JUDGMENT OF 26. 10. 1971 — CASE 18/71 EUNOMIA v ITALY

In Case 18/71 Reference to the Court under Article 177 of the EEC Treaty by the President of the Tribunale di Torino for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars, Rapporteur and H. Kutscher, Presidents of Chambers, A. M. Donner, A. Trabucchi, R. Monaco 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 Protocol on the Statute of the Court of Justice of the EEC

A — Observations of the Commission of the European Communities

B — Observations of the Eunomia company

Grounds of judgment

Costs

I —. Facts and procedure

1. Law No 1089 of 1 June 1939 (Gazetta Ufficiale, No 184 of 8 August 1939) levied a progressive tax on the export of articles of an artistic, historical, archaeological or ethnographic interest.

2. On 4 March 1970 tne Eunomia company exported a painting valued at Lit. 500000 to the Federal Republic of Germany through the customs office at Domodossola. An export tax of Lit. 108750 was levied on this transaction and paid by the exporter which, however, brought proceedings for a summary judgment before the President of the Tribunale di Torino (Turin District Court) for the repayment of the sums which in its view had been improperly levied by the Italian State.

3. By a decision of 6 April 1971 the President of the Tribunale di Torino stayed the proceedings and under Article 177 of the EEC Treaty, requested the Court to give a preliminary ruling on the following questions:

4. The order referring these questions was received at the Registry of the Court of Justice on 15 April 1971.

II —. Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. Observations of the Commission of the European Communities

1. The Commission observes that the Treaty contains two series of provisions for the abolition of existing duties and charges:

2. Moreover, all the conditions attached by the case-law of the Court to the direct applicability of the Treaty provisions concerning the obligations on the Member States are satisfied:

B —. Observations of the Eunomia company

1. The Eunomia company observes that there can be no doubt as to the lawful nature of the reference to the Court: the Court has already accepted (Judgment of 17 December 1970, Case 33/70, SpA SACE v Ministry for Finance of the Italian Republic, [1970] ECR 1213) that a reference is lawful within the context of proceedings for a summary judgment, even where the defendant has not yet been heard by the national court.

2. As regards the substance of the case the Eunomia company considers that the direct effect of the Community legislation and, therefore, the inapplicability of the tax on works of art introduced by the Law of 1939 result, first, from the decision of the Court of Justice of 10 December 1968 (Case 7/68, Commission of the European Communities v Italian Republic, [1968] ECR 423) and, secondly, from the established case-law of the Court on the question of direct effect.

1. By decision of 6 April 1971, received at the Court Registry on 15 April 1971, the President of the Tribunale di Torino referred to the Court under Article 177 of the Treaty establishing the European Economic Community two questions on the interpretation of Article 16 of the EEC Treaty.

2. The decision making the order for reference shows that the national court is dealing with a request for the refund of sums paid on the export of a work of art to another Member State by way of the tax on the export of articles of an artistic, historic, archaeological or ethnographic interest, which was introduced by the Italian Law No 1089 of 1 June 1939.

3. As the Court of Justice found in its judgment of 10 December 1968 in Case 7/68, this tax constitutes a charge having an effect equivalent to customs duties on exports and is governed by Article 16 of the Treaty.

4. In the first question the Court is asked to rule whether Article 16 constitutes a legal rule which is immediately applicable and which reproduces direct effects within the territory of the Italian State as from 1 January 1962. Should the answer to the first question-be in the affirmative the Court is requested to rule whether, as from that date, this rule has created individual rights in relation to the Italian State which the courts must protect. As these two questions are closely connected they must be considered together.

5. According to Article 9 of the EEC Treaty, the Community is to be based upon a customs union which is to involve in particular the prohibition between Member States of customs duties and all charges having equivalent effect. Under Article 16 of the Treaty Member States are to abolish between themselves customs duties on exports and charges having equivalent effect by the end of the first stage at the latest.

6. Articles 9 and 16 taken together involve, at the latest at the end of the first stage, with regard to all charges having an effect equivalent to customs duties on exports, a clear and precise prohibition on exacting the said charges, which is not subject to any reservation for the States to subject its implementation to a positive act of national law or to an intervention by the institutions of the Community. It lends itself, by its very nature, to producing direct effects in the legal relations between Member States and those subject to their jurisdiction.

7. Therefore, from the end of the first stage, that is, from 1 January 1962, these provisions have conferred on individuals rights which the national courts must protect and which must prevail over conflicting provisions of national law even if the Member State has delayed in repealing such provisions.

8. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of SAS Eunomia di Porro e C. and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 9, 16 and 177; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; 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 by the President of the Tribunale di Torino by order of that court dated 6 April 1971, hereby rules: