61980J0212

1 . MEASURES ADOPTED BY INSTITUTIONS - TEMPORAL APPLICABILITY - PROCEDURAL RULES - SUBSTANTIVE RULES - DISTINCTION - RETROACTIVITY OF A SUBSTANTIVE RULE - CONDITIONS

2 . EUROPEAN COMMUNITIES - OWN RESOURCES - POST-CLEARANCE RECOVERY OF IMPORT DUTIES OR EXPORT DUTIES - REGULATION NO 1697/79 - RETROACTIVITY - NONE

( COUNCIL REGULATION NO 1697/79 )

1 . ALTHOUGH PROCEDURAL RULES ARE GENERALLY HELD TO APPLY TO ALL PROCEEDINGS PENDING AT THE TIME WHEN THEY ENTER INTO FORCE , THIS IS NOT THE CASE WITH SUBSTANTIVE RULES . ON THE CONTRARY , THE LATTER ARE USUALLY INTERPRETED AS APPLYING TO SITUATIONS EXISTING BEFORE THEIR ENTRY INTO FORCE ONLY IN SO FAR AS IT CLEARLY FOLLOWS FROM THEIR TERMS , OBJECTIVES OR GENERAL SCHEME THAT SUCH AN EFFECT MUST BE GIVEN TO THEM . THIS INTERPRETATION ENSURES RESPECT FOR THE PRINCIPLES OF LEGAL CERTAINTY AND THE PROTECTION OF LEGITIMATE EXPECTATION , BY VIRTUE OF WHICH THE EFFECT OF COMMUNITY LEGISLATION MUST BE CLEAR AND PREDICTABLE FOR THOSE WHO ARE SUBJECT TO IT .

2 . REGULATION NO 1697/79 ON THE POST-CLEARANCE RECOVERY OF IMPORT DUTIES OR EXPORT DUTIES WHICH HAVE NOT BEEN REQUIRED OF THE PERSON LIABLE FOR PAYMENT ON GOODS ENTERED FOR A CUSTOMS PROCEDURE INVOLVING THE OBLIGATION TO PAY SUCH DUTIES DOES NOT APPLY TO PAYMENT OF IMPORT OR EXPORT DUTIES MADE BEFORE THE DATE OF ITS ENTRY INTO FORCE , NAMELY 1 JULY 1980 .

IN JOINED CASES 212 TO 217/80

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CORTE SUPREMA DI CASSAZIONE ( SUPREME COURT OF CASSATION ), ROME , FOR A PRELIMINARY RULING IN THE ACTIONS PENDING BEFORE THAT COURT BETWEEN

AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( ITALIAN STATE FINANCE ADMINISTRATION )

AND

SRL MERIDIONALE INDUSTRIA SALUMI ,

AMMINISTRAZIONE DELLE FINANZE DELLO STATO

AND

SALUMIFICIO DI VERONA VASSANELLI ,

AMMINISTRAZIONE DELLE FINANZE DELLO STATO

AND

FRATELLI ULTROCCHI ,

DITTA ITALO ORLANDI E FIGLIO

AND

AMMINISTRAZIONE DELLE FINANZE DELLO STATO ,

AMMINISTRAZIONE DELLE FINANZE DELLO STATO

AND

SAS MOLINO FIGLI DI GINO BORGIOLI ,

DITTA VINCENZO DIVELLA

AND

AMMINISTRAZIONE DELLE FINANZE DELLO STATO

ON THE INTERPRETATION OF COUNCIL REGULATION NO 1697/79 OF 24 JULY 1979 ON THE POST-CLEARANCE RECOVERY OF IMPORT DUTIES OR EXPORT DUTIES WHICH HAVE NOT BEEN REQUIRED OF THE PERSON LIABLE FOR PAYMENT ON GOODS ENTERED FOR A CUSTOMS PROCEDURE INVOLVING THE OBLIGATION TO PAY SUCH DUTIES ( OFFICIAL JOURNAL 1979 , L 197 , P . 1 ),

1 BY ORDERS DATED 2 JULY 1980 , WHICH WERE RECEIVED AT THE COURT ON 27 OCTOBER 1980 , THE CORTE SUPREMA DI CASSAZIONE ( SUPREME COURT OF CASSATION ), ROME , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS , WHICH ARE IDENTICAL IN THE SIX JOINED CASES , ON THE INTERPRETATION OF COUNCIL REGULATION ( EEC ) NO 1697/79 OF 24 JULY 1979 ON THE POST-CLEARANCE RECOVERY OF IMPORT DUTIES OR EXPORT DUTIES WHICH HAVE NOT BEEN REQUIRED OF THE PERSON LIABLE FOR PAYMENT ON GOODS ENTERED FOR A CUSTOMS PROCEDURE INVOLVING THE OBLIGATION TO PAY SUCH DUTIES ( OFFICIAL JOURNAL 1979 , L 197 , P . 1 ).

