CJEC, March 16, 1983, No 267-81

The court

1 By three orders dated 21 may 1981, which were received at the court 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 three questions concerning:

On the one hand, the interpretation of article 177 of the eec treaty;

On the other hand, the effect within the community of the general agreement on tariffs and trade (gatt) of 30 october 1947 and of the tariff protocols concluded in the framework of gatt by the community on 16 july 1962 and 30 june 1967 (hereinafter referred to as ' ' the tariff protocols ' '), and also the interpretation of the preamble to gatt and of articles ii, iii, vi and viii thereof, in conjunction with the tariff protocols.

The corte suprema di cassazione submitted the questions in order to enable it to determine the compatibility with those provisions of the imposition of the ad valorem duty of 0.5% for administrative services introduced by law no 330 of 15 june 1950 (hereinafter referred to as ' ' the duty for administrative services ' ').

2 Those questions arose in the course of disputes between various importers and the amministrazione delle finanze dello stato (state finance administration, hereinafter referred to as ' ' the administration ' '), concerning the levying of the duty for administrative services on various goods imported from non-member countries which are parties to gatt. It appears from the orders for reference that the contested charges were levied between 1964 and 1967 in case 267-81, between 1965 and 1971 in case 268-81 and between october and december 1963 in case 269-81. At first instance and on appeal, the importers obtained an order against the administration for the refund of the duty paid. The administration then lodged appeals in cassation before the corte suprema di cassazione

Background to the dispute

3 It should be noted that italy acceded to gatt by the annecy protocol of 10 october 1949, which was brought into force by the law of 5 april 1950. The tariff concessions granted by italy at that time are contained in schedule xxvii, annexed to gatt. The schedule was renegotiated during several tariff conferences which took place between 1950 and 1960.

4 At the end of the ' ' dillon round ' ', which took place from 1960 to 1961 and in which the community took part for the first time, schedule xl (eec) was drawn up to replace the earlier schedules of concessions of the member states, including italy ' s schedule xxvii. The protocol containing the results of those negotiations was concluded jointly by the community and the member states on 16 july 1962. It appears that that protocol was not published in the official journal of the communities.

5 There were fresh tariff negotiations on schedule xl (eec) during the ' ' kennedy round ' ', which took place between 1964 and 1967 and the results of which, contained in the geneva protocol of 30 june 1967, were ratified by a decision of the council of 27 november 1967 (official journal, english special edition, second series, i. External relations (2), p. 228). The success of those negotiations made it possible to introduce the common customs tariff on 1 july 1968, that is to say earlier than was planned.

6 It is clear from the foregoing that the duty for administrative services was introduced at a time when italy had already acceded to gatt and bound a number of customs duties in the framework of the original version of schedule xxvii, but before the negotiation by the community of the first tariff protocols and before the introduction of the common customs tariff.

7 Pursuant to the power conferred upon it by article 13 (2) of the eec treaty, the commission addressed to italy on 22 december 1967 directive 68-31 fixing a timetable for the abolition of the duty for administrative services charged on the importation of goods from other member states (journal officiel, l 12, p. 8). According to that directive, the duty in question should have been abolished in relation to trade within the community by 1 july 1968.

8 Since italy had not implemented that directive, the commission brought an action under article 169 of the eec treaty and the court, by judgment of 18 november 1970 in case 8-70 ((1970) ecr 961), held that italy had failed to fulfil its obligations under article 13 of the treaty and under directive 68-31. The same finding was repeated shortly afterwards, in the preliminary ruling of 17 december 1970 in case 33-70, sace v ministry of finance of the italian republic, (1970) ecr 1213.

9 The duty for administrative services was abolished by law no 447 of 24 june 1971. That law took effect retroactively as from 1 july 1968 for imports from other member states of the community. Thus it appears that the duty was imposed on imports from non-member countries until it was abolished by the aforesaid law.

10 It follows from the foregoing that the contested charges in case 267-81 existed at the time of the tariff protocol of 16 july 1962 and were still in existence at the time of the tariff protocol of 30 june 1967, but pre-dated the introduction of the common customs tariff. The contested charges in case 268-81 covered a period which extended from the time of the tariff protocol of 16 july 1962 to the period following the introduction of the common customs tariff and which included the period of the tariff protocol of 30 june 1967. Finally, the contested charges in case 268-81 were wholly confined to the period of the tariff protocol of 16 july 1962.

11 It is clear from the orders for reference that the administration in substance contended that because the duty for administrative services was introduced before the community schedule, xl (eec), its imposition could not be regarded as an increase in customs duties, contrary to article ii of gatt. In order to resolve that dispute, the corte suprema di cassazione referred to the court for a preliminary ruling three questions, which are identical in all three cases. 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 and since it negotiated the concessions and bindings made within the framework thereof before 1 july 1968, do the provisions of gatt and the schedules thus negotiated fall (and if so, since when and subject to what limitations) 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 fulfilment of the obligations laid down in gatt and that it negotiated the new common schedule, xl (eec)? 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 questions, 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:

(1) Does gatt - and in particular the preamble (now article 1 (2)) in conjunction with articles ii (now iii) (1) (b) and (2), iii (now iv) (2), vi and viii - prohibit the introduction for any product, whether or not included in the schedules referred to in article ii (now iii), of new customs duties or other duties or charges of any kind imposed on or in connexion with importation?

