CELEX: 62003CC0072
Language: en
Date: 2004-05-06 00:00:00
Title: Opinion of Mr Advocate General Poiares Maduro delivered on 6 May 2004. # Carbonati Apuani Srl v Comune di Carrara. # Reference for a preliminary ruling: Commissione tributaria provinciale di Massa Carrara - Italy. # Charges having effect equivalent to a customs duty - Tax levied on marble excavated in the territory of a municipality on its being transported across the boundaries of the municipal territory. # Case C-72/03.

OPINION OF ADVOCATE GENERALPOIARES MADUROdelivered on 6 May 2004(1)
         Case C-72/03Carbonati Apuani SrlvComune di Carrara(Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Massa Carrara (Italy))
            (Free movement of goods  –  Charge having equivalent effect to a customs duty  –  Tax on marble excavated within, and transported from, a municipality's territory  –  Purely internal situation)
            
      
         
        1.        It is not uncommon now for the Court to be asked to give a ruling on the application of the rules on free movement to situations
      internal to Member States. One of the questions unanswered by Community case-law in this field is, certainly, how far the
      scope of Community law extends and, consequently, to what extent the Court has jurisdiction to answer a question referred
      for a preliminary ruling in connection with such situations. In my view, this reference gives the Court the opportunity to
      take a fresh look at this issue.
      
      
        2.        By this reference, the Commissione Tributaria Provinciale di Massa Carrara (Massa Carrara Provincial Tax Court) (Italy) asks
      the Court to give a ruling on the compatibility with Community law of a tax collected on goods transported out of the territory
      of a municipality located in a Member State and levied in the same way on goods exported to another Member State and on goods
      dispatched to another part of the same Member State. 
         			(2)
         		 At first sight, it may be tempting to consider whether a distinction should be drawn between products taxed by reason of
      their export from Italy and products taxed by reason of their dispatch to other parts of the Italian territory. 
      
      
        3.        On the basis of the judgments in Lancry and Others  and Simitzi, the answer appears to be simple. 
         			(3)
         		 If it is collected on the occasion of the crossing of a frontier, even an internal frontier, a tax is capable of constituting
      a charge having equivalent effect to a customs duty. In those circumstances, it makes absolutely no difference whether the
      tax affects only intra-Community trade or internal trade as well. The fact that a frontier is crossed is sufficient to render
      the legislation establishing the tax, as such, and in its entirety, contrary to Article 25 EC. The Court’s case-law therefore
      provides an apparently clear and simple solution to the question raised in this case.
      
      
        4.        However, I find that solution hardly satisfactory. Through a consistent line of case-law, the Court has established a principle
      which is virtually the opposite of that applicable in the field of charges having equivalent effect. According to that case-law,
      the rules on free movement are not applicable to a situation which affects only the trade internal to a Member State. Although
      exceptions have been made to that stringent principle, this has occurred only in exceptional cases on account of the specific
      circumstances of the case in question, the principle that the rules on free movement are not applicable to purely internal
      situations having always been maintained. 
         			(4)
         		 It is for that reason that it is appropriate to consider whether the solution adopted in the field of charges having equivalent
      effect is always justified and, if not, whether a more consistent approach capable of producing the same result might not
      be adopted.
      
      
      I –  The legal framework, the facts and the question referred 
        5.        The tax at issue in this case is a historical legacy. Reference to it can be found in a Notificazione Governatoriale of 14 July 1846, laid down by the Governor of the Province of Lunigiana Estense. After the unification of the Kingdom of
      Italy, it was established as a toll for the transit of marble on the roads of Carrara by Royal Decree on 19 September 1860.
      By Law No 749 of 15 July 1911, it was converted into a tax on the transport of marble excavated in the municipality.
      
      
        6.        That tax is currently based on a complex body of legislation. At the material time, the single article of Law No 749/1911,
      some of the provisions of which were amended by Law No 449 of 27 December 1997, provided that:
      ‘There shall be established in favour of the Comune di Carrara a tax on marble excavated within, and transported from, its
      territory. That tax shall be applied and collected by the Comune when the marble leaves its territory on the basis of a special
      regulation, to be decided upon by the Consiglio Comunale (municipal council) after consultation of the social partners. 
       Each year, the Consiglio Comunale, in setting the budget for the Comune, shall fix the rate at which that tax shall be levied
      in the following year. However, when the Comune has to meet ongoing commitments to be paid from or guaranteed by the tax yield,
      the Consiglio Comunale may set in advance the minimum amount of that tax for several years. 
       The Comune may, following a decision of the council in accordance with the municipal and provincial law, and upon approval
      by the Giunta provinciale amministrativa (Administrative Provincial Council), provide that the tax yield be allocated, in
      part, to discharge the costs or charges of the construction and operation of the port of Marina di Carrara, where appropriate
      pursuant to Law No 50 of 12 February 1903 and, in part, to underwrite the subscriptions of the workers in the marble industry
      to the National Workers’ Insurance Fund.’
      
