61975J0046

PROCEEDINGS - ACTION - NATIONAL IMPLEMENTING MEASURES - COMMUNITY RULES - PRESUMED ILLEGALITY - INADMISSIBILITY - NATIONAL COURT OR TRIBUNAL - JURISDICTION

WHEN AN ACTION IS BROUGHT AGAINST DECISIONS OF THE NATIONAL AUTHORITIES ADOPTED IN IMPLEMENTATION OF COMMUNITY RULES WHICH THE APPLICANT REGARDS AS UNLAWFUL , THE QUESTION OF THE LEGALITY OF SUCH IMPLEMENTING MEASURES ADOPTED IN PURSUANCE OF COMMUNITY LAW IS A MATTER FOR THE COMPETENT NATIONAL COURTS OR TRIBUNALS TO DECIDE , USING THE PROCEDURES LAID DOWN UNDER NATIONAL LAW AND AFTER APPLICATION , WHERE APPROPRIATE , OF ARTICLE 177 OF THE TREATY , IN PARTICULAR ON QUESTIONS CONCERNING THE VALIDITY OF THE COMMUNITY PROVISIONS APPLIED .

IT IS , THEREFORE , IMPOSSIBLE TO REFER THE MATTER TO THE COURT OF JUSTICE BY THE EXPEDIENT OF AN ACTION BROUGHT UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY IN ORDER TO OBTAIN A MA- TERIAL REVISION OF SUCH IMPLEMENTING MEASURES .

IN CASE 46/75

IBC IMPORTAZIONE BESTIAME CARNI S.R.L ., A LIMITED LIABILITY COMPANY INCORPORATED UNDER ITALIAN LAW , WHOSE REGISTERED OFFICE IS IN TRIESTE , IN THE PERSON OF ITS DIRECTOR AND LEGAL REPRESENTATIVE PRO TEMPORE , GAETANO DOLFINI , ASSISTED AND REPRESENTED BY AUGUSTO PINO AND PIER LUIGI BONIFAZI , ADVOCATES , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , ADVOCATE , 34 B RUE PHILIPPE-II ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , CESARE MAESTRIPIERI , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , PIERRE LAMOUREUX ,

DEFENDANT ,

APPLICATION FOR DAMAGES UNDER THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY ,

1 IN AN APPLICATION LODGED ON 13 MAY 1975 THE APPLICANT UNDERTAKING CLAIMS COMPENSATION FOR THE DAMAGE WHICH IT ALLEGEDLY SUFFERED AS A RESULT OF THE APPLICATION BY THE ITALIAN CUSTOMS AUTHORITIES OF REGULATION NO 1463/73 OF THE COMMISSION OF 30 MAY 1973 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF ' MONETARY ' COMPENSATORY AMOUNTS ( OJ 1973 , L 146 , P . 1 ); THE APPLICANT ASSERTS THAT ARTICLE 5 , WHICH WAS APPLIED IN THIS INSTANCE , IS VOID ON THE GROUND OF ILLEGALITY IN THAT IT UNDULY REDUCED THE COMPENSATORY AMOUNTS ON IMPORTS .

2 IT IS CLAIMED THAT AS A RESULT OF THE APPLICATION OF THIS PROVISION THE APPLICANT WAS WRONGLY REQUIRED TO PAY CERTAIN SUMS BY WAY OF EQUALIZATION BETWEEN THE IMPORT CHARGE AND THE MONETARY COMPENSATORY AMOUNTS ; IT IS THE REPAYMENT OF THESE SUMS WHICH IS SOUGHT IN THIS ACTION .

3 THE ACTION IN FACT CONCERNS DECISIONS OF THE ITALIAN AUTHORITIES ADOPTED IN IMPLEMENTATION OF COMMUNITY RULES WHICH THE APPLICANT REGARDS AS UNLAWFUL . IT THUS CONCERNS THE LEGALITY OF THE IMPOSITION OF THE SUMS IN DISPUTE BY THE NATIONAL AUTHORITIES RESPONSIBLE FOR THE IMPLEMENTATION AND ENFORCEMENT OF THE PROVISIONS CONCERNING MONETARY COMPENSATORY AMOUNTS AND SEEKS THE REIMBURSEMENT , BY THE COMMUNITY RATHER THAN BY THE NATIONAL AUTHORITIES , OF THE SUMS WHICH ARE SAID TO HAVE BEEN IMPROPERLY CHARGED .

4 THE PROVISIONS OF THESE RULES LAY DOWN CRITERIA FOR THE CALCULATION OF SUMS PAYABLE BY WAY OF EQUALIZATION BETWEEN THE IMPORT CHARGE AND THE COMPENSATORY AMOUNTS AND THEREFORE LEAVE NO DOUBT THAT THE ACTUAL ASSESSMENT AND IMPOSITION OF THE SUMS DUE ARE MATTERS FOR THE NATIONAL AUTHORITIES .

5 THE QUESTION OF THE LEGALITY OF SUCH IMPLEMENTING MEASURES ADOPTED IN PURSUANCE OF COMMUNITY LAW IS , THEREFORE , A MATTER FOR THE COMPETENT NATIONAL COURTS OR TRIBUNALS TO DECIDE , USING THE PROCEDURES LAID DOWN UNDER NATIONAL LAW AND AFTER APPLICATION , WHERE APPROPRIATE , OF ARTICLE 177 OF THE TREATY , IN PARTICULAR ON QUESTIONS CONCERNING THE VALIDITY OF THE COMMUNITY PROVISIONS APPLIED .

6 THE APPLICANT IS NOT THEREFORE ENTITLED TO REFER THE MATTER TO THE COURT OF JUSTICE BY THE EXPEDIENT OF AN ACTION DIRECTED AGAINST THE COMMUNITY FOR COMPENSATION FOR THE ALLEGED DAMAGE IN ORDER TO OBTAIN A MATERIAL REVISION OF THE SAID IMPLEMENTING MEASURES .

7 THE APPLICATION MUST THEREFORE BE DISMISSED AS INADMISSIBLE .

COSTS

8 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY COSTS . AS THE APPLICANT UNDERTAKING HAS FAILED IN ITS PLEAS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE .

2 . ORDERS THE APPLICANT TO PAY THE COSTS .