Judgment of the Court of 25 May 1977. - Entreprise F.lli Cucchi v Avez S.p.A. - Reference for a preliminary ruling: Pretura di Abbiategrasso - Italy. - Case 77-76.



European Court reports 1977 Page 00987

Greek special edition Page 00297

Portuguese special edition Page 00353

Spanish special edition Page 00267

Swedish special edition Page 00383

Finnish special edition Page 00409



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - SUGAR - SUGAR MARKETING YEARS 1975/1976 TO 1979/1980 - AIDS - GRANT - FINANCING - SYSTEM

( REGULATION NO 3330/74 OF THE COUNCIL , ARTICLE 38 )

2 . CUSTOMS DUTIES - CHARGES HAVING EQUIVALENT EFFECT - CONCEPT

( EEC TREATY , ARTICLES 9 , 13 ( 2 ))

3 . CUSTOMS DUTIES - CHARGES HAVING EQUIVALENT EFFECT - CONCEPT - INTERNAL TAXATION - DISTINCTION - JURISDICTION OF NATIONAL COURT

( EEC TREATY , ARTICLES 9 , 13 ( 2 ), 95 )

Summary

1 . AUTHORIZATION UNDER ARTICLE 38 OF REGULATION ( EEC ) NO 3330/74 TO GRANT THE AIDS PROVIDED FOR THEREIN CANNOT BE TAKEN TO MEAN THAT ANY METHOD OF FINANCING THESE AIDS , WHATEVER ITS CHARACTER OR CONDITIONS , IS COMPATIBLE WITH COMMUNITY LAW .

IN THE FINANCING OF THE AID GRANTED , THE NATIONAL AUTHORITIES ARE IN PARTICULAR SUBJECT NOT ONLY TO THE OBLIGATIONS ARISING UNDER THE TREATY BUT ALSO TO THOSE ARISING UNDER THE OTHER PROVISIONS OF REGULATION ( EEC ) NO 3330/74 .

2 . THE PROHIBITIONS CONTAINED IN ARTICLES 9 AND 13 ARE AIMED AT ANY TAX DEMANDED AT THE TIME OF OR BY REASON OF IMPORTATION AND WHICH , BEING IMPOSED SPECIFICALLY ON IMPORTED PRODUCTS TO THE EXCLUSION OF A SIMILAR DOMESTIC PRODUCT , RESULTS IN THE SAME RESTRICTIVE CONSEQUENCES ON THE FREE MOVEMENT OF GOODS AS A CUSTOMS DUTY BY ALTERING THE COST PRICE OF THAT PRODUCT .

3 . A DUTY FALLING WITHIN A GENERAL SYSTEM OF INTERNAL TAXATION APPLYING TO DOMESTIC PRODUCTS AS WELL AS TO IMPORTED PRODUCTS ACCORDING TO THE SAME CRITERIA CAN CONSTITUTE A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON IMPORTS ONLY IF IT HAS THE SOLE PURPOSE OF FINANCING ACTIVITIES FOR THE SPECIFIC ADVANTAGE OF THE TAXED DOMESTIC PRODUCT , IF THE TAXED PRODUCT AND THE DOMESTIC PRODUCT BENEFITING FROM IT ARE THE SAME , AND IF THE CHARGES IMPOSED ON THE DOMESTIC PRODUCT ARE MADE GOOD IN FULL . IT IS FOR THE NATIONAL COURT TO DEFINE THE DUTY IN QUESTION .

4 . IT ALSO FOLLOWS FROM REGULATION NO 3330/74 AND IN PARTICULAR FROM ARTICLE 33 THEREOF THAT , EVEN APART FROM CASES OF DISTURBANCE PROVIDED FOR IN THE SAID PROVISIONS , THE FUNCTIONING OF A COMMON ORGANIZATION OF THE MARKETS AND IN PARTICULAR THE FORMATION OF PRODUCER PRICES MUST IN PRINCIPLE BE GOVERNED BY THE GENERAL COMMUNITY PROVISIONS AS LAID DOWN IN GENERAL RULES AMENDED ANNUALLY WITH THE RESULT THAT ANY SPECIFIC INTERFERENCE WITH THIS FUNCTIONING IS STRICTLY LIMITED TO THE CASES EXPRESSLY PROVIDED FOR . HENCE UNDER REGULATION ( EEC ) NO 3330/74 THE COMMUNITY IS , IN THE ABSENCE OF EXPRESS DEROGATION , ALONE COMPETENT TO ADOPT SPECIFIC MEASURES INVOLVING INTERVENTION IN THE MACHINERY OF PRICE FORMATION , IN PARTICULAR BY LIMITING THE EFFECTS OF AN ALTERATION IN THE LEVEL OF COMMUNITY PRICES , WHETHER AS REGARDS INTERVENTION PRICES OR THE RATE OF EXCHANGE OF THE NATIONAL CURRENCY IN RELATION TO THE UNIT OF ACCOUNT ; AN INFRINGEMENT IN THIS RESPECT OF REGULATION ( EEC ) NO 3330/74 MAY BE THE SUBJECT OF PROCEEDINGS BEFORE THE NATIONAL COURTS BROUGHT BY ANY NATURAL OR LEGAL PERSON WHOSE STOCKS HAVE BEEN SUBJECT TO THE NATIONAL MEASURE .

