Judgment of the Court of 31 January 1978. - Fratelli Zerbone Snc v Amministrazione delle finanze dello Stato. - Reference for a preliminary ruling: Tribunale civile e penale di Genova - Italy. - Monetary compensatory amounts. - Case 94/77.



European Court reports 1978 Page 00099

Greek special edition Page 00041

Portuguese special edition Page 00039



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . COMMUNITY LAW - DIRECT EFFECT - OBLIGATIONS OF MEMBER STATES

( EEC TREATY , ART . 189 )

2 . AGRICULTURE - CONJUNCTURAL POLICY - MONETARY COMPENSATORY AMOUNTS - APPLICABILITY TO CONTRACTS CONCLUDED BEFORE 19 DECEMBER 1971 - CRITERIA - DETERMINATION - LEGISLATIVE POWERS OF MEMBER STATES - NONE

( REGULATION ( EEC ) NO 974/71 OF THE COUNCIL ; REGULATION ( EEC ) NO 1013/71 OF THE COMMISSION , ART . 4 ( 2 ); REGULATION ( EEC ) NO 2887/71 OF THE COMMISSION )

3 . AGRICULTURE - CONJUNCTURAL POLICY - MONETARY COMPENSATORY AMOUNTS - APPLICABILITY TO CONTRACTS CONCLUDED BEFORE 19 DECEMBER 1971 - ARTICLE 4 ( 2 ) OF REGULATION NO 1013/71 - INTERPRETATION - JURISDICTION OF NATIONAL COURT

4 . AGRICULTURE - CONJUNCTURAL POLICY - MONETARY COMPENSATORY AMOUNTS - APPLICABILITY TO CONTRACTS CONCLUDED BEFORE 19 DECEMBER 1971 - ARTICLE 4 ( 2 ) OF REGULATION NO 1013/71 - APPLICATION - CONTRACT PROVIDING FOR PAYMENT BY OPENING OF IRREVOCABLE DOCUMENTARY CREDIT

5 . AGRICULTURE - CONJUNCTURAL POLICY - MONETARY COMPENSATORY AMOUNTS - APPLICATION - CONDITIONS - CHECKING - REFERENCE TO DAY OF IMPORTATION OR EXPORTATION

( REGULATION ( EEC ) NO 974/71 OF THE COUNCIL , ART . 1 )

Summary

1 . THE DIRECT APPLICATION OF A COMMUNITY REGULATION MEANS THAT ITS ENTRY INTO FORCE AND ITS APPLICATION IN FAVOUR OF OR AGAINST THOSE SUBJECT TO IT ARE INDEPENDENT OF ANY MEASURE ADOPTING IT INTO NATIONAL LAW . BY REASON OF THE OBLIGATIONS IMPOSED ON THEM BY THE TREATY MEMBER STATES MUST NOT IMPEDE THE DIRECT EFFECT OF REGULATIONS OR OTHER RULES OF COMMUNITY LAW .

THE SCRUPULOUS OBSERVATION OF THIS DUTY IS AN INDISPENSABLE REQUISITE FOR THE SIMULTANEOUS AND UNIFORM APPLICATION OF COMMUNITY REGULATIONS THROUGHOUT THE WHOLE OF THE COMMUNITY . ACCORDINGLY MEMBER STATES MUST NOT ADOPT OR ALLOW NATIONAL INSTITUTIONS WITH A LEGISLATIVE POWER TO ADOPT A MEASURE BY WHICH THE COMMUNITY NATURE OF A LEGAL RULE AND THE CONSEQUENCES WHICH ARISE FROM IT ARE CONCEALED FROM THE PERSONS CONCERNED .

ALTHOUGH IT IS TRUE THAT IN THE EVENT OF DIFFICULTY OF INTERPRETATION THE NATIONAL ADMINISTRATION MAY BE LED TO ADOPT DETAILED RULES FOR THE APPLICATION OF A COMMUNITY REGULATION AND AT THE SAME TIME TO CLARIFY ANY DOUBTS RAISED , IT CAN DO SO ONLY IN SO FAR AS IT COMPLIES WITH THE PROVISIONS OF COMMUNITY LAW AND THE NATIONAL AUTHORITIES CANNOT ISSUE BINDING RULES OF INTERPRETATION .

