CJEC, 2nd chamber, March 8, 1979, No 130-78

THE COURT (second chamber)

1 By order of 17 february 1978, received at the court on 9 june 1978, the corte di cassazione of italy referred to the court for a preliminary ruling under article 177 of the eec treaty a number of questions on the interpretation of articles 16 and 18 of regulation n°14-64 of the council of 5 february 1964 on the progressive establishment of a common organization of the market in beef and veal (journal officiel 1964, p. 562), in conjunction with, on the one hand, council decision n°66-455 of 28 july 1966, authorizing the italian republic to increase the levies applicable to certain imports of beef and veal from non-member countries (journal officiel 1966, p. 2659, and, on the other hand, commission decision n°66-474 of 28 july 1966, requiring the italian republic to abolish the protective measures taken in respect of adult bovine animals and calves (journal officiel 1966, p. 2796).

2 It appears from the file that the government of the italian republic informed the commission on 23 july 1966 that, in view of the persistently depressed state of the market in beef and veal, it had decided to have recourse to protective measures in accordance with the procedure laid down by article 16 of regulation n°14-64.

3 The protective measures, brought into force by means of a circular of 24 july 1966, consisted in charging a supplementary amount on imports of bovine animals and meat from non-member countries equal to 60 % of the levy fixed in accordance with article 5 of regulation n°14-64.

4 It was specifically stated in the notification to the commission that ' ' the measure does not affect bovine animals weighing less than 340 kg and intended for fattening or frozen beef or veal for the processing industry ' '.

5 By decision n°66-474 of 28 july 1966, notified to the italian government on the same day, the commission, having ascertained that the italian market in beef and veal was not in fact suffering from the disturbances relied on by the italian authorities, required the italian republic ' ' to abolish the protective measures notified to the commission on 23 july 1966 ' '.

6 On the same date the council, acting on a proposal from the commission, adopted decision n°66-455, under article 18 of regulation n°14-64, authorizing the italian republic to increase the levies applicable to certain imports of beef and veal from non-member countries.

7 That decision was notified on the following day, that is 29 july 1966, and with effect from 1 august 1966 the italian republic abolished the protective measures which it had introduced and made use, as from the same date, of the authorization to increase the levy on the products covered by the council ' s decision.

8 On 29 july 1966 the appellant in the main action imported a quantity of frozen beef and veal from argentina.

9 That importation took place without payment of any levy in accordance with the provisions of regulation n°42-66 of the council of 21 april 1966, temporarily suspending the levies chargeable on imports of certain frozen beef and veal for processing (journal officiel 1966, p. 1141).

10 Following a later check on that transaction, the italian customs administration addressed an instrument to the plaintiff on 8 september 1971 demanding payment of a supplementary levy of 16 817 380 lire chargeable by virtue of the above-mentioned protective measure.

11 The tribunal di torino (court of turin), by judgment of 5 august 1972, upheld the application which the appellant in the main action had lodged against that demand.

12 On the appeal of the Amministrazione delle Finanze dello Stato (state finance administration), the corte d ' appello (court of appeal), turin, by judgment of 22 may 1975, reversed the judgment of the tribunale and declared the demand for payment of the supplementary levy lawful.

13 The appellant appealed against that judgment to the corte di cassazione (court of cassation) which submitted the following questions to the court of justice for the purpose of ascertaining, in particular, the effect of commission decision n°66-474 and its relationship with council decision n°66-455:

1. Within the system of sources of community law, which of the following takes precedence: a ' ' decision ' ' of the commission of the european economic community, adopted pursuant to the said article 16 within the field covered by the said regulation n°14-64, or a ' ' decision ' ' of the council of the european economic community, adopted pursuant to article 18 of the same regulation?

2. Is the decision of the commission of the european economic community adopted pursuant to the above-mentioned article and within the field indicated above at 1. Directly applicable within the domestic legal system of the member state in question (the italian republic), or, on the contrary, is domestic implementing legislation necessary for that purpose?

