CJEC, March 16, 1983, No 266-81

THE COURT

1 By an order dated 21 may 1981, which was received at the court registry on 6 october 1981, the corte suprema di cassazione (supreme court of cassation) referred to the court for a preliminary ruling under article 177 of the eec treaty four questions concerning:

On the one hand, the interpretation of articles 90, 113 and 117 of the eec treaty, of regulation no 542-69 of the council of 18 march 1969 on community transit (official journal, english special edition 1969 (i), p.125) and of regulation no 2813-72 of the council of 21 november 1972 on the conclusion of an agreement between the european economic community and the republic of austria on the application of the rules on community transit (journal officiel l 294, p. 86); and

On the other hand, the effect within the community of the general agreement on tariffs and trade (gatt) of 30 october 1947 and the interpretation of article v of gatt on freedom of transit.

The corte suprema di cassazione put the questions in order to enable it to determine the compatibility with community law and, if necessary, with the rules of gatt of the application of charges on unloading and loading of goods imposed by virtue of decree-law no 47 of 28 february 1974, converted into law no 117 of 16 april 1974 (hereinafter referred to as ' ' decree-law no 47 ' '), to oil carried by the transalpine oil pipe-line to the federal republic of germany and the republic of austria.

2 It appears from the file that those questions arose in connection with a number of disputes between, on the one hand, societa italiana per l ' oleodotto transalpino (hereinafter to as ' ' the company ' '), a company governed by italian law which was responsible for the construction and operation of the section of the transalpine oil pipe-line in italian territory between trieste and the austrian border, and, on the other hand, ministero delle finanze (ministry of finance), ministero delle marina mercantile (ministry of shipping), circoscirzione doganale di trieste (trieste customs authority) and ente autonomo del porto di trieste (trieste independent port authority) in relation to the levying of the contested charges on crude oil discharged into the company ' s installations for consignment to refineries in the federal republic of germany and the republic of austria.

Background to the dispute

3 It should be pointed out that before the application of the decree-law to which the dispute relates italy imposed under law no 82 of 9 february 1963 an unloading charge on imported goods and a charge known as a ' ' port charge ' ' on goods loaded and unloaded, regardless of their origin or their destination, in specified ports, including the port of trieste. The first of those charges was not applicable to oil discharged by the company, because it was not intended for importation; as to the second charge, the law contained an express exemption in favour of goods in transit in the port of trieste.

4 In its preliminary ruling of 10 october 1973 in case 34-73, variola v amministrazione italiana delle finanze, (1973) ecr 981, the court held that a charge such as the first-mentioned, imposed specifically on imported products, was to be regarded as a charge having an effect equivalent to a customs duty and accordingly was incompatible with community law. At the same time, the commission had lodged an application in connection with the unloading charge for a declaration that italy had failed to fulfil its obligations as a member state, which was entered in the court register under no 172-73 (official journal 1973, c 99, p. 4). As a result of the judgment cited, italy amended its legislation by decree-law no 47. The unloading charge was replaced by a state charge on unloading and loading, hereinafter referred to as the ' revenue charge ', which applied regardless of the origin or destination of the goods. The commission considered that, as a result of that change in the contested charge, the failure to fulfil obligations under community law no longer existed and consequently it withdrew its application (official journal 1974, c 69, p. 5). The port charge remained in force in accordance with the provisions of the law of 1963, apart from the abolition of the exception previously provided for in favour of transit through the port of trieste.

5 As from the application of decree-law no 47, the italian tax authority required the payment of the two charges - the revenue charge and the port charge - in respect of crude oil discharged into the company ' s installations and transmitted through the transalpine oil pipe-line. The company brought several actions challenging those charges before the tribunale (district court), trieste, in relation to periods during 1974 and 1975. It subsequently paid the charges without prejudice, pending the outcome of those actions. The applications were dismissed by the tribunale, trieste, and the company lodged appeals before the corte d ' appello (court of appeal), trieste, which in turn dismissed the appeals in successive judgments. After those judgments, several appeals in cassation were brought before the corte suprema di cassazione.

