Judgment of the Court of 18 November 1970. - Commission of the European Communities v Italian Republic. - Case 8-70.



European Court reports 1970 Page 00961

Danish special edition Page 00187

Greek special edition Page 00525

Portuguese special edition Page 00565



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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MEMBER STATES - OBLIGATIONS - FAILURE TO FULFIL - LIABILITY - EXTENT CONSTITUTIONALLY INDEPENDENT INSTITUTIONS

( EEC TREATY, ARTICLE 169 )

Summary

THE LIABILITY OF A MEMBER STATE UNDER ARTICLE 169 ARISES WHATEVER THE AGENCY OF THE STATE WHOSE ACTION OR INACTION IS THE CAUSE OF THE FAILURE TO FULFIL ITS OBLIGATIONS, EVEN IN THE CASE OF A CONSTITUTIONALLY INDEPENDENT INSTITUTION .

Parties

IN CASE 8/70

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY CESARE MAESTRIPIERI, LEGAL ADVISER TO THE COMMISSION, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF EMILE REUTER, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, APPLICANT,

V

ITALIAN REPUBLIC, REPRESENTED BY ADOLFO MARESCA, MINISTER PLENIPOTENTIARY, ACTING AS AGENT, ASSISTED BY PIETRO PERONACI, DEPUTY STATE ADVOCATE-GENERAL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY, DEFENDANT,

Subject of the case

APPLICATION FOR A DECLARATION THAT, BY IMPOSING AN 0.50 PER CENT DUTY FOR ADMINISTRATIVE SERVICES ON GOODS IMPORTED FROM OTHER MEMBER STATES, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 7 MARCH 1970 THE COMMISSION HAS BROUGHT BEFORE THE COURT UNDER ARTICLE 169 OF THE EEC TREATY AN ACTION FOR A DECLARATION THAT, BY LEVYING ON IMPORTED GOODS THE DUTY OF 0.50 PER CENT LAID DOWN BY ITALIAN LAW NO 330 OF 15 JUNE 1950, FOR ADMINISTRATIVE SERVICES, THE ITALIAN REPUBLIC HAS FAILED AS REGARDS GOODS WHICH COME WITHIN CERTAIN COMMON ORGANIZATIONS OF AGRICULTURAL MARKETS TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 189 OF THE TREATY IN CONJUNCTION WITH VARIOUS REGULATIONS RELATING TO THE COMMON ORGANIZATION OF MARKETS AND, AS REGARDS OTHER GOODS, HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE PROVISIONS OF ARTICLE 189 OF THE TREATY IN CONJUNCTION WITH DIRECTIVE NO 68/31/EEC OF 22 DECEMBER 1967 ( OJ L 12 OF 16 . 1 . 1968, P . 8 ).

2 THE CHARGE IN QUESTION IMPOSES AN AD VALOREM DUTY OF 0.50 PER CENT ON IMPORTED GOODS ONLY . THE ITALIAN GOVERNMENT CLAIMED DURING THE PRELIMINARY PROCEEDINGS THAT THIS DUTY REPRESENTED CONSIDERATION FOR SERVICES RENDERED BY THE CUSTOMS ADMINISTRATION AND COULD NOT BE CONSIDERED AS A CHARGE HAVING EFFECT EQUIVALENT TO A CUSTOMS DUTY BUT FOLLOWING THIS IT ANNOUNCED IN A NOTE DATED 23 APRIL 1968 ITS INTENTION OF PUTTING BEFORE PARLIAMENT THE NECESSARY LEGISLATION FOR THE PURPOSE OF ABOLISHING THE CHARGE IN QUESTION . HOWEVER THE TAXATION IN QUESTION HAS CONTINUED TO BE LEVIED .

3 THERE IS NO DISPUTE THAT THE CHARGE IN QUESTION IS IMPOSED ON IMPORTED GOODS OWING TO THE FACT THAT THEY CROSS THE FRONTIER . IT IS NOT ALLEGED THAT IT IS A CHARGE TO COMPENSATE FOR INTERNAL TAXATION, NOR IS IT MAINTAINED THAT IT IS A CONSIDERATION FOR SERVICES ACTUALLY RENDERED . ON THE CONTRARY, IT MUST BE REGARDED AS A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY AND IT THEREFORE COMES WITHIN THE PROHIBITION IN ARTICLE 9 OF THE TREATY .

4 UNDER ARTICLE 13 ( 2 ) OF THE TREATY THIS CHARGE SHOULD HAVE BEEN ABOLISHED DURING THE TRANSITIONAL PERIOD ACCORDING TO THE TIMETABLE INDICATED IN DIRECTIVE NO 68/31/EEC OF 22 DECEMBER 1967 IN SO FAR AS IT IS IMPOSED ON PRODUCTS OTHER THAN THOSE TO WHICH THE REGULATIONS RELATING TO ORGANIZATIONS OF THE AGRICULTURAL MARKET APPLY . ACCORDING TO THIS DIRECTIVE, THE CHARGE IN QUESTION SHOULD HAVE BEEN ABOLISHED BY MEANS OF SUCCESSIVE REDUCTIONS SO AS TO HAVE BEEN ENTIRELY ELIMINATED BY 1 JULY 1968 .

