CJEC, July 13, 1972, No 48-71

1 By application dated 23 July 1971 the Commission has brought before the Court under article 169 of the treaty an application for a declaration that the Italian Republic by not complying with the judgment given on 10 December 1968 in case 7-68 has failed to fulfil the obligations imposed on it by article 171 of the eec treaty.

2 In this judgment the Court had declared that the Italian Republic, by continuing to levy after 1 January 1962 the progressive tax laid down by article 37 of the law of 1 June 1939 no 1089 on the export to other member states of the community of articles of an artistic, historic, archaeological or ethnographic interest, had failed to fulfil the obligations imposed on it by article 16 of the eec treaty.

3 The Italian Republic, while recognizing that it is bound to take measures to comply with this judgment, cites the difficulties which it met with in regard to parliamentary procedure aimed at abolishing the tax and reforming the system of protection of the national artistic heritage. These measures must necessarily be adopted in the form and according to the procedures provided for by its constitutional law. Since the levying of the tax can cease only on its formal repeal and since the delays in effecting this repeal are due to circumstances outside the control of the competent authorities, there are no grounds for finding a failure to comply with the obligations under article 171 of the treaty.

4 The Commission maintains that the national provisions could have been repealed by more expeditious means.

5 Without having to examine the validity of such arguments, it suffices for the Court to observe that by judgment of 10 December 1968 it answered in the affirmative the question in dispute between the Italian government and the Commission: whether or not the tax in question was to be regarded as a tax having an effect equivalent to a customs duty on exports within the meaning of article 16 of the treaty.

Further by another judgment of 26 October 1971 given in case 18-71, Eunomia v Italian Republic, the Court expressly found that the prohibition contained in article 16 produces direct effects in the national law of all member states.

6 Since it is a question of a directly applicable community rule, the argument that the infringement can be terminated only by the adoption of measures constitutionally appropriate to repeal the provision establishing the tax would amount to saying that the application of the community rule is subject to the law of each member state and more precisely that this application is impossible where it is contrary to a national law.

7 In the present case the effect of community law, declared as res judicata in respect of the Italian Republic, is a prohibition having the full force of law on the competent national authorities against applying a national rule recognized as incompatible with the treaty and, if the circumstances so require, an obligation on them to take all appropriate measures to enable community law to be fully applied.

8 The attainment of the objectives of the community requires that the rules of community law established by the treaty itself or arising from procedures which it has instituted are fully applicable at the same time and with identical effects over the whole territory of the community without the member states being able to place any obstacles in the way.

9 The grant made by member states to the community of rights and powers in accordance with the provisions of the treaty involves a definitive limitation on their sovereign rights and no provisions whatsoever of national law may be invoked to override this limitation.

10 It is therefore necessary to find that in not complying with the judgment of the Court of 10 December 1968 in case 7-68 the Italian Republic has failed to fulfil the obligations imposed on it by article 171 of the treaty.

11 In a communication of 4 July 1972 the defendant has informed the Court that the tax has ceased to be levied and that it has been effectively eliminated as from 1 January 1962, the date on which the levy should have ceased.

12 It follows from the above that the application by the Commission was well founded. The failure complained of ceased only after the conclusion of the written and oral procedure. In these circumstances it is right to order the defendant to bear the costs.

The Court

Hereby:

1. Takes note that the failure of the Italian Republic to fulfil the obligations imposed on it by article 171 of the eec treaty has ceased with effect from 1 January 1962.

2. Orders the defendant to bear the costs.