3. If question 2 is answered in the way suggested first, that is, if the decision is directly applicable, does that decision become applicable at the time of its adoption or at the time of its notification to the state to which it was addressed?

4. If question 2 is answered in the way suggested first, does the said ' ' decision ' ' of the commission take effect, with regard to the abrogated measure, as a technical ' ' annulment ' ', that is, does it have effect ex tunc from the time of the adoption of that measure, withdrawing with retroactive effect all the consequences thereof, or does it constitute with regard to that measure a technical ' ' repeal ' ', that is, does it have effect ex nunc from the time (of adoption or of notification) of the ' ' decision ' ' itself?

5. If question 2 is answered in the second way suggested, that is, if the said ' ' decision ' ' of the commission requires the adoption of domestic legislation by the member state in order to give effect to it within the legal system of that state, do the community provisions of which an interpretation is requested provide that such domestic implementing legislation must take effect, with regard to the domestic measure which it is intended to abrogate pursuant to the community ' ' decision ' ', as a technical ' ' annulment ' ' or as a technical ' ' repeal ' ' (' ' annulment ' ' and ' ' repeal ' ' being used here in the particular sense clarified in question 4)?

14 In its observations the commission drew attention to the fact that the goods imported by the appellant in the main action - namely frozen beef and veal for the processing industry - belonged to a category which was expressly excluded by the italian government in the notification to the commission of the protective measure.

15 However, it appears from the file that that exception was not repeated in the circular concerning the application of the protective measure within the domestic legal order.

16 According to the explanations given by the appellant in the main action it was able to learn of the terms of the notification addressed by the italian government to the commission only in the course of the proceedings, with the result that that argument, raised late in the day, could not be considered by the national courts although it forms part of the file of the corte di cassazione.

17 Should it be established that the measures adopted by the italian authorities were extended to a category of goods excluded from the protective measure notified to the commission, it would appear that to that extent charging the supplementary amount of 60 % of the levy constituted a charge having an effect equivalent to a customs duty, the imposition of which is prohibited by article 12 of regulation n°14-64.

18 However, since the court is not competent to investigate the facts of the case and since no question has been submitted on that matter, consideration of the question raised by the commission must be left to the national court.

19 Article 16 (1) of regulation n°14-64 provides that ' ' if, as a result of the application of the measures relating to the progressive establishment of a common organization of the market in beef and veal, such market should, in one or more member states, suffer or be threatened with serious disturbance due to imports, liable to endanger the objectives laid down in article 39 of the treaty, the member state(s) concerned may, during the transitional period, take the necessary protective measures concerning importation of the products in question ' '.

20 The first subparagraph of article 16 (2) of the said regulation provides that the member state concerned shall be required to notify the other member states and the commission of such measures not later than the date of their entry into force.

21 The third subparagraph of the said article 16 (2) provides that, after consulting the member states through the competent management committee, the commission ' ' shall decide by means of emergency procedure, within a maximum of four working days calculated from the notification referred to in the first subparagraph above whether the measures should be retained, amended or abolished ' '.

22 The fourth subparagraph of article 16 (2) adds that the decision of the commission ' ' shall come into force immediately ' '.

23 The decision taken by the commission on 28 july 1966 by virtue of the aforesaid provisions, having been notified on the same day, took effect with regard to the italian republic at the time of that notification in accordance with the second paragraph of article 191 of the treaty.

24 Thus, as from 28 july 1966, the italian republic was, with immediate effect, under a duty to abolish the protective measures, the introduction of which had been declared to the commission on 23 july 1966.

25 Consequently the italian administration is not entitled to have recourse to the protective measure in question against a trader in respect of an importation which took place after the date - 28 july 1966 - on which the commission ' s decision took effect with regard to the state.

26 The italian authorities cannot dispute the full effectiveness of that decision by relying on the fact that the internal measures taken under the protective measure were not repealed until a date subsequent to that on which the decision took effect.