(2) In the case of the products included in the schedule of concessions granted by a state after its accession to gatt - and in particular, with regard to those states which are also members of the european economic community, in the case of goods included in schedule xl (eec) drawn up on conclusion of, first, the dillon round and, secondly, the kennedy round - is the time which must be used as a reference to determine the level of the duties and other charges on imports covered by the prohibition on increases laid down in article ii (now iii) (1) (b) of gatt the date of accession to gatt or the date of the protocol introducing the new concession?

Consequences of the substitution of the community for the member states in relation to commitments under gatt (question (a))

12 The corte suprema di cassazione refers first to the case-law of the court of justice on the substitution of the community for the member states in relation to the fulfilment of the commitments under gatt and on the court ' s jurisdiction under article 177 of the treaty to interpret the provisions of agreements binding the community (in that regard it mentions in particular 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 1973 in case 9-73, schluter v hauptzollamt lorrach (1973) ecr 1135, of 30 april 1974 in case 181-73, haegeman v belgian state, (1974) ecr 449, and 11 november 1975 in case 38-75, nederlandse spoorwegen v inspecteur der invoerrechten en accijnzen, (1975) ecr 1439). It then raises the question whether the relevant provisions of gatt and of the tariff protocols concluded by the community are covered by the jurisdiction to give preliminary rulings conferred upon the court by article 177, even where the national court is requested to apply them with reference to relations between individuals for purposes other than that of determining whether a community measure is valid.

13 In addition, the corte suprema di cassazione asks from what date and within what limits that substitution took place, regard being had to the fact that the community negotiated tariff concessions and made bindings within the framework of gatt before 1 july 1968, the date of the introduction of the common customs tariff.

14 As the court had occasion to stress in the judgments cited, it is important that the provisions of gatt should, like the provisions of all other agreements binding the community, receive uniform application throughout the community. Any difference in the interpretation and application of provisions binding the community as regards non-member countries would not only jeopardize the unity of the commercial policy, which according to article 113 of the treaty must be based on uniform principles, but also create distortions in trade within the community, as a result of differences in the manner in which the agreements in force between the community and non-member countries were applied in the various member states.

15 It follows that the jurisdiction conferred upon the court in order to ensure the uniform interpretation of community law must include a determination of the scope and effect of the rules of gatt within the community and also of the effect of the tariff protocols concluded in the framework of gatt. In that regard it does not matter whether the national court is required to assess the validity of community measures or the compatibility of national legislative provisions with the commitments binding the community.

16 Because both the facts relating to these cases and the measures adopted by the community evidencing its participation in the system of gatt were spread over some time, special problems arise in relation to the application ratione temporis of the principles established above.

17 In that connexion it should be pointed out first, as the court stated in its judgment of 12 december 1972 in the international fruit case, cited above, that the substitution of the community for the member states in relation to commitments under gatt took place on 1 july 1968, following the introduction of the common customs tariff. It was at that time that the community, in advance of the time fixed for the end of the transitional period, assumed its full powers in relation to the sphere covered by gatt.

18 On the other hand, in relation to the matters governed by the tariff protocols, including the concessions and bindings agreed in the framework of schedule xl (eec) which forms an integral part of those protocols, the effect of the conclusion of those agreements was, by virtue of article 228 of the treaty, to bind the member states in the same way as the community itself. For the reasons stated above, and subject to the considerations set out below concerning the internal effect of the protocols, it is in any event important that they should be interpreted and applied in the same way throughout the community.

19 The answer to be given to the question submitted is therefore that, since as regards the fulfilment of the commitments laid down in gatt the community has been substituted for the member states with effect from 1 july 1968, the date on which the common customs tariff was brought into force, the provisions af gatt have since that date been amongst those which the court of justice has jurisdiction, by virtue of article 177 of the eec treaty, to interpret by way of a preliminary ruling, regardless of the purpose of such interpretation. With regard to the period prior to that date, such interpretation is a matter exclusively for the courts of the member states.

20 The tariff protocols of 16 july 1962 and 30 june 1967 are acts of the institutions of the community within the meaning of subparagraph (b) of the first paragraph of article 177 of the treaty and as such fall within the jurisdiction to give preliminary rulings conferred upon the court of justice.

The effect within the community of gatt and the protocols concluded within the framework thereof (question b)

21 Next, the corte suprema di cassazione seeks clarification on the effects which follow within the legal orders of the community and the member states from the fact that the community has been substituted for the member states in relation to the fulfilment of the commitments provided for by gatt. It wishes to know in particular whether gatt, in conjunction with the tariff protocols by which the new tariff schedule, xl (eec), was introduced, has effect within the legal orders of both the community and the member states.

