CJEC, December 14, 1971, No 43-71

1 By order of 17 July 1971, received at the court registry on 23 July 1971, the president of the tribunale di torino submitted several questions to the court of justice concerning, in particular, the interpretation of regulations nos 20 of 4 April 1962 and 121-67-eec of 13 June 1967 of the council on the common organization of the market in pigmeat.

These questions have been referred in connexion with the imposition by the Italian authorities, pursuant to Italian law no 330 of 15 June 1950 and the decrees of the president of the Italian republic nos 723 of 26 June 1965 and 1339 of 21 December 1961, of a duty for administrative services and a statistical levy on imports from other member states and from third countries.

I-the jurisdiction of the court

2 (1) the Italian government considers that, since Italian law no 447, which was published on the same date as the order making the reference, has abolished the charges in dispute, the file should be returned to the national court without any reply being given to the questions referred, so that it may have the opportunity to consider whether it is still necessary to maintain the reference to the court.

3 However, article 177 of the treaty does not entitle the court to assess the immediacy of the relevance of questions referred with regard to the proceedings pending before the national court, even where the domestic law with which the case is concerned has been modified.

In any event, the repeal of national provisions which are acknowledged to have been incompatible with community law leaves open the question of the legal consequences of such incompatibility during the period preceding the repeal.

4 (2) the Italian government further maintains that the conditions required for the application of the second paragraph of article 177 are not fulfilled, as the decision (decreto) which the president of the tribunale di torino is called upon to give is to be made at the conclusion of a special procedure on the basis of the plaintiff's allegations alone, without any prior discussion between the parties.

5 It is sufficient to note that the president of the tribunale di torino is performing a judicial function within the meaning of article 177 and that he considered an interpretation of community law to be necessary to enable him to reach a decision, there being therefore no need for the court to consider the stage of the proceedings at which the questions were referred.

Ii-the substance

The first question

6 The first question requests the court to rule whether the duty for administrative services and the statistical levy introduced by Italian legislation constitute charges having an effect equivalent to customs duties within the meaning of regulation no 20.

7 It is clear from the judgments of the court of 1 July 1969 in case 24-68 (1969) ecr 193) and 18 November 1970 in case 8-70 (rec. 1970, p. 961) that such duties and levies constitute charges having an effect equivalent to customs duties within the meaning of articles 9, 12 and 13 of the eec treaty and certain regulations concerning the common organization of the agricultural market, in particular article 19 (1) of regulation no 121-67-eec of the council.

The concept of a "charge having equivalent effect" as employed in articles 14 (1) and 18 (1) of regulation no 20 which prohibit the levying of such charges on imports of pigmeat from member states and third countries is equivalent to the same expression employed in article 9 et seq. Of the treaty and in other regulations on the organization of agricultural markets.

Questions 2 (a) and (b), 3 (a) and (b), 4 (a) and (b), 5 (a) and (b)

8 The court is next asked whether the provisions of articles 14 (1) and 18 (1) of regulation no 20, as well as the first indent of article 17 (2) and the first indent of article 19 (1) of regulation no 121-67 are immediately applicable within the national legal system and, as such, create individual rights which national courts must protect.

9 Under the terms of the second paragraph of article 189 regulations "shall have general application" and "shall be...Directly applicable in all member states ".

Therefore, by reason of their nature and their function in the system of the sources of community law, regulations have direct effect and are as such, capable of creating individual rights which national courts must protect.

The effect of a regulation, as provided for in article 189, is therefore to prevent the implementation of any legislative measure, even if it is enacted subsequently, which is incompatible with its provisions.

This applies to the provisions in question.

Questions 2 (c), 3 (c), 4 (c), 5 (c) and 6

10 Finally, the court is asked to give the dates on which these individual rights came into existence, pursuant to articles 14 (1) and 18 (1) of regulation no 20, and articles 17 (1) and 19 (1) of regulation no 121-67.

The court is also requested to state whether these rights have remained in existence since their creation under regulation no 20.

It is, therefore, necessary to ascertain the dates on which those provisions came into effect and whether they have remained effective since that time.

11 (1) under the terms of article 14 of the basic regulation no 20: " in trade between member states, both import and export ", the charges in dispute " shall be incompatible with the intra-community levy system " and under the terms of article 18 of the same regulation, " the application of the levy system to imports from third countries shall entail the abolition " of the said charges on imports from those countries.

