Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The outcome of this action seeking a declaration that a Member State has failed to fulfil its Treaty obligations depends on the reply which the Court gives to the following question : Should the disputed provision of Italian legislation, the incompatibility of which with Article 19 of Commission Directive 82/57/EEC of 17 December 1981 laying down certain provisions for implementing Council Directive 79/695/EEC ( the latter being hereinafter referred to as "the second Council directive ") is denied by no one, none the less be regarded as being in conformity with Community law by virtue of Article 4 of the earlier Council directive, Directive 78/453/EEC (" the first Council directive ")?

2 . The release for free circulation within the Community of goods coming from a non-member country is subject to their release by the customs authorities in the Member State of importation . Once the goods are released the importer is authorized to remove them .

In the case of final importation into Italy, the second paragraph of Article 80 of the Testo Unico delle Disposizioni Legislative in Materia Doganale (( Consolidated Text of Customs Legislation )) allows goods which have been declared on a single entry form to be released in stages . The abovementioned Article 19, on the other hand, requires in such cases that the release be effected "on a single occasion for all the goods forming the subject of the entry ". Article 4 of the first Council directive deals with a special arrangement for the deferred payment of customs duties "for goods for which removal has been authorized during a given period ...".

In substance, the defendant State contends that the above provision

( a ) authorizes the release of goods in stages, and

( b ) could not have been repealed by a provision introduced by the Commission even if adopted pursuant to a later Council directive, as it could not, in that regard, have any basis in that directive .

3 . The solution to the problem thus posed must be sought in t