61968O0002

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1 . PRIVILEGES AND IMMUNITIES OF THE EAEC - INVIOLABILITY OF PREMISES AND BUILDINGS OF THE COMMUNITY - LEGAL ENTRY BY A NATIONAL AUTHORITY TO CARRY OUT INSPECTION - ADMINISTRATIVE MEASURE OF CONSTRAINT

( PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EAEC, ARTICLE 1 )

2 . PRIVILEGES AND IMMUNITIES OF THE EAEC - AGREEMENT BETWEEN THE COMMISSION AND A MEMBER STATE IN ORDER TO IMPLEMENT THE PROTOCOL AND TO SUPPLEMENT IT - RIGHTS AND GUARANTEES FLOWING FROM THE PROTOCOL - REDUCTION THEREOF NOT PERMISSIBLE - REQUEST FOUNDED DIRECTLY ON THE PROTOCOL - ADMISSIBILITY

3 . PRIVILEGES AND IMMUNITIES OF THE EAEC - ADMINISTRATIVE MEASURE OF CONSTRAINT - AUTHORIZATION BY THE COURT - REQUEST - COMPETENT AUTHORITY - CONDITIONS FOR GRANT OF AUTHORIZATION

( PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EAEC, ARTICLE 1 )

1 . AN ENTRY BY THE AUTHORIZED REPRESENTATIVES OF A TAX AUTHORITY OF A MEMBER STATE UPON THE PREMISES OF A COMMUNITY INSTITUTION IN ORDER TO TAKE CERTAIN ACTION CONSTITUTING THE PRELIMINARY PHASE IN THE PREPARATION OF AN ASSESSMENT TO A DUTY CONSTITUTES AN ADMINISTRATIVE MEASURE OF CONSTRAINT REQUIRING THE AUTHORIZATION OF THE COURT .

2 . AN AGREEMENT BETWEEN THE COMMISSION AND A MEMBER STATE IN ORDER TO IMPLEMENT THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES AND IF NEED BE TO SUPPLEMENT IT CANNOT DIMINISH THE RIGHTS AND GUARANTEES WHICH FLOW DIRECTLY FROM THE SAID PROTOCOL IN FAVOUR OF THE MEMBER STATES AND THEIR AGENCIES, AS WELL AS OF THE COMMUNITY INSTITUTIONS AND OF INDIVIDUALS . THE ADMISSIBILITY OF A REQUEST FOUNDED DIRECTLY UPON THE PROTOCOL CANNOT THEREFORE BE CALLED IN ISSUE BY SPECIAL PROVISIONS AGREED BETWEEN THE COMMISSION AND THE GOVERNMENT OF A MEMBER STATE .

3 . AN AUTHORITY WHICH UNDER ITS NATIONAL LAW IS COMPETENT TO CARRY OUT AN ADMINISTRATIVE MEASURE OF CONSTRAINT IS, BY VIRTUE OF ARTICLE 1 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EAEC, ENTITLED TO REQUEST THE AUTHORIZATION FOR WHICH PROVISION IS MADE IN THAT ARTICLE . THE AUTHORIZATION REQUESTED FROM THE COURT MAY BE GRANTED WHEN THE ADMINISTRATIVE MEASURE OF CONSTRAINT DOES NOT RAISE DIFFICULTIES WHICH MIGHT PLACE IN JEOPARDY THE FUNCTIONING, INDEPENDENCE OR SECURITY OF THE COMMUNITY INSTITUTION .

IN CASE 2/68

UFFICIO IMPOSTE DI CONSUMO DI ISPRA ( ISPRA EXCISE DUTY OFFICE ), REPRESENTED BY ITS CHIEF EXCISE OFFICER NARCISO CAVION, ASSISTED BY GIOVANNI BALDI, ADVOCATE OF THE NOVARA BAR AND BY ANDRE ELVINGER, ADVOCATE OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR ELVINGER,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER ANTONIO MARCHINI-CAMIA, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF HENRI MANZANARES, CENTRE LOUVIGNY, RUE ALDRINGEN,

DEFENDANT,

APPLICATION FOR THE AUTHORIZATION OF THE COURT TO MAKE A VISIT OF INSPECTION FOR THE PURPOSE OF CHECKING THE MATERIALS USED FOR THE CONSTRUCTION OF THE CLUB HOUSE AND SPORTS CENTRE AT THE ISPRA RESEARCH CENTRE,

