C-290/81

JUDGMENT OF 16. 3. 1983 — JOINED CASES 290 AND 291/81 SINGER AND GEIGY v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

CELEX: 61981CJ0290
Datum: 1983-03-16
Källa: eur-lex.europa.eu

In Joined Cases 290 and 291/81 REFERENCE to the Court under Article 177 of the EEC Treaty by the Corte d'Appello [Court of Appeal], Milan, for a preliminary ruling in the proceedings pending before that court between

THE COURT composed of: J. Menens de Wilmars, President, P. Pescatore, A. O'Keeffe and U. Everling (Presidents of Chambers), Lord Mackenzie Stuart, G. Bosco, O. Due, K. Bahlmann and Y. Galmot, Judges, Advocate General: G. Reischl Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

1. In two separate actions, Singer SpA and Geigy SpA summoned the Amministrazione delle Finanze dello Stato [Italian State Finance Administration] to appear before the Tribunale Civile e Penale de Milano [Civil and Criminal District Court, Milan] in order to obtain a refund of the sums paid by it in respect of duties for administrative services in connection with the importation of goods from countries which were parties to the General Agreement on Tariffs and Trade (GATT), to which Italy became a party by virtue of a protocol signed at Annecy on 10 October 1949 and given effect by Law No 295 of 5 April 1950. The duty for administrative services, introduced by Law No 330 of 15 June 1950, was abolished by Law No 477 of 24 June 1971, with retroactive effect from 1 July 1968 for trade within the Community and with effect from the entry into force of the Law as regards relations with nonmember countries. According to the facts and law set out by the Corte d'Appello, the sums in respect of which a refund was claimed relate to the duty for administrative services levied on imports effected between 1 October 1963 and 29 July 1971. The Tribunale Civile e Penale di Milano allowed the claims — based on Article II (1) (b) of GATT, which prohibits the contracting parties from levying customs duties in excess of those provided for in the schedules of concessions annexed to GATT (Schedule XXVII for Italy) and any other duties or charges having equivalent effect in excess of those imposed on the date of their accession to GATT (on 10 October 1949 in the case of Italy) — as far as the import of goods listed in Schedule XXVII was concerned. On the other hand, it dismissed the claims in so far as they sought a refund of sums paid on the import of products not included in Schedule XXVII but included in the later schedule, Schedule XL (or Common Customs Tariff of the EEC, approved on 13 February 1960), which the Geneva Protocol of 16 July 1962 substituted for the original national schedules of the countries of the Community, with effect from 13 January 1963 in the case of Italy. The plaintiffs appealed against those decisions and the Corte d'Appello, Milan, referred to the Court of Justice by orders of 6 July 1981 the following questions (identical in both cases) :

“(1) By virtue of the matters set forth in the preamble to GATT, both in its original form, in which the Contracting States declared themselves desirous of reducing customs tariffs and other obstacles to trade and of eliminating discrimination in international commerce, and in the form adopted pursuant to the Geneva Protocol of 10 March 1955, which Italy ratified by Law No 1307 of 7 November 1977, in which the Contracting States, by using the word ”desiring“, undertook the abovementioned commitments, may the charge for administrative services established by Law No 330 of 15 June 1950 (after Italy's accession to GATT but prior to the Geneva Protocol) be regarded as compatible with the provisions af GATT, regardless of whether or not the imported goods are included in the original schedules of concessions and regardless of the fact that in the clause prohibiting increase of the preexisting indirect charges on imports express textual reference is made only to those goods?

2) As a result of the substitution of Schedule XL (Common Customs Tariff) for Schedule XXVII, is the prohibition of the increase of preexisting indirect charges on imports contained in Article II (1) (b) of GATT compatible, as from the effective date of that substitution (13 January 1963 in the case of Italy), with the charge for administrative services already in force if applied to goods not included in the original Schedule XXVII and included only in Schedule XL?”

2. The orders making the references were lodged at the Court Registry on 16 November 1981. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted in Case 290/81 by Compagnia Singer SpA, represented by Scipione Massari and Guido Scarpa of the Milan Bar, in Case 291/81 by Geigy SpA, represented by Angelo Pesce of the Milan Bar, and in both cases by the Government of the Italian Republic, represented by Arnaldo Squillante, acting as Agent, assisted by Sergio Laporta, Avvocato dello Stato, by the Government of the Kingdom of the Netherlands, represented by F. Italianer, Secretary-General in the Ministry of Foreign Affairs, and by the Commission of the European Communities, represented by Giancarlo Olmi, Deputy Director-General of its Legal Department, and Jacques Bourgeois, Legal Adviser, acting as Agents. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the orai procedure without any preparatory inquiry. By order of 24 March 1982, the Court, having established that Cases 290/81 and 291/81 concerned the same subjectmatter and were related, decided to join them for the purposes of the oral procedure and the judgment.