5 THE CHARGE IN QUESTION THEREFORE INFRINGES ARTICLE 13 ( 2 ) OF THE TREATY IN CONJUNCTION WITH DIRECTIVE NO 68/31/EEC OF 22 DECEMBER 1967 IN SO FAR AS IT IS IMPOSED ON PRODUCTS OTHER THAN AGRICULTURAL PRODUCTS WHICH COME WITHIN A MARKET ORGANIZATION .

6 THE DUTY IN QUESTION, IN SO FAR AS IT IS IMPOSED ON AGRICULTURAL PRODUCTS WHICH COME WITHIN REGULATIONS RELATING TO A COMMON ORGANIZATION OF THE MARKET, INFRINGES THE PROVISIONS OF THESE REGULATIONS WHICH PROHIBIT AS FROM THE RESPECTIVE DATES ON WHICH THEY ENTER INTO FORCE THE LEVYING ON THE PRODUCTS TO WHICH THEY APPLY OF ANY CUSTOMS DUTY OR CHARGE HAVING AN EQUIVALENT EFFECT .

7 UNDER ARTICLE 189 OF THE TREATY, THESE REGULATIONS ARE BINDING IN THEIR ENTIRETY AND DIRECTLY APPLICABLE IN ALL MEMBER STATES . THE RETENTION OF THE TAXATION IN QUESTION IS INCOMPATIBLE WITH THESE REGULATIONS .

8 THE DEFENDANT DOES NOT DISPUTE THAT THE CONTESTED CHARGE IS CONTRARY TO THE PROVISIONS OF COMMUNITY LAW BUT RELIES ON THE FACT THAT IT IS WILLING TO ADOPT THE NECESSARY MEASURES TO ABOLISH IT . TO THIS END THE ITALIAN GOVERNMENT INTRODUCED A BILL WHICH THE SENATE APPROVED ON 29 APRIL 1970 AND WHICH IS AT PRESENT BEFORE THE CHAMBER OF DEPUTIES . ACCORDING TO THE DEFENDANT THE DELAY IN EXAMINING THIS BILL IS DUE TO FORCE MAJEURE WHICH PREVENTED PARLIAMENT FROM COMING TO A DECISION IN GOOD TIME IN SPITE OF THE EFFORTS MADE BY THE ITALIAN GOVERNMENT .

9 THE OBLIGATIONS ARISING FROM THE TREATY DEVOLVE UPON STATES AS SUCH AND THE LIABILITY OF A MEMBER STATE UNDER ARTICLE 169 ARISES WHATEVER THE AGENCY OF THE STATE WHOSE ACTION OR INACTION IS THE CAUSE OF THE FAILURE TO FULFIL ITS OBLIGATIONS, EVEN IN THE CASE OF A CONSTITUTIONALLY INDEPENDENT INSTITUTION .

10 IN ANY CASE A MEMBER STATE CANNOT JUSTIFY ITSELF BY RELYING UPON OBSTACLES WHICH NOT ONLY DID NOT EMERGE UNTIL LONG AFTER THE COMING INTO EXISTENCE OF THE OBLIGATIONS WHICH IT IS ALLEGED TO HAVE FAILED TO FULFIL, BUT ONLY DID SO AFTER THE PERIOD LAID DOWN IN THE REASONED OPINION HAD EXPIRED .

11 THE FAILURE CONSISTS ESSENTIALLY IN THE ACTUAL LEVYING OF THE CHARGE IN QUESTION .

12 IN THESE CIRCUMSTANCES, THE ITALIAN REPUBLIC, BY CONTINUING TO LEVY AN 0.50 PER CENT DUTY FOR ADMINISTRATIVE SERVICES ON IMPORTED PRODUCTS TO WHICH THE REGULATIONS ON THE ORGANIZATION OF AGRICULTURAL MARKETS APPLY AFTER THE DATES ON WHICH THOSE REGULATIONS ENTERED INTO FORCE AND ON OTHER GOODS IMPORTED FROM A MEMBER STATE AFTER 1 JULY 1968, HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY .

Decision on costs

13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS .

Operative part

THE COURT

HEREBY :

1 . DECLARES THAT, BY LEVYING AN 0.50 PER CENT CHARGE FOR ADMINISTRATIVE SERVICES ON IMPORTS FROM OTHER MEMBER STATES OF GOODS WHICH COME WITHIN REGULATIONS OF THE COUNCIL ON CERTAIN COMMON ORGANIZATIONS OF THE AGRICULTURAL MARKET AND ON CERTAIN GOODS RESULTING FROM THE PROCESSING OF AGRICULTURAL PRODUCTS IMPORTED FROM OTHER MEMBER STATES, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE PROVISIONS OF ARTICLE 189 OF THE EEC TREATY IN CONJUNCTION WITH THE SAID REGULATIONS;

2 . DECLARES THAT, BY IMPOSING AN 0.50 PER CENT CHARGE FOR ADMINISTRATIVE SERVICES ON GOODS, OTHER THAN THOSE TO WHICH THE ABOVEMENTIONED REGULATIONS APPLY, IMPORTED FROM OTHER MEMBER STATES, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE PROVISIONS OF ARTICLE 13 OF THE EEC TREATY IN CONJUNCTION WITH THOSE OF DIRECTIVE NO 68/31/EEC OF 22 DECEMBER 1967;

3 . ORDERS THE DEFENDANT TO PAY THE COSTS .