Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

The action pending before the Tribunale, Brescia, concerns Italian Law No 330 of 15 June 1950. Because this law has not been repealed, the Court held recently in Case 8/70, brought by the Commission under Article 169 of the EEC Treaty, that the Italian Republic had infringed Article 13(2) of the EEC Treaty in conjunction with Commission Directive No 31/68 of 22 December 1967. This Law, may I remind you, provides for a duty for administrative services to be levied on imported goods amounting to 0.5 % of their value. This duty was levied on the undertaking SACE when, on 17 September 1969, it imported goods from a Member State into Italy. In compliance with a customs decision taken by the Bergamo customs office, it had to pay levies amounting to lit. 50995 on the value of the goods.

SACE considers that the demand for this sum is unjustified. It maintains that this is a charge having an effect equivalent to a customs duty (which was in fact the finding by the Court in the aforementioned judgment) and that the directive (which has not been challenged by the Italian Government) issued by the Commission pursuant to Article 13 (2) of the EEC Treaty gives rise to the obligation to reduce progressively such charges in so far as they relate to imports from Member States and to abolish them completely by 1 July 1968 at the latest (which, wrongly, has still not been done). SACE further considers that the provisions of Article 13(2) of the EEC Treaty in conjunction with those of the Commission directive, which leaves the Italian Government no discretion but contains a clear stipulation as to the time-limit allowed for the abolition of the charge, are seen as to confer rights directly on individuals which the latter may invoke in national courts against contrary provisions of national law. This is why SACE instituted proceedings before the President of the Tribunale, Brescia, against the Ministry for Finance of the Italian Republic for an order (decreto inguintivo) for repayment of administrative charges imposed unlawfully. Since this order for payment depends essentially on questions of Community law, as I have mentioned, SACE requested, during the proceedings, that the case should be referred to the Court for a ruling on the interpretation of the provisions of Community law in question, in accordance with Article 177 of the EEC Treaty.

The President of the Tribunale, Brescia, acceded to this request. By order made on 4 July 1970, he ordered that the proceedings be stayed and referred the case to the Court for a preliminary ruling on the following questions :

Now that the applicant in the main action, the Commission of the European Communities and the Government of the Federal Republic of Germany have submitted written observations in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC and now that the applicant, the Commission and the Government of the Italian Republic have given their oral observations at the hearing on 18 November 1970, I shall give my views on the questions raised.

1. There can be no doubt as to the admissibility of the reference. In particular, it is of no importance that the proceedings in the main action are merely of a summary nature, in other words, simply for the granting of an order for payment. The Court can in such circumstances have a case referred to it, as occurred in Case 29/69, despite the fact that the proceedings concerned the granting of an interim order.

2. As regards defining the subject of the reference, I would say furthermore that no problems at all arise from the specific terms in which the questions have been posed: they concern solely the direct effect of the provisions of Article 13(2) of the EEC Treaty in conjunction with those of the aforementioned Commission directive. That is the matter to which the Court must confine its attention.

3. Having made these introductory remarks I will now turn directly to the questions asked. First let us recall the provisions of Article 13(2) of the Treaty. It provides that Charges having an effect equivalent to customs duties on imports, in force between Member States, shall be progressively abolished … during the transitional period and the Commission shall determine by means of directives the timetable for such abolition.

4. Accordingly, the questions raised by the President of the Tribunale of Bolzano should be answered as follows:

1 Translated from the German.