6 According to the order making the reference, the company put forward, in addition to certain submissions based on national law, various submissions based on the one hand on community law and on the other hand on gatt. It argued that the contested charges:

(1) Should be considered not as internal taxation but as charges having an effect equivalent to customs duties, contrary to articles 12 and 13 of the eec treaty;

(2) Were incompatible with the rules on freedom of transit provided for in article v of gatt;

(3) Were incompatible with the community transit procedure as defined by regulation no 542-69 and with the transit agreement concluded by the community with austria, which was given effect by regulation no 2813-72;

(4) Interfered with the community ' s commercial policy and therefore infringed article 113 of the eec treaty;

(5) Gave rise to serious distortions of competition, contrary to article 90 (1) of the eec treaty, inasmuch as they secured financial advantages for public port services, the burden of which was borne by a private undertaking authorized to operate and use its own services for similar unloading operations.

7 The corte suprema di cassazione, considering that the charges in question were taxes levied on goods loaded and unloaded and were imposed on all such goods, regardless of their origin or their destination, took the view that the contested charges were not import levies but internal taxation within the meaning of article 95 of the treaty and article iii of gatt.

8 On the basis of those considerations, the corte suprema di cassazione took the view that problems of interpretation arose under community law in relation to the regulation on community transit, the transit agreement with austria, the rules on the common commercial policy laid down in article 113, and the rules on competition contained in article 90 of the treaty.

9 It also considers that a question arises in relation to the alleged incompatibility of the contested charges with article v of gatt on freedom of transit. Since the corte suprema di cassazione and the court of justice had expressed different views in their decisions with regard to the internal effects of gatt, as is shown by the judgments of 12 december 1972 in joined cases 21 to 24-72, international fruit company v produktschap voor groenten en fruit (1972) ecr 1219, of 24 october 1983 in case 9-73, schluter v hauptzollamt lorrach, (1973) ecr 1135, and of 11 november 1975 in case 38-75 nederlandse spoorwegen v inspecteur der invoerrechten en accijnzen, (1975) ecr 1439, it believes that it is now necessary to reconsider the problem, having regard to the fact that the community has been substituted for the member states in relation to commitments under gatt, as has been affirmed by the court of justice in the judgments cited.

10 In order to resolve those problems, the corte suprema di cassazione has formulated four questions for a preliminary ruling. They are worded as follows:

(a) As a preliminary point:

Since the community has been substituted for the member states with regard to the fulfilment of the obligations laid down in gatt, do the provisions of gatt fall within the measures on the interpretation of which the court of justice has jurisdiction to give a preliminary ruling under article 177 of the treaty, even where the national court is requested to apply them or to interpret them with reference to relations between parties for purposes other than that of determining whether or not a community measure is valid?

(b) If the foregoing question is answered in the affirmative:

What, if any, are the effects which follow, within the legal order of the community and within those of the member states, from the fact that the community has been substituted for the member states with regard to the fulfilment of the obligations laid down in gatt. If those effects occur at different times, what is their sequence? In particular, for the purpose of deducing therefrom a basis for the interpretation or a rule for the application of later national provisions which conflict with the provisions of gatt, is the national court obliged to take the view, having regard to the attribution of jurisdiction under article 177 of the treaty, that gatt, with specific reference to the provisions referred to in the following question, operates provisions referred to in the following question, operates at the level of a mere international obligation and has no direct effect internally, or else that it does have such effect with regard to relations between parties, and, if the latter is the case, has gatt the same status as, or greater status than, the conflicting national provisions?

