JUDGMENT OF 9. 6. 1982 — JOINED CASES 206, 207, 209 AND 210/80 ORLANDI v MINISTRY OF FOREIGN TRADE
In Joined Cases 206, 207, 209 and 210/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the First Civil Chamber of the Tribunale Civile [Civil Distria Court], Rome, for a preliminary ruling in the actions pending before that court between
THE COURT composed of: J. Mertens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges, Advocate General: Sir Gordon Slynn Registrar: P. Heim
gives the following
JUDGMENT
Facts and Issues
I — Facts and procedure
II — Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court
A — Observations of the plaintiffs in the main actions
First question
Second question
B — Observations of the Italian Government
First question
Second question
C — Observations of the Commission of the European Communities
III — Oral procedure
Decision
I — Intra-Community trade
II — Trade with nonmember countries
Costs
I —. Facts and procedure
(1). With reference to Articles 7, 30 to 36 and 106 of the Treaty and Article 21 of Regulation No 120/67/EEC of 13 June 1967, whereby Member States are under a duty to authorize, in the currency of the Member Sute in which the creditor resides, any payments connected with trade in goods in free circulation, and to Articles 9, 10, 13 and 30 to 36 of the Treaty on the free movement of goods in intra-Community trade, are the rules laid down by the Iulian State and referred to in Articles 1, 3 and 4 of Law No 1126 of 20 July 1952, Article 2 of Decree Law No 476 of 6 June 1956 converted into Law No 786 of 25 July 1956 and Article 2 of the Ministerial Order of 20 January 1973 compatible with the abovementioned provisions and do they not, because the result of those rules is to discourage imponers into Italy from choosing the most appropriate date to release those goods to the market, amount to a measure having an effect equivalent to a quantitative restriction or a charge having an effect equivalent to a customs duty, when they are interpreted as meaning that forfeiture by the Ministry of Foreign Trade of the security which is required of importers into Italy of goods in free circulation in the Community in order to obtain the foreign currency necessary for the payments in advance against documents, may be made on the basis of the date on which the goods themselves are registered upon importation rather than the date on which the goods reached the national territory, in view of the particularly short period after the date of the foreign currency payment, within which the operation of obuining customs clearance must be carried out?
(2). With reference to Articles 7, 9, 10, 13 and 30 to 36 of the Treaty on the free movement of goods and Articles 13, 15 and 18 of Regulation No 120/67/EEC of 13 June 1967 and subsequent amendments on the common organization of the agricultural market and on the system of levies, are the rules laid down by the Italian State and referred to in Articles 1, 3 and 4 of Law No 1126 of 20 July 1952, Article 2 of Decree Law No 476 of 6 June 1956, converted into Law No 786 of 25 July 1956, and Article 2 of the Ministerial Order of 20 January 1973 compatible with the abovementioned provisions and do they not, because the result of those rules is to discourage importers into Iuly from choosing the most appropriate date on which to release goods to the market, and also having regard to the more favourable system of Community levies, amount to a measure having an effect equivalent to a quantitative restriction or to a charge having an effect equivalent to a customs duty, when they are interpreted as meaning that forfeiture by the Ministry of Foreign Trade of the security which is required of importers into Italy of agricultural goods and products which come From nonmember countries and are subject to the levy system in order to be able to obtain the necessary foreign currency for the payments in advance against documents, may be made on the basis of the date on which those goods are registered upon importation rather than the date on which the goods themselves reached the national territory, in view of the particularly short period, after the date of the foreign currency payment, within which the operation of obtaining customs clearance must be carried out?
II —. Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court
A —. Observations of the plaintiffs in the main actions
B —. Observations of the Italian Government
1. The Iulian Government first maintains that the Court of Justice is not competent to decide the question whether the Italian national rules are compatible with the Community law provisions in the context of a reference for a preliminary ruling, especially as the questions formulated in the main actions by the Italian Court require the Court to assess national legal provisions, and the Tribunale Civile to apply directly the judgment of the Court to a given case.
2. In so far as the Italian Government considers that the question which has been raised is whether the Italian measures in question amount to discrimination on the ground of nationality and measures having an effect equivalent to a quantitative restriction or charges having an effect equivalent to a customs duty, the only reply possible is in the negative.
2.1. Relying on Article 104 of the EEC Treaty, which stipulates that each Member Sute shall pursue the economic policy needed to ensure the equilibrium of iti overall balance of payments and to mainuin confidence in its currency, the Iulian Government maintains that the measures which are being challenged fall squarely and exclusively within the context of moneury policy and thus are quite unconnected with the Community provisions referred to in the questions. In fan the requirement that security be lodged, and the fixing of a specific period within which the goods acquired with foreign currency allowed by the Sute and paid for in advance of the date of importation must go through import formalities are intended to avoid disequilibrium in the balance of payments, for the absence of such measures would facilitate speculative transactions to the detriment of the Iulian lira.
