2.As regards the substance of the case the Eunomia company considers that the direct effect of the Community legislation and, therefore, the inapplicability of the tax on works of art introduced by the Law of 1939 result, first, from the decision of the Court of Justice of 10 December 1968 (Case 7/68, Commission of the European Communities v Italian Republic, [1968] ECR 423) and, secondly, from the established case-law of the Court on the question of direct effect.(a) The judgment of 10 December 1968 (Case 7/68, Commission of the European Communities v Italian Republic, loc. cit.) defined the nature of the tax in question and demonstrated its unlawful nature. This Judgment, in fact, declared that the customs union also applies to works of an artistic, historic, etc. interest and that a tax on the export of these articles had an effect equivalent to a customs duty on exports. It was therefore impossible to levy this tax after 1 January 1962 since Community law takes precedence over national law.(b) According to the case-law of the Court of Justice, the following conditions must be satisfied in order that a rule of Community law may be regarded as directly applicable:— The provision must be clear and precise (Judgment of 5 February 1963, Case 26/62, van Gend & Loos v Netherlands Inland Revenue Administration, [1963] ECR 1; Judgment of 15 July 1964, Case 6/64, Costa v ENEL, [1964] ECR 1141; Judgment of 19 December 1968, Case 13/68, Spa Salgoil v Italian Ministry for Foreign Trade [1968] ECR 453);— It must be unconditional and its implementation must not be subject to subsequent intervention by the Member States or Community institutions. However, as regards intervention by the Member States, this does not ipso facto deprive the Community provision of its direct applicability: this would only be the case if the subsequent intervention of a Member State was expressly provided for by the Community legislation and constituted a necessary adjunct to it, without which it could not apply. In other cases where the intervention by the State is only an implied result of the need to implement the Treaty (for example, the third paragraph of Article 95) or did not take place within the prescribed period (Judgment of 19 December 1966, Case 13/66, SpA Salgoil, [1968] ECR 453), the rule of Community law remains directly applicable;— There must be no possibility of the Member States' having any discretionary power in its application (as is the case in Article 97).(c) The Eunomia company maintains that Article 16 satisfies all these conditions.— This provision is clear and precise.— The rule which it lays down is not subject to any condition: a time-limit was prescribed for its entry into force, but the relevant period expired on 1 January 1962. Moreover, the provision in question provides for no intervention by the Member States which could form an obstacle to immediate applicability. The only intervention to which Article 16 of the Treaty refers indirectly is that of the Member States' agreement to the implementation of the repealing condition which is by implication contained in this provision.— Finally, the Member States have no discretionary power. The Court has already made this clear in relation to Articles 9 and 12 of the EEC Treaty (Judgment of 17 December 1970, Case 33/70, SpA SACE v Ministry for Finance of the Italian Republic, [1970] ECR 1213). A fortiori this must apply as regards the combined Articles 9 and 16 which make no provision for any intervention by means of a directive from one of the institutions.The Eunomia company therefore suggests that an affirmative answer must be given to the two questions referred.
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