Commission of the European Communities v Italian Republic.
Date: 1994-02-09
12 To begin with, it should be noted that the Italian Government lays emphasis on the fact that the situation has not changed since the judgment in Case 159/78 Commission v Italy [1979] ECR 3247.
13 In that regard, it is sufficient to state that that judgment relates to an infringement of Articles 30, 34 and 52 of the EEC Treaty, that it is not concerned with the transit regulation and that it predates the declaratory regulation, which was adopted by the Council on 12 December 1985. Hence it is appropriate to reconsider the Italian legislation in the light of the new regulation and the transit regulation.
17 The Commission' s argument must be upheld. Contrary to the Italian Government' s contention, the Italian legislation may, by having recourse to the concept of "owner" which is alien to the declaratory regulation, allow doubts to remain as to who is authorized to make the declaration or cause it to be made. According to the Court' s consistent case-law (see particularly the judgment in Case 143/83 Commission v Denmark [1985] ECR 427), the principles of legal certainty and the protection of individuals require, in the areas covered by Community law, an unequivocal wording which gives the persons concerned a clear and precise understanding of their rights and obligations and enables the courts to ensure that those rights and obligations are observed.
21 It is true that, as the Italian Government contends, the Court in its aforesaid judgment in Commission v Italy (at paragraph 14) mentioned the possibility under Italian law for a person to make a declaration in his own name and on behalf of another person. It must be stated, however, that this judgment merely establishes that the fact that that possibility operates by way of a legal fiction contained in the second paragraph of Article 56 of the Code or by way of the legal concept of "indirect representation" cannot be regarded as the determining factor in assessing whether it is equivalent to a quantitative restriction on the formalities in question.
37 The first point that must be made is that, according to consistent case-law, it is for the Commission itself to adduce evidence of the alleged infringement (see the judgment in Case C-249/88 Commission v Belgium [1991] ECR I-1275, at paragraph 6).
46 In that regard, it must be pointed out that in its reply to questions put by the Court, the Commission explained that the declarations made by paid employees or by public servants are to be regarded as having been made by customs forwarding agents in the broad sense, given that, by virtue of the required level of specialization and the nature of their work, such persons may be treated as customs forwarding agents by occupation. In its reply to a question put by the Court at the hearing, the Commission nonetheless agreed that those persons, who make 22% of all declarations, are not subject to the business tariff. It follows that an importer does have a genuine choice in that he is not obliged to have recourse to a forwarding agent by occupation, and that consequently the tariff is not binding on anyone who wishes to make a customs declaration.