Judgment of the Court of 17 February 1970. - Commission of the European Communities v Italian Republic. - Case 31-69.



European Court reports 1970 Page 00025

Danish special edition Page 00003

Greek special edition Page 00243

Portuguese special edition Page 00255



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . OBLIGATIONS OF THE MEMBER STATES - FAILURE TO FULFIL SUCH OBLIGATIONS THROUGH FAILURE TO ACT

( EEC TREATY, ARTICLE 169 )

2 . OBLIGATIONS OF THE MEMBER STATES - FAILURE TO FULFIL SUCH OBLIGATIONS - REMEDIES AVAILABLE BEFORE THE NATIONAL COURTS - SUCH REMEDIES WITHOUT PREJUDICE TO THE APPLICATION REFERRED TO IN ARTICLE 169 OF THE EEC TREATY

3 . OBLIGATIONS OF THE MEMBER STATES - FAILURE TO FULFIL SUCH OBLIGATIONS - MALFUNCTIONING OF CERTAIN PUBLIC SERVICES

( EEC TREATY, ARTICLE 169 )

4 . OBLIGATIONS OF THE MEMBER STATES - FAILURE TO FULFIL SUCH OBLIGATIONS - OBSERVATIONS OF THE MEMBER STATES CONCERNED - IN THE NATURE OF AN ESSENTIAL PROCEDURAL REQUIREMENT

( EEC TREATY, ARTICLE 169 )

5 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - EXPORTS REFUNDS - RIGHTS OF THOSE ENTITLED - OBLIGATIONS OF THE MEMBER STATES

( REGULATION NO 1041/67/EEC OF THE COMMISSION, PREAMBLE )

Summary

1 . A FAILURE TO ACT, LIKE A POSITIVE ACT, MAY CONSTITUTE A FAILURE ON THE PART OF A MEMBER STATE TO FULFIL AN OBLIGATION .

2 . SINCE THE COMMUNITY PROVISIONS IN QUESTION ARE DIRECTLY APPLICABLE, THE EXISTENCE OF REMEDIES AVAILABLE THROUGH THE NATIONAL COURTS CANNOT IN ANY WAY PREJUDICE THE MAKING OF THE APPLICATION REFERRED TO IN ARTICLE 169, SINCE THE TWO PROCEDURES HAVE DIFFERENT OBJECTIVES AND EFFECTS .

3 . WHEN THE APPLICATION IN EACH MEMBER STATE OF DIRECTLY APPLICABLE COMMUNITY REGULATIONS REQUIRES A MODIFICATION OF CERTAIN PUBLIC SERVICES OR OF THE RULES GOVERNING THEM, THE FAILURE OF THE AUTHORITIES CONCERNED TO TAKE THE NECESSARY MEASURES CONSTITUTES A FAILURE WITHIN THE MEANING OF ARTICLE 169 AND CONSEQUENTLY COMES WITHIN THE JURISDICTION OF THE COURT .

4 . EVEN IF THE MEMBER STATE CONCERNED DOES NOT CONSIDER IT NECESSARY TO AVAIL ITSELF OF THE OPPORTUNITY TO SUBMIT ITS OBSERVATIONS, SUCH AN OPPORTUNITY CONSTITUTES AN ESSENTIAL GUARANTEE REQUIRED BY THE TREATY, AND AMOUNTS TO AN ESSENTIAL PROCEDURAL REQUIREMENT IN PROCEEDINGS RELATING TO THE FINDING OF A FAILURE ON THE PART OF A MEMBER STATE .

5 . THE ENTRY INTO FORCE ON 1 JULY 1967 OF AN ORGANIZATION OF THE MARKETS IN VARIOUS AGRICULTURAL PRODUCTS WITH A SINGLE PRICE AND UNIFORM LEVIES AND REFUNDS FOR THE ENTIRE COMMUNITY INVOLVES FOR THE EXPORTERS CONCERNED THE RIGHT TO RECEIVE THE SAID REFUNDS AND A DUTY ON THE PART OF THE MEMBER STATES TO ADVANCE THEM .

