Amministrazione delle finanze dello Stato italiano v the Rasham undertaking (27/78)

II —Summary of the written observations submitted to the Court

The Italian Government argues that the acceleration decision of 26 July 1966 refers only to the achievement of the customs union and to the simultaneous full application of the Common Customs Tariff, as is clearly shown by the recitals in the preamble to it. It had to effect on the length of the transitional period as laid down in Article 8 of the Treaty. Hence there was no change in the Member States' entitlement until the actual date expiry of the transitional period to use the powers granted to them by other provisions of the Treaty in order to attain objectives other those contained in the acceleration decision.The second paragraph of Article 115 of the Treaty concerns the common commercial policy, hence an aim which had not been achieved in fan even by 31 December 1969. Consequently, there is no reason to doubt that the second paragraph of Article 115 of the EEC Treaty was applicable during the period between 1 July 1968 and 31 December 1969Moreover, this view is confirmed by the case-law of the Court of Justice, according to which it is certain that the transitional period ended on 31 December 1969 and not on 30 June 1968 (judgment of 18 February 1970 in Case 38/69 Commission v Italian Republic [1970] 1 ECR 47; judgment of 11 February 1971 in Case 37/70 Rewe v Hauptzollamt Emmerich [1971] 1 ECR 23; judgment of 15 December 197641/76 Donckerwolcke [1976] ECR 1921).The scope and purpose of Decision No 66/532 of 26 July 1966 together with the principles which emerge from the case-law of the Court do not admit of the view that the acceleration decision brought forward to 30 June 1968 the date of expiry for the transitional period laid down in Article 8 of the EEC Treaty, and consequently require that the first question in the order for reference should be answered in the negative.This conclusion makes purposeless the second question, which was asked by the national court in the event of the first question being answered in the affirmative.The Iulian Government argues that the third question is in reality purposeless, since the protective measure concerned was in point of fact adopted in agreement with the competent departments of the Commission and was duly notified. The Iulian Government does not see any purpose in the Court of Justice giving a ruling on this point.Purely for the sake of completeness, the Iulian Government puts forward the view that notification of a protective measure to the Member Sutes and to the Commission is not and cannot be a condition for the validity or the applicability of the national measure. In fact, it is no more than a means of informing the other Member States and a formality enabling the Commission to exercice the supervisory powers conferred on it. Moreover, the Commission could have issued instructions to amend or abolish the protective measure, even in the absence of the prescribed notification.In conclusion, the Italian Government proposes that the Court should rule that:‘… Decision No 532 of the Council of the EEC of 26 July 1966 did not have the effect of bringing forward the date of expiry of the transitional period laid down in Article 8 of the EEC Treaty; and, if it is found necessary also to answer the third question referred to the Court by the national court, that the notification prescribed in the second paragraph of Article 115 of the EEC Treaty was not a condition for the validity or the applicability of protective measures adopted by national authorities during the transitional period.’The Commission observes first of all that the Council and the Commission did not make use of the power provided in Article 8 (5) of the EEC Treaty to curtail the second and third stages of the transitional period. The Council Decision of 26 July 1966 had no effect beyond its purpose, and did not shorten the transitional period generally (last sentence of paragraph 22/25 of the decision of 18 June 1975 in Case 94/74 IGAV v ENCC [1975] I ECR 699, at p. 711).The Commission proposes that the answer to the first two questions should be that the transitional period was not curtailed by Decision No 66/532/EEC and that in June 1968 the Member Sutes were still entitled to adopt the measures which under the Treaty they were allowed to take during the said periodHowever the Commission points out that under the second paragraph of Article 115 a Member State may take only such measures as are not incompatible with the Community measures in force at the time of the adoption of the national measures Thus the application of the Common Customs Tariff referred to in the aforesaid Council decision resinned the Member States powers in the field of commercial policy, in that it excluded their power to alter customs duties and to impose such duties upon a product in free circulation within the Community.This view is confirmed by an argument based on a literal construction of the third paragraph of Article 115. If measures adopted unilaterally by the Member States must take into account the need to expedite the introduction of the Common Customs Tariff, then a fortiori they must respect the said tariff once it has been established.As to the third question, the Commission points out that in general the notification of a measure has no influence upon its validity.In conclusion the Commission proposes the following answer to Questions 1 and 2, Question 3 then becoming purposeless;‘Decision No 66/532/EEC did not curtail for all purposes the transitional period laid down in Article 8 of the EEC Treaty, but it did restrict the power granted to Member States during the said period by the second paragraph of Anide 115 of the EEC Treaty to the power of adopting such measures as are not incompatible with the aforesaid decision.’