2 . REGULATIONS NOS 974/71 AND 1013/71 , AS AMENDED BY REGULATION NO 2887/71 , DO NOT PERMIT MEMBER STATES TO ADOPT PROVISIONS LAYING DOWN SPECIFIC CRITERIA CONCERNING THE APPLICABILITY OR OTHERWISE OF COMPENSATORY AMOUNTS TO CONTRACTS CONCLUDED BEFORE 19 DECEMBER 1971 IN ORDER TO ' ALLOW THE CONTRACT TO BE EXECUTED UNDER THE CONDITIONS WHICH WOULD HAVE EXISTED HAD THE MONETARY MEASURES REFERRED TO IN ARTICLE 1 OF REGULATION ( EEC ) NO 974/71 NOT BEEN TAKEN ' , AS PROVIDED FOR UNDER ARTICLE 4 ( 2 ) OF REGULATION NO 1013/71 .

3 . THE PROVISIONS OF ARTICLE 4 ( 2 ) OF REGULATION NO 1013/71 ARE FULLY EFFECTIVE IN THEMSELVES AND MUST THEREFORE BE INTERPRETED AS LEAVING IT TO THE COURTS OF THE MEMBER STATE CONCERNED TO DECIDE WHETHER THE CONTRACT WAS EXECUTED UNDER THE CONDITIONS WHICH WOULD HAVE EXISTED IN THE ABSENCE OF THE MONETARY MEASURES REFERRED TO IN ARTICLE 1 OF REGULATION NO 974/71 .

4 . AS REGARDS THE APPLICATION OF ARTICLE 4 ( 2 ) OF REGULATION NO 1013/71 THE QUESTION IS WHETHER THE CONTRACT WAS EXECUTED UNDER THE CONDITIONS WHICH WOULD HAVE EXISTED IN THE ABSENCE OF THE MONETARY MEASURES WHICH LED TO THE INTRODUCTION OF THE MONETARY COMPENSATORY AMOUNTS . WHERE THE CONTRACT PROVIDES FOR PAYMENT BY THE OPENING OF AN IRREVOCABLE DOCUMENTARY CREDIT THE ANSWER MUST DEPEND ON THE NATURE OF THE ARRANGEMENTS AGREED BETWEEN THE IMPORTER AND THE ISSUING BANK AND THESE MAY IN TURN DEPEND ON THE PROVISIONS OF THE LOCAL LAW APPLICABLE TO THEM . WHERE THE CREDIT IS TO BE OPENED FOR A SUM IN FOREIGN CURRENCY ( AS , IN THIS CASE , DOLLARS ), THE CRUCIAL DATE WILL BE THAT UPON WHICH THE RATE OF EXCHANGE DETERMINING THE AMOUNT OF THE IMPORTER ' S LIABILITY TO THE ISSUING BANK WAS APPLICABLE .

5 . FOR THE PURPOSE OF DETERMINING WHETHER THE CONDITIONS FOR APPLYING AND DETERMINING MONETARY COMPENSATORY AMOUNTS ARE FULFILLED REFERENCE MUST BE MADE IN RESPECT OF EACH COMMERCIAL TRANSACTION ( IMPORTATION OR EXPORTATION ) TO THE DAY OF THE IMPORTATION OR EXPORTATION .

Parties

IN CASE 94/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNALE DI GENOVA FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FRATELLI ZERBONE S.N.C .

AND

AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( ITALIAN FINANCE ADMINISTRATION )

Subject of the case

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ) P . 257 ) AND REGULATION ( EEC ) NO 1013/71 OF THE COMMISSION OF 17 MAY 1971 LAYING DOWN DETAILED RULES OF APPLICATION FOR REGULATION ( EEC ) NO 974/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1966-1972 P . 52 ),

Grounds

1BY ORDER DATED 13 JUNE 1977 , RECEIVED AT THE COURT ON 26 JULY 1977 , THE TRIBUNALE DI GENOVA REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY VARIOUS QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ) AND REGULATION ( EEC ) NO 1013/71 OF THE COMMISSION OF 17 MAY 1971 LAYING DOWN DETAILED RULES OF APPLICATION FOR REGULATION NO 974/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1966-1972 , P . 52 ).

2THESE QUESTIONS HAVE BEEN RAISED IN PROCEEDINGS RELATING TO THE IMPOSITION OF MONETARY COMPENSATORY AMOUNTS ON THE IMPORTATION INTO ITALY BY THE ITALIAN UNDERTAKING ZERBONE , THE PLAINTIFF IN THE MAIN ACTION , OF CONSIGNMENTS OF FROZEN MEAT ORIGINATING IN THIRD COUNTRIES .

