61980CJ0206_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 206, 207, 209 AND 210/80
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FIRST CIVIL CHAMBER OF THE TRIBUNALE CIVILE ( CIVIL DISTRICT COURT ), ROME, FOR A PRELIMINARY RULING IN THE ACTIONS PENDING BEFORE THAT COURT BETWEEN
ORLANDI ITALO E FIGLIO
AND
THE MINISTRY OF FOREIGN TRADE
( CASE 206/80 )
SPA CARAPELLI
AND
THE MINISTRY OF FOREIGN TRADE
( CASE 207/80 )
SNC ENRICO E LUIGI SAQUELLA
AND
THE MINISTRY OF FOREIGN TRADE
( CASE 209/80 )
SPA DE FRANCESCHI
AND
THE MINISTRY OF FOREIGN TRADE
( CASE 210/80 )
Subject of the case
ON THE INTERPRETATION OF ARTICLES 7, 9, 10, 13, 30 TO 36 AND 106 OF THE TREATY AND ARTICLES 13, 15, 18 AND 21 OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 33 ) ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS .
Grounds
1 BY FOUR ORDERS DATED 14 JULY 1980 WHICH WERE RECEIVED AT THE COURT REGISTRY ON 23 OCTOBER 1980 THE FIRST CIVIL CHAMBER OF THE TRIBUNALE CIVILE ( CIVIL DISTRICT COURT ), ROME, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 7, 9, 10, 13, 30 TO 36 AND 106 OF THE TREATY AND ARTICLES 13, 15, 18 AND 21 OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1967, P . 33 ) ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS . SINCE THE TWO QUESTIONS WERE IDENTICALLY WORDED IN THE FOUR ORDERS MAKING THE REFERENCES THE COURT DECIDED BY ORDER OF 17 DECEMBER 1980 TO JOIN THE FOUR CASES FOR THE PURPOSES OF PROCEDURE AND JUDGMENT .
2 THE QUESTIONS AROSE IN THE COURSE OF FOUR ACTIONS BROUGHT AGAINST THE ITALIAN MINISTRY OF FOREIGN TRADE BY ITALIAN UNDERTAKINGS WHICH HAD IMPORTED AGRICULTURAL PRODUCTS . CASES 206 AND 207/80 CONCERNED PRODUCTS FROM NON-MEMBER COUNTRIES, NAMELY CAROB BEANS FROM CYPRUS AND MAIZE FROM ARGENTINA RESPECTIVELY, AND CASES 209 AND 210/80 CONCERNED GOODS ALREADY IN FREE CIRCULATION IN OTHER MEMBER STATES, NAMELY COFFEE FROM THE NETHERLANDS AND COTTON MEAL FROM THE FEDERAL REPUBLIC OF GERMANY .
3 AS REQUIRED BY THE ITALIAN LEGISLATION IN FORCE AT THE MATERIAL TIME, THE FOUR PLAINTIFFS REQUESTED AND OBTAINED, IN ORDER TO MAKE ADVANCE PAYMENT IN US
DOLLARS FOR THE GOODS IN QUESTION, A BANK GUARANTEE TO COVER THE 5% SECURITY REQUIRED IN RESPECT OF ALL ADVANCE PAYMENTS FOR IMPORTED GOODS . UNDER THE SAME LEGISLATION THE SECURITY ( EITHER PROVIDED BY THE IMPORTER OR GUARANTEED BY HIS BANK ) IS FORFEIT TO THE TREASURY IF PROOF IS NOT GIVEN THAT THE IMPORTATION HAS BEEN EFFECTED WITHIN A PERIOD LAID DOWN BY MINISTERIAL ORDER, WHICH WAS AT THAT TIME 30 DAYS FROM THE DATE OF THE ADVANCE PAYMENT .
4 IN THE FOUR MAIN ACTIONS THE IMPORTED GOODS REACHED ITALIAN TERRITORY BEFORE THE EXPIRY OF THE 30-DAY PERIOD PROVIDED FOR BY THE ITALIAN LEGISLATION IN FORCE AT THE TIME, BUT PARTS, OR IN SOME CASES THE WHOLE, OF THE CONSIGNMENTS COULD NOT BE RELEASED FOR CONSUMPTION UNTIL AFTER THE 30 DAYS HAD ELAPSED . CONSIDERING THAT THE 30-DAY LIMIT HAD BEEN EXCEEDED, THE ITALIAN MINISTRY OF FOREIGN TRADE DECIDED TO CONFISCATE SO MUCH OF THE SECURITY AS CORRESPONDED TO THE QUANTITY OF GOODS IN RESPECT OF WHICH THE DECLARATION OF IMPORTATION HAD BEEN MADE AFTER THE PERIOD HAD EXPIRED .
