61969J0038

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1 . OBJECTIVES OF THE EEC - ACTION NECESSARY TO ATTAIN SUCH AN OBJECTIVE - NECESSARY POWERS - POWERS NOT PROVIDED BY THE TREATY - MEASURES TAKEN BY THE COUNCIL - IN THE NATURE OF A COMMUNITY MEASURE AND NOT OF AN INTERNATIONAL AGREEMENT

( EEC TREATY, ARTICLE 235 )

2 . COMMUNITY MEASURES - DECISION - SCOPE AND EFFECT - CRITERIA - RESERVATIONS AND STATEMENTS MADE DURING PRELIMINARY DISCUSSIONS - INEFFECTIVENESS - MINUTES OF COUNCIL MEETINGS - DISPUTE

( EEC TREATY, ARTICLES 235 AND 189 )

3 . FREE MOVEMENT OF GOODS - ACCELERATION DECISION - COMMON CUSTOMS TARIFF - DIRECTLY APPLICABLE PROVISIONS

( EEC TREATY, ARTICLES 9, 14 AND 235, REGULATION ( EEC ) NO 950/68 OF 28 JUNE 1968 )

1 . ALTHOUGH THE EFFECT OF THE MEASURES TAKEN BY THE COUNCIL BY VIRTUE OF ARTICLE 235 OF THE EEC TREATY IS IN SOME RESPECTS TO SUPPLEMENT THE TREATY, THEY ARE ADOPTED WITHIN THE CONTEXT OF THE OBJECTIVES OF THE COMMUNITY AND ARE THUS IN THE NATURE OF COMMUNITY MEASURES RATHER THAN INTERNATIONAL AGREEMENTS .

2 . THE SCOPE AND EFFECT OF A DECISION OF THE COUNCIL MUST BE ASSESSED IN THE LIGHT OF ITS TERMS AND THEREFORE CANNOT BE RESTRICTED BY RESERVATIONS OR STATEMENTS WHICH MIGHT HAVE BEEN MADE IN THE COURSE OF PREPARATORY DISCUSSIONS . IT IS THUS UNNECESSARY TO COME TO A DECISION ON A DISAGREEMENT WHICH HAS ARISEN BETWEEN PARTIES CONCERNING THE DEFINITIVE NATURE AND ACTUAL WORDING OF THE MINUTES OF THE COUNCIL MEETING DURING WHICH THAT DECISION WAS DRAWN UP .

3 . THE ACCELERATION DECISION OF THE COUNCIL OF 26 JULY 1966 CONDITIONED THE IMPLEMENTATION OF THE DIRECTLY APPLICABLE MEASURES FLOWING FROM ARTICLE 9 ( 1 ) OF THE TREATY AND PREPARED FOR THE ENTRY INTO FORCE OF THE DIRECTLY APPLICABLE PROVISIONS UNDER THE REGULATION OF 28 JUNE 1968 CONCERNING THE COMMON CUSTOMS TARIFF .

IN CASE 38/69

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, CESARE MAESTRIPIERI, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, APPLICANT,

V

ITALIAN REPUBLIC, REPRESENTED BY ADOLFO MARESCA, MINISTER PLENIPOTENTIARY, HEAD OF THE DIPLOMATIC LEGAL DEPARTMENT OF THE MINISTRY FOR FOREIGN AFFAIRS, ACTING AS AGENT, ASSISTED BY PIETRO PERONACI, DEPUTY STATE ADVOCATE-GENERAL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY, DEFENDANT,

APPLICATION FOR A DECLARATION THAT THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER DECISION NO 66/532/EEC OF THE COUNCIL OF 26 JULY 1966 AND ARTICLE 23 ( 1 ) ( C ) OF THE EEC TREATY, CONCERNING THE IMPOSITION OF CUSTOMS DUTIES ON IMPORTS OF UNWROGHT LEAD, UNWROGHT ZINC AND LEAD AND ZINC WASTE AND SCRAP,

1 BY APPLICATION OF 11 AUGUST 1969 THE COMMISSION REQUESTED THE COURT UNDER ARTICLE 169 OF THE EEC TREATY TO DECLARE THAT :