27 Reliance, on the part of the national administration, on its own delay in carrying out a decision of the community authority would in fact constitute a breach of the first paragraph of article 5 of the treaty which provides that: ' ' member states shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this treaty or resulting from action taken by the institutions of the community ' '.

28 This conclusion is not invalidated by the fact that, at the very time when the commission required the abolition of a protective measure for which it could not see any justification, the council authorized the italian republic to take alternative protective measures.

29 In fact those measures rest on a different basis, namely article 18 of regulation n°14-64, which provides that the council may, acting on a proposal from the commission, take ' ' measures in derogation ' ' from the regulation to take account of ' ' special circumstances ' ' which may exist in regard to certain products covered by that regulation.

30 Moreover, it should be noted that the derogative measures authorized by the council on that basis do not coincide, either in nature or in scope, with the protective measures which the commission required to be abolished.

31 From that it must follow that, although the decision taken by the commission under article 16 of regulation n°14-64 and the decision taken by the council under article 18 of the same regulation are co-existent, there does not exist any legal connexion, or a fortiori any hierarchical relationship, between them.

32 Hence the use made by the italian republic, with effect from 1 august 1966, of the authorization granted by the decision of the council cannot be regarded as constituting a condition precedent to the removal of the effects of the protective measure as required by the decision of the commission.

33 The reply should therefore be as follows:

As regards the first question, commission decision n°66-474, adopted on 28 july 1966 under article 16 of regulation n°14-64, took effect independently of council decision n°66-455, adopted on the same day under article 18 of the same regulation.

As regards the second question, following commission decision n°66-474 the member state concerned is no longer entitled to rely, as against a trader, with regard to an importation occurring after that decision took effect, on the national provisions introduced by virtue of the protective measure which the commission required to be abolished, even though those provisions were not repealed within the domestic legal order until after the decision of the commission took effect.

As regards the third question, in accordance with the second paragraph of article 191 of the eec treaty, commission decision n°66-474 took effect at the time of its notification to the italian republic, that is, on 28 july 1966.

34 In reply to the fourth question it may be stated that the provisions of article 16 of regulation n°14-64 do not limit the power of the commission as regards fixing the time from which it may, where appropriate, require the abolition of a protective measure introduced by a member state.

35 Whilst it is true that in principle nothing would have prevented the commission from requiring the abolition of a protective measure which it considered unjustified as from the time of the introduction of that measure, it appears from the wording of decision n°66-474 that the duty to abolish the measures in question was to take effect at the same time as the decision itself, namely on the day of the notification to the italian government, 28 july 1966.

36 In view of the reply given to the second question, the fifth question has lost its purpose.

Costs

37 The costs incurred by the government of the italian republic and by the commission of the european communities, which have submitted written observations to the court, are not recoverable.

38 As these proceedings are, so far as the parties to the main action are concerned, a step in the action pending before the corte di cassazione, the decision on costs is a matter for that court.

On those grounds,

The court (second chamber),

In answer to the questions referred to it by the corte di cassazione of italy by order of 17 february 1978, hereby rules:

1. Commission decision n°66-474 of 28 july 1966, requiring the italian republic to abolish the protective measures taken in respect of adult bovine animals and calves took effect independently of council decision n°66-455, also of 28 july 1966, authorizing the italian republic to increase the levies applicable to certain imports of beef and veal from non-member countries.

2. Following commission decision n°66-474 the italian republic was no longer entitled to rely, as against a trader, with regard to an importation occurring after that decision took effect, on the national provisions introduced by virtue of the protective measure which the commission required to be abolished, even though those provisions were not repealed within the domestic legal order until after the decision of the commission took effect.

3. In accordance with the second paragraph of article 191 of the eec treaty, commission decision n°66-474 took effect at the time of its notification to the italian republic, that is, on 28 july 1966.