5 THE PLAINTIFFS IN THE MAIN ACTION INITIATED PROCEEDINGS AGAINST THE MINISTRY OF FOREIGN TRADE IN THE COURT WHICH HAS MADE THE REFERENCE, SEEKING AN ORDER TO THE EFFECT THAT THE MINISTRY SHOULD REFUND THE SECURITIES AND RELEASE THE BANK GUARANTEES . THEY CLAIMED THAT THE ITALIAN LEGISLATION WAS TO BE CONSTRUCTED AS REQUIRING FORFEITURE OF THE SECURITY ONLY IF MORE THAN 30 DAYS HAD ELAPSED BETWEEN THE ADVANCE PAYMENT AND THE ARRIVAL OF THE GOODS ON ITALIAN SOIL . IF, ON THE CONTRARY, IT WAS TO BE INTERPRETED AS REQUIRING THE GOODS TO BE CLEARED THROUGH CUSTOMS WITHIN 30 DAYS, THE ITALIAN LEGISLATION MUST BE REGARDED AS A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION, WHICH IS PROHIBITED IN INTRA-COMMUNITY TRADE BY ARTICLE 30 OF THE TREATY IN CONJUNCTION WITH ARTICLE 18 OF REGULATION NO 120/67/EEC OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS IN THE CASE OF MAIZE, AND IN CONJUNCTION WITH REGULATION ( EEC ) NO 827/68 OF THE COUNCIL OF 28 JUNE 1968 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 209 ) IN THE CASE OF CAROB BEANS .
6 ON THOSE FACTS, THE TRIBUNALE CIVILE, ROME, REFERRED TO THE COURT FOR A PRELIMINARY RULING THE FOLLOWING TWO QUESTIONS :
' ' ( 1 ) WITH REFERENCE TO ARTICLES 7, 30 TO 36 AND 106 OF THE TREATY AND ARTICLE 21 OF REGULATION NO 120/67/EEC OF 13 JUNE 1967, WHEREBY MEMBER STATES ARE UNDER A DUTY TO AUTHORIZE, IN THE CURRENCY OF THE MEMBER
STATES IN WHICH THE CREDITOR RESIDES, ANY PAYMENTS CONNECTED WITH THE TRADE IN GOODS IN FREE CIRCULATION, AND TO ARTICLES 9, 10, 13 AND 30 TO 36 OF THE TREATY ON THE FREE MOVEMENT OF GOODS IN INTRA-COMMUNITY TRADE, ARE THE RULES LAID DOWN BY THE ITALIAN STATE AND REFERRED TO IN ARTICLES 1, 3 AND 4 OF LAW NO 1126 OF 20 JULY 1952, ARTICLE 2 OF DECREE LAW NO 476 OF 6 JUNE 1956 CONVERTED INTO LAW NO 786 OF 25 JULY 1956 AND ARTICLE 2 OF THE MINISTERIAL ORDER OF 20 JANUARY
1973 COMPATIBLE WITH THE ABOVE-MENTIONED PROVISIONS AND DO THEY NOT, BECAUSE THE RESULT OF THOSE RULES IS TO DISCOURAGE IMPORTERS INTO ITALY FROM CHOOSING THE MOST APPROPRIATE DATE TO RELEASE THOSE GOODS TO THE MARKET, AMOUNT TO A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION OR A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY, WHEN THEY ARE INTERPRETED AS MEANING THAT FORFEITURE BY THE MINISTRY OF FOREIGN TRADE OF THE SECURITY WHICH IS REQUIRED OF IMPORTERS INTO ITALY OF GOODS IN FREE CIRCULATION IN THE COMMUNITY IN ORDER TO OBTAIN THE FOREIGN CURRENCY NECESSARY FOR THE PAYMENTS IN ADVANCE AGAINST DOCUMENTS, MAY BE MADE ON THE BASIS OF THE DATE ON WHICH THE GOODS THEMSELVES ARE REGISTERED UPON IMPORTATION RATHER THAN THE DATE ON WHICH THE GOODS REACHED THE NATIONAL TERRITORY, IN VIEW OF THE PARTICULARLY SHORT PERIOD, AFTER THE DATE OF THE FOREIGN CURRENCY PAYMENT, WITHIN WHICH THE OPERATION OF OBTAINING CUSTOMS CLEARANCE MUST BE CARRIED OUT?