      
        7.        That provision was later clarified by Decree-Law No 8 of 26 January 1999, converted, with amendments, into Law No 75 of 25
      March 1999, which provides that:
      ‘The single article of Law No 749/1911 ... is to be interpreted as meaning that the tax it establishes applies to marble and
      its derivatives and shall be decided in relation to the municipality’s overheads directly or indirectly arising from activities
      in the local marble industry.’
      
      
        8.        Lastly, account must be taken of a regulation adopted by the Comune di Carrara (municipality of Carrara) on 23 March 1999,
      under which the municipal council is to set the tariff for the tax annually, having regard, in particular, to environmental
      damage caused by the marble industry. However, since any regulatory and legislative amendments which may have been made to
      that legislation in 2001 and 2004 occurred after the material facts, they are not relevant to the Court’s analysis in this
      case. 
         			(5)
         		
      
        9.        The order for reference shows that the effect of application of that legislation is that marble excavated and used on the
      territory of the municipality of Carrara is exempt from tax, whereas marble used or processed in neighbouring municipalities
      may be wholly or partly exempt.
      
      
        10.      The facts of the case are as follows. Carbonati Apuani s.r.l. is a company the business of which involves excavating and processing
      pieces of marble and excavating soil in the municipality of Carrara. By tax notice of 7 May 2001, the municipality of Carrara
      sought from that company payment of the marble tax due in respect of exports effected out of the municipality in April 2001.
      The company challenged that notice before the national court on the ground that the legislation under which that payment had
      been sought was contrary to Community law.
      
      
        11.      The question referred by the court before which the case was brought concerns the compatibility of that legislation with Articles
      23 EC, 81 EC, 85 EC and 86 EC.
      
      
      II –  Preliminary observations
        12.      These observations are presented under three headings. They will allow me to set out the context in which the question referred
      arose.
      
      
       A – On the admissibility of the question referred
        13.      In its written observations, the Commission asks the Court to give a ruling on the admissibility of the question referred.
      In its view, it must be considered whether this reference for a preliminary ruling satisfies the requirements deriving from
      the Court’s case-law to the effect that the national court has an obligation to define the factual and legislative context
      of the questions it asks. 
         			(6)
         		
      
        14.      That objection is unfounded. The facts do not present any particular difficulty, and, although they are not described in great
      detail in the order for reference, a full description can easily be arrived at by reading the written observations submitted
      by the parties to the main proceedings. The legal framework is clearly reproduced in the order for reference. 
         			(7)
         		 It would therefore be inappropriate to require that the Court should have all the information relating to the dispute in
      order to be able to determine the usefulness of the interpretation it is asked to give. Indeed, the mere fact that the Commission
      has been able to submit relevant observations in this case is sufficient to show that the order adequately stated the reasons
      on which it was based. 
         			(8)
         		 In this case, the Court has the information it needs to give a ruling on the question of law referred to it.
      
      
        15.      In the context of references for a preliminary ruling, it would in any event be imprudent to extend the grounds of inadmissibility
      beyond circumstances in which the Court is unable to consider the subject-matter of the proceedings either because of a lack
      of information, 
         			(9)
         		 or because the dispute is artificially constructed. 
         			(10)
         		 Such a rule of prudence seems to me to be consistent with the nature and spirit of the judicial cooperation provided for
      in Article 234 EC, which is based on the cooperation between two courts necessary for the purpose of resolving a single dispute.
      
      
       B – On the determination of the law applicable in this case
        16.      The national court asks the Court to give a ruling on whether the Italian legislation is in conformity with both Article 23
      EC concerning the customs union and Articles 81 EC, 85 EC and 86 EC concerning the rules on competition applicable to undertakings.
      
      
        17.      First, it must be borne in mind that, within the framework of proceedings brought under Article 234 EC, the Court does not
      have jurisdiction to give a ruling on the compatibility of a provision of national legislation with Community law. In accordance
      with settled case-law, the question referred in this case must be understood as asking the Court to supply the national court
      with a ruling on the interpretation of Community law so as to enable that court to determine whether that legislation is compatible
      in order to decide the case before it. 
         			(11)
         		
      
        18.      Next, the subject-matter of the reference has to be confined to the first part of the question.
      
      
        19.      The reasons for this are self-evident. First, Article 86 EC is not applicable in this case, since the measure at issue does
      not concern either public undertakings or the exercise of special or exclusive rights granted to undertakings.
      