ALTHOUGH THOSE PROVISIONS, AND ESPECIALLY REGULATION NO 1041/67/EEC, ALLOW THE MEMBER STATES A CERTAIN AREA OF DISCRETION INTER ALIA IN FIXING THE DOCUMENTS WHICH CONSTITUTE PROOF OF THE RIGHT TO THE REFUND, THEY NEVERTHELESS INVOLVE A DUTY FOR THE STATES TO MAKE THE PAYMENT WITHIN A REASONABLE PERIOD IN ORDER TO AVOID TREATING EXPORTERS DIFFERENTLY ACCORDING TO THE FRONTIER OVER WHICH THEIR PRODUCTS ARE EXPORTED .

Parties

IN CASE 31/69

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ARMANDO TOLEDANO-LAREDO, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF EMILE REUTER, ITS LEGAL ADVISER, 4 BOULEVARD ROYAL, APPLICANT,

V

ITALIAN REPUBLIC, REPRESENTED BY ADOLFO MARESCA, MINISTER PLENIPOTENTIARY, ACTING AS AGENT, ASSISTED BY ANTONIO FRENI, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY, DEFENDANT,

Subject of the case

APPLICATION FOR A DECLARATION THAT THE ITALIAN REPUBLIC, BY FAILING TO PAY PROMPTLY TO EXPORTERS THE REFUNDS ON PRODUCTS COMING UNDER THE COMMON ORGANIZATIONS OF THE MARKET ESTABLISHED AFTER 1 JULY 1967, HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY,

Grounds

1 BY VARIOUS REGULATIONS WHICH BECAME APPLICABLE FROM JULY 1967, THE COUNCIL ESTABLISHED FOR CERTAIN AGRICULTURAL PRODUCTS, IN PARTICULAR OILS AND FATS, PIGMEAT, EGGS, POULTRYMEAT AND RICE, A COMMON ORGANIZATION OF THE MARKET INVOLVING, INTER ALIA, THE FIXING BY THE COMMISSION OF REFUNDS ON EXPORTS TO THIRD COUNTRIES AT AN IDENTICAL AMOUNT THROUGHOUT THE COMMUNITY .

2 ON 21 DECEMBER 1967 THE COMMISSION ADOPTED REGULATION NO 1041/67/EEC ( OJ 1967, SPECIAL EDITION, P . 323 ) ON DETAILED RULES FOR THE APPLICATION OF THE SAID REFUNDS .

3 THIS SYSTEM WAS EXTENDED TO SUGAR BY A REGULATION OF 18 DECEMBER 1967 AND TO PRODUCTS PROCESSED FROM FRUIT AND VEGETABLES, TO MILK AND MILK PRODUCTS AND TO BEEF AND VEAL BY OTHER REGULATIONS DATED 27 AND 28 JUNE 1968 .

4 ACCORDING TO THOSE REGULATIONS THE MEMBER STATE IN WHOSE TERRITORY THE CUSTOMS EXPORT FORMALITIES HAVE BEEN COMPLETED IS BOUND TO PAY THE REFUNDS TO EXPORTERS WHO COMPLY WITH THE CONDITIONS LAID DOWN FOR THE RECEIPT THEREOF AND WHO APPLY FOR THEM .

5 THE COMMISSION BY LETTER 12 JULY 1968 GAVE THE ITALIAN GOVERNMENT THE OPPORTUNITY TO SUBMIT ITS OBSERVATIONS AND THEN ON 4 NOVEMBER 1968 IT DELIVERED A REASONED OPINION FINDING THAT THE ITALIAN REPUBLIC HAD FAILED TO FULFIL AN OBLIGATION UNDER THE PROVISIONS OF THE ABOVE-MENTIONED REGULATIONS AND CALLING ON IT TO COMPLY WITH THE SAID OPINION WITH THE PERIOD PRESCRIBED THEREIN .