( 2)WITH REFERENCE TO ARTICLES 7, 9, 10, 13 AND 30 TO 36 OF THE TREATY ON THE FREE MOVEMENT OF GOODS AND ARTICLES 13, 15 AND 18 OF REGULATION NO 120/67/EEC OF 13 JUNE 1967 AND SUBSEQUENT AMENDMENTS ON THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKET AND ON THE SYSTEM OF LEVIES, ARE THE RULES LAID DOWN BY THE ITALIAN STATE AND REFERRED TO IN ARTICLES 1, 3 AND 4 OF LAW NO 1126 OF 20 JULY 1952, ARTICLE 2 OF DECREE LAW NO 476 OF 6 JUNE 1956, CONVERTED INTO LAW NO 786 OF 25 JULY 1956, AND ARTICLE 2 OF THE MINISTERIAL ORDER OF 20 JANUARY 1973 COMPATIBLE WITH THE ABOVE-MENTIONED PROVISIONS AND DO THEY NOT, BECAUSE THE RESULT OF THOSE RULES IS TO DISCOURAGE IMPORTERS INTO ITALY FROM CHOOSING THE MOST APPROPRIATE DATE ON WHICH TO RELEASE GOODS TO THE MARKET, AND ALSO HAVING REGARD TO THE MORE FAVOURABLE SYSTEM OF COMMUNITY LEVIES, AMOUNT TO A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION OR TO A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY, WHEN THEY ARE INTERPRETED AS MEANING THAT FORFEITURE BY THE MINISTRY OF FOREIGN TRADE OF THE SECURITY WHICH IS REQUIRED OF IMPORTERS INTO ITALY OF AGRICULTURAL GOODS AND PRODUCTS WHICH COME FROM NON-MEMBER COUNTRIES AND ARE SUBJECT TO THE LEVY SYSTEM IN ORDER TO BE ABLE TO OBTAIN THE NECESSARY FOREIGN CURRENCY FOR THE PAYMENTS IN ADVANCE AGAINST DOCUMENTS, MAY BE MADE ON THE BASIS OF THE DATE ON WHICH THOSE GOODS ARE REGISTERED UPON IMPORTATION RATHER THAN THE DATE ON WHICH THE GOODS THEMSELVES REACHED THE NATIONAL TERRITORY, IN VIEW
OF THE PARTICULARLY SHORT PERIOD, AFTER THE DATE OF THE FOREIGN CURRENCY PAYMENT, WITHIN WHICH THE OPERATION OF OBTAINING CUSTOMS CLEARANCE MUST BE CARRIED OUT?
' '
7 THE OBJECT OF THE QUESTIONS WHICH HAVE BEEN SUBMITTED IS TO DISCOVER FIRST, WHETHER THE PROVISIONS OF COMMUNITY LAW WHICH PROHIBIT MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS IN INTRA-COMMUNITY TRADE AND THOSE CONCERNING MEMBER STATES '
OBLIGATIONS REGARDING PAYMENTS FOR SUCH TRADE MUST BE INTERPRETED AS COVERING THE REQUIREMENT TO PROVIDE A SECURITY IN THE CIRCUMSTANCES DESCRIBED ABOVE WHERE GOODS IMPORTED FROM OTHER MEMBER STATES ARE PAID FOR IN ADVANCE, AND SECONDLY, WHETHER THE SAME INTERPRETATION IS TO BE GIVEN TO ARTICLE 18 OF REGULATION NO 120/67 AND TO ARTICLE 2 OF REGULATION NO 827/68 IN THE CASE OF AGRICULTURAL PRODUCTS COVERED BY THOSE REGULATIONS AND IMPORTED INTO THE COMMUNITY FROM NON-MEMBER COUNTRIES .
I - INTRA-COMMUNITY TRADE
8 THE MEASURES TO WHICH THE NATIONAL COURT REFERS WERE THE SUBJECT OF ANOTHER CASE CONCERNING THE INTRA-COMMUNITY TRADE DESCRIBED IN ITS FIRST QUESTION, CASE 95/81, AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY BROUGHT BY THE COMMISSION AGAINST A MEMBER STATE FOR FAILURE TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .
