61982CJ0088_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 88/82
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CORTE SUPREMA DI CASSAZIONE ( SUPREME COURT OF CASSATION ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
AMMINISTRAZIONE DELLE FINANZE ( FINANCE ADMINISTRATION ), IN THE PERSON OF THE MINISTER,
AND
ARMANDO AND OTTAVIO LEONELLI
Subject of the case
FOR A PRELIMINARY RULLING ON THE INTERPRETATION OF ARTICLE 15 OF COUNCIL DIRECTIVE 71/118 OF 15 FEBRUARY 1971 ON HEALTH PROBLEMS AFFECTING TRADE IN FRESH POULTRYMEAT ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( I ), P . 106 ),
Grounds
1 BY ORDER DATED 15 MAY 1981, RECEIVED AT THE COURT ON 12 MARCH 1982, THE CORTE SUPREMA DI CASSAZIONE ( SUPREME COURT OF CASSATION ) REFERRED A QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION OF ARTICLE 15 OF COUNCIL DIRECTIVE 71/118 OF 15 FEBRUARY 1971 ON HEALTH PROBLEMS AFFECTING TRADE IN FRESH POULTRYMEAT ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( I ), P . 106 ).
2 THE QUESTION WAS RAISED IN PROCEEDINGS BROUGHT BY ARMANDO AND OTTAVIO LEONELLI AGAINST THE ITALIAN AMMINISTRAZIONE DELLE FINANZE FOR AN ORDER THAT THE AMMINISTRAZIONE REFUND SUMS PAID AS CHARGES FOR HEALTH INSPECTIONS IN RESPECT OF IMPORTS OF INTER ALIA LIVE POULTRY AND FRESH POULTRYMEAT FROM HUNGARY, MADE BETWEEN 1968 AND 1975 . MESSRS . LEONELLI CLAIMED THAT THE SAID CHARGES HAD BEEN LEVIED IN BREACH OF ARTICLE 11 ( 2 ) OF REGULATION NO
123/67 OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN POULTRYMEAT ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 63 ). SAVE AS OTHERWISE PROVIDED IN THE REGULATION OR WHERE DEROGATION THEREFROM IS DECIDED UPON BY THE COUNCIL, THAT PROVISION PROHIBITS INTER ALIA THE LEVYING OF ANY CUSTOMS DUTY OR CHARGE HAVING EQUIVALENT EFFECT ON IMPORTS OF POULTRYMEAT FROM NON-MEMBER COUNTRIES .
3 ARTICLE 15 OF THE AFORESAID COUNCIL DIRECTIVE 71/118 PROVIDES, HOWEVER, THAT : ' ' UNTIL THE ENTRY INTO FORCE OF COMMUNITY PROVISIONS CONCERNING IMPORTS OF FRESH POULTRYMEAT FROM THIRD COUNTRIES, MEMBER STATES SHALL APPLY TO SUCH IMPORTS PROVISIONS WHICH ARE AT LEAST EQUIVALENT TO THOSE OF THIS DIRECTIVE . ' '
4 UNDER ARTICLE 16 OF THE SAME DIRECTIVE THE MEMBER STATES WERE REQUIRED TO BRING INTO FORCE THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS NECESSARY TO COMPLY WITH THE DIRECTIVE IN RESPECT OF INTRA-COMMUNITY TRADE WITHIN TWO YEARS FOLLOWING NOTIFICATION OF THE DIRECTIVE .
5 THE CORTE SUPREMA DI CASSAZIONE, TAKING THE VIEW THAT ITS JUDGMENT DEPENDED UPON THE INTERPRETATION OF THE AFORESAID PROVISIONS OF COMMUNITY LAW AND IN PARTICULAR THE CORRELATION BETWEEN THOSE PROVISIONS, THEREUPON STAYED THE PROCEEDINGS AND PUT TO THE COURT THE FOLLOWING QUESTION :
' ' IS ARTICLE 15 OF COUNCIL DIRECTIVE 71/118/EEC ON HEALTH PROBLEMS AFFECTING TRADE IN FRESH POULTRYMEAT TO BE INTERPRETED AS MEANING THAT THE DEROGATION PROVIDED FOR THEREIN FROM THE PROHIBITION OF THE LEVYING OF CUSTOMS DUTIES, OTHER THAN THOSE SPECIFIED IN THE COMMON CUSTOMS TARIFF, AND NATIONAL CHARGES HAVING EQUIVALENT EFFECT ( A PROHIBITION LAID DOWN BY REGULATION NO 123/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN POULTRYMEAT ) AND, THEREFORE, THE RIGHT OF EACH MEMBER STATE TO CONTINUE TO LEVY SUCH CHARGES ARE SUBJECT TO THE ADDITIONAL CONDITION THAT THE MEMBER STATE IN QUESTION HAS ALREADY ADOPTED THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED TO COMPLY WITH THE AFORESAID DIRECTIVE?