( 1 ) " BY APPLYING, DURING THE FIRST SIX MONTHS OF 1968, TO IMPORTS FROM OTHER MEMBER STATES OF UNWROGHT LEAD ( TARIFF HEADING NO 78.01 A ), UNWROGHT ZINC ( TARIFF HEAD NO 79.01 A ), LEAD WASTE AND SCRAP ( TARIFF HEADING 78.01 B ) AND ZINC WASTE AND SCRAP ( TARIFF HEADING NO 79.01 B ), CUSTOMS DUTIES WHICH EXCEEDED BY 15 PER CENT THOSE APPLIED ON 1 JANUARY 1957, AND TO IMPORTS OF THE SAME PRODUCTS FROM THIRD COUNTRIES CUSTOMS DUTIES IN EXCESS OF THOSE APPLIED IN PRACTICE ON 1 JANUARY 1967, AS REDUCED BY 60 PER CENT OF THE DIFFERENCE BETWEEN THE LATTER DUTIES AND THOSE IN THE COMMON CUSTOMS TARIFF, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER :

( A ) ARTICLE 1 OF DECISION NO 66/532/EEC OF THE COUNCIL OF 26 JULY 1966 CONCERNING THE ABOLITION OF CUSTOMS DUTIES, THE PROHIBITION OF QUANTITATIVE RESTRICTIONS BETWEEN MEMBER STATES AND THE APPLICATION OF THE DUTIES IN THE COMMON CUSTOMS TARIFF FOR PRODUCTS OTHER THAN THOSE LISTED IN ANNEX II TO THE TREATY;

( B ) ARTICLE 23 ( 1 ) ( C ) OF THE TREATY;

( 2 ) BY FAILING TO ABOLISH ON 1 JULY 1968 CUSTOMS DUTIES ON IMPORTS OF UNWROGHT LEAD, UNWROGHT ZINC AND LEAD AND ZINC WASTE AND SCRAP FROM THE OTHER MEMBER STATES AND BY FAILING AT THE SAME DATE TO APPLY THE DUTIES IN THE COMMON CUSTOMS TARIFF IN RESPECT OF UNWROGHT LEAD AND ZINC IMPORTED FROM THEIR COUNTRIES, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 1 AND 2 OF DECISION NO 66/532/EEC OF THE COUNCIL OF 26 JULY 1966 . "

2 LEAD AND ZINC ARE AMONG THE PRODUCTS APPEARING IN LIST G ANNEXED TO THE TREATY FOR WHICH, UNDER ARTICLE 20 OF THE TREATY, THE DUTIES IN THE COMMON CUSTOMS TARIFF WERE FIXED BY NEGOTIATION BETWEEN THE MEMBER STATES . PROTOCOL NO XV ANNEXED TO THE AGREEMENT OF 2 MARCH 1960 WHICH CONCERNS THOSE NEGOTIATIONS ( OJ 1960, PP . 1825 ET SEQ .) CONTAINS THE FOLLOWING STATEMENT : " THE MEMBER STATES SUPPORT THE APPLICATION OF ARTICLE 226 OF THE TREATY ENTAILING THE ISOLATION, FOR A PERIOD OF SIX YEARS FROM THE SIGNING OF THE PRESENT PROTOCOL, OF THE ITALIAN MARKET IN LEAD AND ZINC, BOTH AS REGARDS OTHER MEMBER STATES AND THIRD COUNTRIES ".

3 BY VIRTUE OF THIS PROTOCOL THE COMMISSION USED THE POWER CONFERRED ON IT BY ARTICLE 226 OF THE TREATY IN ORDER TO AUTHORIZE THE ITALIAN REPUBLIC TO TAKE CERTAIN PROTECTIVE MEASURES IN THE LEAD AND ZINC SECTOR .

THESE PROTECTIVE MEASURES WERE EXTENDED BEYOND THE PERIOD OF SIX YEARS ENVISAGED BY PROTOCOL NO XV ON THE LAST OCCASION BY DECISION NO 66/429/EEC OF THE COMMISSION OF 6 JULY 1966 ( OJ 1966, P . 2543 ).

THIS DECISION, WHICH WAS STILL IN FORCE WHEN THE COUNCIL ADOPTED THE ACCELERATION DECISION, CEASED TO HAVE EFFECT ON 31 DECEMBER 1967 .

4 BY DECISIONS OF 20 MARCH 1968 AND 16 JULY 1969 THE COMMISSION REJECTED SUBSEQUENT APPLICATIONS BY THE ITALIAN GOVERNMENT FOR A FURTHER EXTENSION OF THESE PROTECTIVE MEASURES .

