JUDGMENT OF 27. 1. 1976 — CASE 46/75 IBC v COMMISSION
In Case 46/75
THE COURT composed of: R. Lecourt, President, H. Kutscher, President of Chamber, A. M. Donner, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart and A. O'Keeffe, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
I — Facts and procedure
(a) Subject-matter of the action
(b) Regulations involved in this instance
(c) Procedure
II — Conclusions of the parties
III — Submissions and arguments of the parties
A — Application
Facts
Law
1. Infringement of the second and fourth indents of Article 155 of the EEC Treaty, together with Article 1 of Regulation No 974/71
2. Infringement of the fourth indent of Article 155 of the EEC Treaty, together with Article 4a of Regulation No 974/71
3. Further infringement of the fourth indent of Article 155 of the EEC Treaty, together with Article 4a of Regulation (EEC) No 974/71
4. Infringement of the fourth indent of Article 155 of the EEC Treaty, together with Article 145
B — Defence of the Commission
(a) The exercise of a power reserved solely to the Council
(b) Incompatibility with the objectives of the compensatory amounts
C — Reply
D — Rejoinder
IV — Oral procedure
Law
Costs
I —. Facts and procedure
(a). Subject-matter of the action
(b). Regulations involved in this instance
(c). Procedure
II —. Conclusions of the parties
(a). In that the reduction of the compensatory amounts by the amount to be deducted is contrary to the purpose of the system of compensatory amounts;
(b). In that the abovementioned rule infringes the provisions of Article 4a, and that it constitutes a misuse of powers on the part of the Commission.
(a). Dismiss the application;
(b). Order the applicant to pay the costs.
III —. Submissions and arguments of the parties
A —. Application
1. Infringement of the second and fourth indents of Article 155 of the EEC Treaty, together with Article 1 of Regulation No 974/71
2. Infringement of the fourth indent of Article 155 of the EEC Treaty, together with Article 4a of Regulation No 974/71
3. Further infringement of the fourth indent of Article 155 of the EEC Treaty, together with Article 4a of Regulation (EEC) No 974/71
4. Infringement of the fourth indent of Article 155 of the EEC Treaty, together with Article 145
B —. Defence of the Commission
(a). The compensatory amounts applied in trade between the Member States must be the same as those applying to trade with third countries if deflections of trade are to be avoided.
(b). In trade between Member States the application of Article 4a poses problems in that the import charge to which the compensatory amount must be compared consists of a percentage of the value of the product: in order to convert this percentage into a monetary amount the value of the goods must be checked; this operation constitutes a serious obstacle to intra-Community trade and is one for which the customs authorities in the Community are no longer equipped since the elimination of intra-Community customs duties. The customs authorities must carry out a complicated calculation in order to determine a hypothetical import charge, the amount of which represents the maximum monetary compensatory amount.
(a). The exercise of a power reserved solely to the Council
(b). Incompatibility with the objectives of the compensatory amounts
C —. Reply
D —. Rejoinder
IV —. Oral procedure
1. In an application lodged on 13 May 1975 the applicant undertaking claims compensation for the damage which it allegedly suffered as a result of the application by the Italian customs authorities of Regulation No 1463/73 of the Commission of 30 May 1973 laying down detailed rules for the application of monetary compensatory amounts (OJ 1973, L 146, p. 1); the applicant asserts that Article 5, which was applied in this instance, is void on the ground of illegality in that it unduly reduced the compensatory amounts on imports.
2. It is claimed that as a result of the application of this provision the applicant was wrongly required to pay certain sums by way of equalization between the import charge and the monetary compensatory amounts; it is the repayment of these sums which is sought in this action.
3. The action in fact concerns decisions of the Italian authorities adopted in implementation of Community rules which the applicant regards as unlawful. It thus concerns the legality of the imposition of the sums in dispute by the national authorities responsible for the implementation and enforcement of the provisions concerning monetary compensatory amounts and seeks the reimbursement, by the Community rather than by the national authorities, of the sums which are said to have been improperly charged.
4. The provisions of these rules lay down criteria for the calculation of sums payable by way of equalization between the import charge and the compensatory amounts and therefore leave no doubt that the actual assessment and imposition of the sums due are matters for the national authorities.
5. The question of the legality of such implementing measures adopted in pursuance of Community law is, therefore, a matter for the competent national courts or tribunals to decide, using the procedures laid down under national law and after application, where appropriate, of Article 177 of the Treaty, in particular on questions concerning the validity of the Community provisions applied.
6. The applicant is not therefore entitled to refer the matter to the Court of Justice by the expedient of an action directed against the Community for compensation for the alleged damage in order to obtain a material revision of the said implementing measures.
7. The application must therefore be dismissed as inadmissible.
8. Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay costs. As the applicant undertaking has failed in its pleas it must be ordered to pay the costs.
On those grounds, THE COURT hereby:
1 Dismisses the application as inadmissible.
2 Orders the applicant to pay the costs.