61978J0027

1 . CUSTOMS UNION - ELIMINATION OF QUANTITATIVE RESTRICTIONS - ' ' ACCELERATION DECISION ' ' - EFFECT ON THE LENGTH OF THE TRANSITIONAL PERIOD - NONE

( EEC TREATY , ART . 8 ; COUNCIL DECISION NO 66/532 )

2 . COMMERCIAL POLICY - TRANSITIONAL PERIOD - PROTECTIVE MEASURES TAKEN BY MEMBER STATES - DUTY TO NOTIFY - EFFECT

( EEC TREATY , SECOND PARA . OF ART . 115 )

1 . COUNCIL DECISION NO 66/532 OF 26 JULY 1966 CONCERNING THE ABOLITION OF CUSTOMS DUTIES , THE PROHIBITION OF QUANTITATIVE RESTRICTIONS AS BETWEEN MEMBER STATES AND THE APPLICATION OF THE COMMON CUSTOMS TARIFF DUTIES FOR PRODUCTS OTHER THAN THOSE SET OUT IN ANNEX II TO THE TREATY DID NOT BRING FORWARD THE DATE OF EXPIRY OF THE TRANSITIONAL PERIOD WITHIN THE MEANING OF ARTICLE 8 OF THE TREATY .

2 . ALTHOUGH THE NOTIFICATION PRESCRIBED BY THE SECOND PARAGRAPH OF ARTICLE 115 OF THE TREATY IS COMPULSORY , IT IS NOT A CONDITION PRECEDENT OF THE ENTRY INTO FORCE OF THE PROTECTIVE MEASURES ADOPTED BY THE MEMBER STATES .

IN CASE 27/78

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

AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( ITALIAN STATE FINANCE ADMINISTRATION )

AND

THE RASHAM UNDERTAKING

ON THE INTERPRETATION OF ARTICLES 8 , 115 AND 235 OF THE EEC TREATY AND OF COUNCIL DECISION NO 66/532/EEC OF 26 JULY 1966 CONCERNING THE ABOLITION OF CUSTOMS DUTIES , THE PROHIBITION OF QUANTITATIVE RESTRICTIONS AS BETWEEN MEMBER STATES AND THE APPLICATION OF THE COMMON CUSTOMS TARIFF DUTIES FOR PRODUCTS OTHER THAN THOSE SET OUT IN ANNEX II TO THE TREATY ( JOURNAL OFFICIEL 1966 , P . 2971 ),

1BY AN ORDER OF 2 DECEMBER 1977 , RECEIVED AT THE COURT ON 3 MARCH 1978 , THE CORTE SUPREMA DI CASSAZIONE REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 115 OF THE TREATY AND OF COUNCIL DECISION NO 66/532 OF 26 JULY 1966 CONCERNING THE ABOLITION OF CUSTOMS DUTIES , THE PROHIBITION OF QUANTITATIVE RESTRICTIONS AS BETWEEN MEMBER STATES AND THE APPLICATION OF THE COMMON CUSTOMS TARIFF DUTIES FOR PRODUCTS OTHER THAN THOSE SET OUT IN ANNEX II TO THE TREATY ( JOURNAL OFFICIEL 1966 , P . 2971 ).

2THE QUESTIONS WERE RAISED IN THE COURSE OF A DISPUTE BETWEEN THE AMMINISTRAZIONE DELLE FINANZE DELLO STATO ( ITALIAN STATE FINANCE ADMINISTRATION ) AND AN UNDERTAKING WHICH ON 9 JULY 1968 HAD IMPORTED INTO ITALY 5 000 TAPE RECORDERS OF JAPANESE ORIGIN COMING FROM BELGIUM .

3THE CUSTOMS AUTHORITIES CALLED ON THE IMPORTING UNDERTAKING TO PAY THE SUM OF LIT 601 215 TOGETHER WITH THE ADDITIONAL COSTS BY WAY OF CUSTOMS DUTIES AND RELATED CHARGES WHICH HAD NOT BEEN PAID AT THE TIME OF CLEARANCE THROUGH CUSTOMS , STATING THAT BY THAT CIRCULAR NO 292 OF 17 JUNE 1968 THE MINISTERO DELLE FINANZE ( MINISTRY OF FINANCE ) HAD EXCLUDED GOODS OF THE TYPE IN QUESTION FROM FREE CIRCULATION TREATMENT , IN APPLICATION OF THE PROVISIONS REGARDING PROTECTIVE MEASURES REFERRED TO IN THE SECOND PARAGRAPH OF ARTICLE 115 OF THE TREATY .

4TAKING THE VIEW THAT THE TRANSITIONAL PERIOD DURING WHICH PROTECTIVE MEASURES WERE ALLOWED UNDER ARTICLE 115 OF THE TREATY HAD EXPIRED AS FROM 1 JULY 1968 BY VIRTUE OF THE COUNCIL DECISION OF 26 JULY 1966 , THE IMPORTING UNDERTAKING CLAIMED REPAYMENT OF THE AMOUNT CHARGED .

5THE FIRST QUESTION ASKS WHETHER THE COUNCIL DECISION OF 26 JULY 1966 MUST BE INTERPRETED AS MEANING THAT IT BROUGHT FORWARD THE DATE OF EXPIRY OF THE TRANSITIONAL PERIOD REFERRED TO IN ARTICLE 8 OF THE TREATY .

6IF THAT QUESTION IS ANSWERED IN THE AFFIRMATIVE , THE SECOND QUESTION ASKS WHETHER THE BRINGING FORWARD OF THE DATE OF EXPIRY OF THE TRANSITIONAL PERIOD ENTAILS A CORRESPONDING CURTAILMENT OF THE PERIOD REFERRED TO IN THE SECOND PARAGRAPH OF ARTICLE 115 OF THE TREATY .

