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