3IN RESPECT OF SUCH IMPORTS WHICH WERE MADE ON THE BASIS OF CONTRACTS CONCLUDED BEFORE 19 DECEMBER 1971 ( THE REFERENCE DATE LAID DOWN IN ARTICLE 4 OF REGULATION NO 1013/71 , AS AMENDED BY ARTICLE 4 OF REGULATION NO 2887/71 OF 30 DECEMBER 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1966-1972 P . 67 ) THE PLAINTIFF CLAIMS THE BENEFIT OF THE EXEMPTION FROM PAYMENT OF THE MONETARY COMPENSATORY AMOUNTS PROVIDED FOR BY THE SAID ARTICLE .

4HOWEVER , THE PLAINTIFF IN THE MAIN ACTION WAS REQUIRED TO PAY THE SUM OF LIT 140 771 735 AS MONETARY COMPENSATORY AMOUNTS IN RESPECT OF SUCH IMPORTS , PAYMENT FOR WHICH HAD BEEN AGREED AND MADE IN US DOLLARS BY THE OPENING OF A SERIES OF IRREVOCABLE CREDITS IN FAVOUR OF THE EXPORTER-SUPPLIER .

5THE ZERBONE UNDERTAKING CONSIDERED THAT THIS DEMAND FOR PAYMENT WAS NOT JUSTIFIED ON THE GROUND THAT IT WAS BASED ON THE ITALIAN DECREE-LAW NO 661 OF 15 NOVEMBER 1972 , WHICH ADOPTED THE COMMUNITY RULES IN THE MATTER BUT WHICH INCORPORATED NEW PROVISIONS , AND THAT THERE SHOULD BE NO IMPOSITION OF MONETARY COMPENSATORY AMOUNTS ON IMPORTS MADE INTO ITALY FROM THIRD COUNTRIES IN VIEW OF THE DEVALUATION OF THE ITALIAN LIRA IN RELATION TO OTHER COMMUNITY CURRENCIES .

6THE ITALIAN FINANCE ADMINISTRATION , THE DEFENDANT IN THE MAIN ACTION , MAINTAINS THAT THE NATIONAL LAW IS A NECESSARY IMPLEMENTATION MEASURE FOR APPLYING ARTICLE 4 ( 2 ) OF REGULATION NO 1013/71 AND IS ACCORDINGLY COMPATIBLE WITH IT .

7THE QUESTIONS RAISED ARE AS FOLLOWS :

A - WITH REFERENCE TO THE PROVISIONS OF ARTICLE 4 ( 1 ) AND ( 2 ) OF REGULATION ( EEC ) NO 1013/71 OF THE COMMISSION OF 17 MAY 1971 , AS AMENDED BY ARTICLE 4 OF REGULATION ( EEC ) NO 2887/71 OF THE COMMISSION OF 30 DECEMBER 1971 .

ON THE ASSUMPTION THAT THE SAID PARAGRAPH ( 2 ) OF ARTICLE 4 OF REGULATION ( EEC ) NO 1013/71 IS STILL IN FORCE AND THAT IT MUST BE INTERPRETED IN THE LIGHT OF THE FIFTH RECITAL TO THE SAID REGULATION , THE FOLLOWING QUESTIONS ARE SUBMITTED :

( 1 ) DO REGULATIONS ( EEC ) NOS 974/71 AND 1013/71 , THE SECOND OF WHICH WAS IN PART AMENDED BY REGULATION ( EEC ) NO 2887/71 , PERMIT THE MEMBER STATES , AND IN PARTICULAR THE ITALIAN STATE , TO PROMULGATE RULES HAVING THE FORCE OF LAW LAYING DOWN SPECIFIC CRITERIA CONCERNING THE APPLICABILITY OR OTHERWISE OF COMPENSATORY AMOUNTS TO CONTRACTS CONCLUDED BEFORE 19 DECEMBER 1971 IN ORDER , AS PROVIDED FOR UNDER ARTICLE 4 ( 2 ) OF REGULATION ( EEC ) NO 1013/71 , TO ' ALLOW THE CONTRACT TO BE EXECUTED UNDER THE CONDITIONS WHICH WOULD HAVE EXISTED HAD THE MONETARY MEASURES REFERRED TO IN ARTICLE 1 OF REGULATION ( EEC ) NO 974/71 NOT BEEN TAKEN ' ?