2 THE QUESTIONS WERE RAISED IN THE CONTEXT OF DISPUTES BETWEEN TRADERS AND THE AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( ITALIAN STATE FINANCE ADMINISTRATION , HEREINAFTER REFERRED TO AS ' ' THE AMMINISTRAZIONE ' ' ). THE TRADERS HAD CHALLENGED AMENDED NOTICES , ISSUED BY THE AMMINISTRAZIONE PRIOR TO THE ENTRY INTO FORCE OF THE AFOREMENTIONED REGULATION ON 1 JULY 1980 , REQUIRING THEM TO PAY A SUM EQUAL TO THE DIFFERENCE BETWEEN THE AGRICULTURAL LEVY CALCULATED AT THE RATE APPLICABLE ON THE DAY OF ACCEPTANCE OF THE IMPORT DECLARATION AND THE LEVY CALCULATED AT THE MORE FAVOURABLE RATE INTRODUCED BETWEEN THE IMPORT DECLARATION AND THE RELEASE OF THE GOODS FOR HOME USE . THE AMMINISTRAZIONE CLAIMED THAT THE MORE FAVOURABLE RATE HAD BEEN APPLIED IN ERROR .

3 IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT UNTIL 1976 THE ITALIAN AUTHORITIES HAD ALWAYS CALCULATED THE LEVIES BY APPLYING THE MORE FAVOURABLE RATE AT THE REQUEST OF THE IMPORTER . HOWEVER , IN ITS JUDGMENT OF 15 JUNE 1976 ( CASE 113/75 FRECASSETTI V AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( 1976 ) ECR 983 ) THE COURT HELD THAT THAT METHOD COULD NOT BE APPLIED TO AGRICULTURAL LEVIES ON IMPORTS FROM NON-MEMBER STATES , WHICH HAD TO BE CALCULATED AT THE RATE APPLICABLE ON THE DAY WHEN THE IMPORT DECLARATION WAS ACCEPTED BY THE CUSTOMS AUTHORITIES .

4 THE COURT ALSO HELD IN ITS JUDGMENT OF 27 MARCH 1980 ( JOINED CASES 66 , 127 AND 128/79 AMMINISTRAZIONE DELLE FINANZE V SALUMI ( 1980 ) ECR 1237 ) THAT , IN SO FAR AS NO PROVISIONS OF COMMUNITY LAW ARE RELEVANT , IT IS FOR THE INTERNAL LEGAL SYSTEM OF EACH MEMBER STATE TO LAY DOWN THE DETAILED RULES AND CONDITIONS FOR THE COLLECTION OF COMMUNITY REVENUES , BUT SUCH RULES AND CONDITIONS MAY NOT MAKE THE SYSTEM FOR COLLECTING COMMUNITY CHARGES AND DUES LESS EFFECTIVE THAN THAT FOR COLLECTING NATIONAL CHARGES AND DUES OF THE SAME KIND .

5 SINCE THE LATTER JUDGMENT WAS DELIVERED BEFORE REGULATION NO 1697/79 ENTERED INTO FORCE , THE PURPOSE OF THESE CASES IS TO DISCOVER WHETHER NATIONAL LAW OR THE COMMUNITY REGULATION WHICH HAS MEANWHILE ENTERED INTO FORCE SHOULD APPLY IN THESE CASES . THE CORTE SUPREMA DI CASSAZIONE THEREFORE REFERRED TO THE COURT THE FOLLOWING QUESTIONS :

' ' ( A ) DOES COUNCIL REGULATION ( EEC ) NO 1697/79 OF 24 JULY 1979 , IN PARTICULAR ARTICLE 5 THEREOF , APPLY IN RESPECT OF PAYMENTS OF AGRICULTURAL LEVIES MADE PRIOR TO 1 JULY 1980 AT A RATE LOWER THAN THE AMOUNT LEGALLY DUE , IN RELATION TO WHICH EVEN BEFORE THAT DATE STEPS HAD BEEN TAKEN FOR RECOVERY , THE LAWFULNESS OF WHICH IS BEING CHALLENGED , IN OTHER RESPECTS , BEFORE A NATIONAL COURT?