' '
6 THAT QUESTION BASICALLY ASKS WHETHER AS REGARDS IMPORTS OF FRESH POULTRYMEAT FROM NON-MEMBER COUNTRIES THE DEROGATION CONTAINED IN ARTICLE 15 OF DIRECTIVE 71/118 TO THE PROHIBITION OF LEVYING CUSTOMS DUTIES OR CHARGES HAVING AN EQUIVALENT EFFECT IN ARTICLE 11 ( 2 ) OF REGULATION NO 123/67 APPLIES
FROM NOTIFICATION OF THE SAID DIRECTIVE TO THE PARTICULAR MEMBER STATE IN QUESTION OR WHETHER ITS APPLICATION DEPENDS ON THE ADDITIONAL CONDITION THAT THE MEMBER STATE HAS ALREADY ADOPTED THE MEASURES NECESSARY TO COMPLY WITH THE PROVISIONS OF THE SAID DIRECTIVE .
7 AS THE COURT FOUND IN THE JUDGMENT OF 22 JANUARY 1980 IN CASE 30/79 WIGEI ( 1980 ) ECR 151, ARTICLE 11 ( 2 ) OF REGULATION NO 123/67 IN FACT PROHIBITS, SUBJECT TO ANY DEROGATION DECIDED BY THE COUNCIL, THE LEVYING, IN TRADE WITH NON-MEMBER COUNTRIES IN FRESH POULTRYMEAT, OF CUSTOMS DUTIES OTHER THAN THOSE LAID DOWN BY THE COMMON CUSTOMS TARIFF OR DOMESTIC CHARGES HAVING EQUIVALENT EFFECT . ACCORDING TO ESTABLISHED CASE-LAW OF THE COURT THE CONCEPT OF CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY COVERS ALL PECUNIARY CHARGES, WHATEVER THEIR AMOUNT, IMPOSED BY REASON OF VETERINARY OR PUBLIC HEALTH INSPECTIONS OF ANIMALS AND MEAT IMPORTED FROM NON-MEMBER COUNTRIES, UNLESS THEY RELATE TO A GENERAL SYSTEM OF INTERNAL TAXATION APPLIED SYSTEMATICALLY IN ACCORDANCE WITH THE SAME CRITERIA AND AT THE SAME STAGE OF MARKETING TO DOMESTIC AND IMPORTED PRODUCTS ALIKE .
8 THE DEROGATION TO THAT PROHIBITION INTRODUCED BY ARTICLE 15 OF DIRECTIVE 71/118 IS INTENDED, AS THE COURT HAS ALSO ALREADY FOUND IN ITS AFORESAID JUDGMENT OF 22 JANUARY 1980, TO LAY DOWN, ON A PROVISIONAL BASIS PENDING THE IMPLEMENTATION OF A COMMUNITY SYSTEM OF HEALTH INSPECTION OF IMPORTS OF FRESH MEAT FROM NON-MEMBER COUNTRIES, A RULE APPLICABLE TO THE NATIONAL ARRANGEMENTS FOR HEALTH INSPECTION REMAINING IN FORCE . THE OBJECT OF THE RULE IS TO ENSURE THAT INSPECTIONS EFFECTED ON IMPORTS FROM NON-MEMBER COUNTRIES AND CHARGES LEVIED IN RESPECT OF SUCH INSPECTIONS SHOULD NOT BE MORE FAVOURABLE THAN THOSE WHICH APPLY UNDER THE DIRECTIVE TO INTRA-COMMUNITY TRADE AND THUS THE RULE SEEKS TO ENSURE THAT TRADERS WHO PUT ON THE MARKET FRESH MEAT ORIGINATING WITHIN THE COMMUNITY ARE NOT TREATED LESS FAVOURABLY THAN THEIR COMPETITORS WHO IMPORT MEAT FROM NON-MEMBER COUNTRIES .
9 IT IS APPARENT FROM THE ACTUAL WORDING OF ARTICLE 15 OF DIRECTIVE 71/118 AND ITS POSITION WITHIN THE DIRECTIVE THAT THE OBLIGATION WHICH IT IMPOSES ON MEMBER STATES TO SUBJECT IMPORTS FROM NON-MEMBER COUNTRIES TO THEIR NATIONAL SYSTEMS, BEING AT LEAST AS STRICT AND EXACTING AS THE SYSTEM IMPOSED
BY THE DIRECTIVE IS NOT SUBJECT TO THE CONDITION THAT THE NECESSARY MEASURES HAVE ALREADY BEEN TAKEN TO COMPLY WITH THE PROVISIONS OF THE DIRECTIVE AND DOES NOT DEPEND ON ANY CONDITION OTHER THAN THAT OF NOTIFICATION OF THE DIRECTIVE TO THE MEMBER STATE .
