Opinion of Mr Advocate General Darmon delivered on 18 November 1986. - Commission of the European Communities v Italian Republic. - Failure to apply Article 19 of Commission Directive 82/57/EEC. - Case 275/85.



European Court reports 1987 Page 00465



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The outcome of this action seeking a declaration that a Member State has failed to fulfil its Treaty obligations depends on the reply which the Court gives to the following question : Should the disputed provision of Italian legislation, the incompatibility of which with Article 19 of Commission Directive 82/57/EEC of 17 December 1981 laying down certain provisions for implementing Council Directive 79/695/EEC ( the latter being hereinafter referred to as "the second Council directive ") is denied by no one, none the less be regarded as being in conformity with Community law by virtue of Article 4 of the earlier Council directive, Directive 78/453/EEC (" the first Council directive ")?

2 . The release for free circulation within the Community of goods coming from a non-member country is subject to their release by the customs authorities in the Member State of importation . Once the goods are released the importer is authorized to remove them .

In the case of final importation into Italy, the second paragraph of Article 80 of the Testo Unico delle Disposizioni Legislative in Materia Doganale (( Consolidated Text of Customs Legislation )) allows goods which have been declared on a single entry form to be released in stages . The abovementioned Article 19, on the other hand, requires in such cases that the release be effected "on a single occasion for all the goods forming the subject of the entry ". Article 4 of the first Council directive deals with a special arrangement for the deferred payment of customs duties "for goods for which removal has been authorized during a given period ...".

In substance, the defendant State contends that the above provision

( a ) authorizes the release of goods in stages, and

( b ) could not have been repealed by a provision introduced by the Commission even if adopted pursuant to a later Council directive, as it could not, in that regard, have any basis in that directive .

3 . The solution to the problem thus posed must be sought in the general legislative scheme created by the three directives .

The second Council directive, and the Commission directive implementing it, are concerned with "the harmonization of procedures for the release of goods for free circulation ". The first Council directive relates specifically to the harmonization of domestic measures governing the "deferred payment" of the various duties to be discharged on the importation or exportation of goods from non-member countries . Between them, therefore, the three directives form two separate bodies of rules which nevertheless need to be seen as interconnected; the detailed rules for the payment of customs duties, which are also covered by the first Council directive, must fit into the broader scheme governing the release of goods for free circulation, of which they regulate only one aspect . In other words, the first Council directive must be applied - and thus interpreted - in the light of the scheme devised by the two later directives .

Difficulties might have arisen had the first Council directive made express provision, as the Italian Republic claims, for the release in stages of goods declared on a single entry form . Such is not the case . In that regard Article 4 is perfectly neutral, because its legislative scope is limited to the requirement that there should be "one single entry in the accounts" for the duties charged on the goods released . In the absence of Community rules harmonizing in a general way the procedures for the release of goods for free circulation, Article 4 could therefore still apply in the circumstances envisaged by the second paragraph of Article 80 of the Consolidated Text . Since those rules entered into force, however, that can no longer be the case, in view of the rule contained in Article 19; there is not even any need to ascertain whether that rule has any particular basis in the second Council directive .

Moreover, Article 19 must be viewed as deriving from the rationale of the second Council directive as outlined in the preamble thereto, which emphasizes the "specifically Community character" of the release of goods for free circulation and the consequent need to overcome, through harmonization, the disparities in national rules which may give rise inter alia to "distortions of treatment for Community importers, depending on the Member State in which the customs clearance formalities are carried out ...". The preamble goes on to state that these common rules must, specifically, "dispense with all unnecessary formalities" ( fifth, seventh and tenth recitals ).

The requirement that the release of goods shall be a single event is par excellence a measure simplifying administrative procedures, adopted in order to put an end to the distortions in treatment between Community importers . More than the effect on the public finances of the Community, it is equality of treatment which, it seems to me, is the ratio legis of Article 19 .

3 . The Commission' s application should therefore be upheld and the Italian Republic should be ordered to pay the costs .

(*) Translated from the French .