      
        20.      Second, the tax is a State measure to which Articles 81 EC and 82 EC cannot be applied. The Court has consistently held that
      the rules on competition applicable to undertakings are not relevant in an assessment of whether a legislative or regulatory
      measure of a Member State is compatible with Community law. 
         			(12)
         		 Admittedly, it is not inconceivable that a State measure may infringe Articles 81 EC and 82 EC, read in conjunction with
      Article 10 EC, if it is capable of rendering ineffective the rules on competition applicable to undertakings. Such would be
      the case, the Court has held, if a State were to require or favour the adoption of agreements, decisions or concerted practices
      contrary to Article 81 EC or to reinforce their effects, or to deprive its own legislation of its official character by delegating
      to private traders responsibility for taking decisions affecting the economic sphere. 
         			(13)
         		 At the very least, there must be a demonstrable direct link between the measure in question and anti-competitive conduct
      on the part of an undertaking. However, there is no evidence of such a link in the circumstances of the main proceedings.
      In any event, the mere contention, as made by the applicant in the main proceedings, that ‘the exercise of freedom of competition
      has been affected’ is not a sufficient basis on which to subject the tax at issue to those rules.
      
      
        21.      Since Articles 81 EC, 85 EC and 86 EC are not, in principle, applicable in circumstances such as those of the main proceedings,
      they cannot be used as points of reference in the assessment of whether the contested tax is compatible with Community law.
      
      
       C – On the approach taken in this Opinion
        22.      The answer to the question referred, when qualified in this way, would appear to be simple. The grounds on which a tax of
      this kind may be regarded as incompatible with Community law is a recurrent issue in the Court’s case-law. It is easily dealt
      with by application of the principles governing the interpretation of Article 25 EC as developed in the judgments in Lancry and Others and Simitzi, cited above. Indeed, that is the approach I shall follow here initially.
      
      
        23.      I find that approach inadequate however. The Court has consistently held that the rules on freedom of movement are not applicable
      to situations the facts and effects of which are confined within a single Member State. 
         			(14)
         		 If the Court were to confirm the interpretation given in the judgments in Lancry and Others  and Simitzi, cited above, there would be a danger of inconsistency in matters relating to freedom of movement. I take the view that a
      provision of Community law must never be interpreted as creating inconsistency in the Community legal order if another interpretation
      is possible. It is, therefore, that other interpretation that I should like to propose to the Court subsequently.
      
      
      III –  Application of the Court’s case-law concerning charges having equivalent effect to the contested tax 
       A – The merits of applying the rule in Lancry and Others and Simitzi
        24.      This case has a well-known precedent in Simitzi, cited above. The latter concerned a charge levied both on products imported into a geographically-isolated part of the Greek
      territory, the Dodecanese islands, and on products exported from those islands. In accordance with an analysis developed in
      its judgments in Legros and Others and Lancry and Others, the Court, in Simitzi, established the principle of equivalence between, on the one hand, an obstacle resulting from a charge levied at a national
      frontier by reason of the export of goods from the entire territory of a Member State and, on the other hand, an obstacle
      resulting from a charge levied at a regional frontier by reason of the despatch of goods from one region of a Member State
      to other regions of the same State. 
         			(15)
         		 Since the effects of those two types of charge are equivalent, the latter must also be prohibited.
      
      
        25.      On the basis of such a principle, the question raised by the national court can easily be answered to the effect that a charge
      levied by a municipality on goods transported from its territory constitutes a charge having equivalent effect to a customs
      duty on exports, not only in so far as it is levied on goods exported from the territory of the State to which that municipality
      belongs, but also in so far as it is levied on goods leaving the municipality for other parts of the territory of the same
      State. 
         			(16)
         		
      
        26.      However, the municipality of Carrara has raised two objections to such an analysis. One is that, unlike in the circumstances
      in which the judgment in Simitzi, cited above, was delivered, the contested charge affects only one product, marble from Carrara, not all products exported
      from the municipality.
      
      
        27.      That first objection is unfounded. In the context of charges having equivalent effect, there is no requirement regarding the
      number of products affected by a contested charge. Such a requirement derives from the Court’s definition of ‘internal taxation’
      within the meaning of Article 90 EC, in so far as that term concerns ‘whole classes of products’ which are capable of being
      subject to a ‘general system of internal dues’. 
         			(17)
         		 However, it is irrelevant in the field of charges having equivalent effect. In this field, the EC Treaty seeks to eliminate
      all tariff barriers to trade, even if only a single product is concerned. 
         			(18)
         		
      
        28.      The other objection is based on the fact that the surface area of the municipality of Carrara is small by comparison with
      that of the region in question in Simitzi.
      
      
        29.      This objection is likewise untenable. At issue in both those cases was an operation whereby the competent public authorities
      placed a tariff barrier on trade. In the circumstances at issue in Simitzi, that operation was simply repeated several times. However, for the purposes of classifying the measure at issue, only the
      result of such an operation is relevant, in other words, whether there is a financial obstacle to trade in the common market,
      however modest or even minimal it may be. 
         			(19)
         		 There is, therefore, no need for a difference in the treatment of a charge fixed in the territory of a municipality by a
      municipal council under a national law, such as the tax at issue in this case, and a charge established for that part of the
      territory in which each of them is competent by the municipal councils of the principal towns of a region under a government
      decree, such as the charge at issue in Simitzi.
      
