JUDGMENT OF 3. 10. 1978 — CASE 27/78 AMMINISTRAZIONE DELLE FINANZE DELLO STATO v RAS HAM

In Case 27/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Corte Suprema di Cassazione (Supreme Court of Cassation) for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A M. Donner, J. Mertens de Wilman, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Summary of the written observations submitted to the Court

III — Oral procedure

Decision

Costs

I —. Facts and procedure

1. Must Decision No 66/532 of the Council of the EEC, under which the Member States provided that customs duties then existing between them on products other than those listed in Annex II to the Treaty were to be abolished (Article 1) and that at the same time the Common Customs Tariff was to be fully applicable to such products imported from third countries (Article 2) on a date (1 July 1968) prior to that laid down in the reaty pursuant to Article 235 of the Treaty, be interpreted as meaning that it brought forward the date of expiry of the transitional period referred to in Article 8 of the said Treaty?

2. If Question 1 is answered in the affirmative, does the bringing forward of the date of expiry of the transitional period for the aforesaid purposes also entail the corresponding bringing forward of the date before which the Member States may, in the circumstances described in the first paragraph of Article 115 of the Treaty and in case of urgency, themselves take the necessary protective measures pursuant to the second paragraph of Article 115?

3. If the answer to Questions 1 and 2 is to the effect that the Member States' power to take protective measures pursuant to the second paragraph of Article 115 of the Treaty continued to exist, must the said provision, in providing that the Member States are to notify the necessary measures which they themselves take to the other Member States and to the Commission, which may decide that the States concerned are to amend or abolish such measures, be interpreted as meaning that it makes such notification a condition for the validity of the applicability of the provision imposing the said measures?

II —. Summary of the written observations submitted to the Court

III —. Oral procedure

1. By an order of 2 December 1977, received at the Court on 3 March 1978, the Corte Suprema di Cassazione referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions relating to the interpretation of Anide 115 of the Treaty and of Council Decision No 66/532 of 26 July 1966 concerning the abolition of customs duties, the prohibition of quantitative restrictions as between Member States and the application of the Common Customs Tariff duties for products other than those set out in Annex II to the Treaty (Journal Officiel 1966, p. 2971).

2. The questions were raised in the course of a dispute between the Amministrazione delle Finanze dello S ta to (Italian Sute Finance Administration) and an undertaking which on 9 July 1968 had imported into Italy 5000 upe recorders of Japanese origin coming from Belgium.

3. The customs authorities called on the importing undertaking to pay the sum of Lit 601215 together with the additional costs by way of customs dudes and related charges which had not been paid at the time of clearance through customs, stating that by that Circular No 292 of 17 June 1968 the Ministero delle Finanze (Ministry of Finance) had excluded goods of the type in question from free circulation treatment, in application of the provisions regarding protective measures referred to in the second paragraph of Article 115 of the Treaty.

4. Taking the view that the transitional period during which protective measures were allowed under Article 115 of the Treaty had expired as from 1 July 1968 by virtue of the Council Decision of 26 July 1966, the importing undertaking claimed repayment of the amount charged.

5. The first question asks whether the Council Decision of 26 July 1966 must be interpreted as meaning that it brought forward the date of expiry of the transitional period referred to in Article 8 of the Treaty.

6. If that question is answered in the affirmative, the second question asks whether the bringing forward of the date of expiry of the transitional period entails a corresponding curtailment of the period referred to in the second paragraph of Article 115 of the Treaty.

7. Adopted under Articles 14 and 235 of the Treaty, the Council Decision of 26 July 1966 is intended to accelerate the pace of the achievement of the objectives of the Treaty, in particular in the field of the customs union and the abolition of quantitative restrictions (first recital).

8. For that purpose, Article 1 of the decision provides that:

9. Thus the decision is based on the concept of a selective acceleration of actions which as a whole were to be completed by the end of the transitional period at the latest, and it applies only to measures to which it specifically refers.

10. Therefore the answer to the first question must be that the Council Decision of 26 July 1966 did not bring forward the date of expiry of the transitional period within the meaning of Article 8 of the Treaty.

11. Consequently it is not necessary to answer the second question.

12. The third question asks whether the stipulation in the second paragraph in Article 115 of the Treaty, to the effen that Member States are to notify protective measures which they have taken unilaterally to the other Member Sutes and to the Commission, must be interpreted as meaning that it makes such notification a condition for the validity or the applicability of the provision imposing the said measures.

13. The provision at issue implies that the unilateral adoption of protective measures and the notification of the Commission and the other Member States should take place at the same time or immediately after one another.

14. However, it cannot be inferred from the wording of the provision that notification is a condition precedent of the entry into force of the measures adopted.

15. It follows that although the duty to notify protective measures which is laid down in the second paragraph of Article 115 of the Treaty is absolute, compliance therewith cannot be a condition precedent of the entry into force of the protective measures adopted.

16. The answer should be in these terms.

17. The costs incurred by the Commission and by the Italian Government which have submitted observations to the Court are not recoverable.

18. 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 on costs is a matter for that court.

THE COURT, in answer to the questions referred to it by the Corte Suprema di Cassazione by an order of 2 December 1977, hereby rules:

1 Council Decision No 66/532 of 26 July 1966 concerning the abolition of customs duties, the prohibition of quantitative restrictions as between Member States and the application of the Common Customs Tariff duties for products other than those set out in Annex II to the Treaty (Journal Officiel 1966, p. 2971) did not bring forward the date of expiry of the transitional period within the meaning of Article 8 of the Treaty.

2 Although the duty to notify protective measures which laid down in the second paragraph of Article 115 of the Treaty is absolute, compliance therewith cannot be a condition precedent of the entry into force of the protective measures adopted.