( B)IF THE REPLY TO QUESTION ( A ) IS IN THE AFFIRMATIVE , DO THE PROVISIONS OF ARTICLE 5 EXTEND TO THE PAYMENT OF AGRICULTURAL LEVIES AT A RATE LOWER THAN THE AMOUNT LEGALLY DUE , WHERE SUCH PAYMENT WAS MADE , ON THE ONE HAND , IN SUBSTANTIAL COMPLIANCE WITH THE COMMUNITY RULES ACCORDING TO THE GUIDANCE FOR INTERPRETING THE SAME WHICH COULD AT THAT TIME BE INFERRED FROM THE OFFICIAL ACTS OF ORGANS OF THE COMMUNITY AND WHICH WAS ACKNOWLEDGED AS CORRECT BY THE NATIONAL COURT , BUT WAS LATER DISREGARDED BY THE COURT OF JUSTICE AND , ON THE OTHER HAND , IN FORMAL COMPLIANCE WITH NATIONAL RULES SUBSEQUENTLY HELD NOT TO APPLY ON THE SUBJECT BUT AT THE TIME APPLIED CONSISTENTLY BY THE COMPETENT NATIONAL ADMINISTRATIVE AUTHORITY IN CONFORMITY WITH THE CIRCULARS AND INSTRUCTIONS ISSUED BY ITS RULING BODY? IF ARTICLE 5 DOES EXTEND TO SUCH PAYMENTS , WHICH OF ITS TWO PARAGRAPHS IS APPLICABLE?

( C)IF THE ANSWER TO QUESTION ( B ) IS IN THE AFFIRMATIVE , AND ARTICLE 5 ( 2 ) APPLIES , DO THE RULES LAID DOWN THEREIN ( WHERE ALREADY BROUGHT INTO EFFECT BY THE ISSUING OF THE IMPLEMENTING PROVISIONS REFERRED TO IN THE SECOND SUBPARAGRAPH THEREOF ) HAVE THE EFFECT OF LEGITIMIZING , UNDER THE COMMUNITY LEGAL ORDER , NATIONAL RULES ALREADY ADOPTED FIXING THE AMOUNT OF THE LEVIES TO BE COLLECTED AT A RATE LOWER AND THEREFORE DIFFERENT FROM THAT LAID DOWN AT THE TIME BY COMMUNITY RULES?

( D)IF THE REPLY IS IN THE NEGATIVE , DOES THE PROVISION CONTAINED IN ARTICLE 7 OF THE ABOVE-MENTIONED REGULATION EXTEND TO PAYMENTS REQUIRED SUBSEQUENT TO ITS ENTRY INTO FORCE , IN CONNECTION WITH RECOVERIES IN RESPECT OF PAYMENTS MADE AT A RATE LOWER THAN THE AMOUNT LEGALLY DUE , IN THE CIRCUMSTANCES DESCRIBED AT ( B ) ABOVE , PRIOR TO 1 JULY 1980?

' '

6 BY THE FIRST QUESTION THE NATIONAL COURT IS , IN SUBSTANCE , ASKING WHETHER REGULATION NO 1697/79 APPLIES TO PAYMENTS OF IMPORT OR EXPORT DUTIES MADE BEFORE THE DATE ON WHICH THE REGULATION ENTERED INTO FORCE .