5 WITHOUT DISPUTING THE ACCURACY OF THE FACTS IN RELATION TO WHICH IT IS CRITICIZED BY THE COMMISSION, THE DEFENDANT CONSIDERS THAT ITS ACTION IS JUSTIFIED BY A SET OF CIRCUMSTANCES EXISTING PRIOR TO THE ENTRY INTO FORCE OF ACCELERATION DECISION NO 66/532/EEC OF 26 JULY 1966 ( OJ 1966, P . 2971 ), TAKING INTO ACCOUNT THE SPECIAL CONDITIONS WHICH IN ITALY CHARACTERIZE THE PRODUCTION SECTOR IN QUESTION .

ACCORDING TO THE DEFENDANT, BOTH DURING THE DISCUSSIONS WHICH PRECEDED THE ACCELERATION DECISION OF 26 JULY 1966 AND DURING THE 191ST MEETING OF THE COUNCIL, HELD ON 22, 23, 26 AND 27 JULY 1966 DURING WHICH IT WAS ADOPTED, THE ITALIAN DELEGATION EXPRESSED RESERVATIONS CONCERNING LEAD AND ZINC IN ORDER TO ENSURE THAT THE ACCELERATION DECISION SHOULD NOT BECOME " A FACTOR LIABLE TO HINDER A POSSIBLE EXTENSION OF THE MEASURES TO PROTECT LEAD AND ZINC, EVEN UNDER ARTICLE 226 OF THE TREATY ".

6 THE DEFENDANT MAINTAINS THEREFORE THAT THESE VARIOUS FACTORS CLEARLY SHOW ITS ACCEPTANCE OF THE DECISION OF 26 JULY 1966 TO BE SUBJECT TO THE PROVISO THAT LEAD AND ZINC WOULD ENJOY APPROPRIATE PROTECTION UNTIL 31 DECEMBER 1966 AND THESE RESERVATIONS JUSTIFY THE MAINTENANCE IN FORCE OF THE RATES CRITICIZED BY THE COMMISSION .

7 FOR ITS PART, THE COMMISSION PRODUCES THE DRAFT MINUTES OF THE SAME MEETING AND CONCLUDES THAT THE STATEMENT MADE BY THE ITALIAN DELEGATION MERELY EXPRESSED THE WISH THAT THE ACCELERATION DECISION SHOULD NOT HINDER THE POSSIBLE APPLICATION OF ARTICLE 226 AND ADDS THAT IN REPLY TO THIS STATEMENT IT RESERVED ITS ASSESSMENT OF THE CRITERIA FOR THE APPLICATION OF POSSIBLE PROTECTIVE MEASURES WITHIN THE MEANING OF THAT ARTICLE .

8 HOWEVER, IT HAS NOT BEEN POSSIBLE TO ESTABLISH BEYOND DOUBT THE EXACT WORDING AND SCOPE OF THE STATEMENTS, AS THE PARTIES HAVE BEEN UNABLE TO PRODUCE A DEFINITIVE VERSION OF THE MINUTES OF THE COUNCIL MEETING DURING WHICH THE ACCELERATION DECISION WAS ADOPTED .

9 ACCORDING TO THE DEFENDANT, THE ACCELERATION DECISION WAS THE RESULT OF " NEGOTIATIONS DURING WHICH THE CONTRACTING PARTIES RETAINED THE INDEPENDENCE WHICH THEY ENJOYED BY VIRTUE OF THEIR SOVEREIGNTY " AND THEREFORE, IN SPITE OF ITS FORM, THE NATURE OF THIS DECISION IS THAT OF AN INTERNATIONAL AGREEMENT HAVING THE SAME VALUE AS THE TREATY ITSELF, TO WHICH IT HAS MADE CERTAIN ADDITIONS; IN ACCORDANCE WITH THE PRINCIPLES OF BOTH INTERNATIONAL LAW AND COMMUNITY LAW, STATEMENTS MADE BY A CONTRACTING PARTY AT THE CONCLUSION OF SUCH NEGOTIATIONS FORM AN INTEGRAL PART OF THE AGREEMENT REACHED . IN THESE CIRCUMSTANCES, ACCORDING TO THE DEFENDANT, THE RESERVATIONS EXPRESSED BY THE ITALIAN DELEGATION MUST BE INTERPRETED AS A REFUSAL TO ACCEPT THE ACCELERATION DECISION AS REGARDS THE PRODUCTS IN QUESTION .