(c) If an affirmative reply is given to question a and whatever the reply to question b, with a view to providing the national court with guidelines relevant to the interpretation of the national provisions:

In the light of the rules laid down in article v (3) of gatt in relation to goods originating from countries which are not parties thereto but intended for the market in countries which are parties, is the national legislature prohibited, and if so, within what limits and under what conditions, from providing for the imposition of charges (such as the revenue charge on goods unloaded or loaded in all national sea ports and the port charge on goods unloaded or loaded in some only of those ports, referred to respectively in the first and second paragraphs of article 2 of decree-law no 47 of 28 february 1974, converted into a law by law no 117 of 16 april 1974) both on domestic products or products treated as such and on imported products, on the occasion of the unloading or loading of those goods in sea ports of the country belonging to gatt, which charges are levied on the imported product even where, having originated in a country which is not a party to gatt, it is merely in transit through national territory and is bound for the market of another country which is a party to gatt, and even where - particularly with regard to those of the said charges which are laid down for specified ports administered by autonomous authorities for which the charges are in part intended - the operations of unloading, loading and forwarding to the market for which the goods are finally intended are carried out exclusively by a commercial undertaking using plant and installations constructed, managed and maintained by that undertaking, without the provision of any direct and specific service by the port authority?

(d) Regardless of the replies to questions a, b and c:

1. In the light of the principles on which community system is based regarding the proper role of competition and the common commercial policy, with particular reference to the rules laid down in articles 90 (1) and 113 (1) of the treaty respectively, and in relation to the specific provisions governing community transit laid down by regulations (eec) no 542-69 of the council of 18 march 1969 and no 2813-72 of the council of 21 november 1972, is the national legislature prohibited, and if so within what limits, on what conditions and subject to what requirements, including those of a formal nature, regarding the origin of the goods and the transit procedure relating thereto, from providing for the imposition of charges (such as the revenue charge on goods unloaded or loaded in all the national sea ports and the port charge on goods unloaded or loaded in some only of those ports, referred to respectively in the first and second paragraphs of article 2 of decree-law no 47 of 28 february 1974, converted into a law by law no 117 of 16 april 1974) both on domestic products or products treated as such and on imported products, on the occasion of the unloading or loading of the said goods in sea ports of the member country, which charges are levied on the imported product even where, having originated in a non-member country, it is merely in transit through national territory and is intended for the markets of the federal republic of germany and of austria, and even where - particularly with regard to those of the said charges which are laid down for specified ports administered by autonomous authorities, for which the charges are in part intended - the operations of unloading, loading and forwarding to the market for which they are finally intended are carried out exclusively by a commercial undertaking using installations and plant constructed, managed and maintained by that undertaking, without the provision of any direct or specific service by the port authority?

2. If the imposition of such charges is prohibited, has an individual a right of action before the national courts to recover the sums paid in respect thereof or to oppose the claim for payment made by the state?

11 As the eec treaty does not expressly lay down the rules on goods in transit, the corte suprema di cassazione has directed itself in the first place to the effect and the interpretation of gatt, which unlike community law contains, in article v, express provisions on that subject. It is only by way of a secondary consideration that the corte suprema di cassazione raises questions on aspects of community law which in its opinion might have a bearing on the problem, namely article 113 on the common commercial policy, article 90 on the competition rules applicable to public undertakings, the rules on community transit and the transit agreement with austria.

12 In relation to the application of article v of gatt, it should be noted that, according to article xxiv (8) thereof, the community must be regarded as a single customs territory because according to article 9 of the eec treaty it is based on the principle of a customs union. It follows from that that the rules contained in gatt govern only the community ' s relations with the other contracting parties and cannot be applied within the community itself.

13 For that reason the court considers it advisable in the first place to determine the rules governing goods in transit under community law alone. Consequently it will examine first the fourth question (d) in conjunction with the third question (c), distinguishing the rules relating to goods in transit to a member state, in this case the federal republic of germany, from those applicable to goods in transit to a non-member country, namely austria.