Parties

IN CASE 77/76 ,

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE PRETURA DI ABBIATEGRASSO FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

FRATELLI CUCCHI

AND

AVEZ S.P.A .

Subject of the case

ON THE INTERPRETATION OF ARTICLE 13 ( 2 ) OF THE EEC TREATY AND ALSO OF COUNCIL REGULATIONS NOS 1009/67/EEC OF 18 DECEMBER 1967 AND 3330/74 OF 19 DECEMBER 1974 ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OJ , ENGLISH SPECIAL EDITION 1967 P . 304 , AND OJ L 359 OF 31 . 12 . 1974 , P . 1 ),

Grounds

1 BY ORDER OF 16 JULY 1976 , RECEIVED AT THE COURT REGISTRY ON 28 JULY 1976 , THE PRETORE DI ABBIATEGRASSO REFERRED TO THE COURT A NUMBER OF QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 1 TO 8 , 13 ( 2 ) AND 38 TO 43 OF THE EEC TREATY AND OF COUNCIL REGULATIONS NO 1009/67/EEC OF 18 DECEMBER 1967 AND NO 3330/74 OF 19 DECEMBER 1974 ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OJ , ENGLISH SPECIAL EDITION 1967 , P . 304 , AND OJ L 359 OF 31 . 12 . 1974 , P . 1 ).

2 THESE QUESTIONS ARE SUBMITTED IN CONNEXION WITH PROCEEDINGS BETWEEN TWO ITALIAN UNDERTAKINGS .

3 FRATELLI CUCCHI , THE PLAINTIFF IN THE MAIN ACTION , INSTRUCTED AVEZ S.P.A ., MILAN , THE DEFENDANT IN THE MAIN ACTION , TO IMPORT INTO ITALY FROM THE FEDERAL REPUBLIC OF GERMANY 10 000 KG OF SUGAR , OF WHICH 4 000 WERE DELIVERED ON 28 JUNE 1976 , AND THE REMAINDER WERE TO BE DELIVERED DURING THE FOLLOWING JULY . AVEZ SUBSEQUENTLY ASKED CUCCHI , IN ADDITION TO THE PRICE FOR THE GOODS , FOR REPAYMENT OF THE TWO CHARGES CALLED THE SURCHARGE ( SOVRAPPREZZO ) AND THE SPECIAL SURCHARGE ( SOVRAPPREZZO STRAORDINARIO ) IN ACCORDANCE WITH MEASURES OF THE COMITATO INTERMINISTERIALE DEI PREZZI ( INTERDEPARTMENTAL COMMITTEE ON PRICES , HEREINAFTER REFERRED TO AS ' THE CIP ' ).

4 THE PLAINTIFF IN THE MAIN ACTION CONSIDERED THAT THE SURCHARGE AND THE SPECIAL SURCHARGE WERE INCOMPATIBLE WITH THE RULES OF COMMUNITY LAW AND BROUGHT PROCEEDINGS AGAINST THE OTHER PARTY BEFORE THE PRETORE FOR A DECLARATION THAT IT OWED NOTHING TO THE AVEZ IN RESPECT OF THE CHARGES IN QUESTION .

5 ON 11 JULY 1976 THE FEDERGROSSISTI ( FEDERAZIONE NAZIONALE PER IL COMMERCIO ALIMENTARE - SINDACATO NAZIONALE DELLO ZUCCHERO ) APPLIED TO INTERVENE IN THE CASE CONTENDING THAT THE OBJECTIONS SUBMITTED AGAINST THE NATIONAL RULES WERE WELL FOUNDED AND REQUESTING THAT THE MATTER BE BROUGHT BEFORE THE COURT OF JUSTICE PURSUANT TO ARTICLE 177 OF THE TREATY .