6 BY AN APPLICATION LODGED ON 21 JULY 1969 THE COMMISSION APPLIED TO THE COURT UNDER ARTICLE 169 OF THE TREATY FOR A DECLARATION THAT, BY ITS FAILURE PROMPTLY TO PAY TO EXPORTERS CONCERNED THE EXPORT REFUNDS FOR PRODUCTS COMING UNDER THE COMMON ORGANIZATIONS OF THE MARKET ESTABLISHED AFTER 1 JULY 1967, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE PROVISIONS OF THE COMMUNITY REGULATIONS ESTABLISHING THE COMMON ORGANIZATIONS OF THE AGRICULTURAL MARKETS AND OF THE RELEVANT IMPLEMENTING REGULATIONS REFERRED TO IN THE APPLICATION .

THE JURISDICTION OF THE COURT AND THE SUBJECT-MATTER OF THE DISPUTE

7 THE DEFENDANT HAS CLAIMED THAT IF THE ALLEGED FAILURE CONSISTS IN A MEMBER STATE' S FAILURE TO IMPLEMENT DIRECTLY APPLICABLE COMMUNITY LEGISLATION AND IS CONSEQUENTLY TO BE CLASSIFIED AS A PURE OMISSION THE SANCTION FOR THIS OMISSION DOES NOT COME WITHIN THE SCOPE OF ARTICLE 169 BUT FALLS WITHIN THE JURISDICTION OF THE NATIONAL COURTS BEFORE WHOM THE PERSONS CONCERNED MAY BRING SUCH MATTERS .

8 ALTHOUGH THIS SUBMISSION IS OUT OF TIME IT RELATES TO THE JURISDICTION OF THE COURT OF JUSTICE AND MUST BE EXAMINED BY THE COURT OF ITS OWN MOTION .

9 A FAILURE TO ACT, LIKE A POSITIVE ACT, MAY CONSTITUTE A FAILURE ON THE PART OF A MEMBER STATE TO FULFIL AN OBLIGATION .

FURTHERMORE THE EXISTENCE OF REMEDIES AVAILABLE THROUGH THE NATIONAL COURTS CANNOT IN ANY WAY PREJUDICE THE MAKING OF THE APPLICATION REFERRED TO IN ARTICLE 169 SINCE THE TWO PROCEDURES HAVE DIFFERENT OBJECTIVES AND EFFECTS .

FINALLY, WHEN THE APPLICATION OF COMMUNITY REGULATIONS IN EACH MEMBER STATE REQUIRES A MODIFICATION OF CERTAIN PUBLIC SERVICES OR OF THE RULES GOVERNING THEM, THE FAILURE OF THE AUTHORITIES CONCERNED TO TAKE THE NECESSARY MEASURES CONSTITUTES A FAILURE WITHIN THE MEANING OF ARTICLE 169 AND CONSEQUENTLY COMES WITHIN THE JURISDICTION OF THE COURT .

10 THE SUBMISSION MUST BE REJECTED .

11 THE ITALIAN GOVERNMENT FURTHER CLAIMS THAT THE PRESENT PROCEEDINGS CAN ONLY CONCERN ITS OBLIGATIONS RELATING TO PRODUCTS MADE SUBJECT TO AN ORGANIZATION OF THE MARKETS DURING THE YEAR 1967 AND NOT TO OBLIGATIONS RELATING TO PRODUCTS WHICH WERE ONLY MADE SO FROM 1 JULY 1968 .

12 DESPITE THE GENERAL NATURE OF ITS WORDING, THE COMMISSION' S LETTER OF 12 JULY 1968 REQUESTING THE ITALIAN GOVERNMENT TO SUBMIT ITS OBSERVATIONS IN ACCORDANCE WITH ARTICLE 169 CANNOT RELATE TO DELAYS IN PAYMENT FOR PRODUCTS WHICH WERE NOT THEN SUBJECT TO THE SYSTEM OF UNIFORM REFUNDS OR WHICH HAD AT MOST ONLY BEEN SO FOR SEVERAL DAYS .