( 2 ) IF QUESTION 1 IS ANSWERED IN THE AFFIMATIVE , DOES ARTICLE 20 OF DECREE LAW NO 661 OF 15 NOVEMBER 1972 , ENACTED AS LAW NO 843 OF 18 DECEMBER 1972 , WHICH PROVIDES THAT COMPENSATORY AMOUNTS SHALL NOT BE DUE ON GOODS WHICH ARE THE SUBJECT OF COMMERCIAL TRANSACTIONS CONCLUDED BEFORE 19 DECEMBER 1971 , EVEN THOUGH CLEARED FOR FINAL IMPORTATION AFTER 2 JANUARY 1972 , PROVIDED THAT PAYMENT IS MADE IN CURRENCY OTHER THAN US DOLLARS OR ALTERNATIVELY IN US DOLLARS COVERED BY EXCHANGE GUARANTEE OR OTHER CLAUSES HAVING THE SAME EFFECT , ANSWER THE PURPOSE , IN THE MAJORITY OF CASES , OF PURSUING THE SAID OBJECTIVE IN ARTICLE 4 ( 2 ) OF REGULATION ( EEC ) NO 1013/71 ; AND , ACCORDINGLY , IS IT OR IS IT NOT COMPATIBLE WITH THE COMMUNITY PROVISION?

( 3 ) IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE , IS THE RULE IN ARTICLE 4 ( 2 ) OF REGULATION ( EEC ) NO 1013/71 COMPLETELY EFFECTIVE IN ITSELF AND IS IT THEREFORE TO BE INTERPRETED AS HAVING INTENDED TO LEAVE IT TO THE COURTS OF THE MEMBER STATE CONCERNED TO DECIDE WHEN THE CONTRACT WAS EXECUTED UNDER THE CONDITIONS WHICH WOULD HAVE EXISTED IN THE ABSENCE OF THE MONETARY MEASURES REFERRED TO IN ARTICLE 1 OF REGULATION ( EEC ) NO 974/71? IN ANY CASE :

( 4 ) IS THE REFERENCE TO ALLOWING ' THE CONTRACT TO BE EXECUTED ' IN THE SAID COMMUNITY PROVISION TO BE TAKEN AS MEANING AND SUFFICIENT TO REFER TO THE FULFILMENT BY THE IMPORTER OF THE OBLIGATION TO PAY THE PRICE IN ACCORDANCE WITH THE CONDITIONS STIPULATED IN THE CONTRACT?

( 5 ) IN THE CASE OF PAYMENT MADE BY THE OPENING OF AN IRREVOCABLE CREDIT IN FAVOUR OF THE EXPORTER MUST THE CONTRACT BE REGARDED AS HAVING BEEN EXECUTED ON THE DATE OF COMMUNICATION TO THE PAYEE OF THE NOTICE OF OPENING OF THE IRREVOCABLE CREDIT IN HIS FAVOUR OR , ON THE OTHER HAND , ON THE DATE WHEN THE PRICE IS ACTUALLY PAID TO THE EXPORTER?

B - WITH REFERENCE TO ARTICLES 2 , 3 AND 4 OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL OF 12 MAY 1971

UNDER THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS ADOPTED BY REGULATION ( EEC ) NO 974/71 , THE IMPORTATION OF THE PRODUCTS REFERRED TO IN ARTICLE 2 OF THAT REGULATION COULD BE SUBJECT TO MONETARY COMPENSATION , PROVIDED THAT FLUCTUATION ( BEYOND THE LIMITS LAID DOWN ) OF THE EXCHANGE RATE OF THE CURRENCY OF THE IMPORTING STATE WAS RECOGNIZED AS A REVALUATION OF THAT CURRENCY IN RELATION TO THE OFFICIAL PARITY AGAINST UNITED STATES DOLLARS .

AS THE RESULT OF THE MONETARY POLICY DECISIONS ADOPTED ON 18 DECEMBER 1971 AND OF THE ADOPTION OF THE ' CENTRAL EXCHANGE RATES ' BY SOME MEMBER STATES , THE CURRENCIES OF ALL THE MEMBER STATES WERE REVALUED IN TERMS OF THE US DOLLAR ; AND SINCE , ON THE OTHER HAND ( ACCORDING TO THE PLAINTIFF ), IN THE FIRST WEEKS WHEN THESE PROVISIONS WERE APPLIED , THE ITALIAN CURRENCY DEPRECIATED IN VALUE . THE FOLLOWING QUESTIONS ACCORDINGLY ARISE :

( 1 ) ON THE ASSUMPTION THAT THE SITUATION DESCRIBED BY THE PLAINTIFF IS PROVED TO HAVE EXISTED IN FACT , WAS THE AMMINISTRAZIONE DELLE FINANZE ITALIANE LEGALLY ENTITLED TO LEVY THE COMPENSATORY AMOUNTS WHILE THAT SITUATION LASTED?

