61981CJ0196_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 196/81
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FIRST CIVIL SECTION OF THE TRIBUNALE DI GENOVA ( DISTRICT COURT, GENOA ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
PROVVEDITORIE MARITTIME S . GIACOMO S.P.A ., MILAN,
AND
AMMINISTRAZIONE DELLE FINANZE DELLO STATO - DOGANA DI GENOVA
( STATE FINANCE ADMINISTRATION - GENOA CUSTOMS OFFICE )
Subject of the case
ON THE INTERPRETATION OF ARTICLE 3 ( 2 ) OF REGULATION ( EEC ) NO 1076/72 OF THE COMMISSION OF 25 MAY 1972 LAYING DOWN DETAILED RULES FOR APPLYING EXPORT LEVIES ON SUGAR AND AMENDING REGULATION ( EEC ) NO 2637/70 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( II ), P . 470 ),
Grounds
1 BY ORDER OF 25 MAY 1981, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 2 JULY 1981, THE TRIBUNALE DI GENOVA ( DISTRICT COURT, GENOA ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLE 3 ( 2 ) OF REGULATION ( EEC ) NO 1076/72 OF THE COMMISSION OF 25 MAY 1972 LAYING DOWN DETAILED RULES FOR APPLYING EXPORT LEVIES ON SUGAR AND AMENDING REGULATION ( EEC ) NO 2637/70 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( II ), P . 470 ).
2 THE MAIN ACTION CONCERNS THE COLLECTION OF THE COMMUNITY LEVY ON CONSIGNMENTS OF REFINED SUGAR EXPORTED TO SWITZERLAND BETWEEN AUGUST AND DECEMBER 1974 BY THE PLAINTIFF, PROVVEDITORIE MARITTIME S . GIACOMO S.P.A ., A SHIPS '
CHANDLER FOR LINERS BELONGING TO THE ITALIA MARITIME COMPANY . THE GOODS WERE ORIGINALLY INTENDED FOR USE AS STORES FOR LINERS AND WERE PLACED IN THE PLAINTIFF ' S PRIVATE BONDED WAREHOUSE AT GENOA-RIVAROLO .
3 NO LEVY WAS COLLECTED ON THE GOODS AT THE TIME OF THEIR EXPORTATION, THAT IS TO SAY AT THE TIME OF COMPLETION OF THE CUSTOMS FORMALITIES . LATER HOWEVER, IN JANUARY 1975, THE GENOA CUSTOMS OFFICE REQUESTED THE PLAINTIFF TO PAY THE LEVY ON THE GROUND THAT THE FAILURE TO COLLECT IT EARLIER HAD BEEN THE RESULT OF AN ERROR .
4 ARTICLE 16 ( 1 ) OF REGULATION NO 1009/67/EEC OF THE COUNCIL OF 18 DECEMBER 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 304 ), AS AMENDED BY REGULATION ( EEC ) NO 607/72 OF THE COUNCIL OF 23 MARCH 1972 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( I ), P . 236 ), PROVIDES THAT :
' ' IF THE CIF, PRICE FOR WHITE SUGAR OR RAW SUGAR IS HIGHER THAN THE THRESHOLD PRICE, A LEVY EQUAL TO THE DIFFERENCE BETWEEN THOSE PRICES SHALL BE CHARGED ON EXPORTS OF THE PRODUCTS IN QUESTION .
WHERE THE COMMUNITY OR ANY REGION THEREOF CAN NO LONGER BE SUPPLIED WITH SUGAR AT PRICES WITHIN THE LIMIT OF THE THRESHOLD PRICE, PROVISION MAY BE MADE FOR CHARGING A SPECIAL LEVY ON EXPORTS OF THE PRODUCT IN QUESTION . WHERE THE PROVISIONS OF THIS SUBPARAGRAPH APPLY, THOSE OF THE PRECEDING SUBPARAGRAPH
SHALL NOT APPLY ' '
( THE DISTINCTION BETWEEN A LEVY AND A SPECIAL LEVY WAS ABOLISHED BY REGULATION NO 3330/74 ).
' ' SAVE AS OTHERWISE PROVIDED BY THE COUNCIL IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN PARAGRAPH ( 3 ), THE LEVY OR THE SPECIAL LEVY TO BE CHARGED, AS APPROPRIATE, SHALL BE THAT APPLICABLE ON THE DAY OF EXPORTATION ' ' .
