Report for the Hearing delivered in Case 340/87

I — Facts

1. Article 11 of Decree No 43 of the President of the Italian Republic of 23 January 1973 consolidating the legislative provisions in customs matters (ordinary supplement to the Gazzetta ufficiale della Repubblica italiana 80, of 28 March 1973), as amended by Article 1(2) of Decree No 254 of the President of the Italian Republic of 8 May 1985 {Gazzetta ufficiale della Repubblica italiana 138, of 13 June 1985, p. 4165), which was intended to transpose into Italian law Council Directive 83/643 of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States (Official Journal L 359, p. 8), as amended by Council Directive 87/53/EEC of 15 December 1986 (Official Journal L 24, p. 33), provides that:

2. Article 15 of Decree No 254 of the President of the Italian Republic provides more generally that:

3. In Italy normal civil service working hours are six hours per day.

4. Article 5(l)(a) of Directive 83/643, as amended by Directive 87/53, provides that:

5. The Commission took the view that in so far as the aforementioned national provisions provide for operators who satisfy the conditions referred to in the second indent of Article 5(1)(a) of Directive 83/643 to be charged the cost of the services of customs staff from Monday to Friday for four of the normal daily business hours of frontier customs offices, they introduce a tax having an effect equivalent to a customs duty prohibited in trade between Member States by Articles 9 and 12 of the EEC Treaty and by Article 5 of Directive 83/643 and in trade with nonmember countries by the EEC regulations on the common organization of the agricultural markets and by preferential agreements made by the Community with certain nonmember countries.

6. Since there was no reply to that letter, on 31 October 1986 the Commission delivered a reasoned opinion pursuant to the first paragraph of Article 169 of the EEC Treaty to the effect that by charging operators the cost of inspections and administrative formalities carried out during part of the normal business hours of the offices at frontier crossing points the Italian Republic has failed to fulfil its obligations under Articles 9 and 12 of the EEC Treaty, the provisions of the EEC regulations on the common organization of the markets under the common agricultural policy which prohibit charges having an effect equivalent to customs duties, the provisions of the preferential agreements concluded by the Community with certain nonmember countries which prohibit charges having an effect equivalent to customs duties, and Article 5 of Directive 83/643.

7. On 21 May 1987 the Italian Republic informed the Commission that interministerial meetings were taking place to consider the problem thoroughly and that the Commission would immediately be informed of the results.

8. The Commission has received no information on the matter.

II — Written procedure and conclusions of the parties

1. By application lodged at the Court Registry on 2 November 1987 the Commission brought an action before the Court pursuant to the second paragraph of Article 169 of the EEC Treaty for a declaration that the Italian Republic had failed to fulfil its obligations under Articles 9 and 12 of the EEC Treaty, the provisions of the EEC regulations on the common organization of agricultural markets and the preferential agreements concluded by the Community with certain nonmember countries which prohibit charges having an effect equivalent to customs duties, and Article 5 of Directive 83/643.

2. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry. The Commission and the Government of the Italian Republic were requested to answer certain questions in writing, which they did within the stipulated period.

3. The Commission, the applicant, claims that the Court should:

4. The Government of the Italian Republic, the defendant, contends that the Court should:

III — Submissions and arguments of the parties

1. The Commission submits that the contested national provisions are incompatible with Article 5(1) and (4) of Directive 83/643 in so far as they require payment of the cost of the service for customs transactions carried out during business hours outside the six-hour period which is the normal working day for civil servants in Italy.

2. The Government of the Italian Republic contends that the Commission's application is unfounded.

IV — Answers to questions put by the Court

1. The Court requested the Commission to answer in writing the following question:

2. Asked to specify what it means by actual customs clearance in the case of goods imported from another Member State, where in its defence it alleged that Directive 83/643 is not applicable to customs transactions consisting in the actual customs clearance of goods, the Government of the Italian Republic replies that that phrase concerns goods coming from both nonmember countries and other Member States. It covers customs transactions which because of their complexity involve the customs authority in extra work and stoppage of the goods for possible physical inspection, the provision of guarantees or the payment of customs duties. The Government of the Italian Republic adds that there is actual customs clearance of goods where the person concerned presents a customs declaration giving the goods a status for customs purposes (for example final importation, temporary importation, storage), since in such cases the goods in question are stopped at the frontier customs post for the purposes of the customs declaration and completion of formalities appropriate to their status for customs purposes. The Government of the Italian Republic states that that situation may also arise in the case of goods (originating in and) coming from other Member States, since in that case customs duties, although levied at customs posts, are part of a general system of internal taxation (for example value-added tax on importation, manufacturing duties and additional frontier charges).

1 Language of the case: Italian.