2.2. In the opinion of the Italian Government the measures in question also do not infringe the prohibition of discrimination under Article 7 of the EEC Treaty, mainly because these measures do not fall within the Treaty's sphere of application in view of the fact that there is no Community legal provision which regulates, in a manner other than that used by the Government of the Iulian Sute, the holding of foreign currency by nationals of the Member Sutes of the European Economic Community.
2.3. Even if in all absurdity Article 104 proved insufficient to exclude the question from the scope of Articles 30 and 13 of the Treaty, its exclusion must then follow from Article 36.
2.4. The Iulian Government also asserts that the Iulian national provisions in question are not contrary to Article 106 of the EEC Treaty on the ground that the imports were paid for in US dollars and therefore in the currency of a Sute in which none of the creditors resided (leaving aside the imports concerned in Case 207/80).
2.5. Finally, the Iulian Government mainuins that the measures challenged do not moreover constitute charges having an effen equivalent to a customs duty.
C —. Observations of the Commission of the European Communities
1. The Commission asserts principalk that the system of security put up by the bank, laid down by the Italian legislation, constitutes a measure having an effect equivalent to a quantitative restriction.
2. In the two cases (209 and 210/80) concerning imports coming from other Member Sutes, the Commission considers the question concerned with the interpreution of Article 106 of the Treaty.
3. With regard to the questions concerning the levy system and the concept of a tax having an effect equivalent to a customs duty, the Commission takes the view that it is not necessary to consider those questions, since the requirement of security put up by the bank constitutes in itself a measure having an effect equivalent to a quantiutive restriction. Consequently, the Commission proposes that the following reply should be given to the Tribunale Civile, Rome:
III —. Oral procedure
1. By four orders dated 14 July 1980 which were received at the Court Registry on 23 October 1980 the First Civil Chamber of the Tribunale Civile [Civil District Court], Rome, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions concerning the interpretation of Articles 7, 9, 10, 13, 30 to 36 and 106 of the Treaty and Articles 13, 15, 18 and 21 of Regulation No 120/67/EEC of the Council of 13 June 1967 (Official Journal, English Special Edition 1967, p. 33) on the common organization of the market in cereals. Since the two questions were identically worded in the four orders making the references the Court decided by order of 17 December 1980 to join the four cases for the purposes of procedure and judgment.
2. The questions arose in the course of four actions brought against the Italian Ministry of Foreign Trade by Italian undertakings which had imported agricultural products. Cases 206 and 207/80 concerned products from nonmember countries, namely carob beans from Cyprus and maize from Argentina respectively, and Cases 209 and 210/80 concerned goods already in free circulation in other Member Sutes, namely coffee from the Netherlands and cotton meal from the Federal Republic of Germany.
3. As required by the Italian legislation in force at the material time, the four plaintiffs requested and obtained, in order to make advance payment in US dollars for the goods in question, a bank guarantee to cover the 5% security required in respect of all advance payments for imported goods. Under the same legislation the security (either provided by the importer or guaranteed by his bank) is forfeit to the Treasury if proof is not given that the importation has been effected within a period laid down by ministerial order, which was at that time 30 days from the date of the advance payment.
4. In the four main actions the imported goods reached Italian territory before the expiry of the 30-day period provided for by the Iulian legislation in force at the time, but parts, or in some cases the whole, of the consignments could not be released for consumption until after the 30 days had elapsed. Considering that the 30-day limit had been exceeded, the Italian Ministry of Foreign Trade decided to confiscate so much of the security as corresponded to the quantity of goods in respect of which the declaration of importation had been made after the period had expired.
5. The plaintiffs in the main action initiated proceedings against the Ministry of Foreign Trade in the court which has made the reference, seeking an order to the effect that the Ministry should refund the securities and release the bank guarantees. They claimed that the Italian legislation was to be constructed as requiring forfeiture of the security only if more than 30 days had elapsed between the advance payment and the arrival of the goods on Italian soil. If, on the contrary, it was to be interpreted as requiring the goods to be cleared through customs within 30 days, the Italian legislation must be regarded as a measure having an effect equivalent to a quantitative restriction, which is prohibited in intra-Communiţy trade by Article 30 of the Treaty in conjunction with Article 18 of Regulation No 120/67/EEC of the Council on the common organization of the market in cereals in the case of maize, and in conjunction with Regulation (EEC) No 827/68 of the Council of 28 June 1968 (Official Journal, English Special Edition 1968 (I), p. 209) in the case of carob beans.
6. On those facts, the Tribunale Civile, Rome, referred to the Court for a preliminary ruling the following two questions:
7. The object of the questions which have been submitted is to discover first, whether the provisions of Community law which prohibit measures having an effect equivalent to quantitative restrictions in intra-Community trade and those concerning Member States' obligations regarding payments for such trade must be interpreted as covering the requirement to provide a security in the circumstances described above where goods imported from other Member States are paid for in advance, and secondly, whether the same interpretation is to be given to Article 18 of Regulation No 120/67 and to Article 2 of Regulation No 827/68 in the case of agricultural products covered by those regulations and imported into the Community from nonmember countries.