      
       B – Rejection of the arguments relied on in defence
        30.      Assuming that the rule in Simitzi  is in principle applicable to the circumstances of this case, it remains now to examine the full significance of the arguments
      relied on in its defence by the municipality of Carrara. Those arguments are threefold.
      
      
        31.      The first line of argument concerns the alleged effects of the contested tax. The municipality considers that that tax cannot
      in any way have the effect of distorting competition on the Community market.
      
      
        32.      It is to be noted, however, that a charge having equivalent effect within the meaning of the Treaty is defined as any pecuniary
      charge which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, even if
      it is not imposed for the benefit of the State and is not discriminatory or protective in effect. 
         			(20)
         		 Consequently, that classification does not depend either on the effects the charge may have on intra-Community trade or on
      the distortions of competition it may create. It also follows that the municipality’s argument that the product charged is
      not in competition with products from territories outside the municipality is wholly irrelevant.
      
      
        33.      The municipality’s second line of argument is based on the aims pursued in introducing the tax. It maintains that the tax
      is intended, in particular, to make it possible to plan and repair road and port infrastructures, to adopt measures to protect
      the environment, to support cultural initiatives and, lastly, to finance social assistance measures for workers. This was
      also the main argument relied on by the Italian Republic at the hearing. It went on to say that all those activities are directly
      linked to the marble sector and the marble business.
      
      
        34.      However, it follows from the general and absolute nature of the prohibition of any customs duty applicable to goods moving
      between Member States that customs duties are prohibited independently of any consideration of the purpose for which they
      were introduced and the destination of the revenue obtained therefrom. 
         			(21)
         		 Consequently, neither the social, environmental, cultural or other purpose for which it was introduced, nor the fact that
      the revenue obtained therefrom is destined for the marble industry, can prevent the contested tax from being classified as
      a charge having equivalent effect to a customs duty within the meaning of Articles 23 EC and 25 EC. 
         			(22)
         		
      
        35.      The Court allows only one derogation from the principle that charges having equivalent effect are prohibited. It acknowledges
      that ‘it is not impossible that in certain circumstances a specific service actually rendered may form the consideration for
      a possible proportional payment for the service in question’. 
         			(23)
         		 However, even in such cases, a service must actually have been rendered, it must have been individually provided to the operators
      concerned, and the amount of the charge imposed must be strictly proportionate to that service. 
         			(24)
         		 Provided that those conditions, which are cumulative, are satisfied, the charge imposed can then legitimately be considered
      not to be a mere protective instrument of the Member State concerned.
      
      
        36.      It will be for the national court to determine whether those conditions have been satisfied in the circumstances of this case.
      It is none the less necessary to point out the main criteria which may be of use to the national court in making that assessment,
      in so far as these can be found in the documents submitted to the Court. While the municipality seeks the benefit of that
      derogation, it recognises in its observations that it is clear from Law No 75/1999, which provides an authentic interpretation
      of the law establishing the contested charge, that operators in the sector are not the ‘direct beneficiaries of the revenue from the charge’. 
         			(25)
         		 It takes the view that the tax indirectly serves an interest enjoyed by all the operators in that industry. First of all,
      it will have to be ascertained whether the revenue from that tax is indeed earmarked for expenditure connected with the marble
      sector. However, even assuming that to be the case, the alleged advantage arising from that tax would in any event serve the
      general interest of all exporters, and would not constitute a service actually and individually rendered. 
         			(26)
         		 That conclusion is reinforced by the fact that the charge borne by exporters is determined solely according to the quantity
      of marble to be transported. It therefore clearly bears no relation in practice to the real cost of any service rendered individually.
         			(27)
         		
      
        37.      It follows from this analysis that none of the arguments relied on in defence by the municipality of Carrara can be accepted.
      
      
       C – Rejection of the classification of the tax as internal taxation
        38.      Lastly, the municipality of Carrara proposes that the contested tax should be classified as internal taxation within the meaning
      of Article 90 EC. It bases its argument primarily on the fact that none, or at least no significant quantity, of the marble
      produced on the territory of the municipality remains there. In its view, it follows logically from this that the tax must
      be understood as being an internal charge of general application from which marble destined to remain in the municipality
      is simply exempt. What is more, that charge applies in the same way and at the same stage of marketing to both marble remaining
      on Italian territory and exported marble. Since such a scheme does not involve any discrimination, it must be regarded as
      being in conformity with the rules of the Treaty.
      