( 2)BEARING IN MIND THAT THE COMPENSATORY AMOUNTS MAY VARY FROM TIME TO TIME , IN ACCORDANCE WITH VARIATIONS IN EXCHANGE RATES , WHAT IS THE DATE TO BE USED AS A REFERENCE POINT IN THE CASE OF INDIVIDUAL COMMERCIAL TRANSACTIONS IN DETERMINING WHETHER OR NOT THE CONDITIONS REQUIRED BY COMMUNITY LEGISLATION EXIST FOR THE APPLICATION OF COMPENSATORY AMOUNTS ( ARTICLE 4 OF REGULATION ( EEC ) NO 974/71 ), FOR THE FIXING OF THE AMOUNT THEREOF ( ARTICLE 2 ) AND FOR ANY ALTERATION IN THEM ( ARTICLE 3 ); IN PARTICULAR , MUST REFERENCE BE MADE TO THE DATE OF IMPORTATION OR EXPORTATION OF THE GOODS , OR THE DATE ON WHICH THE PRICE IS PAID OR TO ANY OTHER MOMENT IN TIME?

8IT IS NECESSARY TO CONSIDER IN THE FIRST PLACE THE QUESTIONS RELATING TO THE VALIDITY OF THE IMPOSITION OF MONETARY COMPENSATORY AMOUNTS ON IMPORTS INTO ITALY AT THE DATE IN QUESTION .

9THE EXCHANGE PARITY OF THE ITALIAN LIRA WAS ESTABLISHED WITH THE INTERNATIONAL MONETARY FUND AT THE RATE OF LIT 625 TO THE UNITED STATES DOLLAR WITH THE POSSIBILITY OF A FLUCTUATION OF 1% ON EITHER SIDE ON THIS RATE .

10FOLLOWING THE DECISIONS TAKEN AT WASHINGTON ON 18 DECEMBER 1971 ITALY INFORMED THE INTERNATIONAL MONETARY FUND OF A NEW EXCHANGE RATE ( CALLED THE ' CENTRAL RATE ' ) FOR ITS CURRENCY , NAMELY THE RATE OF LIT 581.50 PER DOLLAR WITH A MARGIN OF FLUCTUATION OF 2.25% ON EITHER SIDE .

11SINCE ITALY HAD ACCEPTED A RATE OF EXCHANGE FOR ITS CURRENCY HIGHER THAN THE FLUCTUATION LIMIT AUTHORIZED BY THE INTERNATIONAL RULES , THAT IS TO SAY THE BRETTON WOODS AGREEMENT OF 27 DECEMBER 1945 , IT FOLLOWS THAT THE CONDITION FOR THE APPLICATION OF THE SYSTEM OF MONETARY COMPENSATORY AMOUNTS IN ITALY EXISTED IN SPITE OF THE FACT THAT IN RELATION TO CERTAIN OTHER CURRENCIES THE ITALIAN LIRA WAS DEVALUED .

12ACCORDINGLY THE COMMISSION WAS EMPOWERED TO ADOPT IN REGULATION NO 2887/71 THE DETAILED RULES FOR APPLYING REGULATION NO 974/71 TO ITALY AND TO DETERMINE THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO ITALY IN REGULATION NO 17/72 OF 31 DECEMBER 1971 ( JOURNAL OFFICIEL L 5 , P . 1 ) AND THE SUBSEQUENT RULES .

13QUESTION B ( 1 ) SHOULD BE ANSWERED TO THAT EFFECT .

14THE SECOND QUESTION UNDER B ASKS WHAT IS THE DATE TO BE USED AS A REFERENCE POINT IN THE CASE OF INDIVIDUAL COMMERCIAL TRANSACTIONS ( IMPORT OR EXPORT ) IN DETERMINING WHETHER OR NOT THE CONDITIONS EXIST FOR THE APPLICATION OF COMPENSATORY AMOUNTS AND FOR FIXING THE AMOUNT THEREOF .

15ARTICLE 1 OF REGULATION NO 974/71 IN AUTHORIZING MEMBER STATES TO CHARGE OR GRANT MONETARY COMPENSATORY AMOUNTS FOR CERTAIN PRODUCTS DOES NOT EXPRESSLY STIPULATE THE DATE TO WHICH REFERENCE MUST BE MADE FOR THE TRANSACTIONS REFERRED TO .