7 THE OBJECT OF REGULATION NO 1697/79 , AS STATED IN ARTICLE 1 THEREOF , IS TO DETERMINE THE CONDITIONS UNDER WHICH THE POST-CLEARANCE RECOVERY IS UNDERTAKEN OF IMPORT OR EXPORT DUTIES ON GOODS ENTERED FOR A CUSTOMS PROCEDURE INVOLVING THE OBLIGATION TO PAY SUCH DUTIES FOR WHICH PAYMENT HAS NOT BEEN REQUIRED OF THE PERSON LIABLE FOR PAYMENT . WHERE THE COMPETENT AUTHORITIES FIND THAT SUCH DUTIES HAVE NOT BEEN CHARGED , THEY ARE OBLIGED TO TAKE ACTION TO RECOVER THEM , PROVIDED , HOWEVER , THAT SUCH ACTION MAY NOT BE TAKEN AFTER THE EXPIRY OF A PERIOD OF THREE YEARS FROM THE DATE OF ENTRY IN THE ACCOUNTS OF THE AMOUNT ORIGINALLY REQUIRED OR , WHERE THERE IS NO ENTRY IN THE ACCOUNTS , FROM THE DATE ON WHICH THE CUSTOMS DEBT WAS INCURRED ( ARTICLE 2 ( 1 )). IN CERTAIN CASES THE REGULATION PROHIBITS ACTION FOR RECOVERY ( ARTICLE 5 ( 1 )) OR PERMITS THE AUTHORITIES TO REFRAIN FROM TAKING ACTION ( ARTICLE 5 ( 2 )). IT ALSO PROVIDES THAT IN CERTAIN CASES NO INTEREST ON OVERDUE PAYMENTS IS TO BE CHARGED ON SUMS RECOVERED ( ARTICLE 7 ).

8 HOWEVER , AS THE REGULATION DOES NOT CONTAIN ANY TRANSITIONAL PROVISIONS , IT IS ADVISABLE TO HAVE RECOURSE TO GENERALLY RECOGNIZED PRINCIPLES OF INTERPRET- ATION IN ORDER TO DETERMINE ITS EFFECT RATIONE TEMPORIS , HAVING REGARD BOTH TO WORDING OF THE REGULATION AND TO ITS OBJECTIVES AND GENERAL SCHEME .

9 ALTHOUGH PROCEDURAL RULES ARE GENERALLY HELD TO APPLY TO ALL PROCEEDINGS PENDING AT THE TIME WHEN THEY ENTER INTO FORCE , THIS IS NOT THE CASE WITH SUBSTANTIVE RULES . ON THE CONTRARY , THE LATTER ARE USUALLY INTERPRETED AS APPLYING TO SITUATIONS EXISTING BEFORE THEIR ENTRY INTO FORCE ONLY IN SO FAR AS IT CLEARLY FOLLOWS FROM THEIR TERMS , OBJECTIVES OR GENERAL SCHEME THAT SUCH AN EFFECT MUST BE GIVEN TO THEM .

10 THIS INTERPRETATION ENSURES RESPECT FOR THE PRINCIPLES OF LEGAL CERTAINTY AND THE PROTECTION OF LEGITIMATE EXPECTATION , BY VIRTUE OF WHICH THE EFFECT OF COMMUNITY LEGISLATION MUST BE CLEAR AND PREDICTABLE FOR THOSE WHO ARE SUBJECT TO IT . THE COURT HAS REPEATEDLY EMPHASIZED THE IMPORTANCE OF THOSE PRINCIPLES , IN PARTICULAR IN THE JUDGMENTS OF 25 JANUARY 1979 IN CASE 98/78 RACKE V HAUPTZOLLAMT MAINZ (( 1979 ) ECR 69 ) AND CASE 99/78 DECKER V HAUPTZOLLAMT LANDAU (( 1979 ) ECR 101 ), IN WHICH IT STATED THAT IN GENERAL THE PRINCIPLE OF LEGAL CERTAINTY PRECLUDES A COMMUNITY MEASURE FROM TAKING EFFECT FROM A POINT IN TIME BEFORE ITS PUBLICATION AND THAT IT MAY BE OTHERWISE ONLY EXCEPTIONALLY , WHERE THE PURPOSE TO BE ACHIEVED SO DEMANDS AND WHERE THE LEGITIMATE EXPECTATIONS OF THOSE CONCERNED ARE DULY RESPECTED .

11 IN THIS REGARD , IT SHOULD BE STATED FIRST THAT THE REGULATION IN QUESTION IS INTENDED TO PROVIDE A BODY OF RULES COVERING THE POST-CLEARANCE RECOVERY OF IMPORT AND EXPORT DUTIES , RESULTING FROM THE APPLICATION OF THE COMMON AGRICULTURAL POLICY OR FROM THE PROVISIONS OF THE TREATY ON THE CUSTOMS UNION . REPLACING THE RELEVANT NATIONAL PROVISIONS WITH COMMUNITY PROVISIONS , THAT REGULATION CONTAINS BOTH PROCEDURAL AND SUBSTANTIVE RULES WHICH FORM AN INDIVISIBLE WHOLE AND THE INDIVIDUAL PROVISIONS OF WHICH MAY NOT BE CONSIDERED IN ISOLATION , WITH REGARD TO THE TIME AT WHICH THEY TAKE EFFECT .