P . 437

A - ADMISSIBILITY

THE COMMISSION RAISES A NUMBER OF OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION, SOME OF WHICH ARE BASED ON THE FAILURE TO OBSERVE THE RULES ON JURISDICTION AND PROCEDURE CONTAINED IN ANNEX F TO THE ABOVEMENTIONED AGREEMENT OF 22 JULY 1959 AND THE REMAINDER OF WHICH ARE BASED ON THE FAILURE TO COMPLY WITH THE FORMAL REQUIREMENTS OF AND TO OBSERVE THE TIME-LIMITS PRESCRIBED FOR AN APPLICATION FOR ANNULMENT .

IN ORDER TO ADJUDICATE UPON THESE OBJECTIONS IT IS NECESSARY FIRST OF ALL TO EXAMINE THE SUBJECT-MATTER OF THE REQUEST AND THE JURISDICTION OF THE COURT TO ENTERTAIN IT .

1 . THE SUBJECT-MATTER OF THE REQUEST AND THE JURISDICTION OF THE COURT

THE COMMISSION ALLEGES THAT WHAT IS CONCERNED IS AN APPLICATION FOR ANNULMENT OF THE DECISION OF REFUSAL ADDRESSED TO THE EXCISE DUTY OFFICE .

THE APPLICANT REPLIES THAT ITS REQUEST ' SEEKS THE REVOCATION OF THE COMMISSION'S REFUSAL ' AND THAT THIS ' AMOUNTS IN SUBSTANCE TO A REQUEST TO THE COURT FOR AUTHORIZATION UNDER ARTICLE 1 OF ANNEX F '.

THE REQUEST SEEKS TO OBTAIN FROM THE COURT LEGAL AUTHORITY ENABLING THE AUTHORIZED REPRESENTATIVES OF THE EXCISE DUTY OFFICE TO ENTER LEGALLY, IF NEED BE CONTRARY TO THE WISHES OF THE INSTITUTION, UPON THE PREMISES AND BUILDINGS OF THAT INSTITUTION IN ORDER TO TAKE CERTAIN ACTION CONSTITUTING THE PRELIMINARY PHASE IN THE PREPARATION OF AN ASSESSMENT TO A LOCAL DUTY . AN INTERVENTION OF THIS KIND BY A NATIONAL ADMINISTRATIVE AUTHORITY IN THE SPHERE OF INTEREST OF A COMMUNITY INSTITUTION CONSTITUTES AN ADMINISTRATIVE MEASURE OF CONSTRAINT WITHIN THE MEANING BOTH OF ARTICLE 1 OF ANNEX F AND OF THE PRESENT ARTICLE 1 OF THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN COMMUNITIES ( AND OF ARTICLE 1 OF THE FORMER PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF THE EUROPEAN ATOMIC ENERGY COMMUNITY ) AND THEREFORE REQUIRES THE AUTHORIZATION OF THE COURT . IN VIEW OF THE TRUE NATURE OF ITS SUBJECT - MATTER, THE REQUEST MUST BE CONSTRUED AS A REQUEST FOR AUTHORIZATION AND THE COURT, BY VIRTUE OF ARTICLE 1 OF THE PRESENT PROTOCOL ( AND OF THE FORMER PROTOCOL ), HAS JURISDICTION TO ENTERTAIN IT .

P . 438

2 . OTHER OBJECTIONS TO ADMISSIBILITY

( A ) THE COMMISSION ALLEGES THAT UNDER ARTICLES 35, 36, 37 AND 40 OF ANNEX F ONLY ITSELF AND THE ITALIAN GOVERNMENT ARE ENTITLED, AFTER MUTUAL CONSULTATION, TO BRING THE MATTER BEFORE THE COURT OF JUSTICE .