THE PURPOSE OF THOSE LEVIES WAS TO ENSURE THAT THE COMMUNITY WAS SUFFICIENTLY SUPPLIED WITH SUGAR BY DISCOURAGING EXPORTS AT TIMES WHEN INCREASES IN WORLD PRICES RENDERED SUCH EXPORTS ATTRACTIVE .
5 MOREOVER, REGULATION NO 1076/72 OF THE COMMISSION, CITED ABOVE, LAYS DOWN DETAILED RULES FOR APPLYING THE EXPORT LEVIES . ARTICLE 3 OF THAT REGULATION PROVIDES THAT :
' ' ( 1 ) SAVE IN CASES WHERE THE SPECIAL EXPORT LEVY IS DETERMINED BY INVITATION TO TENDER, THE LEVIES REFERRED TO IN ARTICLE 1 SHALL BE THOSE APPLICABLE ON THE DAY ON WHICH THE CUSTOMS FORMALITIES REFERRED TO IN THE SECOND SUBPARAGRAPH OF ARTICLE 8 ( 2 ) ( B ) OF REGULATION ( EEC ) NO 1373/70 ARE COMPLETED .
( 2)THE LEVIES SHALL BE COLLECTED BY THE MEMBER STATE ON WHOSE TERRITORY THE FORMALITIES REFERRED TO IN PARAGRAPH ( 1 ) ARE COMPLETED . THEY SHALL BE PAYABLE AT THE LATEST AT THE TIME OF COMPLETION OF THOSE FORMALITIES ' ' .
6 THE PLAINTIFF COMPANY CHALLENGED THE DEMANDS FOR PAYMENT MADE BY THE CUSTOMS AUTHORITIES BEFORE THE TRIBUNALE DI GENOVA, WHICH REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
' ' WHAT IS THE PRECISE MEANING OF THE EXPRESSION ' AT THE LATEST '
AND IN PARTICULAR IS IT TO BE UNDERSTOOD AS REFERRING TO THE TIME OF DETERMINATION OF THE AMOUNT OF THE LEVY OR TO THE FIRST OR LAST MOMENT WHEN ACTUAL PAYMENT ( COLLECTION ) MAY BE DEMANDED ' ' ?
7 THE LEVIES REFERRED TO BY THE AFORESAID REGULATIONS ARE THOSE APPLICABLE ON THE DAY OF COMPLETION OF THE CUSTOMS FORMALITIES, WHICH IS DEFINED BY ARTICLE 15 ( 5 ) OF REGULATION ( EEC ) NO 1373/70 OF THE COMMISSION OF 10 JULY 1970 ON COMMON DETAILED RULES FOR THE APPLICATION OF THE SYSTEM OF IMPORT AND EXPORT LICENCES AND ADVANCE FIXING CERTIFICATES FOR AGRICULTURAL PRODUCTS SUBJECT TO A
SINGLE PRICE SYSTEM ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1970 ( II ) P . 439 ) AS BEING THE DAY
' ' . . . ON WHICH THE CUSTOMS AUTHORITIES ACCEPT THE DOCUMENT BY WHICH THE DECLARANT STATES HIS INTENTION TO EXPORT THE PRODUCTS IN QUESTION . . . OR TO PLACE THE PRODUCTS UNDER CUSTOMS CONTROL . . . ' ' .
8 THE PLAINTIFF RELIES ON ARTICLE 3 ( 2 ) OF REGULATION NO 1076/72, WHICH PROVIDES THAT THE LEVIES ' ' SHALL BE PAYABLE AT THE LATEST AT THE TIME OF COMPLETION OF ( THE CUSTOMS ) FORMALITIES ' ', AND ON ARTICLE 15 ( 5 ) OF THE AFORESAID REGULATION NO 1373/70 IN SUPPORT OF ITS ARGUMENT THAT THE LEVY IN QUESTION SHOULD HAVE BEEN COLLECTED AT THE TIME WHEN THE APPLICATION FOR AN EXPORT LICENCE WAS LODGED . IN ITS VIEW, THE CUSTOMS AUTHORITIES '
FAILURE TO EXERCISE THEIR RIGHT TO COLLECT THE LEVY LEADS, UNDER THE AFORESAID PROVISIONS OF COMMUNITY LAW, TO THE FORFEITURE OF THAT RIGHT .
