Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1977/R11076.html
Cite as: [1977] EUECJ R-110/76

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61976J0110
Judgment of the Court of 5 May 1977.
Pretore di Cento v X.
Reference for a preliminary ruling: Pretura di Cento - Italy.
Case 110-76.
European Court reports 1977 Page 00851
Greek special edition 1977 Page 00265
Portuguese special edition 1977 Page 00317

COMMUNITY REVENUE - PAYMENT - CLAIMS - LEGAL PROCEEDINGS - CAPACITY OF THE MEMBER STATES
( REGULATION ( EEC , EURATOM , ECSC ) NO 2/71 OF THE COUNCIL , ARTICLES 1 , 6(2 ) AND ( 3 ), 7(1 ) AND 13(2 ))

IN THE PRESENT STATE OF COMMUNITY LAW ONLY THE MEMBER STATES AND THEIR AUTHORITIES ARE EMPOWERED TO TAKE PROCEEDINGS BEFORE NATIONAL COURTS FOR THE PURPOSE OF CLAIMING PAYMENT OF COMMUNITY REVENUE CONSTITUTING OWN RESOURCES .

IN CASE 110/76
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRETURA OF CENTO FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
PRETORE OF CENTO
AND
A PERSON OR PERSONS UNKNOWN

ON THE INTERPRETATION OF THE DECISION OF THE COUNCIL OF THE EUROPEAN COMMUNITIES OF 21 APRIL 1970 ON THE REPLACEMENT OF FINANCIAL CONTRIBUTIONS FROM MEMBER STATES BY THE COMMUNITIES ' OWN RESOURCES ( OJ , ENGLISH SPECIAL EDITION 1970 ( I ), P . 224 ) AND OF REGULATION ( EEC , EURATOM , ECSC ) NO 2/71 OF THE COUNCIL OF 2 JANUARY 1971 IMPLEMENTING THE SAID DECISION ( OJ , ENGLISH SPECIAL EDITION 1971 ( I ), P . 3 ),

1 BY ORDER OF 15 NOVEMBER 1976 , WHICH REACHED THE COURT ON THE FOLLOWING 23 NOVEMBER , THE PRETURA OF CENTO HAS REFERRED , UNDER ARTICLE 177 OF THE EEC TREATY , TWO QUESTIONS FOR A PRELIMINARY RULING ON THE INTERPRETATION OF THE DECISION OF THE COUNCIL OF 21 APRIL 1970 ON THE REPLACEMENT OF FINANCIAL CONTRIBUTIONS FROM MEMBER STATES BY THE COMMUNITIES ' OWN RESOURCES ( OJ , ENGLISH SPECIAL EDITION 1970 ( I ), P . 224 ) AND OF REGULATION ( EEC , EURATOM , ECSC ) NO 2/71 OF THE COUNCIL OF 2 JANUARY 1971 IMPLEMENTING THE SAID DECISION ( OJ , ENGLISH SPECIAL EDITION 1971 ( I ), P . 3 ).

THOSE QUESTIONS HAVE BEEN RAISED IN THE CONTEXT OF CRIMINAL PROCEEDINGS INSTITUTED AGAINST A PERSON UNKNOWN FOR A POSSIBLE SMUGGLING OFFENCE IN RESPECT OF GOODS SUBJECT TO THE COMMON CUSTOMS TARIFF AND TO THE AGRICULTURAL LEVIES .

2 ITALIAN PROCEDURAL LAW PROVIDES THAT ALL ' INJURED PARTIES ' MUST BE GIVEN NOTICE OF THE COMMENCEMENT OF CRIMINAL PROCEEDINGS .

WITH A VIEW TO APPLYING THAT PROVISION OF NATIONAL LAW IT IS ASKED WHETHER , IN THE CASE OF A SMUGGLING OFFENCE , BY VIRTUE OF THE DECISION OF THE COUNCIL OF 21 APRIL 1970 , THE ' INJURED PARTY ' IS ONLY THE COMMUNITY OR THE COMMUNITY TOGETHER WITH THE MEMBER STATES TO WHICH THE LEVYING OF CUSTOMS DUTIES FOR AND ON ACCOUNT OF THE COMMUNITY HAS BEEN ASSIGNED .

MORE PARTICULARLY , IT IS ASKED WHETHER THE NATIONAL COURT MUST , IN ACCORDANCE WITH ITS OWN PROCEDURE , NOTIFY THE COMMUNITY THAT CRIMINAL PROCEEDINGS HAVE BEEN INSTITUTED IN RESPECT OF THE SMUGGLING OFFENCE SO AS TO ENABLE IT TO APPLY FOR RECOVERY OF THE CUSTOMS DUTIES PAYMENT OF WHICH HAS BEEN EVADED .

3 THUS IT SUFFICES TO EXAMINE WHETHER THE COMMUNITY INSTITUTIONS ARE EMPOWERED TO TAKE PROCEEDINGS FOR THE RECOVERY OF THE DUTIES IN QUESTION .

4 ARTICLE 6 ( 1 ) OF THE DECISION OF 21 APRIL 1970 PROVIDES THAT THE OWN RESOURCES ALLOCATED TO THE COMMUNITIES , AMONGST WHICH ARE INCLUDED THE DUTIES UNDER THE COMMON CUSTOMS TARIFF , ' SHALL BE COLLECTED BY THE MEMBER STATES IN ACCORDANCE WITH NATIONAL PROVISIONS IMPOSED BY LAW , REGULATION OR ADMINISTRATIVE ACTION . '
5 THE COMBINED PROVISIONS OF ARTICLES 1 , 6 ( 2 ) AND ( 3 ), 7 ( 1 ) AND 13 ( 2 ) OF REGULATION NO 2/71 MAKE IT CLEAR THAT THE MEMBER STATES ARE REQUIRED NOT ONLY TO ESTABLISH ALL OWN RESOURCES , BUT ALSO TO MAKE AVAILABLE TO THE COMMUNITIES ALL OWN RESOURCES SO ESTABLISHED , INCLUDING ANY SUMS WHICH MAY NOT HAVE BEEN COLLECTED , UNLESS COLLECTION HAS BEEN IMPOSSIBLE FOR REASONS OF FORCE MAJEURE .

6 THUS IT CONTINUES TO BE THE TASK OF THE MEMBER STATES TO UNDERTAKE PROSECUTIONS AND PROCEEDINGS FOR THE PURPOSE OF THE RECOVERY OF OWN RESOURCES AND TO CONTINUE TO TAKE STEPS TO THAT END IN RESPECT OF PERSONS LIABLE FOR PAYMENT .

IT FOLLOWS THAT IN THE PRESENT STATE OF COMMUNITY LAW ONLY THE MEMBER STATES AND THEIR AUTHORITIES ARE EMPOWERED TO TAKE PROCEEDINGS BEFORE NATIONAL COURTS FOR THE PURPOSE OF CLAIMING PAYMENT OF COMMUNITY REVENUE CONSTITUTING OWN RESOURCES .

COSTS
7 THE COSTS INCURRED BY THE COMMISSION , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRETURA OF CENTO BY ORDER OF 15 NOVEMBER 1976 , HEREBY RULES :
' IN THE PRESENT STATE OF COMMUNITY LAW ONLY THE MEMBER STATES AND THEIR AUTHORITIES ARE EMPOWERED TO TAKE PROCEEDINGS BEFORE NATIONAL COURTS FOR THE PURPOSE OF CLAIMING PAYMENT OF COMMUNITY REVENUE CONSTITUTING OWN RESOURCES ' .

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