16THE OBJECTIVE OF THE SYSTEM IS TO RE-ESTABLISH AT THE FRONTIER THE COMMON PRICE WHICH WAS THE BASIS OF THE COMMON AGRICULTURAL POLICY BEFORE IT WAS DISTURBED BY THE CURRENCY FLUCTUATIONS WHICH HAVE SUCCEEDED ONE ANOTHER SINCE 1969 .

17IF THE BURDEN OR ADVANTAGE REPRESENTED BY THE COMPENSATORY AMOUNTS FOR THE PERSON PAYING OR RECEIVING THEM WERE DISPLACED IN TIME THERE WOULD BE ADDED TO ALL THE INCONVENIENCES ALREADY EXISTING AND RESULTING FROM THE ABSENCE OF FIXED PARITIES A NEW INCONVENIENCE ARISING FROM THE FACT THAT DURING THE PERIOD ELAPSING BETWEEN THE DATE OF IMPORT OR EXPORT AND THAT OF PAYMENT THE TRADER WOULD UNFAIRLY HAVE TO FACE AN UNCOVERED BALANCE WITH LOSS OF VALUE OR WOULD PROFIT QUITE AS UNFAIRLY FROM A DELAY IN PAYMENT WITH A CONSEQUENT ADVANTAGE OVER HIS COMPETITORS .

18THE PRACTICE FOLLOWED IN ALL MEMBER STATES OF TAKING THE DAY OF IMPORTATION OR EXPORTATION AS THE REFERENCE DATE MUST BE REGARDED AS LAWFUL .

19THE FIRST THREE QUESTIONS UNDER A ASK WHETHER MEMBER STATES ARE AUTHORIZED TO ADOPT PROVISIONS HAVING THE FORCE OF LAW TO DETERMINE THE SPECIFIC CRITERIA FOR THE APPLICABILITY OR OTHERWISE OF MONETARY COMPENSATORY AMOUNTS TO ' EXISTING CONTRACTS ' .

20ARTICLE 4 OF REGULATION NO 1013/71 OF THE COMMISSION OF 17 MAY 1971 AS AMENDED BY ARTICLE 4 OF REGULATION NO 2887/71 OF 30 DECEMBER 1971 PROVIDES :

' ( 1 ) THE MEMBER STATES REFERRED TO IN ARTICLE 1 OF REGULATION ( EEC ) NO 974/71 SHALL NOT APPLY THE COMPENSATORY AMOUNTS REFERRED TO IN THAT ARTICLE TO IMPORTS EFFECTED UNDER CONTRACTS :

( A ) CONCLUDED BEFORE :

. . .

19 DECEMBER 1971 , FOR FRANCE AND ITALY ; AND

( B ) REGISTERED BEFORE :

. . .

28 DECEMBER 1971 , FOR FRANCE AND ITALY ,

WITH THE AUTHORITIES OF THE RELEVANT MEMBER STATE OR WHICH CAN BE PROVED BY OFFICIAL DOCUMENTS TO HAVE BEEN CONCLUDED .

( 2 ) HOWEVER , PARAGRAPH ( 1 ) SHALL APPLY ONLY TO THE EXTENT NECESSARY TO ALLOW THE CONTRACT TO BE EXECUTED UNDER THE CONDITIONS WHICH WOULD HAVE EXISTED HAD THE MONETARY MEASURES REFERRED TO IN ARTICLE 1 OF REGULATION ( EEC ) NO 974/71 NOT BEEN TAKEN . '

21TO IMPLEMENT THESE PROVISIONS THE ITALIAN LEGISLATURE ADOPTED ARTICLE 20 OF DECREE-LAW NO 661 OF 15 NOVEMBER 1972 ( SUBSEQUENTLY LAW NO 843 OF 18 DECEMBER 1972 ) WHICH PROVIDED THAT ' MONETARY COMPENSATORY AMOUNTS SHALL NOT BE PAYABLE IN RESPECT OF GOODS WHICH ARE THE SUBJECT OF COMMERCIAL TRANSACTIONS CONCLUDED PRIOR TO 19 DECEMBER 1971 EVEN IF THEY ARE CLEARED FOR FINAL IMPORTATION AFTER 2 JANUARY 1972 , PROVIDED THAT PAYMENT IS MADE IN CURRENCY OTHER THAN US DOLLARS OR ALTERNATIVELY IN US DOLLARS COVERED BY EXCHANGE GUARANTEE OR OTHER CLAUSES HAVING THE SAME EFFECT ' .

