APRIL 1956 ) AND TO THE MINISTERIAL DECREE ( DECRETO MINISTERIALE ) OF 3 JULY 1940 ( GAZZETTA UFFICIALE NO 175 OF 25 JULY 1940 ).
2 ENCC IS A BODY GOVERNED BY ITALIAN PUBLIC LAW AND ITS OBJECT IS TO PROMOTE AND REGULATE , IN PARTICULAR BY MEANS OF SUBSIDIES , THE PRODUCTION OF CELLULOSE AND PAPER IN THIS MEMBER STATE .
A LARGE PART OF THE AIDS ADMINISTERED BY ENCC CONSISTS OF SUBSIDIES TO NEWSPAPER PUBLISHERS FOR THE PURPOSE OF ENABLING THEM TO OBTAIN AT A REDUCED PRICE PAPER PURCHASED FROM PAPER MILLS AND USED FOR PUBLISHING .
ENCC ' S OPERATIONS ARE FINANCED BY LEVIES CHARGED ON HOME-PRODUCED CELLULOSE , PAPER AND CARDBOARD AT VARIOUS STAGES OF THEIR PRODUCTION OR MARKETING AND ON SIMILAR IMPORTED PRODUCTS WHEN THEY ARE IMPORTED .
3 THE ABOVEMENTIONED ITALIAN LEGAL PROVISIONS ALLOW THE IMPORTER WHO HAS MADE A PAYMENT TO ENCC IN RESPECT OF THE LEVY WHICH HE WAS REQUIRED TO PAY TO PASS ON A PROPORTION THEREOF TO THE ULTIMATE PURCHASERS .
THE DEFENDANT IN THE MAIN ACTION SUBMITS BY WAY OF JUSTIFICATION FOR ITS REFUSAL TO PAY THIS PROPORTION , ON THE ONE HAND , THAT THE SCHEME FOR GRANTING AID INTRODUCED BY THE LEGISLATIVE PROVISIONS IN QUESTION IS , CONSIDERED AS A WHOLE , INCOMPATIBLE WITH THE TREATY BECAUSE IT INFRINGES ARTICLE 30 OF THE SAID TREATY , SO THAT THE SCHEME CANNOT IN LAW JUSTIFY THE COLLECTION OF THE LEVIES WHICH THE PLAINTIFF IN THE MAIN ACTION WAS CALLED UPON TO PAY OR CONSEQUENTLY PERMIT THE LATTER TO PASS ON PART THEREOF TO ITS PURCHASER AND , ON THE OTHER HAND , THAT THE LEVY AT ISSUE ITSELF CONSTITUTES DISCRIMINATORY INTERNAL TAXATION IN CONTRAVENTION OF ARTICLE 95 OF THE TREATY .
4 IT IS ADVISABLE TO STATE THAT THE ALLEGED INFRINGEMENT OF ARTICLE 30 IS DUE TO THE FACT THAT THE GRANTING BY ENCC OF SUBSIDIES TO NEWSPAPER UNDERTAKINGS TO ENABLE THEM TO OBTAIN NEWSPRINT MORE CHEAPLY WAS AT THE TIME SUBJECT TO THE CONDITION THAT THE NEWSPRINT IN QUESTION WAS NEWSPRINT PRODUCED IN ITALY OR IMPORTED BY ENCC OTHER THAN NEWSPRINT DIRECTLY IMPORTED FROM ANOTHER MEMBER STATE .
AS FAR AS CONCERNS THE LEVY CHARGED BY ENCC THE INFRINGEMENT OF ARTICLE 95 ARISES BECAUSE THERE WAS ONE BASIS OF ASSESSMENT FOR PAPER AND CARDBOARD AND PAPER PRODUCTS ( INCLUDING WALLPAPER ) IF THEY WERE MANUFACTURED IN ITALY AND ANOTHER IF THEY WERE IMPORTED .
5 THE MAIN POINT RAISED BY THE QUESTIONS REFERRED IS WHETHER A NATIONAL COURT , WHEN ASKED TO RULE WHETHER A SYSTEM OF STATE AIDS WITHIN THE MEANING OF ARTICLE 92 OR SOME OF ITS ASPECTS ARE COMPATIBLE WITH THE TREATY , MAY TAKE ACCOUNT OF A POSSIBLE INFRINGEMENT OF ARTICLES 30 AND 95 AND , IF SO , WHAT ARE THE CRITERIA WHICH MAKE IT POSSIBLE TO ASCERTAIN WHETHER IN CIRCUMSTANCES SUCH AS THOSE WHICH HAVE ARISEN IN THIS CASE THE SAID ARTICLES HAVE IN FACT BEEN INFRINGED .
IT IS