7ADOPTED UNDER ARTICLES 14 AND 235 OF THE TREATY , THE COUNCIL DECISION OF 26 JULY 1966 IS INTENDED TO ' ' ACCELERATE THE PACE OF THE ACHIEVEMENT OF THE OBJECTIVES OF THE TREATY , IN PARTICULAR IN THE FIELD OF THE CUSTOMS UNION AND THE ABOLITION OF QUANTITATIVE RESTRICTIONS ' ' ( FIRST RECITAL ).

8FOR THAT PURPOSE , ARTICLE 1 OF THE DECISION PROVIDES THAT :

' ' MEMBER STATES SHALL ABOLISH CUSTOMS DUTIES STILL EXISTING AS BETWEEN THEM ON PRODUCTS OTHER THAN THOSE LISTED IN ANNEX II TO THE TREATY , BY APPLYING ON 1 JULY 1967 A REDUCTION TO LOWER THE DUTY ON EACH PRODUCT TO 15% OF THE BASIC DUTY AND BY ABOLISHING THESE DUTIES ON 1 JULY 1968 ;

' '

AND ARTICLE 2 PROVIDES THAT :

' ' AS FROM 1 JULY 1968 , MEMBER STATES SHALL APPLY THE COMMON CUSTOMS TARIFF TO PRODUCTS , OTHER THAN THOSE LISTED IN ANNEX II TO THE TREATY , IMPORTED FROM THIRD COUNTRIES . ' '

9THUS THE DECISION IS BASED ON THE CONCEPT OF A SELECTIVE ACCELERATION OF ACTIONS WHICH AS A WHOLE WERE TO BE COMPLETED BY THE END OF THE TRANSITIONAL PERIOD AT THE LATEST , AND IT APPLIES ONLY TO MEASURES TO WHICH IT SPECIFICALLY REFERS .

10THEREFORE THE ANSWER TO THE FIRST QUESTION MUST BE THAT THE COUNCIL DECISION OF 26 JULY 1966 DID NOT BRING FORWARD THE DATE OF EXPIRY OF THE TRANSITIONAL PERIOD WITHIN THE MEANING OF ARTICLE 8 OF THE TREATY .

11CONSEQUENTLY IT IS NOT NECESSARY TO ANSWER THE SECOND QUESTION .

12THE THIRD QUESTION ASKS WHETHER THE STIPULATION IN THE SECOND PARAGRAPH IN ARTICLE 115 OF THE TREATY , TO THE EFFECT THAT MEMBER STATES ARE TO NOTIFY PROTECTIVE MEASURES WHICH THEY HAVE TAKEN UNILATERALLY TO THE OTHER MEMBER STATES AND TO THE COMMISSION , MUST BE INTERPRETED AS MEANING THAT IT MAKES SUCH NOTIFICATION A CONDITION FOR THE VALIDITY OR THE APPLICABILITY OF THE PROVISION IMPOSING THE SAID MEASURES .

13THE PROVISION AT ISSUE IMPLIES THAT THE UNILATERAL ADOPTION OF PROTECTIVE MEASURES AND THE NOTIFICATION OF THE COMMISSION AND THE OTHER MEMBER STATES SHOULD TAKE PLACE AT THE SAME TIME OR IMMEDIATELY AFTER ONE ANOTHER .

14HOWEVER , IT CANNOT BE INFERRED FROM THE WORDING OF THE PROVISION THAT NOTIFICATION IS A CONDITION PRECEDENT OF THE ENTRY INTO FORCE OF THE MEASURES ADOPTED .

15IT FOLLOWS THAT ALTHOUGH THE DUTY TO NOTIFY PROTECTIVE MEASURES WHICH IS LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 115 OF THE TREATY IS ABSOLUTE , COMPLIANCE THEREWITH CANNOT BE A CONDITION PRECEDENT OF THE ENTRY INTO FORCE OF THE PROTECTIVE MEASURES ADOPTED .

16THE ANSWER SHOULD BE IN THESE TERMS .

COSTS

17THE COSTS INCURRED BY THE COMMISSION AND BY THE ITALIAN GOVERNMENT WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

18AS 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 ON COSTS IS A MATTER FOR THAT COURT .

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE CORTE SUPREMA DI CASSAZIONE BY AN ORDER OF 2 DECEMBER 1977 , HEREBY RULES :

1 . COUNCIL DECISION NO 66/532 OF 26 JULY 1966 CONCERNING THE ABOLITION OF CUSTOMS DUTIES , THE PROHIBITION OF QUANTITATIVE RESTRICTIONS AS BETWEEN MEMBER STATES AND THE APPLICATION OF THE COMMON CUSTOMS TARIFF DUTIES FOR PRODUCTS OTHER THAN THOSE SET OUT IN ANNEX II TO THE TREATY ( JOURNAL OFFICIEL 1966 , P . 2971 ) DID NOT BRING FORWARD THE DATE OF EXPIRY OF THE TRANSITIONAL PERIOD WITHIN THE MEANING OF ARTICLE 8 OF THE TREATY .

2 . ALTHOUGH THE DUTY TO NOTIFY PROTECTIVE MEASURES WHICH IS LAID DOWN IN THE SECOND PARAGRAPH OF ARTICLE 115 OF THE TREATY IS ABSOLUTE , COMPLIANCE THEREWITH CANNOT BE A CONDITION PRECEDENT OF THE ENTRY INTO FORCE OF THE PROTECTIVE MEASURES ADOPTED .