22A COMMUNITY REGULATION IS BINDING IN ITS ENTIRETY AND DIRECTLY APPLICABLE IN ALL MEMBER STATES .

23AS THE COURT HAS ALREADY STATED IN OTHER CONTEXTS AND IN PARTICULAR IN CASE 34/73 VARIOLA ( 1973 ) ECR 981 , THE DIRECT APPLICATION OF A COMMUNITY REGULATION MEANS THAT ITS ENTRY INTO FORCE AND ITS APPLICATION IN FAVOUR OF OR AGAINST THOSE SUBJECT TO IT ARE INDEPENDENT OF ANY MEASURE ADOPTING IT INTO NATIONAL LAW .

24BY REASON OF THE OBLIGATIONS IMPOSED ON THEM BY THE TREATY MEMBER STATES MUST NOT IMPEDE THE DIRECT EFFECT OF REGULATIONS OR OTHER RULES OF COMMUNITY LAW .

25THE SCRUPULOUS OBSERVATION OF THIS DUTY IS AN INDISPENSABLE REQUISITE FOR THE SIMULTANEOUS AND UNIFORM APPLICATION OF COMMUNITY REGULATIONS THROUGHOUT THE WHOLE OF THE COMMUNITY .

26ACCORDINGLY MEMBER STATES MUST NOT ADOPT OR ALLOW NATIONAL INSTITUTIONS WITH A LEGISLATIVE POWER TO ADOPT A MEASURE BY WHICH THE COMMUNITY NATURE OF A LEGAL RULE AND THE CONSEQUENCES WHICH ARISE FROM IT ARE CONCEALED FROM THE PERSONS CONCERNED .

27ALTHOUGH IT IS TRUE THAT IN THE EVENT OF DIFFICULTY OF INTERPRETATION THE NATIONAL ADMINISTRATION MAY BE LED TO ADOPT DETAILED RULES FOR THE APPLICATION OF A COMMUNITY REGULATION AND AT THE SAME TIME TO CLARIFY ANY DOUBTS RAISED , IT CAN DO SO ONLY IN SO FAR AS IT COMPLIES WITH THE PROVISIONS OF COMMUNITY LAW AND THE NATIONAL AUTHORITIES CANNOT ISSUE BINDING RULES OF INTERPRETATION .

28ARTICLE 4 ( 2 ) OF REGULATION NO 1013/71 , UNDERSTOOD IN THE LIGHT OF THE FIFTH RECITAL IN THE PREAMBLE TO THE REGULATION , MAY BE INTERPRETED AND APPLIED BY A COURT WITHOUT IT BEING NECESSARY TO ADOPT NATIONAL LEGISLATIVE PROVISIONS FOR ITS INTERPRETATION .

29ACCORDINGLY THE PROVISIONS OF THAT ARTICLE HAVE A DIRECT EFFECT IN EVERY MEMBER STATE AND THE COURTS OF EACH MEMBER STATE HAVE THE TASK , SUBJECT TO THE POSSIBILITY OF A REFERENCE UNDER ARTICLE 177 OF THE EEC TREATY , OF DECIDING AS TO THEIR APPLICATION IN ALL CASES OF DISPUTE ARISING IN THAT STATE .

30IT FOLLOWS THAT THE ANSWER TO THE FIRST QUESTION UNDER A MUST BE IN THE NEGATIVE , THE SECOND QUESTION DOES NOT CALL FOR AN ANSWER AND THE ANSWER TO THE THIRD QUESTION MUST BE IN THE AFFIRMATIVE .

31AS REGARDS THE FOURTH AND FIFTH QUESTIONS , THE RELEVANT PROVISION MUST BE INTERPRETED IN THE LIGHT OF ITS OBJECTIVE .

32THE QUESTION IS WHETHER THE CONTRACT WAS EXECUTED UNDER THE CONDITIONS WHICH WOULD HAVE EXISTED IN THE ABSENCE OF THE MONETARY MEASURES WHICH LED TO THE INTRODUCTION OF THE MONETARY COMPENSATORY AMOUNTS .

33WHERE THE CONTRACT PROVIDES FOR PAYMENT BY THE OPENING OF AN IRREVOCABLE DOCUMENTARY CREDIT THE ANSWER MUST DEPEND ON THE NATURE OF THE ARRANGEMENTS AGREED BETWEEN THE IMPORTER AND THE ISSUING BANK AND THESE MAY IN TURN DEPEND ON THE PROVISIONS OF THE LOCAL LAW APPLICABLE TO THEM .