12 THEREFORE THE PROVISIONS OF THE REGULATION MAY NOT BE ACCORDED RETROACTIVE EFFECT UNLESS SUFFICIENTLY CLEAR INDICATIONS LEAD TO SUCH A CONCLUSION . IT IS APPARENT THAT , FAR FROM INDICATING ANY RETROACTIVE EFFECT , BOTH THE WORDING AND THE GENERAL SCHEME OF THE REGULATION LEAD TO THE CONCLUSION THAT THE REGULATION PROVIDES ONLY FOR THE FUTURE .

13 THIS RESULTS , FIRST , FROM THE VERY WORDING OF THE PROVISIONS OF THE REGULATION , WHICH IMPOSE EITHER AN OBLIGATION OR A PROHIBITION IN RELATION TO BRINGING PROCEEDINGS FOR THE RECOVERY OF DUTY AND WHICH ARE THEREFORE NOT DESIGNED TO COVER ACTIONS ALREADY COMMENCED AT THE DATE OF THE ENTRY INTO FORCE OF THE REGULATION . SECONDLY , IT ALSO FOLLOWS FROM THE PERIOD OF TIME WHICH ELAPSED BETWEEN THE ADOPTION OF THE REGULATION , ON 24 JULY 1979 , AND ITS ENTRY INTO FORCE , ON 1 JULY 1980 , A TIME-LAPSE WHICH DEMONSTRATES THAT THE COUNCIL DID NOT CONSIDER THE IMPLEMENTATION OF THE COMMUNITY RULES TO BE URGENT .

14 FURTHERMORE , IF THE SCOPE OF THE REGULATION WERE EXTENDED SO AS TO INCLUDE ALL ACTIONS PENDING BEFORE THE NATIONAL COURTS AT THE DATE OF ITS ENTRY INTO FORCE , THE APPLICATION OF NATIONAL LAW OR OF THE COMMUNITY RULES WOULD DEPEND ON THE CONDUCT OF THE NATIONAL AUTHORITIES AND MORE ESPECIALLY ON THE SPEED WITH WHICH THEY BROUGHT AND CONCLUDED LEGAL PROCEEDINGS . THAT COULD RESULT IN AN UNJUSTIFIED DIFFERENCE IN TREATMENT WITH REGARD TO TRANSACTIONS EFFECTED IN SIMILAR CIRCUMSTANCES AND WOULD BE INCOMPATIBLE WITH THE PRINCIPLES OF EQUALITY AND JUSTICE . THEREFORE , IN DETERMINING THE TEMPORAL SCOPE OF THE REGULATION , THE DATE OF THE ORIGINAL PAYMENT OF THE DUTIES SHOULD BE TAKEN INTO ACCOUNT .

15 IT APPEARS FROM ALL THESE CONSIDERATIONS THAT THE REGULATION COVERS ONLY IMPORT OR EXPORT TRANSACTIONS FOR WHICH THE PAYMENT OF DUTIES WAS MADE ON OR AFTER 1 JULY 1980 .

16 THE REPLY TO THE FIRST QUESTION PUT BY THE CORTE SUPREMA DI CASSAZIONE SHOULD THEREFORE BE THAT COUNCIL REGULATION NO 1697/79 OF 24 JULIY 1979 DOES NOT APPLY TO PAYMENTS OF IMPORT OR EXPORT DUTIES MADE BEFORE 1 JULY 1980 .

17 THEREFORE THE SECOND AND THIRD QUESTIONS , WHICH WERE PUT ONLY IN THE EVENT OF THE REPLY TO THE FIRST QUESTION BEING IN THE AFFIRMATIVE , DO NOT REQUIRE TO BE ANSWERED . THE REPLY TO THE FOURTH QUESTION IS INCLUDED IN THAT GIVEN TO THE FIRST .

18 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND THE COMMISSION WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , A STEP IN THE ACTIONS PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( THIRD CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CORTE SUPREMA DI CASSAZIONE , ROME , BY ORDERS DATED 2 JULY 1980 , HEREBY RULES :

COUNCIL REGULATION NO 1697/79 OF 24 JULY 1979 DOES NOT APPLY TO PAYMENTS OF IMPORT OR EXPORT DUTIES MADE BEFORE 1 JULY 1980 .