This implies that the prohibition on the imposition of those charges by the member states and, therefore, the right of individuals to require its observance, only came into existence on the date on which the abovementioned levy systems took effect.

12 that date, which was originally fixed at 1 July 1962 by article 23 of regulation no 20, was postponed until 30 July 1962 by article 1 (1) (b) of regulation no 49.

As regards pig carcasses, the amount of the intra-community levies was fixed for the first time by regulation no 50, article 2 of which states that that regulation came into force on 30 July 1962.

Article 2 of regulation no 51 and article 3 of regulations nos 52 and 53 provide that those provisions-which fixed for the first time the amount of the levies applying to pig carcasses imported from third countries (regulation no 51) and to live swine imported from other member states (regulation no 52) and from third countries (regulation no 53)-were to come into force " on the date of introduction of the system of levies instituted in respect of pig carcasses by regulation no 20 of the council ".

13 thus, regulations nos 51 to 53 referred to the entry into force of regulation no 50 which was adopted on the same day and published in the same issue of the official journal.

Accordingly, as regards live swine and pig carcasses, the provisions in question came into effect on 30 July 1962.

14 as regards the products other than live swine and pig carcasses listed in article 1 (1) of regulation no 20, after postponing on several occasions " the date of the introduction of the levy system instituted " by that regulation, the council finally fixed that date in article 1 of regulation no 54-63-eec at " 2 September 1962 at the latest ".

Regulations nos 86-63-eec to 89-63-eec divided these products into two groups and fixed for the first time the amounts of both the intra-community levies (regulations nos 87-63 and 89-63) and the third country levies (regulations nos 86-63 and 88-63) to be imposed on imports.

15 the annexes to these regulations show that the levies were to be imposed on imports effected during periods beginning for each group on 2 September 1963.

Thus, as regards products other than live swine and pig carcasses, the provisions in question came into effect on 2 September 1963.

16 (2) apart from certain exceptions the third paragraph of article 32 of the basic regulation no 121-67-eec repealed regulation no 20 with effect from 1 July 1967.

The second paragraph of the same article provides that "the system established by this regulation shall apply from" that date, with the exception of certain measures which are not relevant to this case.

It follows that the prohibition on the charges in dispute, which is repeated in articles 17 and 19 of the new regulation and, therefore, the individual rights arising therefrom, came into existence on 1 July 1967.

Therefore, as regards the system established by regulation no 121-67, the provisions in question came into effect on 1 July 1967.

17 (3) it follows from the above considerations that, under the system established in regulation no 20, the prohibition on the imposition by the member state of the charges in question was concomitant with the obligation to impose the levies provided for in that regulation.

It follows also that this obligation came into effect on 30 July 1962 or 2 September 1963, according to the products involved.

Moreover, as from those dates the levies in question were applied without interruption until 1 July 1967, the date on which regulation no 121-67 came into force.

That regulation is still in force.

18 the reply to the question referred by the national court must therefore be that the effects in question came into existence on 30 July 1962 or 2 September 1963, according to the products involved.

19 the costs incurred by the government of the Italian republic and the commission of the European Communities, which have 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 17 July 1971, hereby rules:

On the first question:

1. The concept of a "charge having equivalent effect" as employed in articles 14 (1) and 18 (1) of regulation no 20 is equivalent to the same expression employed in article 9 et seq. Of the treaty and in other regulations on the organization of agricultural markets.

On questions 2 (a) and (b), 3 (a) and (b), 4 (a) and (b), 5 (a) and (b):

2. Regulations have direct effect and are, as such, capable of creating individual rights which national courts must protect.

This applis to articles 14 (1) and 18 (1) of regulation no 20, and to the first indent of article 17 (2) and the first indent of article 19 (1) of regulation no 121-67.

On questions 2 (c), 3 (c), 4 (c), 5 (c) and 6:

3. The provisions of articles 14 (1) and 18 (1) of regulation no 20 came into effect on 30 July 1962 as regards live swine and pig carcasses and on 2 September 1963 as regards the other products referred to in that regulation.

4. The provisions of articles 17 (1) and 19 (1) of regulation no 121-67-eec came into effect on 1 July 1967.

5. The effects in question came into existence on 30 July 1962 or 2 September 1963, according to the products involved.