BY VIRTUE OF ARTICLE 35 OF THE SAID ANNEX F THE COMMISSION IS OBLIGED TO TAKE, IN AGREEMENT WITH THE ITALIAN GOVERNMENT, ALL MEASURES NECESSARY TO PREVENT THE ABUSE OF THE ADVANTAGES CONFERRED . UNDER ARTICLE 36 THE ITALIAN GOVERNMENT UNDERTOOK TO TAKE ALL MEASURES NECESSARY FOR THE PROCEDURES FOR IMPLEMENTING THE PROVISIONS OF ANNEX F TO ENABLE THE CENTRE TO FUNCTION PROPERLY . UNDER ARTICLE 37, WHERE THERE IS AN ABUSE IN THE IMPLEMENTATION OF THE SAID PROVISIONS, THE CONTRACTING PARTIES SHALL CONSULT TOGETHER ON THE MEASURES TO BE TAKEN . FINALLY, UNDER ARTICLE 40 ' THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ALONE SHALL HAVE JURISDICTION TO DECIDE ANY DISPUTE RELATING TO THE IMPLEMENTATION AND INTERPRETATION OF THIS AGREEMENT WHICH MAY ARISE BETWEEN THE GOVERNMENT AND THE COMMISSION '.

THESE PROVISIONS BY NO MEANS HAVE THE RESTRICTIVE EFFECT WHICH THE COMMISSION ATTRIBUTES TO THEM . ARTICLE 1 OF THE PRESENT PROTOCOL ( AND OF THE FORMER PROTOCOL ) ALLOWS CERTAIN MEASURES OF CONSTRAINT SUBJECT TO THEIR PRIOR AUTHORIZATION BY THE COURT OF JUSTICE . ALTHOUGH THE COMMISSION, IN ORDER TO IMPLEMENT THE PROTOCOL AND IF NEED BE TO SUPPLEMENT IT, WAS ENTITLED TO CONCLUDE AN AGREEMENT WITH A MEMBER STATE FOR THE ESTABLISHMENT OF THE SEAT OF A COMMUNITY INSTITUTION IN THE TERRITORY OF THAT STATE, THAT AGREEMENT CANNOT, HOWEVER, DIMINISH THE RIGHTS AND GUARANTEES WHICH FLOW DIRECTLY FROM THE SAID PROTOCOL IN FAVOUR OF THE MEMBER STATES AND THEIR AGENCIES AS WELL AS OF THE COMMUNITY INSTITUTIONS AND OF INDIVIDUALS . THE ADMISSIBILITY OF A REQUEST FOUNDED DIRECTLY UPON THE PROTOCOL CANNOT THEREFORE BE CALLED IN ISSUE BY SPECIAL PROVISIONS AGREED BETWEEN THE COMMISSION AND THE GOVERNMENT OF A MEMBER STATE . THE PROVISIONS RELIED ON BY THE COMMISSION AND, MORE PARTICULARLY, ARTICLE 40 OF ANNEX F, ACCORDINGLY ONLY APPLY TO DISPUTES WHICH, WERE IT NOT FOR THESE PROVISIONS, WOULD HAVE FALLEN OUTSIDE THE JURISDICTION OF THE COURT UNDER THE PROVISIONS OF THE TREATY RELATING TO THE COURT AND MORE ESPECIALLY ARTICLE 155 THEREOF . IN THESE CIRCUMSTANCES THE SUBMISSION OF INADMISSIBILITY PUT FORWARD BY THE COMMISSION MUST BE REJECTED .

( B ) THE COMMISSION GOES ON TO ALLEGE THAT THE REQUEST WAS LODGED AFTER THE EXPIRY OF THE PERIOD OF TWO MONTHS PRESCRIBED BY ARTICLE 146 OF THE TREATY .

P . 439

HOWEVER, THE PRESENT REQUEST DOES NOT SEEK THE ANNULMENT OF A MEASURE ADOPTED BY THE COMMISSION SO THAT THE PERIOD OF TWO MONTHS FOR THE INSTITUTION OF PROCEEDINGS FOR ANNULMENT DOES NOT APPLY .

( C ) ACCORDING TO THE COMMISSION IT IS DIFFICULT TO ESTABLISH THE IDENTITY IN LAW OF THE APPLICANT AND UNDER ITALIAN LAW THE EXCISE DUTY OFFICE HAS NO CAPACITY TO INSTITUTE LEGAL PROCEEDINGS .

