED IN THE SUBSEQUENT SCHEDULE, XL ( EEC ), WHICH WAS SUBSTITUTED BY THE GENEVA PROTOCOL OF 16 JULY 1962 FOR THE ORIGINAL NATIONAL SCHEDULES OF THE COUNTRIES WITHIN THE COMMUNITY, WITH EFFECT FROM 13 JANUARY 1963 IN THE CASE OF ITALY .
5 AFTER THE PLAINTIFFS IN THE MAIN ACTION HAD APPEALED AGAINST THOSE DECISIONS, THE CORTE D ' APPELLO, MILAN, REFERRED TO THE COURT FOR A PRELIMINARY RULING THE FOLLOWING QUESTIONS, IDENTICAL IN THE TWO CASES :
' ' 1 . BY VIRTUE OF THE MATTERS SET FORTH IN THE PREAMBLE TO GATT, BOTH IN ITS ORIGINAL FORM, IN WHICH THE CONTRACTING STATES DECLARED THEMSELVES DESIROUS OF REDUCING CUSTOMS TARIFFS AND OTHER OBSTACLES TO TRADE AND OF ELIMINATING DISCRIMINATION IN INTERNATIONAL COMMERCE, AND IN THE FORM ADOPTED PURSUANT TO THE GENEVA PROTOCOL OF 10 MARCH 1955, WHICH ITALY
RATIFIED BY LAW NO 1307 OF 7 NOVEMBER 1977, IN WHICH THE CONTRACTING STATES, BY USING THE WORD ' DESIRING ', UNDERTOOK THE ABOVE-MENTIONED COMMITMENTS, MAY THE CHARGE FOR ADMINISTRATIVE SERVICES ESTABLISHED BY LAW NO 330 OF 15 JUNE 1950 ( AFTER ITALY ' S ACCESSION TO THE GATT BUT PRIOR TO THE GENEVA PROTOCOL ) BE REGARDED AS COMPATIBLE WITH THE PROVISIONS OF GATT, REGARDLESS OF WHETHER OR NOT THE IMPORTED GOODS ARE INCLUDED IN THE ORIGINAL SCHEDULES OF CONCESSIONS AND REGARDLESS OF THE FACT THAT IN THE CLAUSE PROHIBITING INCREASE OF THE PRE-EXISTING INDIRECT CHARGES ON IMPORTS EXPRESS TEXTUAL REFERENCE IS MADE ONLY TO THOSE GOODS?
2.AS A RESULT OF THE SUBSTITUTION OF SCHEDULE XL ( COMMON CUSTOMS TARIFF ) FOR SCHEDULE XXVII, IS THE PROHIBITION OF THE INCREASE OF PRE-EXISTING INDIRECT CHARGES ON IMPORTS CONTAINED IN ARTICLE II ( 1 ) ( B ) OF GATT COMPATIBLE, AS FROM THE EFFECTIVE DATE OF THAT SUBSTITUTION ( 13 JANUARY 1963 IN THE CASE OF ITALY ), WITH THE CHARGE FOR ADMINISTRATIVE SERVICES ALREADY IN FORCE IF APPLIED TO GOODS NOT INCLUDED IN THE ORIGINAL SCHEDULE XXVII AND INCLUDED ONLY IN SCHEDULE XL?
' '
6 THOSE QUESTIONS ARE IN SUBSTANCE IDENTICAL TO THE QUESTIONS SUBMITTED BY THE CORTE SUPREMA DI CASSAZIONE ( SUPREME COURT OF CASSATION ) IN JOINED CASES 267 TO 269/81 ( SOCIETA PETROLIFERA ITALIANA AND MICHELIN ), IN WHICH A JUDGMENT HAS TODAY BEEN DELIVERED .
7 IN THAT JUDGMENT, THE COURT RULED THAT :
1 . SINCE THE COMMUNITY HAS BEEN SUBSTITUTED FOR THE MEMBER STATES IN RELATION TO THE FULFILMENT OF THE COMMITMENTS LAID DOWN BY THE GENERAL AGREEMENT ON TARIFFS AND TRADE WITH EFFECT FROM 1 JULY 1968, THE DATE ON WHICH THE COMMON CUSTOMS TARIFF WAS BROUGHT INTO FORCE, THE PROVISIONS OF THAT AGREEMENT HAVE SINCE THAT DATE BEEN AMONGST THOSE WHICH THE COURT OF JUSTICE HAS JURISDICTION, BY VIRTUE OF ARTICLE 177 OF THE EEC TREATY, TO INTERPRET BY WAY OF A PRELIMINARY RULING REGARDLESS OF THE PURPOSE OF SUCH INTERPRETATION . WITH REGARD TO THE PERIOD PRIOR TO THAT DATE, SUCH INTERPRETATION IS A MATTER EXCLUSIVELY FOR THE COURTS OF THE MEMBER STATES .