      
        39.      That argument is unconvincing. On the one hand, it is not common ground between the parties that the quantity of local production
      destined to remain on the territory of the municipality is indeed negligible. On the other hand, however, such a contention
      has no bearing on the classification of the contested tax. According to settled case-law, Article 90 EC concerns pecuniary
      charges related to a general system of internal dues applied systematically in accordance with the same criteria to domestic
      products and imported products alike. 
         			(28)
         		 However, it is common ground in this case that the goods produced on and remaining in the territory of the municipality of
      Carrara are not subject to the contested duties. Contrary to what the municipality of Carrara and the Italian Republic stated
      at the hearing, the destination of the products is a decisive condition of liability to the tax. For the charge to be imposed,
      it is not sufficient for the marble to be excavated in the municipality. It must also, whether in its raw form or in a processed
      form, be transported from there. The wording of the contested legislation therefore makes it clear that the taxable event
      is the crossing of the municipality’s boundaries. Consequently, that fiscal mechanism was introduced in order to apply specifically
      to dispatched and exported goods. That is the objective criterion on which it was constructed. The fact that the quantity
      of products not intended for export is small has no bearing on the nature of that scheme, which alone is relevant for the
      purposes of the classification at issue.
      
      
        40.      Nevertheless, assuming that the fact that the product in question is not used and consumed locally is considered to be a relevant
      factor in this analysis, contrary to what has just been maintained, would the municipality be right to claim that this means
      that the contested tax is in the nature of internal taxation?
      
      
        41.      There is every reason to think not. It is true that the Court has held that, where a charge is borne by a product imported
      from another Member State, the fact that there is no identical or similar domestic product does not remove that charge from
      the scope of Article 90 EC if the charge at issue relates to a general system of internal dues. 
         			(29)
         		 However, in such a case, the charge will be classified as a charge having equivalent effect if it is clear that that charge
      is in fact intended to apply specifically to imported or exported products. 
         			(30)
         		 An examination of the structure of the contested tax in this case leaves no room for any serious doubt as to its purpose
      or the intention of the legislature which introduced it. 
         			(31)
         		 Such a tax is specifically directed at exported products. Consequently, it cannot be classified as internal taxation within
      the meaning of Article 90 EC.
      
      
        42.      In those circumstances, the assertion that the tax affects Italian products and exported products in the same way and at the
      same stage of marketing is irrelevant. Assuming that Article 25 EC applies to duties levied on goods when they cross a municipal
      frontier internal to a Member State, the comparison must now be drawn not between Italian products and exported products,
      but between products destined to remain on part of the Italian territory and products dispatched from that part of the territory.
      From that point of view, the tax on transported marble clearly compromises the Community customs territory and constitutes
      an infringement of Article 25 EC.
      
      
        43.      It follows from the foregoing considerations that the contested tax, as such, falls within the category of charges having
      equivalent effect to a customs duty, irrespective of whether it affects domestic trade or Community trade. It cannot therefore
      fail to be caught by the principle laid down by the Treaty that such charges are prohibited.
      
      
      IV –  Another approach
       A – The disadvantages of the ‘Lancry solution’
        44.      The solution set out above, which is based on the Court’s relevant case-law, in particular Lancryand Others, cited above, has the advantage of ensuring the uniformity of the common customs territory and, thus, the uniform application
      of the provisions of the Treaty concerning the customs union. After all, as Advocate General Tesauro pointed out in his Opinion
      in Lancry and Others, it would have been paradoxical, in a single market, to allow a situation to prevail in which ‘barriers to trade between
      Portugal and Denmark are prohibited, whilst barriers to trade between Naples and Capri are immaterial’. 
         			(32)
         		 On the other hand, however, it has significant disadvantages. There are, in my opinion, three main ones.
      
      
        45.      First, the foundations of that case-law remain fragile. This is immediately apparent from a reading of the provisions of the
      Treaty on which that case-law is based. Articles 23 EC and 25 EC of the Treaty seek to remove tariff barriers to trade between Member States. Those provisions do not, therefore, appear to be applicable to trade between parts of the territory of a single Member State.
      
      
        46.      The judgment in Lancry is undoubtedly based on the idea that, by its very nature, a transit tax undermines the ‘unicity of the Community customs
      territory’. 
         			(33)
         		 That may be true in theory, but it leads to untenable consequences in practice. Article 23 EC was merely an expression of
      the desire of the founding States of the Community to limit the use which its Member States would henceforth make of their
      competence in customs matters. However, in expressing that desire, they did not intend to deprive those Member States of their
      competence to govern situations relating exclusively to their territory. Nevertheless, from a principle of free movement governing
      exclusively transnational  situations, the Court has, in fact, inferred a principle governing cross-border situations and in so doing has treated regional frontiers in the same way as national frontiers. 
         			(34)
         		 However, the customs union is first and foremost a system for free movement between Member States, not a system for the crossing
      of internal frontiers. By treating the two in the same way, the Court is compelled to apply the principle of free movement
      to charges levied in situations which have no connection with that principle.
      