II — Written observations submitted to the Court

The observations of the parties go beyond the scope of the requests for preliminary rulings and in fact relate to three questions, namely:

The jurisdiction of the Court of Justice to interpret GATT;

The direct effect of the provisions of GATT; and finally,

The interpretation of the provisions of GATT referred to by the national court.

Jurisdiction of the Court of Justice to interpret GATT and direct effect of the provisions of GATT

Singer takes the view that the Court of Justice has jurisdiction to interpret GATT only in the event of its provisions being incompatible with Community law.

It states that such were the circumstances dealt with in the judgments of the Court of Justice in Joined Cases 21 to 24/72 and in Cases 19/73 and 38/75.

In support of its point of view, Singer refers to long extracts from Judgment No 3616/76 of the Corte Suprema di Cassazione [Supreme Court of Cassation].

In that judgment, the Corte Suprema di Cassazione stated in particular that it should not be assumed that the Court of Justice has jurisdiction to interpret GATT in circumstances different from those already considered by the Court.

Moreover, according to the Corte Suprema di Cassazione, in the absence of a question concerning the validity or interpretation of a Community measure or regulation, there is not even an obligation to refer the matter to the Court of Justice. Indeed, the case in which the problem is to determine whether a rule contained in an international agreement overrides a Community provision can be distinguished from the case in which it is necessary to establish which of two rules, both belonging to a national system, must be applied in a given case, even though one of those rules was incorporated into that system by a measure implementing an international agreement. In the first case a reference for a preliminary ruling is necessary in order to prevent the various national courts from delivering different decisions on the question of the validity and scope of the rules of Community law, whereas such a requirement does not exist in the second case, which does not concern any Community measure since GATT is in fact an agreement outside the Community order, covered by the first paragraph of Article 234 of the EEC Treaty.

On the basis of the considerations set out by the Corte Suprema di Cassazine, Singer concludes that the Court of Justice does not have jurisdiction to give a ruling on the first question. However, it reserves the right to consider that question, purely as a precautionary measure.

So far as the second question is concerned, Singer considers that the Court of Justice has jurisdiction in relation to the question of the successive application of the schedules, but that such jurisdiction relates exclusively to what was decided directly by the Community in the framework of GATT, that is to say in this case the supplements and amendments made in the Kennedy Round.

According to Geigy, it seems indisputable, in view of the clear statements which appear in the judgment of the Court of Justice of 19 November 1975 in Case 38/75, that the Court has jurisdiction to interpret the rights and obligations arising out of GATT.

Geigy further considers that those rights and obligations also include the position of individuals in relation to Member States as a result of the rules laid down in GATT where there are no incompatible Community provisions, in view of the fact that according to the case-law of the Court the validity of measures adopted by the institutions may be assessed in relation to a provision of international law where that provision binds the Community and is capable of giving rise to rights upon which its citizens may rely before the courts.

Geigy adds that in any event the Italian courts have held that individuals have the right to obtain a refund from the Italian State of the duty for administrative services and the only question at issue is the scope of that right ratione temporis. Indeed, it is a question of the natural consequence of the infringement of a prohibition which is not subject to any reservation entitling the States to subject its implementation to the adoption of a measure of national law.

The Government of the Italian Republic does not discuss the Court's jurisdiction to interpret the provisions of GATT but states that a preliminary ruling on the scope of those provisions appears necessary only if they are capable of conferring on individuals the right to rely upon them before the courts in the various Member States.

It is well-known that the Court has already, on other occasions, held that the provisions of GATT, regard being had to its spirit, general scheme and terms, cannot give rise to rights and duties for individuals. Under the circumstances, since the plaintiffs in the main action cannot rely on a protection which is not conferred upon them by the rules of GATT, a preliminary ruling by the Court does not appear necessary.

That conclusion can be drawn not only in relation to the first question but also in relation to the second, in view of the fact that it cannot be maintained that the negotiation of the so-called “common” schedule gave rise to special rules in relation to what are generally known as charges having equivalent effect.