34WHERE THE CREDIT IS TO BE OPENED FOR A SUM IN FOREIGN CURRENCY ( AS , IN THIS CASE , DOLLARS ), THE CRUCIAL DATE WILL BE THAT UPON WHICH THE RATE OF EXCHANGE DETERMINING THE AMOUNT OF THE IMPORTER ' S LIABILITY TO THE ISSUING BANK WAS APPLICABLE .

Decision on costs

COSTS

35THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AND 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 ,

IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE TRIBUNALE DI GENOVA BY ORDER OF 26 JULY 1977 , HEREBY RULES :

( 1 ) REGULATIONS NOS 974/71 AND 1013/71 , AS AMENDED BY REGULATION NO 2887/71 , DO NOT PERMIT MEMBER STATES TO ADOPT PROVISIONS LAYING DOWN SPECIFIC CRITERIA CONCERNING THE APPLICABILITY OR OTHERWISE OF COMPENSATORY AMOUNTS TO CONTRACTS CONCLUDED BEFORE 19 DECEMBER 1971 IN ORDER TO ' ALLOW THE CONTRACT TO BE EXECUTED UNDER THE CONDITIONS WHICH WOULD HAVE EXISTED HAD THE MONETARY MEASURES REFERRED TO IN ARTICLE 1 OF REGULATION ( EEC ) NO 974/71 NOT BEEN TAKEN ' , AS PROVIDED FOR UNDER ARTICLE 4 ( 2 ) OF REGULATION NO 1013/71 .

( 2 ) THE PROVISIONS OF ARTICLE 4 ( 2 ) OF REGULATION NO 1013/71 ARE FULLY EFFECTIVE IN THEMSELVES AND MUST THEREFORE BE INTERPRETED AS LEAVING IT TO THE COURTS OF THE MEMBER STATE CONCERNED TO DECIDE WHETHER THE CONTRACT WAS EXECUTED UNDER THE CONDITIONS WHICH WOULD HAVE EXISTED IN THE ABSENCE OF THE MONETARY MEASURES REFERRED TO IN ARTICLE 1 OF REGULATION NO 974/71 .

( 3 ) AS REGARDS THE APPLICATION OF ARTICLE 4 ( 2 ) OF REGULATION NO 1013/71 THE QUESTION IS WHETHER THE CONTRACT WAS EXECUTED UNDER THE CONDITIONS WHICH WOULD HAVE EXISTED IN THE ABSENCE OF THE MONETARY MEASURES WHICH LED TO THE INTRODUCTION OF THE MONETARY COMPENSATORY AMOUNTS . WHERE THE CONTRACT PROVIDES FOR PAYMENT BY THE OPENING OF AN IRREVOCABLE DOCUMENTARY CREDIT THE ANSWER MUST DEPEND ON THE NATURE OF THE ARRANGEMENTS AGREED BETWEEN THE IMPORTER AND THE ISSUING BANK AND THESE MAY IN TURN DEPEND ON THE PROVISIONS OF THE LOCAL LAW APPLICABLE TO THEM . WHERE THE CREDIT IS TO BE OPENED FOR A SUM IN FOREIGN CURRENCY ( AS , IN THIS CASE , DOLLARS ), THE CRUCIAL DATE WILL BE THAT UPON WHICH THE RATE OF EXCHANGE DETERMINING THE AMOUNT OF THE IMPORTER ' S LIABILITY TO THE ISSUING BANK WAS APPLICABLE .

( 4 ) THE COMMISSION WAS EMPOWERED TO ADOPT IN REGULATION NO 2887/71 THE DETAILED RULES FOR APPLYING REGULATION NO 974/71 TO ITALY AND TO DETERMINE THE MONETARY COMPENSATORY AMOUNTS APPLICABLE TO ITALY IN REGULATION NO 17/72 AND THE SUBSEQUENT RULES .

( 5 ) FOR THE PURPOSE OF DETERMINING WHETHER THE CONDITIONS FOR APPLYING AND DETERMINING MONETARY COMPENSATORY AMOUNTS ARE FULFILLED REFERENCE MUST BE MADE IN RESPECT OF EACH COMMERCIAL TRANSACTION ( IMPORTATION OR EXPORTATION ) TO THE DAY OF THE IMPORTATION OR EXPORTATION .