ON THE ONE HAND, IT IS SUFFICIENTLY CLEAR FROM THE REQUEST THAT THE APPLICANT IS THE EXCISE DUTY OFFICE, ISPRA, REPRESENTED BY ITS CHIEF EXCISE OFFICER, NARCISO CAVION . ON THE OTHER, AN AUTHORITY WHICH UNDER ITS NATIONAL LAW IS COMPETENT TO CARRY OUT THE ADMINISTRATIVE MEASURE OF CONSTRAINT IN QUESTION IS, BY VIRTUE OF ARTICLE 1 OF THE PRESENT PROTOCOL ( AND OF THE FORMER PROTOCOL ), ENTITLED TO REQUEST THE AUTHORIZATION FOR WHICH PROVISION IS MADE IN THAT ARTICLE .

THIS SUBMISSION MUST THEREFORE BE REJECTED .

B - THE SUBSTANCE OF THE CASE

THE COMMISSION JUSTIFIES ITS REFUSAL ON THE GROUND THAT UNDER ARTICLE 7(3 ) OF ANNEX F IT IS EXEMPTED FROM THE LOCAL DUTY IMPOSED BY THE COMMUNE OF ISPRA ON BUILDING MATERIALS AND THAT THEREFORE A VISIT OF INSPECTION WOULD SERVE NO PURPOSE .

ARTICLE 7(3 ) OF ANNEX F PROVIDES THAT ' THE COMMUNITY SHALL, IN RESPECT OF THE CONSTRUCTION AND FUNCTIONING OF THE CENTRE, BE EXEMPT FROM LOCAL EXCISE DUTIES '.

THE PARTIES ARE AGREED THAT THE DUTY IN QUESTION IS IN FACT A LOCAL EXCISE DUTY WITHIN THE MEANING OF ARTICLE 7(3 ) OF ANNEX F . IT IS A TAX FALLING WITHIN THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 3 OF THE PROTOCOL IN ITS PRESENT AND FORMER VERSIONS AND THE STATE CONCERNED CAN MAKE THE GRANT OF EXEMPTION FROM THIS TAX SUBJECT TO CERTAIN CONDITIONS .

UNDER ARTICLE 14 OF ANNEX F THE BENEFIT OF ARTICLE 7(3 ) IS TO BE GRANTED IN EACH INDIVIDUAL CASE BY THE MINISTRY OF FINANCE UPON REQUEST BY THE COMMISSION . IT HAS NOT BEEN ALLEGED BY THE COMMISSION THAT SUCH A REQUEST HAS BEEN EITHER MADE OR GRANTED . IN THOSE CIRCUMSTANCES, SINCE ANY EXEMPTION FROM THE DUTY CLAIMED IS STILL UNCERTAIN, THE APPLICANT HAS A LEGAL INTEREST IN CARRYING OUT THE NECESSARY CHECKS FOR THE PURPOSE OF ESTABLISHING THE BASIS OF ASSESSMENT TO THIS DUTY .

NOTHING HAS EMERGED FROM THE EXAMINATION OF THIS CASE WHICH WOULD INDICATE THAT THE MEASURE PROPOSED WOULD RAISE DIFFICULTIES WHICH MIGHT PLACE IN JEOPARDY THE FUNCTIONING, INDEPENDENCE OR SECURITY OF THE CENTRE AND ITS DEPARTMENTS . IN THOSE CIRCUMSTANCES, THE AUTHORIZATION REQUESTED FROM THE COURT MAY BE GRANTED . HOWEVER, A VISIT OF INSPECTION OF THIS NATURE MADE PRIOR TO A POSSIBLE ASSESSMENT TO DUTY IN NO WAY PRE-JUDGES ANY DECISIONS WHICH MAY BE TAKEN LATER .

SINCE THE APPLICANT HAS SUCCEEDED IN ITS REQUEST THE COMMISSION SHOULD UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE BEAR THE ENTIRE COSTS OF THE PROCEEDINGS . HOWEVER, SINCE THE APPLICANT HAS NOT SOUGHT AN ORDER FOR COSTS AGAINST THE COMMISSION IT MUST UNDER THE SAME PROVISION BEAR ITS OWN COSTS .

THE COURT

HEREBY ORDERS :

1 . THE APPLICANT IS AUTHORIZED TO CARRY OUT THE INSPECTION OF BUILDING MATERIALS REFERRED TO IN THE ' AVVISO DI ACCERTAMENTO COSTRUZIONI EDILIZIE ' SERVED ON THE COMMISSION ON 5 OCTOBER 1965;

2 . THE PARTIES SHALL BEAR THEIR OWN COSTS .