CJEC, October 26, 1971, No 18-71

The court

1 By decision of 6 april 1971, received at the court registry on 15 april 1971, the president of the tribunale di torino referred to the court under article 177 of the treaty establishing the european economic community two questions on the interpretation of article 16 of the eec treaty.

2 The decision making the order for reference shows that the national court is dealing with a request for the refund of sums paid on the export of a work of art to another member state by way of the tax on the export of articles of an artistic, historic, archaeological or ethnographic interest, which was introduced by the italian law no 1089 of 1 june 1939.

3 As the court of justice found in its judgment of 10 december 1968 in case 7-68, this tax constitutes a charge having an effect equivalent to customs duties on exports and is governed by article 16 of the treaty.

4 In the first question the court is asked to rule whether article 16 constitutes a legal rule which is immediately applicable and which reproduces direct effects within the territory of the italian state as from 1 january 1962. Should the answer to the first question be in the affirmative the court is requested to rule whether, as from that date, this rule has created individual rights in relation to the italian state which the courts must protect. As these two questions are closely connected they must be considered together.

5 According to article 9 of the eec treaty, the community is to be based upon a customs union which is to involve in particular the prohibition between member states of customs duties and all charges having equivalent effect. Under article 16 of the treaty member states are to abolish between themselves customs duties on exports and charges having equivalent effect by the end of the first stage at the latest.

6 Articles 9 and 16 taken together involve, at the latest at the end of the first stage, with regard to all charges having an effect equivalent to customs duties on exports, a clear and precise prohibition on exacting the said charges, which is not subject to any reservation for the states to subject its implementation to a positive act of national law or to an intervention by the institutions of the community. It lends itself, by its very nature, to producing direct effects in the legal relations between member states and those subject to their jurisdiction.

7 Therefore, from the end of the first stage, that is, from 1 january 1962, these provisions have conferred on individuals rights which the national courts must protect and which must prevail over conflicting provisions of national law even if the member state has delayed in repealing such provisions.

8 The costs incurred by the commission of the european communities, which has submitted observations to the court, are not recoverable, and 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 as to costs is a matter for that court.

The court

In answer to the questions referred to it by the president of the tribunale di torino by order of that court dated 6 april 1971, hereby rules:

Since 1 january 1962, the date on which the first stage of the transitional period came to an end, article 16 of the treaty has produced direct effects in the legal relations between the member states and those persons subject to their jurisdiction and has conferred on the latter rights which the national courts must protect.