      
        47.      Second, the judgment in Lancry and Others, cited above, and the ensuing case‑law expose the Court to the risk of inconsistency. After all, the ‘Lancry solution’ could
      have been expected to be extended to all matters connected with the provisions on free movement. 
         			(35)
         		 There seemed no reason why the reasoning applied in that case should not be reproduced in relation to other barriers to trade.
      Instead of detriment to the unicity of the Community customs territory, detriment to the internal market 
         			(36)
         		 or even to the economic unity resulting from Economic and Monetary Union would have been sufficient grounds on which to challenge
      such barriers. 
         			(37)
         		 Those circumstances could, in theory, have the same practical effects. However, that was not the solution adopted by the
      Court. In all those areas, it chose to maintain the traditional principle of the inapplicability of the rules on free movement
      to purely internal situations.
      
      
        48.      There therefore remains a seemingly unjustifiable contradiction between the line taken in relation to charges having equivalent
      effect and the line generally taken by the Court in other areas. 
         			(38)
         		 Recent decisions have no doubt helped reduce the gap between the customs union and the other systems of free movement. The
      Court recently sought to extend its jurisdiction to giving rulings on the application of Community law to internal situations
      with a potential link to situations which are subject to Community law. 
         			(39)
         		 However, on that occasion, the Court did not call into question the principle of the inapplicability of Community law to
      purely internal situations. In my opinion, its desire not to depart from that principle reflects legitimate reservations connected
      with the danger of arbitrarily extending the scope of Community law.
      
      
        49.      Lastly, the final argument which should secure the case for abandoning the ‘Lancry solution’ is that there are sound reasons
      for returning to the prevailing case-law on measures having equivalent effect. First, that case-law is consistent with the
      wording and spirit of the rules on free movement, which are not applicable to purely internal situations. Second, in my view,
      it reflects a more general desire on the part of the Court not to interpret the rules on free movement of goods in the light
      of a principle of freedom to engage in commercial activity. One of the essential reasons for restricting the scope of the
      rules on free movement to transnational situations is that they should be used only with a view to liberalising trade. 
         			(40)
         		
      
        50.      All those reasons seem to me to indicate that a new approach should be taken now, although this does not in any way call into
      question the legitimate requirements which led to the rule in Lancry and Others.
      
      
       B – The possible solutions
        51.      From a traditional standpoint, the contested tax would be described as having a complex structure which must be separated
      into its various elements, some falling within the scope of the Community provisions on free movement and others not. This
      means that the legislation at issue must be considered not as a whole, but in a different way depending on whether or not
      it has an effect on intra-Community trade. 
         			(41)
         		
      
        52.      In so far as it applies to products exported from the Italian national territory, the contested tax is subject to the prohibition
      laid down in Article 25 EC. To that part of the national legislation must therefore be applied the analysis set out in points
      24 to 43 of this Opinion. However, in so far as it applies to products remaining in Italy, it falls outside the system of
      the Community customs union.
      
      
        53.      In this regard, there are in theory three solutions available to the Court.
      
      
        54.      The first solution would be to reinstate the principle that Community law does not apply to a charge levied by a Member State
      in the course of internal trade conducted on its territory. The Court would thus adopt the position favoured by Advocate General
      Tesauro in his Opinion in Lancry and Others, cited above.
      
      
        55.      In my view, this solution is open to criticism, since it neglects the legitimate concerns which prompted the ‘Lancry solution’.
      These relate, first, to the practical difficulties involved in identifying the origin or destination of products moving within
      the Community. 
         			(42)
         		 They also have to do with the difficulties created by what is known as ‘reverse discrimination’. 
         			(43)
         		 This refers, in particular, to situations where nationals of a Member State who have not exercised the freedoms of movement
      laid down by the Treaty find themselves in a less favourable legal position than nationals who have exercised the rights derived
      from those freedoms. The Court has famously made it a rule to disregard those situations, on the ground that purely internal
      situations are excluded from the scope of Community law. 
         			(44)
         		 It is therefore for the national court alone to assess them. 
         			(45)
         		 However, the Court’s declaration that it lacks jurisdiction may have the effect of leaving the national court powerless when
      faced with situations involving discrimination stemming from the application of Community law. 
         			(46)
         		 It is difficult to accept that Community law should be able to dissociate itself from a situation which it has itself helped
      to create. In such cases, Community law has created a problem which national law would not have experienced, or tolerated
      no doubt, had it not been for Community law, and with which national law may not be equipped to deal.
      
      
        56.      In order to circumvent those difficulties, the second conceivable solution would be to apply to the internal part of the tax
      a solution along the lines of that adopted in the judgment in Guimont. 
         			(47)
         		 The Court would thus propose that the national court should transpose the solution based on the prohibition of charges having
      equivalent effect to situations where the national law of the State concerned requires that a national operator should benefit
      from the same rights as those which an exporter would derive from Community law in the same situation. Although treated differently
      from the point of view of the application of Community law, the two parts of the legislation would in this way, whether directly
      or indirectly, be treated according to the same principles, those of the free movement of goods.
      