In its observations the Government of the Kingdom of the Netherlands considers solely the question whether GATT may be regarded as forming part of Community law for the purposes of Article 164 of the EEC Treaty.

The “special new legal order” created in international law by the Treaties is distinguished by the fact that certain provisions of Community law are incorporated in the internal national legal order of the Member States without the need for any national measure, at least in so far as the nature of those provisions permits. That order constitutes a system which is not closed but “open”. Certain provisions of international agreements concluded by the Community with nonmember countries and with international organizations by which the Community is bound in its own right may themselves also be part of Community law in so far as they are capable of direct application. Those conditions are fulfilled in the case of GATT. The Court of Justice, in stating that it has jurisdiction to interpret international agreements which are binding on the Community, has never distinguished between the case in which the agreement in question was concluded by the Community itself, within the framework of its powers, and the case in which agreements (such as GATT) were concluded by the Member States but none the less relate to a sphere in which the powers of the Member States have been transferred to the Community by virtue of the EEC Treaty.

It should, however, be noted that up to now the case-law of the Court has always related to the examination of a Community measure in relation to the international agreement in question (so far as GATT is concerned, the examination in the light of GATT of the validity of provisions of secondary Community law), whereas in these cases it is necessary to determine whether the Court also has jurisdiction in a case in which no rule of Community law is applicable.

In that regard, the Netherlands Government considers that the Court's jurisdiction to interpret an international agreement cannot be subject to the existence of a Community regulation. Indeed, a provision of an international agreement could also (provided that the Community is bound by the agreement and the provision is itself capable of affecting relations within - the Community) be regarded as forming part of the Community legal order even if it has not been implemented by the Community.

In the present cases, the national court stressed that the Court has ruled that it has jurisdiction to interpret not only the Treaty of Rome but also international rules such as GATT in so far as their content (through the substitution of the Community for the Member States in relation to obligations undertaken by the latter in the framework of multilateral agreements) “is referable to Community law”.

The Commission of the European Communities notes that the existence, effect and scope of an obligation under GATT are Community questions in so far as the Community has been substituted for the Member States with regard to the fulfilment of the commitments arising out of GATT.

The Commission contends that, in order to determine whether the Court has jurisdiction in these cases, it is therefore necessary to examine whether the Commission has actually been substituted for the Member States, over the period in question in these cases, with regard to the fulfilment of the commitments laid down in Article II (1) (b) of GATT concerning charges on imports other than ordinary customs duties.

The Commission considers that such substitution did in fact take place with effect from 1 July 1968. It notes that, on the one hand, at international level the tariff commitments of the Kennedy Round (1964 to 1967) were negotiated and accepted by the Community alone, and that within the Community, on the other hand, all powers in relation to tariffs were fully and completely exercised by the Community as from 1 July 1968, the date on which the Common Customs Tariff entered into force in its entirety.

Questions referred to the Court

Singer examines the questions only as a precautionary measure, in case the Court should, contrary to its opinion, consider that it has jurisdiction.

So far as the first question is concerned, Singer observes that the preamble contained in Annex I to GATT which, as is stated in the law by which it was ratified, forms an integral part of GATT, requires the contracting parties substantially to reduce tariffs and other trade barriers.

That requirement, though in the nature of a programme since it implies the need for the adaptation of national provisions, none the less contains a direct obligation not to introduce new duties or new charges having an equivalent effect. Indeed, if that were not the case, it would have been or would be possible for the contracting parties, on the one hand, to choose whether or not to reduce the customs tariff and, on the other hand, subsequently to introduce charges having equivalent effect, so destroying the spirit of GATT.

The same could be said of Article II (1) (b) of GATT, which provide that the contracting parties are not to impose on imported products duties other than customs duties which are in excess of those imposed on the date of accession to GATT.

Article II (2) further provides that the contracting parties may introduce only countervailing duties, antidumping duties or duties connected with services rendered in relation to “any product”, whether or not it is included in the schedule. The charge in question does not fall within any of those categories.

In relation to the second question, Singer observes that the schedule annexed to GATT is the tariff of conventional duties fixed between the States which are parties to GATT.

In 1950, when Italy ratified GATT, the tariff of conventional duties to be applied between the contracting parties was set out in Schedule XXVII.

