JUDGMENT OF 3. 12. 1967 — CASE 17/67 NEUMANN v HAUPTZOLLAMT HOF

In Case 17/67 Reference to the Court under Article 177 of the Treaty establishing the European Economic Community by the Bundesfinanzhof (the Federal Finance Court) for a preliminary ruling in the action pending before that court between

THE COURT composed of R. Lecourt (Rapporteur), President, A. M. Donner and W. Strauß, Presidents of Chambers, A. Trabucchi, R. Monaco, J. Mertens de Wilmars and P. Pescatore, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted under Article 20 of the Statute

The first question

The second question

The third question

The fourth question

Grounds of judgment

The first question

The second question

The third question

The fourth question

Costs

I —. Facts and procedure

3. The delay in publishing Regulation No 135/62 of the Commission of the EEC has resulted in a situation akin to that of a retroactive increase in a tax, which is questionable on the constitutional level. In order to permit the free movement of slaughtered poultry, the rates of levy and the provisions hitherto in force are therefore to be taken as applying when a valid claim for customs clearance has been presented before 18 November 1962 inclusive.

1. (a) Does the Treaty establishing the EEC confer on the institutions of that Community the right to establish systems of levy directly applicable in the Member States, as the Council has done by Regulation No 22 of 4 April 1962 (Official Journal, p. 959)? (b) If the answer to Question (a) is in the affirmative: do the sums to be collected by way of levy constitute charges (Abgaben) in the sense of customs duties or taxation (Steuern) or, if neither, what are they? (c) If the answer to the first proposition referred to in Question (b) above is in the affirmative: in those circumstances, does the Treaty establishing the EEC have the effect of transferring to the Community the power to legislate, as having partial sovereignty in fiscal matters?

2. If the answer to Question 1 (a) is in the affirmative: must Article 6 (3) and (4) of Regulation No 22 of the Council be interpreted as meaning that the power to fix an additional levy belongs solely to Member States to the exclusion of the Community institutions?

3. Does Regulation No 135/62 of the Commission (Official Journal, p. 2621) infringe Regulation No 22 of the Council and Regulation No 109/62 of the Commission (Official Journal, p. 1939), to which it expressly refers, on the ground chat, although those two provisions provide for an additional levy should the offer price fall below the sluice-gate price, Regulation No 135/62 (according to the defendant's allegations) does not take into account — or does not take suffi ciendy into account — the offer price in fixing the additional levy?

4. Regulation No 135/62 of the Commission provides that it shall enter into force on the day of its publication in the Official Journal: does this affect its validity?

II —. Observations submitted under Article 20 of the Statute

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Council and the Commission of the Communities and those of one of the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 18, 23, 38 to 46, 177 and 191 of the Treaty establishing the European Economic Community together with Annex I thereto; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to Regulation No 22 of the Council (Official Journal 1962, p. 959); Regulation No 135/62 of the Commission of the EEC (Official Journal 1962, p. 2621) and Regulation No 109/62 of the Commission (Official Journal 1962, p. 1939); Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT in answer to the questions referred to it for a prelirninary ruling by the Bundesfinanzhof by decision of 25 April 1967, hereby rules:

I The Treaty establishing the EEC conferred on the institutions of that Community the right to establish systems of levy directly applicable in the Member States, as the Council has done by Regulation No 22 of 4 April 1962; consequently the validity of the said regulation cannot be affected by the character of the levy thus established as either a customs duty or a tax;

2 Article 6 (3) and (4) of Regulation No 22 authorizes the importing Member State to fix the amount additional to the levy, subject to measures to be taken joindy within the framework of the procedure laid down in Article 17;

3 The validity of Regulation No 135/62 of the Commission with regard to Regulation No 22 of the Council and Regulation No 109 / 62 of the Commission is not affected by the fact that it did not take into account the individual offer price in fixing the additional levy;

4 The validity of Regulation No 135/62 of the Commission is not affected by the provisions of Article 2 thereof which lays down that it shall enter into force immediately.