Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

In the application which the Commission of the European Communities has made to you under Article 169 of the Treaty it requests you to state that the customs duties which the Italian Government has applied since 1 January 1968 on imports of unwrought lead (tariff heading No 78.01 A), unwrought zinc (heading No 79.01 A) and, in certain cases, on imports of lead waste and scrap (heading No 78.01 B) and zinc waste (heading No 79.01 B) constitute a failure to fulfil its obligations both under the Acceleration Decision of the Council of 26 July 1966 and Article 23(1)(c) of the Treaty.

There is no disagreement about the duties actually applied during the period in question—I shall deal with this matter in detail later. However, for reasons developed in its defence and during the oral procedure, the Italian Republic has always contested strongly that it was bound by any obligation by virtue of this decision of the Council. Therefore, before considering the respective arguments put forward by the parties, it is necessary to review the provisions which have been applied in this matter and which form the basis of the dispute.

I

1. Lead and zinc, which are products of acute concern for the Italian Republic and which hold an important place in the economy of the least developed areas of Sardinia, appear in List G annexed to the Treaty of Rome. For this reason the duties applicable to them in the Common Customs Tariff were to be determined by negotiations between the Member States; they were in fact so determined by an agreement of 2 March 1960. At the same time, however, Protocol No XV concerning these two products contained provisions intended to meet the differing interests of the Member States. First, on the application of the States concerned the Commission authorized the Federal Republic of Germany, Belgium and Holland to introduce a certain number of zero-duty tariff quotas as from the first stage of the introduction of the Common Customs Tariff. Secondly, the Member States expressed support for the application of Article 226 of the Treaty entailing the isolation for a period of six years from the signing of the Protocol—that is, until 2 March 1966—of the Italian market in lead and zinc, both as regards other Member States and third countries.

2. In the meantime, however, the Council took its decision of 26 July 1966 (OJ No 165 of 21.9.1966, p. 2971/66) from which the whole dispute stems. As it considered that economic development within the Community rendered possible the total abolition of customs duties on imports as between Member States and the application of the Common Customs Tariff in its entirety sooner than anticipated, the Council adopted the following measures for all products except the agricultural products listed in Annex II to the Treaty:

3. The Commission's argument is therefore as follows:

II

The whole question turns upon the scope of the Council's decision of 26 July 1966. During the meeting at which it was adopted the Italian Republic made a statement to the effect that, in its opinion, the Acceleration Decision could not result in its abandoning the protective measures for lead and zinc. It considers today that this statement, which was accepted without objection by the other Member States, must be interpreted as a refusal to comply with the decision to accelerate the entry into force of the customs union in respect of these two products. It has been maintained during the oral procedure that in both international and Community law, where the high contracting parties open negotiations in order to reach a certain agreement, the statements made by the parties and attached to the agreement have the same value as the agreement itself. This argument calls for two observations:

III

In addition, the criticism made by the Italian Republic, as I have set it out, is directed solely against the Council's decision of 26 July 1966. Even if, as it is asking, it were not required to implement that decision, in respect of imports from third countries it would still be bound by Article 23(1)(c) of the Treaty which required it to carry out a second reduction of 30 per cent of the difference between the rate applied in practice on 1 January 1957 and the duty in the Common Customs Tariff. The Italian Republic does not refer to this text. It cannot, however, dismiss it implicitly except on the ground of some right to benefit from protective measure for the lead and zinc industry.

But it is difficult to see on what basis such a right might be recognized.

It cannot at all events be based on Protocol No XV. It is true that when this was signed the Member States had expressed support for the application of Article 226 for a period of six years. In a similar case, involving Protocol No VIII on silk, you considered that such an expression of support constituted a guideline which the Commission had to take into account without, however, being bound by any specific legal obligation, as it retained full discretion (Case 32/64, Italian Republic v Commission of the EEC,17 June 1965, [1965] E.C.R. 365). This is all'the more so if, as in the present case, the period of six years provided for by the Protocol has expired.

Of course, when the last protective measure ceased to have effect on 31 December 1967, the Italian Republic was still entitled to request its renewal, as it in fact did. It was, however, for the Commission to decide whether or not it was necessary to accede to these requests. Its refusals to do so could justify an appeal to the Court by the Italian Republic under the conditions laid down in Article 173, but not a refusal to fulfil its obligations under the Council's decision of 26 July 1966 and Article 23(1)(c) of the Treaty. Contrary to the view apparently held by the Italian Republic, it is not a contradiction for the Commission to maintain at the same time that the alleged failures of the Italian Republic to fulfil its obligations concern an infringement of the Council's decision and of Article 23 of the Treaty and that it should have contested the rejection of its applications for protective measures. Only in this way could it have usefully put forward the considerations which it has developed at length regarding the special position of the lead and zinc mining industry in Sardinia and which, however interesting they may be, are irrelevant to a consideration of the present case.

In the light of these observations I am of the opinion that:

1 Translated from the French.