Singer notes that Article 9 of the Treaty establishing the European Economic Community, ratified in Italy by Law No 1203 of 14 October 1957, gave rise to an obligation to adopt a common customs tariff in Member States' relations with nonmember countries. Italy, in its relations with nonmember countries which are parties to GATT (relations governed by the tariff of conventional duties), therefore replaced Schedule XXVII by the Common Customs Tariff, which became Schedule XL, the schedule applicable to all the States in the Community.

Singer maintains that the question can easily be resolved on the basis of those considerations. It considers that, since Schedule XL determined the maximum amount of customs duties to be imposed, the Court of Justice and then the national court, in order to ascertain whether Italy respected that prescribed amount, must simply determine whether, at the time of importation, the products were subject to the maximum authorized amount or a higher amount.

Geigy observes that, as the national court has already noted, the duty for administrative services is among the “other duties or charges ... imposed on or in connection with importation” which, according to GATT, are not to be in excess of those imposed on the date of accession to GATT in relation to the goods included , in the schedule of concessions of each of the contracting States.

It adds that the duty for administrative services also falls under Article VIII (1) of GATT, which provides that “charges, other than duties, imposed by governmental authorities ... should be limited in amount to the approximate cost of services rendered and should not represent an indirect protection to domestic products or a taxation of imports or exports for fiscal purposes”. That provision, described in Article VIII (2) as being among the “principles” and “objectives” of GATT, therefore imposes a direct obligation on the contracting States. Consequently, there was an absolute prohibition of the introduction of new charges other than customs duties after the entry into force of GATT, which applied generally and without any reference to the schedules of concessions, with which the provisions of Article VIII have no connection.

The expression — in the nature of interpretation and not creating any new principles — contained in Article I (A) of the Geneva Protocol of 1955 merely reaffirms all the commitments contained in GATT and recognizes that the principles which are set out therein, such as the principle expressly laid down in Article VIII, take effect from the beginning. It therefore does not mean that the obligations of States take any fresh effect, but must be interpreted as existing from the accession of each State to GATT.

As to the second question, Geigy considers that, if its suggested reply to the first question is accepted, there is no need for the second question to be answered.

It therefore confines itself to setting forth a number of observations intended to show that the purpose of the schedules of concessions was and still is merely to provide information on concessions granted by the various Member States and not to limit the principle that the “most favoured nation” clause is of general application to all the other Member States.

Since the express objective of GATT was from the beginning the general application of the “most favoured nation” clause, it was considered useful, in the absence of a schedule of concessions defining such treatment for each Member State, to annex to GATT schedules which would make it possible for such treatment to be identified.

After the Community had been substituted for the various Member States, the schedule was unified, but clearly the only function of the new schedule was and still is to identify the tariff headings which together constitute the principle from which the most-favoured-nation clause arises and thus to extend the most favourable tariff treatment in each case to all States parties to GATT.

Thus the schedules in question are intended not to limit to goods listed in the schedules the prohibition of the increase of the customs duties in force at the time of accession to GATT but solely to make known and give general effect to the concessions in force and consequently to apply them to all the contracting States by reason of the most-favoured-nation clause.

It must therefore be concluded that Schedule XL did not have any new legal effect which would justify the existence of duties for administrative services, which were prohibited from the outset by the provisions of GATT.

The Government of the Italian Republic, after pointing out that the preamble to GATT reveals an intention to undertake, inter alia, on a reciprocal and mutually advantageous basis a substantial reduction of tariffs and other barriers to trade, observes that Article II of GATT lays down first, in relation to the products described in the national schedules of each of the contracting parties, the maximum levels of customs duties, which are not to exceed those provided for in the appropriate schedules annexed to GATT and then in relation to the same products prohibits the increase of other frontier duties in force in the importing country on the date of GATT.

The wording of those provisions shows clearly that the prohibition of the introduction of new customs duties or other fiscal charges on imports is intended to apply only in relation to the products included in those schedules.

It may therefore be asked, if it is accepted that there is a general prohibition of the increase of the level of customs duties existing at the date of accession to GATT, what purpose was served by the tariff negotiations undertaken with a view to amending the original schedules of concessions by the inclusion of new products.

For a party which had already acceded to GATT, the effect of the accession of a new State would then merely be to extend to that new State the treatment already reserved to the, other parties to GATT, treatment which — in that case — would already involve a prohibition of the increase of customs charges on imported products of any kind; equally, the same obligation would arise for the new contracting State. But, if that were the case, it would be difficult to explain the purpose of the complex and laborious negotiations which precede the accession of a new State to GATT and the purpose of a schedule of tariff concessions concerning the new party, containing a varying number of products.