2.THE TARIFF PROTOCOLS OF 16 JULY AND 30 JUNE 1967 ARE ACTS OF THE INSTITUTIONS OF THE COMMUNITY WITHIN THE MEANING OF SUBPARAGRAPH ( B ) OF THE FIRST PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY AND AS SUCH FALL WITHIN THE JURISDICTION TO GIVE PRELIMINARY RULINGS CONFERRED UPON THE COURT OF JUSTICE .
3.IN RELATION TO THE PERIOD BEFORE 1 JULY 1968, THE TARIFF PROTOCOLS OF 16 JULY 1962 AND 30 JUNE 1967 DID NOT PROTECT INDIVIDUALS AGAINST THE IMPOSITION BY A MEMBER STATE OF A CHARGE ON PRODUCTS IMPORTED FROM NON-MEMBER COUNTRIES . IN RELATION TO THE PERIOD AFTER 1 JULY 1968, NO PROVISION OF COMMUNITY LAW PREVENTED THE IMPOSITION ON THE SAME PRODUCTS OF A CHARGE SUCH AS THE DUTY FOR ADMINISTRATIVE SERVICES PROVIDED FOR BY LAW NO 330 OF 15 JUNE 1950, IN SO FAR AS IT WAS ALREADY IN EXISTENCE ON THAT DATE .
8 FOR THE GROUNDS OF THE RULING, REFERENCE SHOULD BE MADE TO THE JUDGMENT IN THOSE CASES, THE TEXT OF WHICH IS ANNEXED TO THIS JUDGMENT .
Decision on costs
COSTS
9 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC, THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS 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 ACTIONS ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTIONS PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT,
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE CORTE D ' APPELLO, MILAN, BY ORDERS OF 6 JULY 1981, HEREBY RULES :
1 . SINCE THE COMMUNITY HAS BEEN SUBSTITUTED FOR THE MEMBER STATES IN RELATION TO THE FULFILMENT OF THE COMMITMENTS LAID DOWN BY THE GENERAL AGREEMENT ON TARIFFS AND TRADE WITH EFFECT FROM 1 JULY 1968, THE DATE ON WHICH THE COMMON CUSTOMS TARIFF WAS BROUGHT INTO FORCE, THE PROVISIONS OF THAT AGREEMENT HAVE SINCE THAT DATE BEEN AMONGST THOSE WHICH THE COURT OF JUSTICE HAS JURISDICTION, BY VIRTUE OF ARTICLE 177 OF THE EEC TREATY, TO INTERPRET BY WAY OF A PRELIMINARY RULING, REGARDLESS OF THE PURPOSE OF SUCH INTERPRETATION . WITH REGARD TO THE PERIOD PRIOR TO THAT DATE, SUCH INTERPRETATION IS A MATTER EXCLUSIVELY FOR THE COURTS OF THE MEMBER STATES .
2.THE TARIFF PROTOCOLS OF 16 JULY AND 30 JUNE 1967 ARE ACTS OF THE INSTITUTIONS OF THE COMMUNITY WITHIN THE MEANING OF SUBPARAGRAPH ( B ) OF THE FIRST PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY AND AS SUCH FALL WITHIN THE JURISDICTION TO GIVE PRELIMINARY RULINGS CONFERRED UPON THE COURT OF JUSTICE .
3.IN RELATION TO THE PERIOD BEFORE 1 JULY 1968, THE TARIFF PROTOCOLS OF 16 JULY 1962 AND 30 JUNE 1967 DID NOT PROTECT INDIVIDUALS AGAINST THE IMPOSITION BY A MEMBER STATE OF A CHARGE ON PRODUCTS IMPORTED FROM NON-MEMBER COUNTRIES . IN RELATION TO THE PERIOD AFTER 1 JULY 1968, NO PROVISION OF COMMUNITY LAW PREVENTED THE IMPOSITION ON THE SAME PRODUCTS OF A CHARGE SUCH AS THE DUTY FOR ADMINISTRATIVE SERVICES PROVIDED FOR BY LAW NO 330 OF 15 JUNE 1950, IN SO FAR AS IT WAS ALREADY IN EXISTENCE ON THAT DATE .