The rules governing transit within the community

14 By question (d), the corte suprema di cassazione asks whether the application to goods in transit of charges imposed by reason of loading or unloading on all goods without distinction, regardless of their origin or destination, is compatible with the principles on which the community legal order is based and in particular with regulation no 542-69 on community transit, where the operations of unloading, loading and forwarding to the market for which they are finally intended are carried out exclusively by a commercial undertaking using installations and plant constructed, managed and maintained by that undertaking, without the provision of any direct or specific service by a public port authority.

15 By question (c), the corte suprema di cassazione asks whether such charges are compatible with article v (3) of gatt.

16 The customs union established by part two, title i, chapter 1 of the eec treaty necessarily implies that the free movement of goods between member states should be ensured. That freedom could not itself be complete if it were possible for the member states to impede or interfere in any way with the movement of goods in transit. It is therefore necessary, as a consequence of the customs union and in the mutual interest of the member states, to acknowledge the existence of a general principle of freedom of transit of goods within the community. That principle is, moreover, confirmed by the reference to ' ' transit ' ' in article 36 of the treaty.

17 In that regard it must be noted that the same general principle of freedom was the inspiration behind regulation no 542-69 on community transit and also council regulation no 222-77 of 13 december 1976 (official journal 1977, l 38, p. 1), by which it was replaced; those regulations set out various administrative measures intended to facilitate community transit. Indeed, the preambles to the two regulations link the measures taken in order to facilitate transit with the existence of the customs union, with the unity of the customs territory and with the need for complete freedom of movement of goods within the community.

18 Moreover, it is necessary to stress, as the court did in its judgment of 13 december 1973 in joined cases 37 and 38-73, sociaal fonds voor de diamantarbeiders v n.v. Indiamex and association de fait de belder, (1973) ecr 1609, that, although the prohibition of charges having an effect equivalent to customs duties appears only in section 1 of the chapter of the treaty relating to the customs union (articles 12 to 17), which relates to products in free circulation in the member states, and not in section 2 of the same chapter (articles 18 to 29), which concerns products imported directly from a non-member country, that does not mean that such charges may be introduced or maintained in relation to those products. As was also pointed out in the judgment cited, the establishment of the common customs tariff is intended to achieve an equalization of customs charges levied at the frontiers of the community on products imported from non-member countries, in order to avoid any deflexion of trade in relations with those countries and any distortion of free internal circulation or of competitive conditions. For the same reasons, the fact that the same provisions do not contain any express prohibition of transit charges cannot mean that such charges may be introduced or maintained by the member states, since the very principle on which they are based is incompatible with a customs union and a fortiori with the principle of the free movement of goods, which is the very foundation of the common market.

19 It must therefore be accepted that the member states would contravene the principle of freedom of transit within the community if they were to apply to goods in transit through their territory transit duties or other charges imposed in respect of transit.

20 However, the impostition of charges which represent the costs of transportation or of other services connected with transit cannot be regarded as incompatible with freedom of transit as defined above.

21 In that regard it should be noted that such services are not to be limited to those directly and specifically connected with the movement of goods, as indicated in the questions submitted by the corte suprema di cassazione. Charges based on the more general benefits derived from the use of harbour waters or installations for the navigability and maintenance of which the public authorities are responsible must also be regarded as representing costs of transportation.

22 Finally, it may be stated that, as far as the fiscal regime governing goods in transit is concerned, the principles derived from community law substantially coincide with the rules derived from international conventional practice in that matter.

23 The answer to the question submitted should therefore be that the existence within the community of a customs union characterized by the free movement of goods implies freedom of transit within the community. That freedom of transit means that a member state may not apply to goods in its territory in transit to or from another member state transit duties or other charges imposed in respect of transit. However, the imposition of charges or fees which represent the costs of transportation or of other services connected with transit cannot be regarded as incompatible with freedom of transit as defined above, bearing in mind that it is necessary to take account not only of direct and specific services connected with the movement of goods but also of the more general benefits derived from the use of harbour waters or installations for the navigability and maintenance of which the public authorities are responsible.

