CJEC, December 17, 1970, No 33-70

1 By a decision of 4 July 1970 which reached the Court registry on 9 July 1970, the president of the tribunale, brescia, referred to the Court of justice under article 177 of the treaty establishing the European Economic Community, two questions relating to the interpretation of article 13 of the eec treaty and of directive No 68-31 of 22 December 1967 (oj 1968 l 12, p. 8).

2 In the first question the Court is asked to rule whether, following the adoption of directive No 68-31 of 22 December 1967, the provisions of article 13 (2) of the treaty or, in any event, the provisions of directive No 68-31 itself are directly applicable in the domestic legal system of the Italian state.

3 If the reply to the first question is in the affirmative, the Court is asked to rule, in addition, whether rights of which the national Courts must take cognizance were conferred on individuals as from 1 July 1968.

4 The two questions are closely linked and must be examined together.

5 According to article 9 of the eec treaty the community is based upon a customs union which involves in particular the prohibition between member states of customs duties and all charges having equivalent effect.

Under article 13 (2) of the treaty charges having an effect equivalent to customs duties on imports, in force between member states, were to be progressively abolished by them during the transitional period; the Commission was to determine by means of directives the timetable for such abolition, guided by the rules contained in article 14 of the treaty in respect of customs duties proper and by the directives issued by the Council for this purpose.

6 The so-called acceleration decision No 66-532 of the Council of 26 July 1966 (oj of 21. 9. 1966, p. 2971) implementing articles 14 and 235 of the treaty fixed 1 July 1968 as the day by which all customs duties were to be abolished.

7 On the basis of this decision, the Commission, acting in pursuance of article 13 (2) of the treaty, addressed to the Italian republic on 22 December 1967 directive No 68-31 whereby the duty for administrative services charged in Italy on imported goods was to be progressively abolished for imports from other member states, so as to be completely eliminated by 1 July 1968.

8 It appears from the file submitted to the Court that the dispute pending before the national Court concerns in particular the question whether, and if so, from what date, the obligation imposed on the Italian republic to eliminate the duty for administrative services has direct effect.

9 Article 13 (2) imposes on member states the obligation to abolish progressively "during" the transitional period charges having an effect equivalent to customs duties on imports.

Although the Commission had to decide the rhythm with which such charges had to be abolished during the transitional period, nevertheless it appears from the very wording of article 13 that these duties had in any event to be eliminated at the latest at the end of the said period.

Therefore from the end of this period article 9 must have its full effect on its own.

10 Articles 9 and 13 (2) taken together, involve, at the latest at the end of the transitional period, with regard to all charges having an effect equivalent to customs duties on imports, 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 their subjects.

Therefore, from the end of the transitional period, these provisions confer on individuals, with regard to all charges having equivalent effect, to which such provisions refer, rights which the national Courts must protect.

11 Article 13 (2) gave the Commission power to decide, before the end of the transitional period on the abolition of charges having equivalent effect designated by it and to order their elimination by means of directives " during " the said period.

In exercise of this power the Commission, following acceleration decision No 66-532, appointed 1 July 1968 by directive No 68-31 as the date by which the abovementioned charge was to be completely eliminated.

12 It follows from the above that the question put by the president of the tribunale, brescia, in so far as it concerns the direct effect of the obligation relating to the elimination of the Italian charge for administrative services, refers, in reality, to the combined effect of articles 9 and 13 (2) of the treaty, of decision No 66-532 and of directive No 68-31.

13 The effect of directive No 68-31 must be considered in the light of all these provisions.

For this purpose, it is necessary to consider not only the form of the measure at issue, but also its substance and its function in the system of the treaty.

14 The appointing by the Commission, under decision No 66-532, of a date prior to the end of the transitional period has in No way changed the nature of the obligation imposed on member states by articles 9 and 13 (2).

This obligation is therefore capable of producing direct effects, as it would have done at the end of the transitional period.

15 Directive No 68-31, the object of which is to impose on a member state a final date for the performance of a community obligation, does not concern solely the relations between the Commission and that state, but also entails legal consequences of which both the other member states concerned in its performance and individuals may avail themselves when, by its very nature, the provision establishing this obligation is directly applicable, as are articles 9 and 13 of the treaty.

16 This interpretation is all the more imperative since in its judgment of 18 November 1970 the Court declared that the Italian republic had failed to fulfil its obligations under the treaty by continuing to levy the charge in question after 1 July 1968.

17 By reason of the notification of the directive in Italian, the interests of the party given notice of the obligations defined by the measure-in the present case the Italian state-are fully protected.

18 The obligation to eliminate the duty for administrative service contained in directive No 68-31 of the Commission of 22 December 1967, in conjunction with articles 9 and 13 (2) of the treaty and with decision No 66-532 of the Council has direct effect in the relations between the member state, as the party to whom the directive is addressed, and its subjects and confers on them from 1 July 1968 rights which the national Courts must protect.

19 The costs incurred by the Commission of the European Communities and by the government of the federal republic of Germany, which have submitted their 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 on costs is a matter for that Court.

The Court

In answer to the questions referred to it by the president of the tribunale, brescia, in accordance with the order made by that Court on 4 July 1970, hereby rules:

(1) from the end of the transitional period article 13 (2) of the eec treaty confers on individuals, with regard to all charges having an effect equivalent to customs duties on imports, rights which the national Courts must protect;

(2) the obligation to eliminate the duty for administrative services contained in directive No 68-31 of the Commission of 22 December 1967, in conjunction with articles 9 and 13 (2) of the treaty and with decision No 66-532 of the Council has direct effect in the relations between the member state, as the party to whom the directive is addressed, and those subject to its jurisdiction and confers on them from 1 July 1968 rights which the national Courts must protect.