Judgment of the Court of 18 November 1975. - SpA Unil-It. v Amministrazione Finanziaria dello Stato. - Reference for a preliminary ruling: Corte suprema di Cassazione - Italy. - Case 30-75.



European Court reports 1975 Page 01419

Greek special edition Page 00431

Portuguese special edition Page 00475



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - IMPORTS - INTRA-COMMUNITY LEVY - CONDITIONS - FULFILMENT - EVIDENCE - CERTIFICATE DD 4 - NATIONAL IMPLEMENTING MEASURES - LACK - OTHER MEANS OF PROOF - ACCEPTABILITY

( DECISION OF THE COMMISSION OF 17 JULY 1962 )

Summary

THE REQUIREMENT THAT THE SUBMISSION OF CERTIFICATE DD 4 IS ALONE ACCEPTABLE AS EVIDENCE OF FULFILMENT OF THE CONDITIONS WHICH ENTITLE A TRADER TO PAY ONLY THE INTRA-COMMUNITY LEVY CANNOT BE APPLIED AGAINST A TRADER WHO SATISFIES THE FORMAL REQUIREMENTS WHICH ARE STILL IN FORCE IN THE IMPORTING STATE WHEN THE GOODS CROSS THE FRONTIER .

A MEMBER STATE WHICH HAS NOT ADOPTED SUBSTANTIVE MEASURES TO IMPLEMENT THE DECISION INTRODUCING THE DUTY TO SUBMIT CERTIFICATE DD 4 CANNOT CLAIM THAT TRADERS HAVE FAILED TO FULFIL THE DUTIES INVOLVED IN THAT DECISION BUT MUST PROVISIONALLY ACCEPT SUCH OTHER MEANS OF PROOF AS ARE APPROPRIATE TO THE FULFILMENT OF THE FORMAL REQUIREMENTS IN FORCE .

Parties

IN CASE 30/75

REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE CORTE SUPREMA DI CASSAZIONE FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

SPA UNIL-IT ., OF MILAN

AND

AMMINISTRAZIONE FINANZARIA DELLO STATO ( STATE FINANCE DEPARTMENT ),

Subject of the case

ON THE INTERPRETATION OF THE COMMISSION DECISION OF 17 JULY 1962 ( OJ NO 76 OF 24 . 8 . 1962, P . 2140 ) AND OF CERTAIN PROVISIONS OF REGULATION NO 13/64/EEC OF THE COUNCIL OF 5 FEBRUARY 1964 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( OJ NO 34 OF 27 . 2 . 1964, P . 549 ),

Grounds

1 BY JUDGMENT OF 22 NOVEMBER 1974, RECEIVED AT THE COURT REGISTRY ON 18 MARCH 1975, THE CORTE SUPRIMA DI CASSAZIONE OF ITALY REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF THE DECISION OF THE COMMISSION OF 17 JULY 1962 ( OJ NO 76 OF 24 . 8 . 1962, P . 2140 ) AND OF CERTAIN PROVISIONS OF REGULATION NO 13/64 OF THE COUNCIL OF 5 FEBRUARY 1964 ( OJ NO 34 OF 27 . 2 . 1964, P . 549 ) AS AMENDED BY REGULATION NO 82/64 OF THE COUNCIL OF 30 JUNE 1964 ( OJ NO 105 OF 1 . 7 . 1964, P . 1626 ).

2 THE DECISION IN QUESTION SETS UP SPECIAL METHODS OF ADMINISTRATIVE COOPERATION FOR APPLYING THE INTRA-COMMUNITY LEVIES SET UP UNDER THE COMMON AGRICULTURAL POLICY .

IT FOLLOWS A SIMILAR DECISION OF THE COMMISSION OF 5 DECEMBER 1960 ( OJ NO 4 OF 20 . 1 . 1961, P . 29 ) WHICH INTRODUCES, FOR MOST OF THE GOODS INVOLVED IN TRADE BETWEEN THE MEMBER STATES, CERTIFICATES DD 1 OR DD 3 TO BE SUBMITTED, DEPENDING ON THE PARTICULAR CASE, TO THE CUSTOMS AUTHORITIES WHEN THE GOODS CROSS THE FRONTIER .

