15.

In his Opinion in Lornoy, Advocate General Tesauro mentioned that certain principles should be laid down in cases such as the present with regard to the allocation of the burden of proof. He accordingly proposed that persons subject to the charge who contest its legality should bear the burden of establishing that the revenue generated by the charge is being used to finance aid which benefits domestic products subject to the charge, while the national authorities should, if the person subject to the charge has discharged his burden of proof, be required to demonstrate that the set-off is not in full. Although that proposition is attractive, I have some doubt as to whether the problems in the present case ought to be resolved on the basis of such a rule concerning the burden of proof. It must — even having regard to Article 5 of the EEC Treaty — be up to the competent national authorities to provide the national court with all available information concerning the revenue generated by the charge and the use to which it is put. On that basis, the onus must be on the national court to decide whether the abovementioned conditions for the parafiscal charge to be covered by either Article 12 or Article 95 of the Treaty have been met. It cannot, in my view, be ruled out that the available information will not make it possible for the national court to determine with sufficient certainty whether the contested charge is or is not contrary to Articles 12 and 95 of the Treaty. The national court must, in such a case, find in favour of the national authority in question. One must not in this regard overlook the fact that an application of the prohibitions contained in Articles 12 and 95 is, despite everything, no more than an alternative to what can, at least from certain points of view, be regarded as the natural course of action, under the Treaty, against systems of national aid financed through the help of parafiscal charges, namely application of the Treaty rules on State aid. As is known, the Court has held in this area that the Commission bears the responsibility for the practical administration of these rules, bearing in mind that the sector presupposes an assessment of complex economic factors subject to rapid change (see paragraph 9 of the judgment in Case 78/76 Steinike und Weinlig [1977] ECR 595). It was also presumably without consideration of such factors that, in his Opinion in Case 222/78 ICAP v Beneventi [1979] ECR 1163, Advocate General Mayras stated that a finding that a parafiscal charge is unlawful by reason of the use to which the revenue which it generates is put ‘ought to be made by the Commission acting on the basis of Article 93 or 169 of the Treaty rather than by the national court, which cannot be asked to carry out laborious inquiries involving sometimes uncertain comparisons.’ As will be clear from the above, the Court did not follow Advocate General Mayras on this point. It is settled that national courts can decide that parafiscal charges are, having regard to their use, contrary to either Article 12 or Article 95 of the Treaty. There remains, however, in my view, good reason to continue to bear in mind that situations may arise in which the adoption of a position will be so difficult and will involve such uncertain comparisons that the national court will be justified in leaving it to the Commission to take the initiative to resolve conclusively whether the parafiscal charge is lawful under Community law.