It is therefore clear from international practice in relation to negotiations in the framework of GATT that the parties to GATT have always, albeit tacitly, understood Article II as applying exclusively to products in relation to which tariff concessions had been granted and as such included in the schedules annexed to GATT (or annexed to the protocols of accession of the new States).

Moreover, the provisions of GATT ought to be interpreted systematically, which means that account should be taken of Anieles XXVII (withholding or withdrawal of concessions) and XXVIII (modification of schedules).

The provision contained in Article XXVII, which authorizes a contracting party to withold or finally to withdraw a concession provided for in the schedule where that concession was initially negotiated with a State which has not become, or has ceased to be, a contracting party, clearly intends to ensure the constant functioning of the principle of reciprocity, by virtue of which the sum of tariff concessions granted by one party in relation to imports into its territory must always correspond to the sum of the concessions obtained by that party in relation to exports of its own products to the other contracting States. That objective would not be achieved if it were accepted that there was a general prohibition on the increase, in relation to any product, of the taxation in force at the date of accession. In such a case, the product removed from the schedule pursuant to Article XXVII would in fact continue to benefit from the “freeze” on customs charges upon importation from another contracting party.

The same reasoning applies to Article XXVIII of GATT concerning the “modification of schedules” and in particular the need, pointed out several times, to withdraw “substantially equivalent” concessions in order to compensate for those which a contracting party has stated that it wishes to modify or no longer to apply. There too, the machinery for the constant and perfect balance of the mutual concessions cannot be ensured if the customs rules relating to a certain group of products do not make it possible to check that the sum of the concessions granted corresponds to the sum of the concessions obtained.

So far as the second question is concerned, the Government of the Italian Republic observes that it asks in particular whether the date to which it is necessary to refer in order to determine the level beyond which customs duties may no longer be increased by virtue of Article II of GATT is that of the date of the accession to GATT of the country concerned or that of the protocol relating to a new concession.

Article II of GATT, in conjunction with Article 5 (a) of the Protocol of Annecy of 10 October 1949, which provides'that “where Article II of GATT refers to the date of the said agreement, the date applicable in relation to the schedules annexed to this Protocol shall be that of this Protocol”, shows clearly that the prohibition of the increase of customs duties applies only to products in relation to which tariff concessions have been made and that Article II of GATT prevents Italy from imposing on products subject to the rules of GATT duties introduced after the date on which the Protocol of Annecy was signed.

Conversely, it is clear — for the reasons set out above — that there is nothing to prevent the Italian State from imposing new duties, in excess of those already in force on 10 October 1949, on the products which do not appear in the schedule (XXVII) negotiated by the protocol in question and which are therefore not covered by the special customs rules defined in Article II of GATT.

The Italian Government points out that, on the occasion of the accession of other countries to GATT, the schedules of tariff concessions were amended and extended. In that regard it observes that all the protocols the object and effect of which was to extend the rules of GATT to goods which had not previously been subject thereto contain a clause wholly identical to that in Article 5 (a) of the Protocol of Annecy, which provides that the prohibition of the increase of customs duties on products which, as a result of those protocols are ex novo included among those in relation to which tariff concessions have been granted is to enter into force on the date of the protocols in question.

With regard to the schedules of concessions negotiated by the European Economic Community, the Italian Government observes that the final acts or proposals of the tariff conferences of 1960 to 1962 (Dillon Round) and 1964 to 1967 (Kennedy Round) excluded, in terms which were if possible even more clear and unequivocal, any retroactive effect.

The Commission of the European Communities observes that it seems to follow from the actual text of Article II (1) (b) of GATT that the prohibition of the increase of charges on importation other than customs duties concerns only the products in relation to which a contracting party has accepted the obligation in relation to customs duties, that is to say “bound” products.

Indeed, the purpose of the clause concerning other charges is clearly to prevent the introduction of such charges on importation by a contracting party from undermining the value of the concessions set out in its schedule.

In the Commission's opinion, GATT does not contain an express “standstill” obligation in relation to charges on importation other than customs duties.