9 THE QUESTION OF LAW WHICH WAS CONSIDERED IN CASE 95/81 IS IDENTICAL IN SUBSTANCE TO THAT RAISED BY THE FIRST QUESTION FROM THE TRIBUNALE CIVILE INASMUCH AS IT APPEARS FROM THE FILES THAT THE NATIONAL COURT DID NOT RESTRICT ITS QUESTION SOLELY TO CASES IN WHICH NATIONAL LAW PROVIDES FOR FORFEITURE OF THE GUARANTEES WHICH HAVE BEEN GIVEN WHEN THE GOODS ARE DETAINED FOR A TIME BY THE CUSTOMS AUTHORITIES AT THE PORT OF ENTRY, SO THAT THE QUESTION COVERS EQUALLY CASES IN WHICH A TRADER IS IN DANGER OF LOSING HIS SECURITY ON THE GROUND THAT MORE THAN 30 DAYS HAVE ELAPSED BETWEEN THE DATE OF THE ADVANCE PAYMENT AND THE ARRIVAL OF THE GOODS AT THE PORT OF ENTRY .
10 IN A JUDGMENT DELIVERED THIS DAY THE COURT HAS DECLARED THAT BY REQUIRING ALL IMPORTERS OF GOODS FROM OTHER MEMBER STATES TO PROVIDE SECURITY OR A BANK GUARANTEE EQUAL TO 5% OF THE VALUE OF THE GOODS WHEN PAYMENT IS MADE IN ADVANCE, THE WORDS ' ' PAYMENT IN ADVANCE ' '
REFERRING NOT ONLY TO PAYMENTS FOR
SPECULATIVE PURPOSES BUT ALSO TO NORMAL AND CURRENT PAYMENTS CONCERNING INTRA-COMMUNITY TRANSACTIONS, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 30 AND 36 OF THE TREATY .
11 SINCE THE MEASURES OBJECTED TO BY THE COMMISSION WERE THE SAME AS THOSE WHICH ARE THE SUBJECT OF THE PRESENT PROCEEDINGS, THE ONLY DIFFERENCE BEING THAT THE PRESCRIBED PERIOD, WHICH AMOUNTED TO 120 DAYS IN THE ACTION FOR FAILURE TO FULFIL OBLIGATIONS, WAS ONLY 30 DAYS UNDER THE RULES IN FORCE AT THE TIME OF THE MAIN ACTIONS IN THESE CASES, IT IS SUFFICIENT TO REFER TO THE JUDGMENT IN CASE 95/81, A COPY OF WHICH IS ANNEXED TO THIS JUDGMENT . SINCE THAT JUDGMENT CONTAINS ALL THE INFORMATION NECESSARY FOR A DECISION IN THE MAIN ACTIONS, AN INTERPRETATION OF ARTICLES 7, 9, 10 AND 13 OF THE EEC TREATY IS NOT REQUIRED .
12 FOR THE REASONS SET OUT IN THAT DECISION THE REPLY TO THE FIRST QUESTION PUT BY THE TRIBUNALE CIVILE, ROME, SHOULD BE THAT THE CONCEPT OF MEASURES HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION IN ARTICLE 30 OF THE TREATY IS TO BE UNDERSTOOD AS MEANING THAT THAT PROVISION COVERS A NATIONAL MEASURE REQUIRING ALL IMPORTERS OF GOODS COMING FROM OTHER MEMBER STATES TO PROVIDE A SECURITY OR A BANK GUARANTEE AMOUNTING TO 5% OF THE VALUE OF THE GOODS WHEN PAYMENT IS IN ADVANCE, THE WORDS ' ' PAYMENT IN ADVANCE ' '
REFERRING NOT ONLY TO PAYMENTS FOR SPECULATIVE PURPOSES BUT ALSO TO NORMAL AND CURRENT PAYMENTS IN INTRA-COMMUNITY TRANSACTIONS . THAT APPLIES REGARDLESS OF THE POINT IN TIME AT WHICH THE AUTHORITIES OF THE MEMBER STATE CONSIDER THE IMPORTATION TO HAVE BEEN EFFECTED .