6 BY THE ORDER CITED ABOVE THE NATIONAL COURT ALLOWED THE INTERVENTION AND DECIDED TO REFER TO THE COURT OF JUSTICE EIGHT QUESTIONS PROPOSED BY THE INTERVENER , OF WHICH THE FIRST FOUR SEEK A DECLARATION WHETHER THE SURCHARGE IS COMPATIBLE WITH COMMUNITY LAW AND THE FOUR OTHERS WHETHER THE SPECIAL SURCHARGE IS COMPATIBLE WITH IT .

I - GENERAL OBSERVATIONS

7 IT IS CLEAR FROM THE ORDER REFERRING THE MATTER TO THE COURT THAT THE ANSWER TO THE QUESTIONS SUBMITTED IS TO ENABLE THE NATIONAL COURT TO DETERMINE THE COMPATIBILITY OR OTHERWISE WITH COMMUNITY LAW OF TWO CHARGES , CALLED RESPECTIVELY THE SURCHARGE ( SOVRAPPREZZO ) AND THE SPECIAL SURCHARGE ( SOVRAPPREZZO STRAORDINARIO ), INTRODUCED BY MEASURES OF THE CIP , THE PROCEEDS OF WHICH ARE INTENDED TO FINANCE ADAPTATION AIDS TO THE ITALIAN BEET PRODUCERS AND SUGAR-PROCESSING INDUSTRY .

IN ITS OBSERVATIONS THE GOVERNMENT OF THE ITALIAN REPUBLIC CONTENDS THAT THE GRANT OF THESE AIDS WAS EXPRESSLY AUTHORIZED BY ARTICLE 38 OF REGULATION ( EEC ) NO 3330/74 FOR THE 1975/1976 TO 1979/1980 SUGAR MARKETING YEARS .

8 IT CONSIDERS THAT THIS AUTHORIZATION EMPOWERS IT TO FIND THE FUNDS NECESSARY FOR FINANCING BY MEANS WHICH APPEAR TO IT TO BE THE FAIREST AND MOST APPROPRIATE WITHIN THE LIMITS OF COMMUNITY LAW .

9 AUTHORIZATION UNDER ARTICLE 38 OF REGULATION ( EEC ) NO 3330/74 TO GRANT THE AIDS PROVIDED FOR THEREIN CANNOT BE TAKEN TO MEAN THAT ANY METHOD OF FINANCING THESE AIDS , WHATEVER ITS CHARACTER OR CONDITIONS , IS COMPATIBLE WITH COMMUNITY LAW .

IN THE FINANCING OF THE AID GRANTED , THE NATIONAL AUTHORITIES ARE IN PARTICULAR SUBJECT NOT ONLY TO THE OBLIGATIONS ARISING UNDER THE TREATY BUT ALSO TO THOSE ARISING UNDER THE OTHER PROVISIONS OF REGULATION ( EEC ) NO 3330/74 .

A METHOD OF FINANCING WHICH PROVIDES FOR DEROGATION FROM THE OTHER PROVISIONS MUST ARISE FROM AN EXPRESS PROVISION OR , AT LEAST , A FORM OF WORDS WHICH MAKE CLEAR THE COUNCIL ' S INTENTIONS IN THIS RESPECT .

THERE ARE NO WORDS ENABLING SUCH DEROGATION TO BE MADE AND THIS MUST BE BORNE IN MIND IN ANSWERING THE QUESTIONS SUBMITTED .

II - THE QUESTIONS RELATING TO THE SURCHARGE

10 THE FIRST QUESTION IS WHETHER ARTICLE 13 ( 2 ) OF THE TREATY AND ARTICLE 21 ( 2 ) OF REGULATION ( EEC ) NO 3330/74 AND ARTICLE 20 ( 2 ) OF REGULATION NO 1009/67/EEC PREVENT THE APPLICATION , IN TRADE BETWEEN THE MEMBER STATES ON THE MARKET IN SUGAR , OF A NATIONAL MEASURE IMPOSING A CHARGE ON ANY QUANTITY OF SUGAR , WHETHER HOME-PRODUCED OR IMPORTED , THE PROCEEDS OF WHICH ARE USED FOR THE EXCLUSIVE BENEFIT OF NATIONAL SUGAR REFINERIES AND BEET PRODUCERS .

11 FURTHERMORE THE NATIONAL COURT STATES THAT THIS MEASURE FORMS PART OF A SYSTEM OF AIDS COVERED BY COMMUNITY PROVISIONS , IN PARTICULAR ARTICLE 34 OF REGULATION NO 1009/67/EEC , ARTICLE 38 OF REGULATION ( EEC ) NO 3330/74 AND ARTICLE 4 OF REGULATION ( EEC ) NO 1487/76 OF THE COUNCIL OF 22 JUNE 1976 ( OJ L 167 , P . 9 ) BUT THAT IT HAS NEVER BEEN AUTHORIZED BY A COMMUNITY INSTITUTION OR APPLIED IN ACCORDANCE WITH THE PROCEDURE IN ARTICLE 41 OF REGULATION NO 1009/67/EEC OR OF ARTICLE 36 OF REGULATION ( EEC ) NO 3330/74 .