It notes that Articles V and VIII of GATT permit the introduction or maintenance of certain charges, in so far as they are “reasonable” or “limited in amount to the approximate cost of services rendered”, but do not provide that any new charge may be introduced by Italy after its accession to GATT. Moreover, binding in no way prevents the withdrawal of concessions, for example under Article XXVIII on the modification of schedules or Article XXIV (6) which provides for the substitution of the concessions of a customs union for those of the States participating in it.

A “standstill” principle, on the other hand, would prohibit a contracting party from introducting new customs duties, reintroducing such duties or increasing them and would therefore make it impossible to reestablish the balance of reciprocal rights and obligations which is essential for GATT.

Finally, it is clear from the preamble to GATT that its objective is not the elimination of customs duties and other trade barriers, but the reduction “on a reciprocal and mutually advantageous basis”, an expression which refers to the negotiations and other flexible methods of GATT, which make it possible to rescind a concession, which is the very opposite of a standstill.

According to the Commission the first question should therefore be answered as follows :

“Article II (1) (b) refers, in relation to duties and charges on importation other than customs duties, only to the products set out in the schedules referred to in Article II.”

So far as the second question is concerned, the Commission takes the view that as a general rule the date on which the obligation not to increase charges on importation arises is not that of a State's accession to GATT but that of the protocol on the new concession.

It observes that the practice adopted in relation to GATT is that, where later protocols add concessions to the existing schedules, they usually contain a provision to that effect.

With regard to the special case of the establishment of a customs union — which the Community constitutes for the purposes of GATT — involving the withdrawal of the concessions of the Member States and the offer of concessions on the part of the Community, the Commission point out that during the Dillon Round it was agreed that, for the products included ex novo in a schedule of concessions, the date to be taken into account would be that of the protocol.

That agreement during the Dillon Round was not, at least in the same terms, expressly renewed during the Kennedy Round.

The Commission considers in that regard that in relation to obligations of, the Community a special clause was probaly at that time no longer considered to be necessary.

The Commission therefore suggests that the second question should be answered as follows:

“With regard to the products in relation to which a concession has been granted and is set out in Schedule XL (EEC) and in relation to which no concession had previously been granted, in order to determine the level beyond which duties and charges other than customs duties may not be increased under Article II (1) (b), it is necessary to have recourse to the date of the protocol by which those products were included in Schedule XL (EEC).”

III — Oral procedure

At the sitting on 27 and 28 October 1982, oral argument was presented by the following: G. Scarpa of the Milan Bar, for Singer; A. Pesce of the Milan Bar, for Geigy; G. D'Amato, Avvocato dello Stato, for the Government of the Italian Republic; and G. Olmi, Deputy Director-General of the Commission's Legal Department, for the Commission of the European Communities.

The Advocate General delivered his opinion at the sitting on 14 December 1982.

Decision

1. By two orders dated 6 July 1981, which were received at the Court on 16 November 1981, the Corte d'Appello [Court of Appeal], Milan, referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of certain provisions of the General Agreement on Tariffs and Trade of 30 October 1947 (GATT), in order to enable it to determine the compatibility with those provisions of the imposition of the ad valorem duty of 0.5 % for administrative services introduced by Law No 330 of 15 June 1950 (hereinafter referred to as “the duty for administrative services”).

2. Those questions arose in the course of proceedings pending before that court between the importers, the companies Singer and Geigy, and the Amministrazione delle Finanze dello Stato [Italian State Finance Administration] concerning the imposition of the duty for administrative services on various goods imported from countries parties to GATT between 1 October 1963 and 1 August 1971, the date with effect from which the duty for administrative services was abolished by Law No 447 of 24 June 1971 (Official Gazzette of the Italian Republic No 180 of 17 June 1971).

3. Singer and Geigy, the plaintiffs in the main action in Cases 290/81 and 291/81 respectively, requested the Tribunale di Milano [District Court, Milan] to order the Amministrazione to refund the sums which they had paid in respect of the duty for administrative services over the period in question, on the ground that the charges were contrary to the provisions of GATT.

4. The Tribunale allowed the applications — based on Article II (1) (b) of GATT, which prohibits the contracting parties from imposing customs duties in excess of those provided for in the schedules of concessions annexed to GATT itself (Schedule XXVII for Italy) or any other duties or charges having equivalent effect in excess of those inforce on the date of their accession to GATT (on 10 October 1949 so far as Italy is concerned) — in relation to the importation of goods listed in Schedule XXVII. On the other hand, it dismissed the applications in so far as they sought the refund of sums paid on the occasion of the importation of products not contained in Schedule XXVII but none the less included in the subsequent schedule, XL (EEC), which was substituted by the Geneva Protocol of 16 July 1962 for the original national schedules of the countries within the Community, with effect from 13 January 1963 in the case of Italy.

