OPINION OF MR ROEMER — CASE 8/70 COMMISSION v ITALY

Mr President,

Members of the Court,

In Italy a duty is levied on imported goods at the rate of 0.50 % of their value by Law No 330 of 15 June 1950 (Official Journal of the Italian Republic No 137 of 17 June 1950). The relevant value of the goods in this respect is determined according to the rules to be observed in the application of ad valorem customs duty. The Commission regards these duties, in so far as they are imposed on imports from other Member States, as charges having an effect equivalent to customs duties which are no longer permitted under Community law. Therefore it initiated two procedures against the Italian Republic to obtain declarations that it had failed to fulfil its obligations under the Treaty.

This it did in a letter of 28 December 1967 as regards goods which come within regulations on the common organization of agricultural markets or result from the processing of agricultural products, because the relevant Community regulations contain prohibitions to this effect in respect of these goods. Following this, Italy's Permanent Representative stated in a letter of 23 April 1968 that it was not intended to submit observations on the Commission's considerations but that on the contrary the Italian Government was going to put before the national Parliament measures designed to bring to an end the infringements of which complaint had been made. Because the Commission did not consider this argument to be sufficient, it repeated its request for the legal situation to be altered by 1 July 1968 at the latest, that is, by the time the customs union had been achieved. However, this did not happen and on 20 January 1969 the Commission delivered a reasoned opinion in accordance with Article 169 of the Treaty, in which the Italian Government was once more given a period of one month to bring the infringement of the Treaty to an end.

As regards the duty which is imposed on goods which do not come within the regulations made under Articles 43 and 235 of the EEC Treaty, the Commission sent a directive in accordance with Article 13 (2) of the EEC Treaty to the Italian Government in a letter of 28 December 1967 requiring it to reduce the duty imposed on imports from other Member States progressively and to abolish it by 1 July 1968 at the latest. This directive was not challenged, nor was it complied with. Thus the result was that the Commission initiated the procedure under Article 169 of the EEC Treaty in a letter of 22 January 1969. Once again, the Italian Government did not react by objecting that the point of view taken by the Commission was incorrect, but merely stated in a telex message of 20 February 1969 from its Permanent Representative that a bill to abolish the duty in question had been drafted and it was anticipated that as regards the duty which was imposed on goods imported from other Member States the bill would enter into force retroactively from 1 July 1968 and in respect of goods from third countries with effect from 1 January 1971. However, as it was not stated when this change in the law would be carried out, the Commission was not satisfied with this communication either. On 12 June 1969, because this directive had been disregarded, it delivered a second reasoned opinion in accordance with Article 169 of the EEC Treaty, likewise requesting that it be complied with within one month. Although the periods laid down in both reasoned opinions expired to no avail, the Commission did not start legal proceedings immediately but waited until the end of 1969 to see what would develop. This was because Italy's Permanent Representative had stated in a letter of 25 June 1969 that the draft bill to abolish the duty in question which has already been mentioned had been approved by the Council of Ministers on 28 May 1969 and sent to Parliament.

After 1969 had also elapsed without the promised bill being passed and after several Member States had complained to the Commission about the legal situation in Italy, the Commission brought the matter before the Court of Justice on 7 March 1970 in accordance with Article 169 of the EEC Treaty.

In its conclusions it requests that the Court declare that the Italian Republic has infringed Article 189 of the EEC Treaty in conjunction with certain Articles contained in specific regulations, by levying a 0.50 % duty for administrative services under Law No 330 of 15 June 1950 on goods which came within these regulations and were imported from other Member States. Moreover, it requests that the Court declare that the Italian Republic has infringed Article 189 of the EEC Treaty in conjunction with Directive No 68/31 of 22 December 1967 by levying this duty on other goods.

Finally, therefore, even having regard to certain constitutional difficulties which the government claims it had no power to overcome, it is impossible to speak of a case of force majeure and thus to challenge the Commission's justification in taking proceedings for infringement of the Treaty. Even if it is not desired to go into the details of Italian constitutional law and into the possibility of issuing Decree-laws, as the Commission has done, it must still be declared that, considering the time-limits in question, it is certainly impossible to maintain that it was at no time possible for the Italian Government to effect a change in the Italian legal situation in good time. Since in fact no substantial objection can therefore be made to the Commission's request for a declaration that there has been a failure to fufil an obligation, and since moreover the Court of Justice cannot in principle make a ruling on the advisibility (Opportunität) of initiating and continuing proceedings, I can see no other choice but to grant the Commission's requests. Accordingly, the Court of Justice must declare that the Italian Republic infringed Article 189 of the EEC Treaty in conjunction with specific articles contained in a series of regulations on agriculture by levying under Law No 330 of 15 June 1950 an 0.50 % duty for administrative services on goods which come within these regulations and are imported from other Member States. Moreover it must declare that the Italian Republic has infringed Article 189 of the EEC Treaty in conjunction with Directive No 68/31 of 22 December 1967 by levying this duty on other goods which are imported from Member States.

Of course, as the Italian Republic has been unsuccessful in these proceedings it must be ordered to pay the costs.

1 Translated from the German.