OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 24 FEBRUARY 1972 (*1)

Mr President,

Members of the Court,

Although the facts of the present case are different from those of the case which was referred by the President of the Tribunale di Torino, on which the Court gave a ruling in its judgment of 14 December 1971 in Case 43/71 (Politi Sas. v Ministry for Finance of the Italian Republic), the same legal problems are raised in the present case. This means that, in common with the parties who submitted oral observations, I can be fairly brief in giving my opinion.

As the Court will be aware, the Marimex undertaking, Milan, imported into Italy during the years 1966, 1968 and 1969 beef and veal from Member States of the EEC and from third countries.

When these goods were imported the italian authorities demanded payment of a ‘statistics duty’ and a ‘duty for administrative services’.

However, the Marimex undertaking takes the view that the imposition of these charges is in conflict in the first place with the provisions of Article 12 of Regulation No 14/64 of 5 February 1964 (JO 1964, p. 562) on the progressive establishment of a common organization of the market in beef and veal and, secondly, with the provisions of Articles 20 and 22 of Regulation No 805/68 of 27 June 1968 (JO English Special Edition 1968 (1) p. 187) on the common organization of the market in beef and veal.

As the Court is aware, the provisions of these regulations prohibit the levying by the Member States of any charge having effect equivalent to a customs duty after the coming force of the system of levies; in fact, both Regulation No 14/64 and Regulation No 805/68 declare anything in the nature of a charge or quantitative restriction to be incompatible with the implementation of those regulations.

For that reason, in order to assert its rights under the abovementioned provisions of Community law, the Marimex undertaking commenced the proceedings known as ‘procedimento d'ingiunzione’ against the Italian State provided for under Article 633 et seq. of the Italian code of civil procedure.

On the basis of an application for the issue of a ‘decreto d'ingiunzione’, the President of the Tribunale di Torino, who was not then aware of the judgment of the Court of 14 December 1971 in the Politi case, ruled that it was within his jurisdiction and declared that the application raised a number of questions requiring a preliminary ruling on the interpretation of the provisions of the Community regulations relied upon and therefore referred to the Court under Article 177 the questions which it is now called upon to resolve.

Turning now to the examination of these questions, I must first make it clear that, as reaffirmed in the judgment in the Politi case, the Court has jurisdiction to decide these questions. Even the representative of the Italian Government did not feel able to repeat in his oral submissions the objections which he lodged on this point in his written observations, not being at that time aware of the judgment of the Court in the Politi case even if he was perhaps familiar with the opinion of Mr Advocate-General Dutheillet de Lamothe.

Five issues lie at the heart of the questions referred for a preliminary ruling:

1.Is the concept of charge having effect equivalent to a customs duty within the meaning of Article 12 of Regulation No 14/64 and of Article 20 of Regulation No 805/68 the same as that contained in Article 9 et seq. of the Treaty?

2.Must charges such as the ‘statistics duty’ and the ‘duty for administrative services’ which were levied for some time in Italy be regarded as charges having effect equivalent to a customs duty within the meaning given to this,, concept by Regulations Nos 14/64 and 805/68?

3.Are the provisions of the said regulations prohibiting the levying of charges having equivalent effect directly applicable, and do they create subjective rights for individuals which the national courts must protect?

4.From what date did the said provisions have these effects?

5.Finally, the last question raises the issue whether and how, in case of conflict between Community law and even subsequent national law, Community law must be held to prevail.

I shall make no more than a brief comment on the first of these issues; I need only refer to the judgment in the Politi case and apply the findings of the Court to imports of beef and veal, because it is clear that it makes no difference that we are dealing with beef and veal and not with pig meat.

The Court has already replied to the question referred in the present dispute by ruling in the judgment in the Politi case that the concept of charge having equivalent effect has, in all regulations concerning the common organization of the agriculture market, the same meaning as in Article 9 et seq. of the Treaty (see also the Judgment of 1 July 1969 in Case 24/68, Commission of the European Communities v Italian Republic [1969] ECR 193). The same applies to Articles 12(1) of Regulation No 14/64 and 20(2) of Regulation No 805/68.

Charges such as the ‘statistics duty’ and the ‘duty for administrative services’ levied in Italy constitute charges having equivalent effect within the meaning given to this concept by the agricultural regulations. The Court stated this in paragraph No 7 its judgment of 14 December 1971. However, as the Court did not repeat this statement in the operative part of the judgment in the Politi case, I imagine that it will follow the same course in the present case.

As regards the third issue, it seems to be beyond dispute that the provisions of the regulations on the common organization of the market to which reference has been made and which expressly provide for the abolition of charges having equivalent effect produce direct effect and create individual rights which the national courts must protect. Consequently, as the Court also found in its judgment in the Politi case, those effects preclude the implementation of even any subsequent legislative measure which conflicts with the provisions of the regulations concerned.

The question from what date the provisions of the regulations on the common organization of the market in beef and veal quoted by the undertaking created individual rights is also comparatively straightforward.