3 AS REGARDS THOSE GOODS ON WHICH AGRICULTURAL LEVIES MUST BE PAID WHEN THEY CROSS THE FRONTIER, THE DECISION IN QUESTION INTRODUCES, BY WAY OF DEROGATION FROM THE DECISION OF 5 DECEMBER, A SPECIAL CERTIFICATE, DD 4, WHICH MUST BE SUBMITTED WHEN THE GOODS ENTER THE IMPORTING MEMBER STATE, IN ORDER FOR THEM TO OBTAIN THE BENEFIT OF THE SYSTEM OF INTRA-COMMUNITY LEVIES WHICH IS MORE FAVOURABLE THAN THAT APPLYING TO PRODUCTS COMING FROM THIRD COUNTRIES .

CERTIFICATE DD 4 IS DRAWN UP IN SUCH A WAY AS TO ENABLE THE EXISTENCE OF THE CONDITIONS TO WHICH APPLICATION OF THE INTRA-COMMUNITY LEVY SYSTEM IS SUBJECT TO BE VERIFIED, IN PARTICULAR, THE FACT THAT THE AGRICULTURAL PRODUCTS CONCERNED ARE ACTUALLY PRODUCED WITHIN THE COMMUNITY .

4 REGULATION NO 13/64 OF THE COUNCIL ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS, AS AMENDED BY REGULATION NO 82/64 PROVIDES, IN RELATION TO THE PRODUCTS TO WHICH IT REFERS, INCLUDING CHEESE, FOR THE INTRODUCTION OF A DOUBLE SYSTEM OF LEVIES WHICH CAME INTO FORCE ON 1 NOVEMBER 1964 APPLYING FIRST, TO TRADE WITH THIRD COUNTRIES AND, SECONDLY, TO INTRA-COMMUNITY TRADE .

AS FROM THAT DATE, FOR THE PURPOSE OF APPLYING THE SYSTEM OF INTRA-COMMUNITY AGRICULTURAL LEVIES, UNDER ARTICLES 1 AND 4 OF THE DECISION OF 17 JULY 1962 MOVEMENT CERTIFICATE DD 4 HAD TO BE PRODUCED WITHIN A PERIOD OF ONE MONTH FROM THAT DATE OF BEING CERTIFIED BY THE CUSTOMS OFFICE OF THE EXPORTING MEMBER STATE, AT THE CUSTOMS OFFICE OF THE IMPORTING MEMBER STATE WHERE THE GOODS WERE PRESENTED .

5 THE ACTION BEFORE THE CORTE SUPREMA DI CASSAZIONE CONCERNS A COMPANY WHICH IMPORTED INTO ITALY AFTER 1 NOVEMBER 1964 CONSIGNMENTS OF CHEESE FROM THE FEDERAL REPUBLIC OF GERMANY AND THE NETHERLANDS WHICH WERE SENT DURING OCTOBER 1964 AND ACCOMPANIED IN PART BY CERTIFICATES DD 1 ( WHERE THE GOODS WERE TRANSPORTED DIRECTLY ) AND IN PART BY CERTIFICATES DD 3 ( WHERE THE TRANSPORT WAS REGARDED AS INDIRECT ).

6 THE UNIL COMPANY MAINTAINS THAT IT WAS UNABLE TO OBTAIN THE ABOVEMENTIONED CERTIFICATE DD 4 EITHER FROM THE GERMAN AUTHORITIES OR FROM THE NETHERLANDS AUTHORITIES FOR THE CONSIGNMENTS IN QUESTION .

7 ON THE OTHER HAND, WHEN THE IMPORTATION, IN DISPUTE TOOK PLACE, INASMUCH AS IT OCCURRED BEFORE 19 NOVEMBER 1964, NO LEGAL PROVISION OR INTERNAL ADMINISTRATIVE MEASURE HAD AT THAT TIME BEEN ADOPTED IN ITALY EXTENDING THE OBLIGATION TO SUBMIT CERTIFICATE DD 4 TO THE GOODS REFERRED TO BY REGULATION NO 13/64 .

THIS REQUIREMENT WAS LAID DOWN BY A MINISTERIAL CIRCULAR OF 19 DECEMBER 1964 WHILE, AS REGARDS THE PERIOD BETWEEN 1 AND 19 NOVEMBER, A CIRCULAR IN THE FORM OF A TELEGRAM RULED THAT MILK PRODUCTS WOULD BE ADMITTED INTO ITALY UNDER THE SCHEME WHICH TEMPORARILY ADOPTED THE SYSTEM OF SUSPENDED CUSTOMS DUTIES ( DAZIO IN SOSPESO ).