13 EVEN IF THE MEMBER STATE CONCERNED DOES NOT CONSIDER IT NECESSARY TO AVAIL ITSELF OF THE OPPORTUNITY TO SUBMIT ITS OBSERVATIONS, SUCH AN OPPORTUNITY CONSTITUTES AN ESSENTIAL GUARANTEE REQUIRED BY THE TREATY AND AMOUNTS TO AN ESSENTIAL PROCEDURAL REQUIREMENT IN PROCEEDINGS RELATING TO THE FINDING OF A FAILURE ON THE PART OF A MEMBER STATE .

14 RESPECT FOR THIS GUARANTEE MEANS THAT THE ALLEGED FAILURE TO FULFIL AN OBLIGATION UNDER REGULATIONS ISSUED DURING OR AFTER THE MONTH OF JUNE 1968 MUST BE EXCLUDED FROM THESE PROCEEDINGS .

SUBSTANCE

15 THE ENTRY INTO FORCE ON 1 JULY 1967 OF AN ORGANIZATION OF THE MARKETS IN VARIOUS AGRICULTURAL PRODUCTS WITH A SINGLE PRICE AND UNIFORM LEVIES AND REFUNDS FOR THE ENTIRE COMMUNITY INVOLVES FOR THE EXPORTERS CONCERNED THE RIGHT TO RECEIVE THE SAID REFUNDS AND A DUTY ON THE PART OF THE MEMBER STATES TO ADVANCE THEM, THE SUMS ADVANCED BEING REIMBURSED HALF-YEARLY TO THE STATES BY THE COMMISSION . ALTHOUGH THOSE PROVISIONS, AND ESPECIALLY REGULATION NO 1041/67/EEC, ALLOW THE MEMBER STATES A CERTAIN AREA OF DISCRETION, INTER ALIA, IN FIXING THE DOCUMENTS WHICH CONSTITUTE PROOF OF THE RIGHT TO THE REFUND, THEY NEVERTHELESS INVOLVE A DUTY FOR THE STATES TO MAKE THE PAYMENT WITHIN A REASONABLE PERIOD IN ORDER TO AVOID TREATING EXPORTERS DIFFERENTLY ACCORDING TO THE FRONTIER OVER WHICH THEIR PRODUCTS ARE EXPORTED .

16 THE COMMISSION COMPLAINS THAT THE ITALIAN GOVERNMENT PAID THE REFUNDS AFTER PERIODS OF BETWEEN 12 AND 18 MONTHS WHILST THE OTHER MEMBER STATES MADE THE PAYMENTS WITHIN MUCH SHORTER PERIODS .

NEVERTHELESS THE FACTORS WHICH IT ADDUCES IN SUPPORT OF ITS APPLICATION DO NOT LEAD TO THE CONCLUSION THAT IT IS WELL FOUNDED .

17 THE FIRST NOTIFICATION WHICH IT ADDRESSED TO THE ITALIAN GOVERNMENT WAS DATED 27 FEBRUARY 1968, THAT IS TO SAY, TWO MONTHS AFTER THE PUBLICATION ON 23 DECEMBER 1967 OF REGULATION NO 1041/67/EEC, WHEREAS ON 31 JANUARY AND 20 FEBRUARY 1968 THE DEFENDANT HAD TAKEN THE FIRST MEASURES INTENDED TO FACILITATE THE IMPLEMENTATION OF THE SAID REGULATION AND PAID A CERTAIN NUMBER OF REFUNDS, ALBEIT FOR VERY SMALL AMOUNTS .

18 MOREOVER, IN ITS REQUEST FOR OBSERVATIONS OF 12 JULY 1968, THE APPLICANT STATES THAT AT THIS STAGE PAYMENTS HAVE ONLY BEEN MADE FOR " VERY SMALL " AMOUNTS WHILST IT EMERGES FROM THE TABLE ANNEXED TO THE WRITTEN REPLY GIVEN TO THE QUESTIONS PUT BY THE COURT THAT IN THE FIRST HALF OF 1968 THE ITALIAN GOVERNMENT HAD PAID REFUNDS AMOUNTING TO 6 841 MILLION LIRE, 5 800 000 LIRE OF WHICH RELATE TO REFUNDS FOR THE PREVIOUS HALF-YEAR .