As far as Regulation No 14/64 is concerned, the effect of the provisions of Article 25 thereof, in conjunction with those of Article 1 (1) and (3) of Regulation No 82/64 (JO 1964, p. 1626), is that the prohibitions contained in Article 12 of Regulation No 14/64 took effect, with all the legal consequences which this entails, on 1 November 1964: indeed, even if the regulations which should have been adopted in implementation of Regulation No 14/64 had not been issued before 31 July 1964 (in fact they were issued on 30 July 1964: I refer to Regulations Nos 111/64, JO No 112, 964, p. 2174. JO 1964 p. 2180, and No 114, 964, JO 1964, p. 2187), the decisive factor would be that the date 31 July 1964 was replaced by 1 November 1964.

As regards Regulation No 805/68, it is clear from the second paragraph of Article 34 thereof that the system provided for, and particularly the provisions referred to in Articles 20 and 22 of the regulation, came into force on 29 July 1968.

There was, accordingly, between 1 November 1964 and the period when the goods in the present case were imported, no break in the continuity of the system applicable to imports of beef and veal.

Finally, the President of the Tribunale di Torino would like to know whether the rights which an individual acquires under the duty laid down in Community regulations have existed continuously between the date on which the obligation took effect and the different date on which a national law expressly repealed a previous law which conflicted with Community regulations.

Difficulties for the national court arise from the fact that an Italian Law No 447 of 24 June 1971, which abolished the charges in question, was not sufficiently retroactive and, for that reason, does not appear to that court to be compatible with Community regulations. The court was therefore faced with a conflict situations. This is why it would like to know how to enforce the right of an individual to obtain repayment of a charge which has been unlawfully levied although there is no or only partial provision for such repayment under the relevant national law.

In the Commission's view, the national court must resolve the dilemma by endeavouring to find an interpretation which, so far as possible, enables national and Community requirements to be reconciled. The national court should first try to avoid any conflict by adhering to the principle that in case of doubt the national legislature is presumed to have intended to abide by its international commitments.

If such an attempt proves unsuccessful and if the law of later date is manifestely and expressly incompatible with Community law, the Court must not apply the national law to the case before it but must give a ruling contra legem or ultra legem of the national legal system.

However, I do not consider that this Court, in its judgment, should suggest to the court making the reference the method of interpretation proposed by the Commission which is, incidentally, applied by all courts in the Member States.

This is not in fact the first time that such a question has been referred to this Court.

In Case 34/67 (Firma Gebrüder Lück v Hauptzollamt Köln-Rheinau [1968] ECR 245) a national court asked this Court in what way recognition of the precedence of a directly applicable provision of Community law affects national law which conflicts with it. The question was raised whether that law must simply be regarded as null or as inapplicable, in whole or in part, to the actual case.

In its judgment of 4 April 1968, the Court held that Community provisions which are directly applicable do not restrict the jurisdiction of the competent national courts to choose, from among the various procedures available under national law, those which seem appropriate for the protection of the individual rights conferred by Community law.

In the judgment delivered by the Court on 19 December 1968 in Case 13/68 (SpA Salgoil v Italian Ministry for Foreign Trade [1968] ECR 453) it held that national courts must protect the rights conferred on individuals by Community provisions which are directly applicable. My colleague, Mr Advocate-General Gand, stated moreover that this duty precludes any discretion on the part of the State to oppose the exercise of these rights.

Finally, in its judgment of 15 December 1971 in Joined Cases 51 to 54/71 (International Fruit Company NV and Others v Produktschap voor groenten en fruit), the Court in effect ruled that the question how Member States can fulfil their obligations to implement Community law depends exclusively on the constitutional system of each particular State.

I am therefore of the opinion that, in the context of the present case, the Court could merely rule that the national court must not apply national law which conflicts with the Treaty, but because their law yields precedence (Judgment of 15 July 1964 in Case 6/64, Flaminio Costa v ENEL ([1964] ECR 585); Judgment of 13 February 1969 in Case 14/68 Walt Wilhelm and others v Bundeskartellamt [1969] 1) must apply Community Law.

It is, accordingly, to the principles of its own legal system that the national court must look for a method to give full effect to Community rules. Its duty is concerned with ends and not with means.

I therefore reach the conclusion that the questions referred by the President of the Tribunale di Torino should be answered as follows:

1.The meaning of the concept of charge having equivalent effect in Articles 12(1) and (2) of Regulation No 14/64 and 20(2) of Regulation No 805/68 is the same as that contained in Article 9 et seq. of the Treaty;

2.Articles 12(1) and (2) of Regulation No 14/64 and 20(2) and 22(1) of Regulation No 805/68 produce direct effects and confer subjective rights on individuals which national courts have a duty to protect;

3.As regards imports prior to 29 July 1968, the aforementioned rights took effect on 1 November 1964; as regards imports after 29 July 1968, the rights took effect on 29 July 1968;

4.Conflicts between provisions of Community law and national law must be resolved by applying the principle that Community law prevails.

*

(1) Translated from the German.