JUDGMENT OF 18. 11. 1970 — CASE 8/70 COMMISSION v ITALY

In Case 8/70

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Grounds of judgment

Costs

I —. Facts and procedure

1. The Italian Law No 330 of 15 June 1950 Official Journal of the Italian Republic No 137 of 17 June 1950) introduced a duty for administrative services which is imposed on goods imported from abroad at the rate of 0.50 % of their value. For the purposes of applying this duty, the taxable value of the goods is determined according to the rules in force for the application of ad valorem customs duties.

2. The Commission, which considered that this duty was a charge having an effect equivalent to a customs duty on imports, initiated two distinct procedures against the Italian Republic on the basis of Article 169 of the Treaty. The first concerned the charge in question in so far as it was imposed on agricultural products which came within a common organization of markets and the second concerned the same charge in so far as it involved other goods or products imported into Italy from other Member States.

3. As regards products which come within a common organization of agricultural markets and certain goods resulting from the processing of agricultural products, the Commission considers that, in accordance with a provision which is found expressed in similar terms in all the agricultural regulations which it quotes in its conclusions, as soon as a market organization has been set up and without waiting for the transitional period to come to an end, it is absolutely and immediately prohibited, for Member States to impose customs duties or charges having equivalent effect on imports of the products involved because these duties and charges have been replaced by a system of levies.

4. As regarded products which did not come within a common organization of agricultural markets, the Commission based its action on Article 13 (2) of the Treaty which provides for the abolition during the transitional period of charges having equivalent effect, according to a timetable determined by means of directives.

5. The two procedures which had thus been initiated and followed separately according to whether the products in question came within the regulations relating to common organizations of agricultural markets had reached the same stage in June 1969 as regards the course of proceedings laid down in Article 169. The Permanent Representative of Italy repeated in his letter No 3489 of 25 June 1969 the assurance that a bill to abolish the duties in question had been approved by the Council of Ministers of the Italian Republic and had been laid before Parliament.

6. The oral procedure followed the normal course.

II —. Conclusions of the parties

(a). declare that the Italian Republic, by levying under Law No 330 of 15 June 1950 the duty of 0.50 % for administrative services on goods which come within the regulations of the Council on certain common organizations of agricultural markets and on certain goods resulting from the processing of agricultural products imported from other Member States, has failed to fulfil its obligations under the provisions of Article 189 of the EEC Treaty in conjunction with the following articles of the said regulations :

(b). declare that the Italian Republic, by levying the duty of 0.50 % for administrative services laid down by Law No 330 of 15 June 1950 on goods other than those to which the abovementioned regulations apply which were made under Articles 43 and 235 of the EEC Treaty, has failed to fulfil its obligations under the provisions of Article 189 of the Treaty in conjunction with Directive No 68/31/EEC of 22 December 1967;

(c). order the Italian Republic to pay the costs.

III —. Submissions and arguments of the parties

1. By application lodged at the Court Registry on 7 March 1970 the Commission has brought before the Court under Article 169 of the EEC Treaty an action for a declaration that, by levying on imported goods the duty of 0.50 % laid down by Italian Law No 330 of 15 June 1950, for administrative services, the Italian Republic has failed as regards goods which come within certain common organizations of agricultural markets to fulfil its obligations under Article 189 of the Treaty in conjunction with various regulations relating to the common organization of markets and, as regards other goods, has failed to fulfil its obligations under the provisions of Article 189 of the Treaty in conjunction with Directive No 68/31/EEC of 22 December 1967 (OJ L 12 of 16. 1. 1968, p. 8).

2. The charge in question imposes an ad valorem duty of 0.50 % on imported goods only. The Italian Government claimed during the preliminary proceedings that this duty represented conisderation for services rendered by the customs administration and could not be considered as a charge having effect equivalent to a customs duty but following this it announced in a note dated 23 April 1968 its intention of putting before Parliament the necessary legislation for the purpose of abolishing the charge in question. However the taxation in question has continued to be levied.

3. There is no dispute that the charge in question is imposed on imported goods owing to the fact that they cross the frontier. It is not alleged that it is a charge to compensate for internal taxation, nor is it maintained that it is a consideration for services actually rendered. On the contrary, it must be regarded as a charge having an effect equivalent to a customs duty and it therefore comes within the prohibition in Article 9 of the Treaty.

4. Under Article 13 (2) of the Treaty this charge should have been abolished during the transitional period according to the timetable indicated in Directive No 68/31/EEC of 22 December 1967 in so far as it is imposed on products other than those to which the regulations relating to organizations of the agricultural market apply. According to this directive, the charge in question should have been abolished by means of successive reductions so as to have been entirely eliminated by 1 July 1968.

5. The charge in question therefore infringes Article 13 (2) of the Treaty in conjunction with Directive No 68/31/EEC of 22 December 1967 in so far as it is imposed on products other than agricultural products which come within a market organization.

6. The duty in question, in so far as it is imposed on agricultural products which come within regulations relating to a common organization of the market, infringes the provisions of these regulations which prohibit as from the respective dates on which they enter into force the levying on the products to which they apply of any customs duty or charge having an equivalent effect.

7. Under Article 189 of the Treaty, these regulations are binding in their entirety and directly applicable in all Member States. The retention of the taxation in question is incompatible with these regulations.

8. The defendant does not dispute that the contested charge is contrary to the provisions of Community law but relies on the fact that it is willing to adopt the necessary measures to abolish it. To this end the Italian Government introduced a bill which the Senate approved on 29 April 1970 and which is at present before the Chamber of Deputies. According to the defendant the delay in examining this bill is due to force majeure which prevented Parliament from coming to a decision in good time in spite of the efforts made by the Italian Government.

9. The obligations arising from the Treaty devolve upon States as such and the liability of a Member State under Article 169 arises whatever the agency of the State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution.

10. In any case a Member State cannot justify itself by relying upon obstacles which not only did not emerge until long after the coming into existence of the obligations which it is alleged to have failed to fulfil, but only did so after the period laid down in the: reasoned opinion had expired.

11. The failure consists essentially in the actual levying of the charge in question.

12. In these circumstances, the Italian Republic, by continuing to levy an 0.50 % duty for administrative services on imported products to which the regulations on the organization of agricultural markets apply after the dates on which those regulations entered into force and on other goods imported from a Member State after1 July 1968, has failed to fulfil an obligation under the Treaty establishing the European Economic Community.

13. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. The defendant has failed in its submissions.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties ; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 9, 13, 43, 169, 171, 189 and 235; Having regard to Regulations Nos 13/64/EEC, 14/64/EEC, 136/66/EEC, 159/66/EEC, 160/66/EEC, 44/67/EEC, 120/67/EEC, 121/67/EEC, 122/67/EEC, 123/67/EEC, 170/67/EEC, 359/67/EEC, 1009/76/EEC, (EEC) 804/68, (EEC) 805/68 and (EEC) 1059/69; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT hereby:

1 Declares that, by levying an 0.50 % charge for administrative services on imports from other Member States of goods which come within regulations of the Council on certain common organizations of the agricultural market and on certain goods resulting from the processing of agricultural products imported from other Member States, the Italian Republic has failed to fulfil its obligations under the provisions of Article 189 of the EEC Treaty in conjunction with the said regulations;

2 Declares that, by imposing an 0.50 % charge for administrative services on goods, other than those to which the abovementioned regulations apply, imported from other Member States, the Italian Republic has failed to fulfil its obligations under the provisions of Article 13 of the EEC Treaty in conjunction with those of Directive No 68/31 EEC of 22 December 1967;

3 Orders the defendant to pay the costs.