Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. The outcome of this action seeking a declaration that a Member State has failed to fulfil its Treaty obligations depends on the reply which the Court gives to the following question: Should the disputed provision of Italian legislation, the incompatibility of which with Article 19 of Commission Directive 82/57/EEC of 17 December 1981 laying down certain provisions for implementing Council Directive 79/695/EEC (the latter being hereinafter referred to as the second Council directive) is denied by no one, none the less be regarded as being in conformity with Community law by virtue of Article 4 of the earlier Council directive, Directive 78/453/EEC (the first Council directive) ?

2. The release for free circulation within the Community of goods coming from a nonmember country is subject to their release by the customs authorities in the Member State of importation. Once the goods are released the importer is authorized to remove them.

3. The solution to the problem thus posed must be sought in the general legislative scheme created by the three directives.

4. The Commission's application should therefore be upheld and the Italian Republic should be ordered to pay the costs.

1 Translated from the French.