8 MOREOVER, THE DOUBLE SYSTEM OF LEVIES ON MILK PRODUCTS WAS ONLY INTRODUCED BY A DECREE-LAW OF 23 DECEMBER 1964 ( GAZZETTA UFFICIALE OF 23 DECEMBER 1964 ).

9 THE APPELLANT IN THE MAIN ACTION WHICH PRODUCED, DURING THE ORAL PROCEDURE, STATEMENTS TO THIS EFFECT FROM ITS ASSOCIATES IN THE EXPORTING COUNTRIES, MAINTAINS THAT ITS EFFORTS DURING NOVEMBER 1964 TO OBTAIN DD 4 CERTIFICATES HAD MET WITH THE REFUSAL OF THE CUSTOMS AUTHORITIES IN THE COUNTRIES CONCERNED .

10 APPROXIMATELY 18 MONTHS AFTER THE IMPORTATION, THE ITALIAN AUTHORITIES CLAIMED FROM THE APPELLANT IN THE MAIN ACTION THE LEVIES APPLYING TO TRADE WITH THIRD COUNTRIES ON THE GROUND THAT THE IMPORTATION HAD NOT BEEN CARRIED OUT UNDER COVER OF CERTIFICATE DD 4 .

THE FIRST QUESTION

11 IN THE FIRST QUESTION THE COURT IS ASKED WHETHER AS A RESULT OF THE DECISION OF 17 JULY 1962, IN CONJUNCTION WITH REGULATION NO 13/64 OF THE COUNCIL OF 5 FEBRUARY 1964, THE DIRECT APPLICATION IN EACH MEMBER STATE OF THE LEVY SYSTEM ESTABLISHED BY THE SAID REGULATION NO 13/64 HAS, SINCE 1 NOVEMBER 1964 AND REGARDLESS OF INTERNAL RULES PROMULGATED ON THE SUBJECT BY INDIVIDUAL STATES, INVOLVED FOR ENTITLEMENT TO BENEFIT FROM COMMUNITY TREATMENT A DUTY TO USE MOVEMENT CERTIFICATE DD 4 .

12 ARTICLE 12 OF REGULATION NO 13/64 PROHIBITS, WITH EFFECT FROM 1 NOVEMBER 1964, IN TRADE BETWEEN THE MEMBER STATES, THE LEVY OF ANY CUSTOMS DUTY OR CHARGE HAVING EQUIVALENT EFFECT ON THE AGRICULTURAL PRODUCTS REFERRED TO THEREIN .

FOR SUCH INTRA-COMMUNITY TRADE IT PROVIDES, DURING THE TRANSITIONAL PERIOD, FOR A SYSTEM OF LEVIES TO BE FIXED, PURSUANT TO ARTICLE 8, BY THE MEMBER STATES IN ACCORDANCE WITH THE CRITERIA ESTABLISHED BY THIS REGULATION .

13 AS REGARDS INTRA-COMMUNITY TRADE THIS REGULATION GIVES THE TRADERS CONCERNED THE RIGHT TO BE SUBJECT TO A LOWER LEVY THAN THAT IMPOSED ON IMPORTS OF THE SAME PRODUCTS FROM THIRD COUNTRIES .

14 THE DECISION OF 17 JULY 1962 COMPELS THE MEMBER STATES TO ACCEPT THE SUBMISSION OF CERTIFICATE DD 4 ALONE AS PROOF OF FULFILMENT OF THE CONDITIONS WHICH GIVE RISE TO THE IMPOSITION OF THE MORE FAVOURABLE RATE OF LEVY .

15 THIS OBLIGATION, WHICH IS IMPOSED IN ORDER TO FORESTALL ABUSES TOUCHING THE MEANS BY WHICH THE TRADER MUST PROVE HIS RIGHT, IMPLIES THAT THE MEMBER STATE CONCERNED PUT THE TRADER IN QUESTION IN A POSITION TO COMPLY WITH THIS OBLIGATION TO PROVE HIS RIGHT .