II - TRADE WITH NON-MEMBER COUNTRIES
13 AS FAR AS CONCERNS THE TRADE WITH NON-MEMBER COUNTRIES REFERRED TO IN THE SECOND QUESTION FROM THE NATIONAL COURT, IT MUST BE REMEMBERED THAT ARTICLE 18(2 ) OF REGULATION NO 120/67 OF THE COUNCIL, WHICH APPEARS UNDER TITLE II, HEADED ' ' TRADE WITH THIRD COUNTRIES ' '
AND APPLIES TO TRADE IN MAIZE FROM ARGENTINA, AND ARTICLE 2 OF REGULATION NO 827/68 OF THE COUNCIL, GOVERNING THE MARKET IN CAROB BEANS FROM CYPRUS, ARE IN SUBSTANCE IDENTICAL ; THE LATTER PROVIDES THAT :
' ' ( 2 ) SAVE AS OTHERWISE PROVIDED IN THIS REGULATION, AND SAVE DEROGATIONS DECIDED ON BY THE COUNCIL . . . THE FOLLOWING SHALL BE PROHIBITED IN TRADE WITH THIRD COUNTRIES :
THE LEVYING OF ANY CHARGE HAVING AN EFFECT EQUIVANT TO A CUSTOMS DUTY ; AND
THE APPLICATION OF ANY QUANTITATIVE RESTRICTION OR MEASURE HAVING EQUIVALENT EFFECT . . . ' '
14 FROM THE FILES IN THE MAIN ACTIONS IT APPEARS THAT IN THE CASES UNDER CONSIDERATION THE PROHIBITIONS LAID DOWN ARE NOT THE SUBJECT OF CONTRARY PROVISIONS IN THE RELEVANT RULES, OR OF ANY DEROGATION DECIDED UPON BY THE COUNCIL .
15 THE COURT HAS ALREADY HAD OCCASION TO CONSTRUE ARTICLES 18 AND 21 OF REGULATION NO 120/67 IN ITS JUDGMENT OF 10 OCTOBER 1973 ( CASE 34/73 VARIOLA ( 1973 ) ECR 981 ) IN WHICH IT DECLARED : ' ' THERE IS NO CONSIDERATION WHICH COULD JUSTIFY DIFFERENT INTERPRETATIONS OF THE CONCEPT OF ' CHARGE HAVING EQUIVALENT EFFECT '
AS IT APPEARS IN ARTICLE 9 ET SEQ . OF THE TREATY, ON THE ONE HAND, AND . . . ARTICLES 18 AND 21 OF REGULATION NO 120/67, ON THE OTHER . ' '
16 THOSE CONSIDERATIONS APPLY EQUALLY WITH REGARD TO THE EXPRESSION ' ' MEASURES HAVING EQUIVALENT EFFECT ' '
AS USED BOTH IN ARTICLE 30 OF THE TREATY AND IN THE ABOVE-MENTIONED ARTICLES OF REGULATIONS NO 120/67 AND 827/68 .
17 THE REPLY TO THE SECOND QUESTION MUST THEREFORE BE THAT THE CONCEPT OF MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS HAS THE SAME MEANING WHEN APPLIED TO IMPORTS FROM NON-MEMBER COUNTRIES OF PRODUCTS COVERED BY REGULATIONS NOS 120/67 AND 827/68 AS IT HAS WHEN APPLIED TO TRADE BETWEEN MEMBER STATES .
Decision on costs
COSTS
18 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT, THE FRENCH GOVERNMENT AND THE COMMISSION, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .
19 AS THE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTIONS ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNALE CIVILE, ROME, BY ORDERS OF 14 JULY 1980, HEREBY RULES ;
1 . THE CONCEPT OF MEASURES HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION IN ARTICLE 30 OF THE TREATY IS TO BE UNDERSTOOD AS MEANING THAT THAT PROVISION COVERS A NATIONAL MEASURE REQUIRING ALL IMPORTERS OF GOODS COMING FROM OTHER MEMBER STATES TO PROVIDE A SECURITY OR A BANK GUARANTEE AMOUNTING TO 5% OF THE VALUE OF THE GOODS WHEN PAYMENT IS IN ADVANCE, THE WORDS ' ' PAYMENT IN ADVANCE ' '
REFERRING NOT ONLY TO PAYMENTS FOR SPECULATIVE PURPOSES BUT ALSO TO NORMAL AND CURRENT PAYMENTS IN INTRA-COMMUNITY TRANSACTIONS . THAT APPLIES REGARDLESS OF THE POINT IN TIME AT WHICH THE AUTHORITIES OF THE MEMBER STATE CONSIDER THE IMPORTATION TO HAVE BEEN EFFECTED .
2.THE CONCEPT OF MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS HAS THE SAME MEANING WHEN APPLIED TO IMPORTS FROM NON-MEMBER COUNTRIES OF PRODUCTS COVERED BY REGULATIONS NOS 120/67 AND 827/68 AS IT HAS WHEN APPLIED TO TRADE BETWEEN MEMBER STATES .