12 ARTICLE 9 OF THE TREATY , WHICH AT THE MATERIAL TIME WAS THE SAME AS THE ARTICLE 13 REFERRED TO IN THE QUESTION , PROHIBITS THE IMPOSITION OF CUSTOMS DUTIES ON IMPORTS AND OF ALL CHARGES HAVING EQUIVALENT EFFECT IN TRADE BETWEEN MEMBER STATES .

LIKEWISE ARTICLE 20 ( 2 ) OF REGULATION NO 1009/67/EEC AND ARTICLE 21 ( 2 ) OF REGULATION ( EEC ) NO 3330/74 PROHIBIT , SAVE AS OTHERWISE PROVIDED IN THOSE REGULATIONS OR BY DEROGATION DETERMINED BY THE COUNCIL , THE LEVYING OF ANY CUSTOMS DUTY OR CHARGE HAVING EQUIVALENT EFFECT .

13 AS WAS RULED IN THE JUDGMENTS OF 19 JUNE 1973 ( CASE 77/72 , CAPOLONGO ( 1973 ) ECR 611 ) AND OF 18 JUNE 1975 ( CASE 94/74 , IGAV ( 1975 ) ECR 699 ), THE PROHIBITIONS CONTAINED IN ARTICLES 9 AND 13 ARE AIMED AT ANY TAX DEMANDED AT THE TIME OR BY REASON OF IMPORTATION AND WHICH , BEING IMPOSED SPECIFICALLY ON IMPORTED PRODUCTS TO THE EXCLUSION OF THE SIMILAR DOMESTIC PRODUCT , RESULTS IN THE SAME RESTRICTIVE CONSEQUENCES ON THE FREE MOVEMENT OF GOODS AS A CUSTOMS DUTY BY ALTERING THE COST PRICE OF THAT PRODUCT .

ON THE OTHER HAND , THE FACT THAT A CHARGE IS APPLIED WITHOUT DISTINCTION TO DOMESTIC PRODUCTS AS WELL AS TO PRODUCTS FROM OTHER MEMBER STATES GIVES RISE TO THE QUESTION WHETHER THE TAXATION AT ISSUE FALLS WITHIN THE PROHIBITION IN ARTICLES 9 AND 13 OR THE RULE AGAINST DISCRIMINATION IN MATTERS OF INTERNAL TAXATION LAID DOWN BY ARTICLE 95 .

14 ONE AND THE SAME SCHEME OF TAXATION CANNOT , UNDER THE SYSTEM OF THE TREATY , BELONG SIMULTANEOUSLY TO BOTH THE CATEGORIES MENTIONED , HAVING REGARD TO THE FACT THAT THE CHARGES REFERRED TO IN ARTICLES 9 AND 13 MUST SIMPLY BE ABOLISHED WHILST , FOR THE PURPOSE OF APPLYING INTERNAL TAXATION , ARTICLE 95 PROVIDES SOLELY FOR THE ELIMINATION OF ANY FORM OF DISCRIMINATION , DIRECT OR INDIRECT , IN THE TREATMENT OF THE DOMESTIC PRODUCTS OF A MEMBER STATE AND OF PRODUCTS ORIGINATING IN OTHER MEMBER STATES .

15 FINANCIAL CHARGES WITHIN A GENERAL SYSTEM OF INTERNAL TAXATION APPLYING SYSTEMATICALLY TO DOMESTIC AND IMPORTED PRODUCTS ACCORDING TO THE SAME CRITERIA ARE NOT TO BE CONSIDERED AS CHARGES HAVING EQUIVALENT EFFECT .

16 THE SITUATION WOULD BE DIFFERENT ONLY IF SUCH A DUTY , WHICH IS LIMITED TO PARTICULAR PRODUCTS , HAD THE SOLE PURPOSE OF FINANCING ACTIVITIES FOR THE SPECIFIC ADVANTAGE OF THE TAXED DOMESTIC PRODUCTS SO AS TO MAKE GOOD , WHOLLY OR IN PART , THE FISCAL CHARGE IMPOSED UPON THEM .

