6.

I can essentially refer to the Opinion of Advocate General Mischo. He suggested that the Court should answer the national court's question regarding that prohibition as follows: ‘Community law must be interpreted as meaning that it precludes a charge such as the one at issue in the main proceedings where: — the financial resources coming from the charge are assigned in whole or in part to expenditure for the exclusive benefit of national producers; — the charge is levied on imports of products derived from cereals but repaid in respect of manufacture of the same derived products manufactured on the national territory; ...’. However the observations submitted in this case by the Commission and the plaintiff companies prompt a number of additional comments. As regards the use to which the revenue from the charge is applied, it is appropriate to point out that the Court has recently confirmed its case-law in this field in its judgment of 11 March 1992 in Joined Cases C-78 to 83/90 Société Commerciale de l'Ouest v Receveur Principal des Douanes de La Palike Port [1992] ECR I-1847 which concerned French parafiscal charges on petroleum products (see paragraphs 24 to 27). As regards the rules on the time when the charge is levied, Advocate General Mischo discussed whether there was a difference in treatment since in the case of imports the charge was levied at the time of importation whereas in the case of domestic products it was levied either on resale or on processing. He concluded that there was no difference in treatment since, in his view: ‘As regards domestic and imported products alike, the charge is imposed on the product at the time when it is released for consumption’. The plaintiffs in the main proceedings have claimed that in reality the charge on imports is levied at an earlier stage than the charge on domestic products. Even if the question is not entirely free from doubt, I consider that in fact Advocate General Mischo was right in his conclusion. As mentioned, the charge is levied on domestic products at the processing stage and also on resale, that is to say when a buyer sells cereals to processing undertakings or to other dealers. In my view it may be assumed that the importation of cereals into France in practice may be regarded as corresponding to the resale of domestic cereals. In practice the exporter should be regarded as equivalent to the domestic undertaking which has purchased the cereals from the producer. As regards the scope of application of the charge both the plaintiffs in the main proceedings and the Commission have contended that there exists a particular problem in so far as the French charge also comprises a charge on products derived and processed from cereals (hereinafter referred to as ‘derived products’). The nub of the problem is that the charge on imported derived products is intended to offset the burden of the charge which indirectly falls on French derived products as a result of the charge paid on the cereals that are used for the production of the derived products. The charge is levied on imported derived products without corresponding domestic products being direcdy subject to a charge and the payment of the charge cannot be regarded from the importer's point of view as constituting consideration for a benefit the importer has received from the administration. In those circumstances I consider that the charge must in this respect too be regarded as in breach of the prohibition under Article 9 of the Treaty. There are similarities between the rules at issue here and those that were the subject matter of the judgment of the Court in Case 132/78 Denkavit Loire v France (Customs Authorities) [1979] ECR1923. In paragraph 8 of that judgment the Court held: ‘It is however appropriate to emphasize that in order to relate to a general system of internal dues, the charge to which an imported product is subject must impose the same duty on national products and identical imported products at the same marketing stage and that the chargeable event giving rise to the duty must also be identical in the case of both products. It is therefore not sufficient that the objective of the charge imposed on imported products is to compensate for a charge imposed on similar domestic products — or which has been imposed on those products or a product from which they are derived — at a production or marketing stage prior to that at which the imported products are taxed. To exempt a charge levied at the frontier from the classification of a charge having equivalent effect when it is not imposed on similar national products or is imposed on them at different marketing stages or, again, on the basis of a different chargeable event giving rise to duty, because that charge aims to compensate for a domestic fiscal charge applying to the same products — apart from the fact that this would not take into account fiscal charges which had been imposed on imported products in the originating Member State — would make the prohibition on charges having an effect equivalent to customs duties empty and meaningless.’