I —. Intra-Community trade
8. The measures to which the national court refers were the subject of another case concerning the intra-Community trade described in its first question, Case 95/81, an action under Article 169 of the EEC Treaty brought by the Commission against a Member Sute for failure to fulfil its obligations under the Treaty.
9. The question of law which was considered in Case 95/81 is identical in substance to that raised by the first question from the Tribunale Civile inasmuch as it appears from the files that the national court did not restrict its question solely to cases in which national law provides for forfeiture of the guarantees which have been given when the goods are detained for a time by the customs authorities at the port of entry, so that the question covers equally cases in which a trader is in danger of losing his security on the ground that more than 30 days have elapsed between the date of the advance payment and the arrival of the goods at the port of entry.
10. In a judgment delivered this day the Court has declared that by requiring all importers of goods from other Member States to provide security or a bank guarantee equal to 5% of the value of the goods when payment is made in advance, the words payment in advance referring not only to payments for speculative purposes but also to normal and current payments concerning intra-Community transactions, the Italian Republic has failed to fulfil its obligations under Articles 30 and 36 of the Treaty.
11. Since the measures objected to by the Commission were the same as those which are the subject of the present proceedings, the only difference being that the prescribed period, which amounted to 120 days in the action for failure to fulfil obligations, was only 30 days under the rules in force at the time of the main actions in these cases, it is sufficient to refer to the judgment in Case 95/81, a copy of which is annexed to this judgment. Since that judgment contains all the information necessary for a decision in the main actions, an interpretation of Articles 7,9, 10 and 13 of the EEC Treaty is not required.
12. For the reasons set out in that decision the reply to the first question put by the Tribunale Civile, Rome, should be that the concept of measures having an effect equivalent to a quantitative restriction in Article 30 of the Treaty is to be understood as meaning that that provision covers a national measure requiring all importers of goods coming from other Member States to provide a security or a bank guarantee amounting to 5% of the value of the goods when payment is in advance, the words payment in advance referring not only to payments for speculative purposes but also to normal and current payments in intra-Community transactions. That applies regardless of the point in time at which the authorities of the Member State consider the importation to have been effected.
II —. Trade with nonmember countries
13. As far as concerns the trade with nonmember countries referred to in the second question from the national court, it must be remembered that Article 18(2) of Regulation No 120/67 of the Council, which appears under Title II, headed Trade with third countries and applies to trade in maize from Argentina, and Article 2 of Regulation No 827/68 of the Council, governing the market in carob beans from Cyprus, are in substance identical; the latter provides that:
14. From the files in the main actions it appears that in the cases under consideration the prohibitions laid down are not the subject of contrary provisions in the relevant rules, or of any derogation decided upon by the Council.
15. The Court has already had occasion to construe Articles 18 and 21 of Regulation No 120/67 in its judgment of 10 October 1973 (Case 34/73 Variola [1973] ECR 981) in which it declared: There is no consideration which could justify different interpretations of the concept of charge having equivalent effect as it appears in Article 9 et seq. of the Treaty, on the one hand, and ... Articles 18 and 21 of Regulation No 120/67, on the other.
16. Those considerations apply equally with regard to the expression measures having equivalent effect as used both in Article 30 of the Treaty and in the abovementioned articles of Regulations No 120/67 and 827/68.
17. The reply to the second question must therefore be that the concept of measures having an effect equivalent to quantitative restrictions has the same meaning when applied to imports from nonmember countries of products covered by Regulations Nos 120/67 and 827/68 as it has when applied to trade between Member States.
18. The costs incurred by the Iulian Government, the French Government and the Commission, which have submitted observations to the Court, are not recoverable.
19. As the proceedings are, in so far as the parties to the main actions are concerned, in the nature of a step in the proceedings before the national court, the decision as to costs is a matter for that court.
On those grounds, THE COURT in answer to the questions referred to it by the Tribunale Civile, Rome, by orders of 14 July 1980, hereby rules;
1 The concept of measures having an effect equivalent to a quantitative restriction in Article 30 of the Treaty is to be understood as meaning that that provision covers a national measure requiring all importers of goods coming from other Member States to provide a security or a bank guarantee amounting to 5% of the value of the goods when payment is in advance, the words payment in advance referring not only to payments for speculative purposes but also to normal and current payments in intra-Community transactions. That applies regardless of the point in time at which the authorities of the Member State consider the importation to have been effected.
2 The concept of measures having an effect equivalent to quantitative restrictions has the same meaning when applied to imports from nonmember countries of products covered by Regulations Nos 120/67 and 827/68 as it has when applied to trade between Member Sutes..