17 SUCH A FISCAL DEVICE WOULD IN FACT ONLY APPEAR TO BE A SYSTEM OF INTERNAL TAXATION AND ACCORDINGLY COULD BY REASON OF ITS PROTECTIVE CHARACTER BE TERMED A CHARGE HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES SO AS TO BRING ARTICLES 9 AND 13 AND THE PROVISIONS OF THE REGULATIONS QUOTED INTO OPERATION .

SUCH A DEFINITION WOULD NEVERTHELESS IMPLY A CLEARLY ESTABLISHED CONNEXION BETWEEN , ON THE ONE HAND , THE COLLECTION OF A FISCAL DUTY LEVIED WITHOUT DISTINCTION ON THE PRODUCTS IN QUESTION , WHETHER DOMESTIC OR IMPORTED AND , ON THE OTHER HAND , THE ADVANTAGE WHICH ENURES ONLY FOR THE BENEFIT OF THE DOMESTIC PRODUCTS BY REASON OF THE PROCEEDS OF THAT SAME DUTY .

18 IT IS THEREFORE FOR THE NATIONAL COURT TO ESTABLISH THE EXISTENCE OR OTHERWISE OF THIS CONNEXION AND TO TAKE INTO ACCOUNT , IN THE CIRCUMSTANCES , THE FACT THAT , ACCORDING TO THE INFORMATION ON THE FILE , IT APPEARS THAT THE REVENUE PRODUCED BY THE IMPOSITION OF THE CONTESTED CHARGE BENEFITS BEET-PRODUCERS AS WELL AS THE PROCESSING INDUSTRY IN SUCH A WAY THAT SUGAR , AS DISTINCT FROM BEET , ONLY RECEIVES LESS THAN HALF OF THE FUNDS COLLECTED .

19 IT FOLLOWS FROM THE FOREGOING THAT THE ANSWER TO THE FIRST QUESTION MUST BE THAT A DUTY FALLING WITHIN A GENERAL SYSTEM OF INTERNAL TAXATION APPLYING TO DOMESTIC PRODUCTS AS WELL AS TO IMPORTED PRODUCTS ACCORDING TO THE SAME CRITERIA CAN CONSTITUTE A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON IMPORTS ONLY IF IT HAS THE SOLE PURPOSE OF FINANCING ACTIVITIES FOR THE SPECIFIC ADVANTAGE OF THE TAXED DOMESTIC PRODUCT ; IF THE TAXED PRODUCT AND THE DOMESTIC PRODUCT BENEFITING FROM IT ARE THE SAME ; AND IF THE CHARGES IMPOSED ON THE DOMESTIC PRODUCT ARE MADE GOOD IN FULL .

20 IN THESE CIRCUMSTANCES THE SECOND AND THIRD QUESTIONS , WHICH DEPEND ON AN AFFIRMATIVE ANSWER TO THE FIRST , NO LONGER ARISE .

21 THE FOURTH QUESTION IS WHETHER THE APPLICATION OF A PECUNIARY CHARGE SUCH AS THAT REFERRED TO IN THE FIRST QUESTION CONSTITUTES AN INFRINGEMENT OF THE PROHIBITION OF DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY .

IN THIS CONNEXION IT IS SUFFICIENT TO NOTE THAT THE PROHIBITION OF ANY DISCRIMINATION BETWEEN THE PRODUCTS OF OTHER MEMBER STATES AND SIMILAR DOMESTIC PRODUCTS , LAID DOWN IN ARTICLE 95 OF THE TREATY , ENABLES ANY INFRINGEMENT OF FUNDAMENTAL COMMUNITY PRINCIPLES IN THE MATTER REFERRED TO BY THE NATIONAL COURT TO BE MORE SPECIFICALLY IDENTIFIED .

IN CONSEQUENCE THERE IS NO NEED TO ANSWER THIS QUESTION EITHER .

III - THE QUESTIONS RELATING TO THE SPECIAL SURCHARGE

22 IT IS CLEAR FROM THE ORDER REFERRING THE MATTER TO THE COURT THAT QUESTIONS 5 TO 8 ARE CONCERNED WITH THE COMPATIBILITY OR OTHERWISE WITH COMMUNITY LAW OF THE SPECIAL SURCHARGE ( SOVRAPPREZZO STRAORDINARIO ) INTRODUCED BY CIP ORDER NO 20/1976 ( GAZZETTA UFFICIALE NO 172 ) LEVIED ON SUGAR STOCKS ON 2 JULY 1976 AT THE TIME OF THE CHANGE-OVER FROM THE 1975/1976 MARKETING YEAR TO THE 1976/1977 MARKETING YEAR .