      
        57.      Although this solution is preferable to the previous one, it does not seem to me to be entirely satisfactory. First, in seeking
      to expand the Court’s jurisdiction in the context of references for a preliminary ruling, it may have the effect of extending
      the scope of Community law in a way which is difficult to control. The judgment in Guimont is worded in very broad terms. On the basis of that wording, there are practically no situations which would fall outside
      the jurisdiction of the Court or the ambit, albeit indirect, of Community law. After all, for it to be so caught, the situation
      at issue need only be capable of being linked to a question concerning the interpretation of Community law which is not manifestly
      without purpose. Moreover, such a link is clearly not too difficult to make, particularly since it is, in principle, for the
      national court alone to determine the relevance of and the need for a reference for a preliminary ruling. 
         			(48)
         		 Second, the effectiveness of this solution is subject to the condition that national law should offer nationals in a purely
      internal situation the same rights as those under Community law. 
         			(49)
         		 It therefore leaves the resolution of any cases of reverse discrimination to the remedies which are possible under national
      law and the possibility of its providing suitable means. The search for such remedies may, in certain cases, come up against
      obstacles inherent in the very nature of the legal systems concerned. 
         			(50)
         		
      
        58.      That is why my preference, ultimately, is for a third solution which would have the dual advantage of preserving the principle
      that the rules of free movement are not applicable to purely internal situations, without for that matter failing to take
      account of the difficulties which that principle is in danger of causing in practice. The solution is to distinguish between
      the national legislation at issue and the internal situations which may result from it. While the former falls partly within the scope of the Community provisions on the customs union,
      the latter certainly do not. However, it does not follow that they are entirely removed from the scope of Community law. As
      ‘residual’ situations subject to the effects of the application of the Treaty rules to the legislation which governs them,
      it seems to me that they fall within the ambit of the general principles of Community law.
      
      
       C – The proposed solution
        59.      For the purposes of this analysis, I propose that the question whether Community law is applicable in internal situations
      such as that in this case should be distinguished from the question as to which instruments of Community law are capable of
      being applied to those situations, since those two questions raise different issues.
      
      
       1. Applicability of Community law in situations such as that in this case
      
        60.      It is important to bear in mind the principle that each Member State is free, within the limits of its obligations arising
      from the Treaty rules, to establish the system of taxation which it considers the most suitable in relation to each product. 
         			(51)
         		 There can be no question of calling into question the fact that Member States retain fiscal competence in relation to internal
      taxation. That does not mean, however, that the internal situation resulting from the application of the Treaty rules to tax
      legislation is wholly outside the scope of Community law.
      
      
        61.      What we have here is national legislation the scope of which has been reduced as a result of the application of the rules
      on free movement, but which nevertheless continues to give rise to a number of situations which are contentious from the point
      of view of Community law. On the one hand, in so far as it affects Community trade, the national legislation must be disapplied
      in favour of the Community system of free movement. On the other hand, however, in so far as it affects purely internal situations,
      it will continue to apply. Depending on their destination, products covered by that legislation will therefore be subject
      to different systems. This may give rise to discrimination caused by the alternate application of Community or national provisions
      to patently similar situations. 
         			(52)
         		 So it is that, in this case, two different sets of rules will apply depending on the destination of the products, even though
      the situation is always the same: the dispatch of products from the territory of a municipality of a Member State.
      
      
        62.      In this case, discrimination is not caused by either the national legislation or Community law alone. It is the result of
      the partial application of Community law to the national legislation at issue. Even though it was not intended or anticipated,
      that situation is a necessary consequence of the application of Community law. Even though, essentially, it falls within the
      scope of domestic law, that situation is also a ‘residual’ situation from the point of view of Community law. As a consequence
      of the effects it has voluntarily or involuntarily created, Community law becomes one of the constituent parts of the situation.
      
      
        63.      That involvement may not be considered to constitute a sufficient material connection with Community law for the situation
      to be regarded as falling within the scope of Community law. Indeed, as a rule, it is not sufficient that a situation should
      arise from the application of Community law in order for it to fall within the scope of that law. It must also be demonstrated
      that it infringes one of the specific objectives of the Treaty. This has traditionally been the case where the situation in
      question has created a barrier to intra-Community trade. 
         			(53)
         		 In those cases, the situation can be assessed in the light of the provisions on the fundamental freedoms and the objective
      of protecting the common market. However, the aims of the Treaty have now been extended. I take the view that it is now clearly
      one of the fundamental objectives of the Community to ensure that no discrimination of any kind should arise as a result of
      the application of its own rules. 
         			(54)
         		 Consequently, it must always be ensured, so far as possible, that the application of a Community rule does not give rise
      to the infringement of the principle of non-discrimination.
      
      
        64.      A situation such as that referred to in this case is linked to Community law both in the manner in which it came into existence
      and in its effects. It cannot, therefore, be excluded from the scope of Community law.
      
