CELEX: 61978CC0027
Language: en
Date: 1978-07-13 00:00:00
Title: Opinion of Mr Advocate General Warner delivered on 13 July 1978. # Amministrazione delle finanze dello Stato italiano v the Rasham undertaking. # Reference for a preliminary ruling: Corte suprema di Cassazione - Italy. # Case 27/78.

OPINION OF MR ADVOCATE GENERAL WARNER
   DELIVERED ON 13 JULY 1978
   
      My Lords,
   I do not think it necessary in this case to ask Your Lordships to adjourn while I consider my opinion.
   Your Lordships know the facts of the case.
   The first question referred to the Court by the Corte Suprema di Cassazione is, shortly stated, whether Council Decision No 66/532 of 26 July 1966 — often referred to as ‘the Acceleration Decision’ — had the effen of curtailing the transitional period defined by Article 8 of the EEC Treaty.
   The answer to that question is, in my opinion, clearly ‘No’.
   The Acceleration Decision did three things:
   
            (I)
         
         
            It accelerated the suppression of customs duties as between Member States;
         
      
            (2)
         
         
            It advanced the date of the entry into force of the Common Customs Tariff; and
         
      
            (3)
         
         
            It eliminated quantitative restrictions on imports from one Member Sute into another.
         
      The Decision itself did not however, either expressly or by necessary implication, do more than that. So much was indeed made clear by the Court in its Judgment in Case 94/74 IGAV v ENCC [1975] 1 ECR where, at p. 711, the Court said this:
   ‘In fan the Council's decision of 26 July 1966 on the abolition of customs duties in line with the implementation of the Common Customs Tariff on 1 July 1968 (OJ p. 2971) is based on the concept of a selective acceleration of anions which as a whole were to be completed by the end of the transitional period at the latest. In these circumstances that decision only applies to measures to which it specifically refers, that is to say, to customs duties as such and to quantitative restrictions.’
   On the footing that the Corte Suprema di Cassazione's first question is to be answered in the negative, its second question does not strictly arise.
   The Commission has however put forward an argument to the effect that a consequence of the Acceleration Decision was to preclude a Member Sute, after the entry into force of the Common Customs Tariff on 1 July 1968 from imposing by way of protective measure under the second paragraph of Article 115 of the Treaty, a customs duty on goods from a third country in free circulation in another Member Sute. The argument is attractive because, as is trite law in this Court*, Article 115 can only be invoked where common provisions are not yet in force as to the treatment to be accorded by all the Member States to imports of particular goods from particular third countries. It may well be, therefore, that, after the entry into force of the Common Customs Tariff, the protective measures that a Member Sute was entitled to impose under Article 115 were confined to measures other than customs duties — for instance quotas. We have not however heard the Italian Government on that question, nor is it a question that is raised by the Order for Reference. I therefore say no more about it.
   The third question referred to the Court by the Corte Suprema di Cassazione is whether the second paragraph of Article 115, in so far as it provided that a Member Sute taking protective measures thereunder should ‘notify them to the other Member State and to the Commission’, made such notification a condition of the validity and effectiveness of those measures
   The question is posed on the footing that the Italian Republic did not in fact notify the measures here in question (i.e. those promulgated by the Ministry of Finance's Circular No 292 of 12 June 1968) to the other Member States and to the Commission. The Iulian Government states that that assumption is incorrect, that the measures in question were taken after consultation with the Commission, and that they were duly notified. The Commission, on the other hand, has just told us that it can find no trace of such notification in its records.
   Be that as it may, it seems to me that the effectiveness within a Member Sute of measures taken by that Sute under the second paragraph of Article 115 could not depend on whether or not the requirement that they should be notified to the other Member Sute and to the Commission had been complied with, because, on the plain wording of Article 115, that Article envisaged that such notification should take place as soon as but not necessarily before, the measures were introduced.
   The Iulian Government referred us, for good measure, to the Opinion of Mr Adovcate General Dutheillet de Lamothe in Case 62/70 Bock v Commission. He there said — 1 read from the original :
   ‘Les règles de procédure instituées par l'article 115 du traité fixent les modalités de rapports entre la Commission et les États membres. Il s'ensuit qu'à notre avis elles n'ont pas d'effet direct, n'engendrent pas de droits pour les particuliers et que ceux-ci sont sans intérêt et dès lors irrecevables á s'en prévaloir.’
   (Rec. 1971 (II) at p. 917).
   1 agree; and, in the upshot, I agree with the Iulian Government that the third question should also be answered in the negative.