23 IN ITS OBSERVATIONS , THE GOVERNMENT OF THE ITALIAN REPUBLIC STATED THAT THE SOLE PURPOSE OF THE CHARGE IN QUESTION , WHICH WAS IMPOSED ONLY ONCE , WAS TO MAKE GOOD THE DEFICIT IN THE EQUALIZATION FUND CAUSED BY THE GRANT , DURING THE PREVIOUS MARKETING YEAR , OF AIDS AUTHORIZED UNDER ARTICLE 38 OF REGULATION ( EEC ) NO 3330/74 , THE AMOUNT OF WHICH WAS GREATER THAN THE PROCEEDS OF THE ORDINARY SURCHARGE COLLECTED DURING THAT YEAR .

24 WHILE CONFIRMING THIS INFORMATION , THE COMMISSION HAS POINTED OUT THAT THIS CHARGE WAS INTENDED TO LEVY AMOUNTS ON STOCKS CALCULATED ON THE BASIS OF TWO CLEARLY DISTINGUISHABLE FACTORS : ON THE BASIS , IN THE FIRST PLACE , OF THE INCREASE IN THE RATE OF SURCHARGE FROM LIT 56 PER KG FOR THE 1975/1976 SUGAR YEAR TO LIT 70 FOR THE 1976/1977 MARKETING YEAR AND , IN THE SECOND PLACE , ON THE BASIS OF THE CHANGE IN THE RATE OF EXCHANGE OF THE ' GREEN LIRA ' IN RELATION TO THE UNIT OF ACCOUNT PROVIDED FOR SINCE THE BEGINNING OF THE 1976/1977 MARKETING YEAR BY REGULATION ( EEC ) NO 1020/76 OF THE COUNCIL OF 29 APRIL 1976 ( OJ L 115 ).

25 THE FIFTH QUESTION IS WHETHER THE ISSUES RAISED BY THE FIRST FOUR QUESTIONS ARISE ALSO WHEN A PECUNIARY CHARGE , APPLIED SIMULTANEOUSLY ON HOME-PRODUCED SUGAR AND IMPORTED SUGAR , IS IMPOSED , IN THE CASE OF IMPORTED SUGAR , NOT WHEN IT CROSSES THE FRONTIER BUT SUBSEQUENTLY , WHEN THE SUGAR HAS BEEN PLACED IN STORE .

26 THIS QUESTION IS CLEARLY CONCERNED WITH THE PROPORTION OF THE SPECIAL SURCHARGE WHICH CORRESPONDS TO THE INCREASE IN THE RATE OF THE ORDINARY SURCHARGE FOR THE NEW MARKETING YEAR .

THIS PROPOSITION OF THE SPECIAL SURCHARGE IS OF THE SAME NATURE AS THE ORDINARY SURCHARGE TO WHICH IT IS ADDED , SO THAT THE ANSWER TO BE GIVEN TO THE FIRST QUESTION ALSO SUFFICES AS AN ANSWER TO THE FIFTH QUESTION .

27 THE SIXTH QUESTION IS WHETHER A PECUNIARY CHARGE IMPOSED DURING THE CHANGE-OVER FROM ONE MARKETING YEAR TO ANOTHER BY A MEASURE OF THE NATIONAL GOVERNMENT WITHOUT ANY PRIOR AUTHORIZATION FROM THE COMMUNITY INSTITUTIONS ON SUGAR HELD AT A GIVEN DATE BY UNDERTAKINGS IS COMPATIBLE WITH COMMUNITY RULES , IN PARTICULAR WITH REGULATION ( EEC ) NO 3330/74 .

THIS QUESTION IS CONCERNED WITH THE PROPORTION OF THE SPECIAL SURCHARGE UNDER WHICH PAYMENT IS DEMANDED FROM CERTAIN HOLDERS OF SUGAR STOCKS OF AN AMOUNT CORRESPONDING TO THE INCREASE IN THE PRICE OF SUGAR ARISING FROM THE APPLICATION , DURING THE CHANGE-OVER FROM THE 1975/1976 MARKETING YEAR TO THE 1976/1977 MARKETING YEAR , OF A NEW RATE OF CONVERSION OF THE UNIT OF ACCOUNT INTO LIRE ( GREEN LIRE ).

28 THE RESULT IS , ACCORDINGLY , TO RESTRICT THE EFFECTS OF THIS ADJUSTMENT ON CERTAIN SUGAR STOCKS DATING FROM PREVIOUS MARKETING YEARS .