10 THE ACCELERATION DECISION WAS TAKEN BY VIRTUE OF ARTICLE 235, WHICH PROVIDES THAT " IF ACTION BY THE COMMUNITY SHOULD PROVE NECESSARY TO ATTAIN, IN THE COURSE OF THE OPERATION OF THE COMMON MARKET, ONE OF THE OBJECTIVES OF THE COMMUNITY AND THIS TREATY HAS NOT PROVIDED THE NECESSARY POWERS, THE COUNCIL SHALL, ACTING UNANIMOUSLY ON A PROPOSAL FROM THE COMMISSION AND AFTER CONSULTING THE ASSEMBLY, TAKE THE APPROPRIATE MEASURES ". THE POWER TO TAKE THE MEASURES ENVISAGED BY THIS ARTICLE IS CONFERRED, NOT ON THE MEMBER STATES ACTING TOGETHER, BUT ON THE COUNCIL IN ITS CAPACITY AS A COMMUNITY INSTITUTION . UNDER ARTICLE 235 THE COUNCIL ACTS ON A PROPOSAL FROM THE COMMISSION AND AFTER CONSULTING THE ASSEMBLY . ALTHOUGH THE EFFECT OF THE MEASURES TAKEN IN THIS MANNER BY THE COUNCIL IS IN SOME RESPECTS TO SUPPLEMENT THE TREATY, THEY ARE ADOPTED WITHIN THE CONTEXT OF THE OBJECTIVES OF THE COMMUNITY .

11 IN THESE CIRCUMSTANCES, A MEASURE WHICH IS IN THE NATURE OF A COMMUNITY DECISION ON THE BASIS OF ITS OBJECTIVE AND OF THE INSTITUTIONAL FRAMEWORK WITHIN WHICH IT HAS BEEN DRAWN UP CANNOT BE DESCRIBED AS AN " INTERNATIONAL AGREEMENT ".

12 THE SCOPE AND EFFECT OF THE ACCELERATION DECISION MUST BE ASSESSED IN THE LIGHT OF ITS TERMS AND THEREFORE CANNOT BE RESTRICTED BY RESERVATIONS OR STATEMENTS WHICH MIGHT HAVE BEEN MADE IN THE COURSE OF DRAWING UP THE MEASURE CONCERNED . ALTHOUGH FORMALLY ADDRESSED TO THE MEMBER STATES ALONE THIS DECISION IS INTENDED TO HAVE REPERCUSSIONS ON THE COMMON MARKET AS A WHOLE AND IT CONDITIONS OR PREPARES FOR THE IMPLEMENTATION OF MEASURES WHICH ARE DIRECTLY APPLICABLE WITHIN THE MEMBER STATES AS A CONSEQUENCE OF ARTICLE 9 ( 1 ) OF THE TREATY AND, AS REGARDS RELATIONS WITH THIRD COUNTRIES IN PARTICULAR, OF REGULATION NO 950/68/EEC OF THE COUNCIL OF 28 JUNE 1968 CONCERNING THE COMMON CUSTOMS TARIFF ( OJ, L 172 OF 22 . 7 . 1968, P . 1 ).

13 IN THESE CIRCUMSTANCES, IT IS UNNECESSARY TO COME TO A DECISION ON THE DISAGREEMENT WHICH HAS ARISEN BETWEEN THE PARTIES CONCERNING THE DEFINITIVE NATURE AND ACTUAL WORDING OF THE MINUTES OF THE COUNCIL MEETING . THE DEFENDANT CANNOT REFER TO THE CIRCUMSTANCES IN WHICH THE ACCELERATION DECISION WAS ADOPTED IN ORDER TO JUSTIFY THE PROTECTIVE MEASURES WHICH IT MAINTAINED BEYOND THE ENTRY INTO FORCE OF THAT DECISION, WITHOUT PREJUDICE TO THE EFFECTS FLOWING DIRECTLY FROM ARTICLE 23 ( 1 ) ( C ) OF THE TREATY .