9 THE AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( STATE FINANCE ADMINISTRATION ) IS OF THE OPINION THAT THE COLLECTION OF CUSTOMS DUTIES OR LEVIES IS A STAGE WHICH OCCURS AFTER THE ACCEPTANCE BY THE CUSTOMS AUTHORITIES OF THE IMPORT OR EXPORT DECLARATION . IT DENIES THAT THE PROVISION OF COMMUNITY LAW IN QUESTION ACTS AS A BAR PRECLUDING THE COMPETENT AUTHORITY OF A MEMBER STATE FROM DEMANDING A LEVY WHICH HAS NOT BEEN COLLECTED AS A RESULT OF AN ERROR AT THE TIME OF COMPLETION OF THE CUSTOMS FORMALITIES .
10 IN THE VIEW OF THE ITALIAN GOVERNMENT AND THE COMMISSION, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARTICLE 3 ( 2 ) OF REGULATION NO 1076/72 CANNOT BE INTERPRETED AS MEANING THAT, IF AT THE TIME OF COMPLETION OF THE CUSTOMS FORMALITIES THE RIGHT TO COLLECT THE LEVY HAS NOT BEEN EXERCISED, THE RIGHT TO COLLECT IT SUBSEQUENTLY IS FORFEITED .
11 THAT IS THE INTERPRETATION WHICH MUST BE ADOPTED . IN THE FIRST PLACE, THE ACTUAL TEXT OF THE PROVISION OF COMMUNITY LAW IN QUESTION DOES NOT LEAD TO THE CONCLUSION THAT THE EXPRESSION ' ' AT THE LATEST ' '
CONTAINED THEREIN MEANS THAT THE FISCAL CLAIM IS FORFEITED AT A GIVEN TIME . THERE WOULD BE GROUNDS FOR SUCH A CONCLUSION ONLY IF THE TEXT IN QUESTION EXPRESSLY PROVIDED FOR THE CONCEPT OF FORFEITURE AND CONTAINED A CLEAR AND EXPRESS PROVISION TO THAT EFFECT .
12 FURTHERMORE, IT IS CLEAR THAT THE EXPRESSION ' ' AT THE LATEST ' '
RELATES NOT TO THE COLLECTION OF THE DEBT BUT TO THE TIME WHEN IS BECOMES PAYABLE, WHICH IS THE DECISIVE FACTOR FOR UNDERSTANDING THE CONTESTED PROVISION . THE DEBT MAY BE DETERMINED, AND THEREFORE BECOME PAYABLE, EVEN BEFORE THE DAY OF COMPLETION OF THE CUSTOMS FORMALITIES . MOREOVER, THAT IS NORMALLY THE CASE, AS THE COMMISSION AND THE ITALIAN GOVERNMENT EMPHASIZE .
13 THE EXPRESSION ' ' PAYABLE AT THE LATEST ' '
CONTAINED IN THE PROVISION IN QUESTION MUST THEREFORE BE UNDERSTOOD NOT AS INVOLVING FORFEITURE OF RIGHTS BUT RATHER AS APPLYING WHERE THE DEBT IS DETERMINED, AND CONSEQUENTLY BECOMES PAYABLE, BEFORE THE DAY OF COMPLETION OF THE CUSTOMS FORMALITIES . ACCORDINGLY, THE CALCULATION AND ACTUAL COLLECTION OF THE LEVY, THAT IS TO SAY PAYMENT THEREOF, MAY BE MADE AT A LATER STAGE .
Decision on costs
COSTS
14 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT 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 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 ( FIRST CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNALE DI GENOVA BY ORDER OF 25 MAY 1981, HEREBY RULES :
THE EXPRESSION ' ' PAYABLE AT THE LATEST ' ', CONTAINED IN ARTICLE 3 ( 2 ) OF REGULATION ( EEC ) NO 1076/72 OF THE COMMISSION OF 25 MAY 1972 LAYING DOWN DETAILED RULES FOR APPLYING EXPORT LEVIES ON SUGAR AND AMENDING REGULATION ( EEC ) NO 2637/70 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( II ), P . 470 ), MUST BE UNDERSTOOD NOT AS INVOLVING FORFEITURE OF RIGHTS BUT RATHER AS APPLYING WHERE THE DEBT IS DETERMINED,
AND CONSEQUENTLY BECOMES PAYABLE, BEFORE THE DAY OF COMPLETION OF THE CUSTOMS FORMALITIES . ACCORDINGLY, THE CALCULATION AND ACTUAL COLLECTION OF THE LEVY, THAT IS TO SAY PAYMENT THEREOF, MAY BE MADE AT A LATER STAGE .