5. After the plaintiffs in the main action had appealed against those decisions, the Corte d'Appello, Milan, referred to the Court for a preliminary ruling the following questions, identical in the two cases:

“1) By virtue of the matters set forth in the preamble to GATT, both in its original form, in which the Contracting States declared themselves desirous of reducing customs tariffs and other obstacles to trade and of eliminating discrimination in international commerce, and in the form adopted pursuant to the Geneva Protocol of 10 March 1955, which Italy ratified by Law No 1307 of 7 November 1977, in which the Contracting States, by using the word ‘desiring’, undertook the abovementioned commitments, may the charge for administrative services established by Law No 330 of 15 June 1950 (after Italy's accession to the GATT but prior to the Geneva Protocol) be regarded as compatible with the provisions of GATT, regardless of whether or not the imported goods are included in the original schedules of concessions and regardless of the fact that in the clause prohibiting increase of the preexisting indirect charges on imports express textual reference is made only to those goods?

6. Those questions are in substance identical to the questions submitted by the Corte Suprema di Cassazione [Supreme Court of Cassation] in Joined Cases 267 to 269/81 (Società Petrolifera Italiana and Michelin), in which a judgment has today been delivered.

7. In that judgment, the Court ruled that: 1. Since the Community has been substituted for the Member States in relation to the fulfilment of the commitments laid down by the General Agreement on Tariffs and Trade with effect from 1 July 1968, the date on which the Common Customs Tariff was brought into force, the provisions of that agreement have since that date been amongst those which the Court of Justice has jurisdiction, by virtue of Article 177 of the EEC Treaty, to interpret by way of a preliminary ruling regardless of the purpose of such interpretation. With regard to the period prior to that date, such interpretation is a matter exclusively for the courts of the Member States. 2. The Tariff Protocols of 16 July and 30 June 1967 are acts of the institutions of the Community within the meaning of subparagraph (b) of the first paragraph of Article 177 of the EEC Treaty and as such fall within the jurisdiction to give preliminary rulings conferred upon the Court of Justice. 3. In relation to the period before 1 July 1968, the Tariff Protocols of 16 July 1962 and 30 June 1967 did not protect individuals against the imposition by a Member State of a charge on products imported from nonmember countries. In relation to the period after 1 July 1968, no provision of Community law prevented the imposition on the same products of a charge such as the duty for administrative services provided for by Law No 330 of 15 June 1950, in so far as it was already in existence on that date.

8. For the grounds of the ruling, reference should be made to the judgment in those cases, the text of which is annexed to this judgment.

Costs

9. The costs incurred by the Government of the Italian Republic, the Government of the Kingdom of the Netherlands and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main actions are concerned, in the nature of a step in the actions pending before the national court, costs are a matter for that court.

On those grounds, THE COURT, in answer to the questions submitted to it by the Corte d'Appello, Milan, by orders of 6 July 1981, hereby rules:

1 Since the Community has been substituted for the Member States in relation to the fulfilment of the commitments laid down by the General Agreement on Tariffs and Trade with effect from 1 July 1968, the date on which the Common Customs Tariff was brought into force, the provisions of that agreement have since that date been amongst those which the Court of Justice has jurisdiction, by virtue of Article 177 of the EEC Treaty, to interpret by way of a preliminary ruling, regardless of the purpose of such interpretation. With regard to the period prior to that date, such interpretation is a matter exclusively for the courts of the Member States.

2 The Tariff Protocols of 16 July and 30 June 1967 are acts of the institutions of the Community within the meaning of subparagraph (b) of the first paragraph of Article 177 of the EEC Treaty and as such fall within the jurisdiction to give preliminary rulings conferred upon the Court of Justice.

3 In relation to the period before 1 July 1968, the Tariff Protocols of 16 July 1962 and 30 June 1967 did not protect individuals against the imposition by a Member State of a charge on products imported from nonmember countries. In relation to the period after 1 July 1968, no provision of Community law prevented the imposition on the same products of a charge such as the duty for administrative services provided for by Law No 330 of 15 June 1950, in so far as it was already in existence on that date.