14 SUCH PROTECTIVE MEASURES AS THE ISOLATION OF THE ITALIAN MARKET IN LEAD AND ZINC AS AN EXCEPTION TO THE ACCELERATION DECISION AND, AS REGARDS THE PROGRESSIVE INTRODUCTION OF THE COMMON CUSTOMS TARIFF, TO ARTICLE 23 ( 1 ) ( C ) OF THE TREATY AND REGULATION NO 950/68 COULD ONLY HAVE BEEN JUSTIFIED BY RECOURSE TO ARTICLE 226 OF THE TREATY . THEREFORE, WHATEVER THE VALUE OF THE ARGUMENTS OF AN ECONOMIC AND SOCIAL NATURE PUT FORWARD BY THE DEFENDANT IN ORDER TO JUSTIFY THE CONTINUANCE OF SPECIAL PROTECTION FOR THE SECTOR IN QUESTION, THEY CANNOT BE TAKEN INTO CONSIDERATION WITHIN THE CONTEXT OF THE PRESENT ACTION AS THESE CIRCUMSTANCES WERE TAKEN INTO ACCOUNT IN VARIOUS DECISIONS TAKEN BY THE COMMISSION UNDER ARTICLE 226, AGAINST WHICH THE ITALIAN GOVERNMENT HAS INSTITUTED NO PROCEEDINGS .

15 AS THE VALIDITY OF THE LATEST PROTECTIVE MEASURES APPROVED BY THE COMMISSION IN DECISION NO 66/429 EXPIRED ON 31 DECEMBER 1967 AND AS THEIR EXTENSION WAS REFUSED, THE MEASURES ISOLATING THE ITALIAN MARKET IN LEAD AND ZINC, WHICH WERE MAINTAINED IN FORCE BY THE AUTHORITIES OF THE ITALIAN REPUBLIC, THUS LOST ALL JUSTIFICATION AS FROM THE RESPECTIVE DATES ON WHICH THE ACCELERATION DECISION AND ARTICLE 23 ( 1 ) ( C ) OF THE TREATY TOOK EFFECT .

UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS .

THE COURT

HEREBY :

1 . DECLARES THAT, BY APPLYING, FROM 1 JANUARY TO 1 JULY 1968, TO IMPORTS FROM OTHER MEMBER STATES OF UNWROGHT LEAD ( TARIFF HEADING NO 78.01 A ), UNWROGHT ZINC ( TARIFF HEADING NO 79.01 A ), LEAD WASTE AND SCRAP ( TARIFF HEADING NO 78.01 B ) AND ZINC WASTE AND SCRAP ( TARIFF HEADING NO 79.01 B ) CUSTOMS DUTIES WHICH EXCEEDED BY 15 PER CENT THOSE APPLIED ON 1 JANUARY 1957, AND BY APPLYING TO IMPORTS OF THE SAME PRODUCTS FROM THIRD COUNTRIES CUSTOMS DUTIES IN EXCESS OF THOSE APPLIED IN PRACTICE ON 1 JANUARY 1957, AS REDUCED BY 60 PER CENT OF THE DIFFERENCE BETWEEN THE LATTER DUTIES AND THOSE IN THE COMMON CUSTOMS TARIFF, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER :

- ARTICLE 1 OF DECISION NO 66/532/EEC OF THE COUNCIL OF 26 JULY 1966 CONCERNING THE ABOLITION OF CUSTOMS DUTIES, THE PROHIBITION OF QUANTITATIVE RESTRICTIONS BETWEEN MEMBER STATES AND THE APPLICATION OF THE DUTIES IN THE COMMON CUSTOMS TARIFF FOR PRODUCTS OTHER THAN THOSE LISTED IN ANNEX II TO THE TREATY, AND

- ARTICLE 23 ( 1 ) ( C ) OF THE TREATY :

2 . DECLARES THAT, BY FAILING TO ABOLISH ON 1 JULY 1968 CUSTOMS DUTIES ON IMPORTS OF UNWROGHT LEAD, UNWROGHT ZINC AND LEAD AND ZINC WASTE AND SCRAP FROM OTHER MEMBER STATES AND BY FAILING AT THE SAME DATE TO APPLY THE DUTIES IN THE COMMON CUSTOMS TARIFF IN RESPECT OF UNWROGHT LEAD AND ZINC IMPORTED FROM THIRD COUNTRIES, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 1 AND 2 OF DECISION NO 66/532/EEC OF THE COUNCIL OF 26 JULY 1966;

3 . ORDERS THE DEFENDANT TO PAY THE COSTS .