29 UNDER ARTICLE 33 OF REGULATION ( EEC ) NO 3330/74 , ' THE REQUISITE PROVISIONS TO PREVENT THE MARKET IN SUGAR BEING DISTURBED AS A RESULT OF AN ALTERATION IN PRICE LEVELS AT THE CHANGE-OVER FROM ONE MARKETING YEAR TO THE NEXT MAY BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 36 ' , NAMELY BY THE SO-CALLED MANAGEMENT COMMITTEE METHOD .

THIS PROCEDURE WAS NOT INITIATED AS THE AUTHORITIES EMPOWERED TO REFER TO THE COMMITTEE BELIEVED THAT IN THE CIRCUMSTANCES THERE WAS NO NEED TO APPLY ARTICLE 33 .

30 IN ITS JUDGMENT OF 30 OCTOBER 1975 ( CASE 23/75 , REY SODA V CASSA CONGUAGLIO ZUCCHERO , ( 1975 ) ECR 1279 ) THE COURT RULED THAT ARTICLE 6 OF REGULATION ( EEC ) NO 834/74 OF THE COMMISSION WAS INVALID BECAUSE ALTHOUGH THE COMMISSION WAS , UNDER ARTICLE 37 OF REGULATION NO 1009/67/EEC ( A PROVISION CORRESPONDING TO THAT IN THE SAID ARTICLE 33 ), GIVEN THE POWER TO ADOPT MEASURES CALCULATED TO PREVENT DISTURBANCES WHICH MAY ARISE AS THE RESULT OF AN ALTERATION IN PRICE LEVEL AT THE CHANGE-OVER FROM ONE SUGAR YEAR TO THE NEXT , IT CANNOT ENTRUST A MEMBER STATE WITH THE TASK OF DRAWING UP , IN THE GUISE OF IMPLEMENTATION MEASURES , SUBSTANTIVE RULES , AS THE SAID ARTICLE 6 HAD DONE .

31 IT ALSO FOLLOWS FROM THE JUDGMENT QUOTED THAT , EVEN APART FROM CASES OF DISTURBANCE PROVIDED FOR IN THE SAID PROVISIONS , THE FUNCTIONING OF A COMMON ORGANIZATION OF THE MARKETS AND IN PARTICULAR THE FORMATION OF PRODUCER PRICES MUST IN PRINCIPLE BE GOVERNED BY THE GENERAL COMMUNITY PROVISIONS AS LAID DOWN IN GENERAL RULES AMENDED ANNUALLY WITH THE RESULT THAT ANY SPECIFIC INTERFERENCE WITH THIS FUNCTIONING IS STRICTLY LIMITED TO THE CASES EXPRESSLY PROVIDED FOR .

32 IN CONSEQUENCE , THE CONTENTION THAT ARTICLE 33 OF REGULATION ( EEC ) NO 3330/74 COVERS ONLY CASES OF IMPENDING DISTURBANCE OF THE MARKET AND , CONSEQUENTLY , LEAVES THE MEMBER STATES FREE TO ADOPT SPECIAL INTERVENTION MEASURES FOR OTHER REASONS , SUCH AS AN INCREASE IN THE LEVEL OF PRICES , CANNOT THEREFORE BE UPHELD .

33 SUCH AN INTERPRETATION OF ARTICLE 33 , RESERVING TO THE COMMUNITY AUTHORITIES THE ADOPTION OF SPECIAL MEASURES , SUCH AS THE IMPOSITION OF A CHARGE ON STOCKS DURING THE CHANGE-OVER FROM ONE MARKETING YEAR TO ANOTHER , ONLY TO THE EXTENT TO WHICH THOSE MEASURES WERE DESIGNED TO PREVENT DISTURBANCES ON THE MARKET BUT WHICH LEFT THE MEMBER STATES FREE TO ENACT , FOR DIFFERENT REASONS , MEASURES THE NATURE AND DETAILED IMPLEMENTATION OF WHICH WERE VIRTUALLY IDENTICAL , WOULD MAKE THE PROVISION MEANINGLESS .

34 MOREOVER , THE CONTENTION THAT THE MEASURE BEFORE THE NATIONAL COURT CORRECTLY AVOIDED IMPOSING ON SUGAR STOCKS THE AMOUNTS CORRESPONDING TO THE INCREASE IN INTERVENTION PRICES FOR THE 1976/1977 MARKETING YEAR , COMPARED WITH THOSE IN THE PRECEDING YEAR , AND ACCORDINGLY DID NOT INFRINGE UPON THE POWERS CONFERRED ON THE COMMUNITY AUTHORITIES BY ARTICLE 33 IGNORES THE FACT THAT THIS PROVISION IS AS MUCH CONCERNED WITH THE CONSEQUENCES OF AN ALTERATION IN RATES OF EXCHANGE AS WITH THOSE OF AN ALTERATION IN INTERVENTION PRICES AND THAT , UNDER THE COMMON AGRICULTURAL POLICY , BOTH ARE MATTERS WITHIN THE COMMUNITY ' S EXCLUSIVE POWERS .