24 It is for the national court, having regard to all the circumstances of the case, to determine the compatibility of the contested charges with freedom of transit as defined above.

25 In view of the considerations set out above, the question submitted in relation to article 90 (1) has no purpose.

Rules governing transit in relations with austria

26 Questions (c) and (d), in so far as they relate to the rules applicable to oil in transit in austria, in substance concern the interpretation of the community rules establishing a common commercial policy, as contemplated by article 113 of the treaty. Question (d) asks whether the imposition of the charges described above is compatible with article 113 and with the transit agreement concluded by the community with austria, which forms the subject-matter of regulation no 2813-72, adopted on the basis of article 113. Consequently, question (c) must be understood as asking also whether the application of the contested charges to oil intended for consignment to austria is compatible with article v (3) of gatt, in view of the fact that the community is bound, as regards austria, by the provisions of gatt.

27 It should be observed in that regard that the transit agreement concluded with austria does not contain any specific commitment between the parties in relation to the tax treatment of goods in transit. Therefore the only provision to be taken into account is article v of gatt, paragraph (2) of which provides that: ' ' there shall be freedom of transit through the territory of each contracting party... For traffic in transit to or from the territory of other contracting parties ' '. According to article v (3), to which the corte suprema di cassazione referred, the imposition between the contracting parties of all customs duties, transit duties or other charges imposed in respect of transit, except charges for transportation or those commensurate with administrative expenses entailed by transit or with the cost of services rendered, is prohibited.

28 Since that provision cannot have direct effect in the framework of community law for the reasons which were stated by the court in its judgment of 12 december 1972 in joined cases 21 to 24-72, international fruit company v produktschap voor groenten en fruit, (1972) ecr 1219, and which are still valid, individuals may not rely upon it in order to challenge the imposition of a charge such as the loading and unloading charge on goods in transit to austria. That in no way affects the community ' s obligation to ensure that the provisions of gatt are observed in its relations with non-member states which are parties to gatt.

29 As regards article 113 of the treaty, although that provision confers upon the community powers which enable it to take any appropriate measure concerning the common commercial policy, it nevertheless does not in itself contain any legal criterion which is sufficiently precise to enable an assessment of the contested transit rules to be made.

30 The answer to the question submitted should therefore be that there is no rule which may be relied upon by individuals in order to challenge the application to goods in transit to austria of a charge such as the contested loading and unloading charges.

31 It is therefore clear that, since article v of gatt does not apply to transit within the community and since that provision does not have direct effect in relation to transit to austria, questions (a) and (b) have no purpose.

Costs

32 The costs incurred by the governments of the federal republic of germany, the french republic, the italian republic, the kingdom of denmark, the kingdom of the netherlands, the united kingdom and by the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main actions are concerned, in the nature of a step in the actions pending before the national court, costs are a matter for that court.

On those grounds,

The court,

In answer to the questions submitted to it by the corte suprema di cassazione by order of 21 may 1981, hereby rules:

1. The existence within the community of a customs union, characterized by the free movement of goods implies freedom of transit within the community. That freedom of transit means that a member state may not apply to goods in its territory in transit to or from another member state transit duties or other charges imposed in respect of transit.

However, the imposition of charges or fees which represent the costs of transportation or of other services connected with transit cannot be regarded as incompatible with freedom of transit, as defined above, bearing in mind that it is necessary to take account not only of direct or specific services connected with the movement of goods but also of the more general benefits derived from the use of harbour waters or installations for the navigability and maintenance of which the public authorities are responsible.

2. There is no rule which may be relied upon by individuals in order to challenge the application to goods in transit to the republic of austria of a charge such as the loading or unloading charge levied in italy by virtue of decree-law no 47 of 28 february 1974, converted into law no 117 of 16 april 1974.