10 THAT IDEA IS CONSISTENT WITH THE OBJECTIVE OF THE PROVISION IN QUESTION, THE EFFICACY OF WHICH WOULD BE COMPROMISED IF THE DEROGATION THEREIN CONTAINED WERE TO APPLY ONLY AFTER THE MEMBER STATE IN QUESTION HAS COMPLIED WITH THE PROVISIONS OF THE DIRECTIVE . IF SUCH AN INTERPRETATION WERE ACCEPTED PRODUCTS FROM NON-MEMBER COUNTRIES WOULD BE ABLE TO ENTER THE COMMUNITY THROUGH A MEMBER STATE WHICH HAD NOT YET COMPLIED AND CIRCULATE FREELY WITHOUT HAVING TO BEAR THE COSTS RELATING TO THEIR HEALTH INSPECTION EVEN THOUGH OTHER MEMBER STATES HAD ALREADY COMPLIED WITH THE DIRECTIVE . THAT WOULD PENALIZE IMPORTS FROM THE LATTER MEMBER STATES NOT ONLY IN RELATION TO PRODUCTS FROM THE MEMBER STATE IN QUESTION BUT ALSO AS REGARDS PRODUCTS FRON NON-MEMBER COUNTRIES IMPORTED INTO THE COMMUNITY THROUGH THAT MEMBER STATE AND WOULD BE CONTRARY TO THE PRINCIPLE OF COMMUNITY PREFERENCE .
11 IT SHOULD BE ADDED THAT THE DEROGATION CONTAINED IN ARTICLE 15 OF DIRECTIVE 71/118 APPLIES ONLY TO IMPORTS OF FRESH POULTRYMEAT AND NOT TO LIVE POULTRY AS IS CLEARLY APPARENT BOTH FROM THE WORDING OF THE PROVISION AND THE OBJECTIVE OF THE SAID DIRECTIVE AS DEFINED IN ARTICLE 1 THEREOF .
12 THE ANSWER TO THE QUESTION PUT BY THE CORTE SUPREMA DI CASSAZIONE SHOULD THEREFORE BE THAT AS REGARDS IMPORTS OF FRESH POULTRYMEAT FROM NON-MEMBER COUNTRIES THE DEROGATION INTRODUCED BY ARTICLE 15 OF COUNCIL DIRECTIVE 71/118 OF 15 FEBRUARY 1971 FROM THE PROHIBITION OF THE LEVYING OF CUSTOMS DUTIES AND CHARGES HAVING EQUIVALENT EFFECT CONTAINED IN ARTICLE 11 ( 2 ) OF REGULATION NO 123/67 OF THE COUNCIL OF 13 JUNE 1967 APPLIES FROM THE DATE OF THE NOTIFICATION OF THE SAID DIRECTIVE TO THE MEMBER STATE IN QUESTION, WHETHER OR NOT THAT MEMBER STATE HAS ALREADY ADOPTED THE NECESSARY MEASURES TO COMPLY WITH THE PROVISIONS OF THE DIRECTIVE .
Decision on costs
COSTS
13 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND THE COMMISSION, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION 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,
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE ITALIAN CORTE SUPREMA DI CASSAZIONE BY ORDER DATED 15 MAY 1981, HEREBY RULES :
AS REGARDS IMPORTS OF FRESH POULTRYMEAT FROM NON-MEMBER COUNTRIES THE DEROGATION INTRODUCED BY ARTICLE 15 OF COUNCIL DIRECTIVE 71/118 OF 15 FEBRUARY 1971 FROM THE PROHIBITION OF THE LEVYING OF CUSTOMS DUTIES AND CHARGES HAVING EQUIVALENT EFFECT CONTAINED IN ARTICLE 11 ( 2 ) OF REGULATION NO 123/67 OF THE COUNCIL OF 13 JUNE 1967 APPLIES FROM THE DATE OF THE NOTIFICATION OF THE SAID DIRECTIVE TO THE MEMBER STATE IN QUESTION, WHETHER OR NOT THAT MEMBER STATE HAS ALREADY ADOPTED THE NECESSARY MEASURES TO COMPLY WITH THE PROVISIONS OF THE DIRECTIVE .