22 If the effects within the community of the rules of gatt and of the tariff protocols should occur at different times, the corte suprema di cassazione also wishes to know their sequence.

23 In its judgments of 12 december 1972 and 24 october 1973, international fruit company and schluter, cited above, the court answered in the negative questions concerning the direct applicability of two provisions of gatt, namely article xi on the elimination of quantitative restrictions and article ii on the effect of schedules of concessions. The court reached that conclusion on the basis of considerations concerning the general scheme of gatt, namely that it was based on the principle of negotiations undertaken on a reciprocal and mutually advantageous basis and was characterized by the great flexibility of its provisions, in particular those concerning the possibilities of derogation, the measures which might be taken in cases of exceptional difficulty and the settlement of differences between the contracting parties. The same considerations apply to the articles cited by the corte suprema di cassazione.

24 So far as the tariff protocols concluded in the framework of gatt are concerned, it should be noted that those protocols are characterized by the fact that they refer, in the tariff schedules annexed thereto, to the customs tariffs of the parties concerned. Therefore those protocols can, by virtue of their general scheme and also of that of gatt, be effective only through the intermediary of the customs tariff of the contracting parties and thus, in this case, through the intermediary of the common customs tariff.

25 However, a special situation existed at the time when the contested charges were levied inasmuch as those charges were for the most part levied before the introduction of the common customs tariff on 1 july 1968. It is therefore necessary to consider separately the periods before and after 1 july 1968.

26 Since direct effect cannot be attributed to the tariff protocols in question or to the provisions of gatt which determine the effect of the protocols, the question of the legality of the imposition of the duty for administrative services must, in respect of the period after 1 july 1968, be considered exclusively in the light of the common customs tariff. In that regard it suffices to refer to the judgment of 13 december 1973 in joined cases 37 and 38-73, diamantarbeiders v indiamex, (1973) ecr 1609, from which it follows that the member states are prohibited, by virtue of the provisions of the treaty on the customs union (articles 18 to 29) and on the common commercial policy (article 113), from altering the level of the charge imposed under the common customs tariff. Therefore a member state may not unilaterally raise the level of the common customs tariff by the imposition of additional national duties or charges.

27 However, as is clear from the same judgment, the charges which were already in existence at the date of the entry into force of the common customs tariff could not, in particular on grounds of legal certainty, be regarded as inapplicable except by virtue of special provisions adopted by the community.

28 Since no such provision has been adopted in relation to the disputed duty in so far as it applies to the importation of goods from non-member countries, it must be concluded that that duty could lawfully be charged during the period following the entry into force of the common customs tariff until the repeal of law no 330.

29 In order to determine the legal position prior to the introduction of the common customs tariff, it is necessary to consider the nature and effect of the tariff protocols by which schedule xl (eec) was substituted for the earlier national schedules of the member states.

30 At that time, the member states were engaged in the process of bringing their national tariffs into line with the common customs tariff, in accordance with articles 23 to 26 of the treaty. It follows from that that both the common customs tariff itself and the concessions and bindings contained in the tariff protocols negotiated at that time did not constitute a definite obligation for the member states, but represented rather an objective by reference to which they were to direct their measures of alignment.

31 The answer to the question submitted should therefore be that, in relation to the period before 1 july 1968, the tariff protocols of 16 july 1962 and 30 june 1967 did not protect individuals against the imposition by a member state of a charge on products imported from non-member countries and that, in relation to the period after 1 july 1968, no provision of community law prevented the imposition on the same products of a charge such as the duty for administrative services, in so far as it was already in existence on that date.

32 In view of the replies given to the first two questions, question (c) does not arise.

Costs

33 The costs incurred by the governments of the french republic, the italian republic, the kingdom of the netherlands and 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 orders of 21 may 1981, hereby rules:

1. Since the community has been substituted for the member states in relation to the fulfilment of the commitments laid down by the general agreement on tariffs and trade with effect from 1 july 1968, the date on which the common customs tariff was brought into force, the provisions of that agreement have since that date been amongst those which the court of justice has jurisdiction, by virtue of article 177 of the eec treaty, to interpret by way of a preliminary ruling, regardless of the purpose of such interpretation. With regard to the period prior to that date, such interpretation is a matter exclusively for the courts of the member states.

2. The tariff protocols of 16 july and 30 june 1967 are acts of the institutions of the community within the meaning of subparagraph (b) of the first paragraph of article 177 of the eec treaty and as such fall within the jurisdiction to give preliminary rulings conferred upon the court of justice.

3. In relation to the period before 1 july 1968, the tariff protocols of 16 july 1962 and 30 june 1967 did not protect individuals against the imposition by a member state of a charge on products imported from non-member countries. In relation to the period after 1 july 1968, no provision of community law prevented the imposition on the same products of a charge such as the duty for administrative services provided for by law no 330 of 15 june 1950, in so far as it was already in existence on that date.