35 THE ANSWER TO BE GIVEN MUST , THEREFORE , BE THAT UNDER REGULATION ( EEC ) NO 3330/74 THE COMMUNITY IS , IN THE ABSENCE OF EXPRESS DEROGATION , ALONE COMPETENT TO ADOPT SPECIFIC MEASURES INVOLVING INTERVENTION IN THE MACHINERY OF PRICE FORMATION , IN PARTICULAR BY LIMITING THE EFFECTS OF AN ALTERATION IN THE LEVEL OF COMMUNITY PRICES , WHETHER AS REGARDS INTERVENTION PRICES OR THE RATE OF EXCHANGE OF THE NATIONAL CURRENCY IN RELATION TO THE UNIT OF ACCOUNT .

36 THE SEVENTH QUESTION IS WHETHER , IN THE CASE OF A PECUNIARY CHARGE , SUCH AS THAT REFERRED TO IN THE SIXTH QUESTION , THOSE CONCERNED MAY REFUSE TO PAY IT ON THEIR SUGAR STOCKS ( AND RECLAIM IT IF THEY HAVE PAID IT ) OR WHETHER , ON THE OTHER HAND , THE ILLEGALITY OF THE CHARGE UNDER COMMUNITY LAW CAN BE INVOKED ONLY IN THE CASE OF SUGAR IMPORTED AND STORED ON THE IMPORTER ' S PREMISES .

37 IT FOLLOWS FROM THE FOREGOING THAT , IF THERE IS AN INFRINGEMENT OF REGULATION ( EEC ) NO 3330/74 , IT IS AN INFRINGEMENT AFFECTING THE WHOLE MEASURE AS REGARDS BOTH HOME-PRODUCED SUGAR AND IMPORTED SUGAR .

IN CONSEQUENCE ACTION CAN BE TAKEN IN RESPECT OF SUCH AN INFRINGEMENT BEFORE THE NATIONAL COURTS BY ANY NATURAL OR LEGAL PERSON WHOSE STOCKS HAVE BEEN SUBJECT TO THE NATIONAL MEASURE .

38 IN VIEW OF THE ANSWERS GIVEN TO THE FOREGOING QUESTIONS , THE EIGHTH QUESTION DOES NOT NEED TO BE ANSWERED .

Decision on costs

COSTS

39 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , BOTH OF WHICH 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 AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS .

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRETURA DI ABBIATEGRASSO BY ORDER OF 16 JULY 1976 HEREBY RULES :

1 . A DUTY FALLING WITHIN A GENERAL SYSTEM OF INTERNAL TAXATION APPLYING TO DOMESTIC PRODUCTS AS WELL AS TO IMPORTED PRODUCTS ACCORDING TO THE SAME CRITERIA CAN CONSTITUTE A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON IMPORTS ONLY IF IT HAS THE SOLE PURPOSE OF FINANCING ACTIVITIES FOR THE SPECIFIC ADVANTAGE OF THE TAXED DOMESTIC PRODUCT , IF THE TAXED PRODUCT AND THE DOMESTIC PRODUCT BENEFITING FROM IT ARE THE SAME , AND IF THE CHARGES IMPOSED ON THE DOMESTIC PRODUCT ARE MADE GOOD IN FULL .

2 . UNDER REGULATION ( EEC ) NO 3330/74 THE COMMUNITY IS , IN THE ABSENCE OF EXPRESS DEROGATION , ALONE COMPETENT TO ADOPT SPECIFIC MEASURES INVOLVING INTERVENTION IN THE MACHINERY OF PRICE FORMATION , IN PARTICULAR BY LIMITING THE EFFECTS OF AN ALTERATION IN THE LEVEL OF COMMUNITY PRICES , WHETHER AS REGARDS INTERVENTION PRICES OR THE RATE OF EXCHANGE OF THE NATIONAL CURRENCY IN RELATION TO THE UNIT OF ACCOUNT ; AN INFRINGEMENT IN THIS RESPECT OF REGULATION ( EEC ) NO 3330/74 MAY BE THE SUBJECT OF PROCEEDINGS BEFORE THE NATIONAL COURTS BROUGHT BY ANY NATURAL OR LEGAL PERSON WHOSE STOCKS HAVE BEEN SUBJECT TO THE NATIONAL MEASURE .