THIS IS NOT THE CASE AS LONG AS THE IMPORTING MEMBER STATE HAS NOT YET ADOPTED THE MEASURES NECESSARY TO MAKE PRODUCTION OF CERTIFICATE DD 4 OBLIGATORY, WITH THE RESULT THAT THE GOODS IN QUESTION NECESSARILY CROSS THE FRONTIER UNDER COVER OF THE DOCUMENTS PROVIDED FOR BY THE EARLIER RULES .

16 THEREFORE, THE REQUIREMENT THAT ONLY THE SUBMISSION OF CERTIFICATE DD 4 CAN BE ACCEPTED AS PROOF OF FULFILMENT OF THE CONDITIONS GIVE RISE TO A RIGHT TO PAY ONLY THE INTRA-COMMUNITY LEVY CANNOT BE HELD AGAINST A TRADER WHO, WHEN THE GOODS CROSS THE FRONTIER, FULFILS THE FORMAL REQUIREMENTS WHICH ARE STILL IN FORCE AT THAT MOMENT IN THE IMPORTING STATE .

17 OF COURSE, THE SECOND SUBPARAGRAPH OF ARTICLE 3 ( 2 ) OF THE DECISION OF 17 JULY 1962 PROVIDES THAT 'AS AN EXCEPTION, THE MOVEMENT CERTIFICATE DD 4 MAY ALSO BE CERTIFIED AFTER THE GOODS TO WHICH IT RELATES HAVE BEEN EXPORTED, IF AS THE RESULT OF AN INVOLUNTARY ERROR OR OMISSION, IT IS NOT PRODUCED WHEN THEY ARE EXPORTED '.

HOWEVER, THIS PROVISION REFERS TO SITUATIONS OTHER THAN THOSE IN WHICH THE MEMBER STATE CONCERNED HAD NOT YET LAID DOWN THE DUTY TO PRODUCE CERTIFICATE DD 4 .

18 THE REPLY TO BE GIVEN TO THE FIRST QUESTION MUST, THEREFORE, BE THAT THE DECISION OF 17 JULY 1962, IN CONJUNCTION WITH REGULATION NO 13/64 AS AMENDED BY REGULATION NO 82/64, ENTITLED THE TRADER TO PAY THE INTRA-COMMUNITY LEVY ALONE, PROVIDED THAT HE PROVES, BY PRODUCING CERTIFICATE DD 4, THAT HE HAS FULFILLED THE CONDITIONS NECESSARY TO BENEFIT THEREFROM, BUT THAT THE MEMBER STATE WHICH HAS NOT ADOPTED SUBSTANTIVE MEASURES TO IMPLEMENT THIS DECISION CANNOT CLAIM THAT TRADERS HAVE FAILED TO FULFIL THE OBLIGATIONS WHICH IT INVOLVES AND MUST, PROVISIONALLY, ALLOW OTHER MEANS OF PROOF TO BE USED WHICH ARE APPROPRIATE TO THE FULFILMENT OF THESE CONDITIONS .

19 THE REPLY TO THE FIRST QUESTION RENDERS IT UNNECESSARY TO DEAL WITH THE OTHERS .

Decision on costs

20 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND THE COMMISSON 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 AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CORTE SUPREMA DI CASSAZIONE BY JUDGMENT OF 22 NOVEMBER 1974, HEREBY RULES :

THE DECISION OF 17 JULY 1962, IN CONJUNCTION WITH REGULATION NO 13/64 AS AMENDED BY REGULATION NO 82/64, ENTITLED THE TRADER TO PAY THE INTRA-COMMUNITY LEVY ALONE, PROVIDED THAT HE PROVES, BY PRODUCING CERTIFICATE DD 4, THAT HE HAS FULFILLED THE CONDITIONS NECESSARY TO BENEFIT THEREFROM, BUT THAT THE MEMBER STATE WHICH HAS NOT ADOPTED SUBSTANTIVE MEASURES TO IMPLEMENT THIS DECISION CANNOT CLAIM THAT TRADERS HAVE FAILED TO FULFIL THE OBLIGATIONS WHICH IT INVOLVES AND MUST, PROVISIONALLY, ALLOW OTHER MEANS OF PROOF TO BE USED WHICH ARE APPROPRIATE TO THE FULFILMENT OF THESE CONDITIONS .