DURING THE SECOND HALF OF 1968 IT PAID 10 442 MILLION LIRE, 4 044 MILLION OF WHICH RELATE TO THE TWO PREVIOUS SIX-MONTHLY PERIODS, THAT IS TO SAY, THE PERIOD FROM 1 JULY 1967 TO 30 JUNE 1968 .

19 IN THE FIRST HALF OF 1969 IT PAID 6 950 MILLION LIRE, 1 169 MILLION OF WHICH RELATE TO THE THREE PREVIOUS SIX-MONTHLY PERIODS .

NEVERTHELESS AMONGST THE SUMS QUOTED AS REFUNDS PAID IN ARREARS DURING THIS SIX-MONTHLY PERIOD THERE APPEARS AN AMOUNT OF 718 800 000 LIRE WHICH PLAINLY RELATES TO THE OPTIONAL SYSTEM OF REFUNDS IN FORCE BEFORE 1 JULY 1968 RELATING TO MILK AND MILK PRODUCTS AND BEEF AND VEAL AND WHICH IS CONSEQUENTLY IRRELEVANT TO THE DISPUTE .

20 ALTHOUGH THOSE FACTS REVEAL THE EXISTENCE OF DELAYS, WHICH WERE SOMETIMES CONSIDERABLE, IN THE PAYMENT OF THE REFUNDS THEY DO NOT HOWEVER CONVEY A PRECISE IMPRESSION OF THEIR EXTENT WHICH MIGHT IN THEORY HAVE BEEN BETWEEN ONE TO TWO MONTHS AND 18 MONTHS .

FURTHERMORE, EXAMINATION OF THE FIGURES SUPPLIED TENDS TO INDICATE THAT THE DELAY FUNDAMENTALLY RELATD TO THE EXPORTS EFFECTED IN THE SECOND HALF OF 1967 AND THAT SUBSEQUENTLY THESE ARREARS WERE GRADUALLY ABSORBED .

FINALLY, ALTHOUGH MENTION HAS BEEN MADE OF FIGURES GREATER THAN THOSE SHOWN BY THE DOCUMENTS SUBMITTED TO THE COURT, NO EVIDENCE HAS BEEN SUPPLIED CAPABLE OF PROVING THEM .

21 THE FACT THAT TWO UNDERTAKINGS HAVE INITIATED PROCEEDINGS AGAINST THE ITALIAN STATE IN THE NATIONAL COURTS FOR THE PAYMENT OF VERY CONSIDERABLE SUMS CANNOT, IN THE ABSENCE OF INFORMATION AS TO THE NATURE OF THE DISPUTES, CONSTITUTE PROOF OF THE EXISTENCE OF A FAILURE .

FURTHERMORE THE FINDINGS IN THIS CASE CANNOT PREJUDICE ANY CLAIMS WHICH THE PERSONS CONCERNED MAY BE ENTITLED TO ADVANCE BEFORE THE NATIONAL COURTS OF THE MEMBER STATES .

22 IN THOSE CIRCUMSTANCES, TAKING INTO ACCOUNT THE FACT THAT THE FIGURES SUPPLIED DO NOT LEAD TO THE CONCLUSION THAT THERE WERE DELAYS AS LONG AS THOSE ALLEGED BY THE COMMISSION, THE FACTORS PRODUCED BY IT ARE INSUFFICIENT TO PROVE THE EXISTENCE OF A FAILURE WITHIN THE MEANING OF ARTICLE 169 .

23 THE APPLICATION MUST BE DISMISSED .

Decision on costs

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

Operative part

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE COMMISSION OF THE EUROPEAN COMMUNITIES TO PAY THE COSTS .