      
       2. Instruments of Community law applicable to the situation in question
      
        65.      The instruments which lend themselves naturally to this relative extension of the scope of Community law are the general principles
      of Community law. These principles are in the nature of fundamental rules of the Community legal order. They provide an objective
      framework for all the rules and situations capable of falling within the scope of Community law. 
         			(55)
         		 They therefore serve either as criteria for assessing the validity of Community acts, or as criteria for interpreting acts
      and situations falling within the scope of Community law. It is from the point of view of their latter capacity that one must
      view the Court’s customary phrase to the effect that the justification provided by a State for a national measure which is
      likely to restrict the fundamental freedoms guaranteed by the Treaty ‘must also be interpreted in the light of the general
      principles of law and in particular of fundamental rights’. 
         			(56)
         		 It seems to me that it is entirely possible to extend that phrase to the assessment of a residual situation such as that
      described earlier, provided that it is established that that situation falls within the scope of Community law.
      
      
        66.      It will be for the competent national authorities to carry out that assessment. They will obviously have significant discretion
      in the use and application of the means which Community law makes available to them. This stems from the fact that they must
      take into consideration a number of specific and conflicting interests in a purely national context. The national court before
      which the case has been brought is clearly in the best position to determine whether discrimination exists in a particular
      case. In a situation such as that in this case, the national court will, for example, have to establish that the different
      treatment which may be applied to products remaining on national territory and products destined for export is justified.
      However, it may be that national law does not provide it with the means to identify and eliminate such discrimination. 
         			(57)
         		 In those circumstances, it seems to me only right that Community law should offer the national court the legislative means
      at its disposal. 
      
      
        67.      The principles applicable in such circumstances include, in particular, the general principle of non-discrimination, established
      by the Court as a fundamental principle of Community law. 
         			(58)
         		 That principle has traditionally been seen as nothing more than a ‘functional extension’ of the rules on free movement. 
         			(59)
         		 In fact, when the Community judicature uses that principle, it is generally to protect the freedoms established by the Treaty.
      The position traditionally taken by the Court is that that principle was intended as an instrument for achieving the economic
      freedoms protected by the Treaty. 
         			(60)
         		
      
        68.      It seems appropriate now for that principle to be given an independent existence and an independent scope. It is fair to say
      that use of the economic freedoms is no longer a necessary condition for the application of the principle of non-discrimination.
      That is the logical conclusion to be drawn from the judgment in Martínez Sala, read in the light of the judgment in Baumbastand R. 
         			(61)
         		 In Martínez Sala, the Court was careful to separate application of the principle of non-discrimination from any consideration concerning the
      performance of an economic activity. It follows from Baumbast and R that the rights deriving from European citizenship fall squarely within the personal rights of Member State nationals in
      their capacity as citizens of the Union. Those rights include the right not to be subjected to unjustified discrimination.
      
         			(62)
         		
      
        69.      This is not an extension of the scope of Community law to all national situations which are potentially discriminatory. Like
      the provisions of the Treaty concerning free movement or the provisions on citizenship of the Union, 
         			(63)
         		 the principle of non-discrimination is not intended to extend the scope ratione materiae of Community law to internal situations which have no link with Community law. 
         			(64)
         		 However, I consider that, unless justified, no discrimination should be imposed, on account of the origin or destination
      of his products, on a national in a residual situation resulting from Community law. Such a national must be able to receive
      Community protection not through application of the rules of free movement but by reference to the principle of non-discrimination.
      
      
       3. Conclusion of the analysis
      
        70.      Taken as a whole, this analysis can be summarised as follows:
      (1)     A charge such as the contested tax constitutes a charge having equivalent effect to a customs duty in so far as it is imposed
      on goods exported from the territory of a Member State.
      (2)     Any situations resulting from the application of Article 25 EC to the tax at issue must, where they concern products destined
      to remain on national territory, be assessed in the light of the general principles of Community law and, in particular, the
      principle of non-discrimination.
      
      
        71.      Whether or not the Court follows this proposal, I would suggest that it should provide a solution which restores consistency
      between the sphere of charges having equivalent effect and the other areas of free movement. Moreover, the Court could reasonably
      expect to derive two benefits from following my proposal. First, it could retain the principle that the rules on free movement
      do not apply to situations having no connection with the situations for which those rules were laid down. Second, subject
      to observance of the limits on the jurisdiction it already has by virtue of the judgment in Guimont, cited above, the Court would be able to provide the national courts with effective instruments for resolving contentious
      situations arising from the application of Community law.
      
      
      V –  The temporal effects of the preliminary ruling
        72.      In the event that the Court should find that the marble tax is incompatible with Community law, the municipality of Carrara
      requests that the temporal effects of its judgment be limited to the future. In this regard, it points, first, to the uncertainties
      regarding the legal framework applicable to the tax in question and, second, to the serious financial consequences which such
      a decision may have for the municipality.
      
      
        73.      In principle, a rule interpreted by the Court under Article 234 EC may, and must, be applied by the national court even to
      legal relationships arising and established before the judgment ruling on the request for interpretation. 
         			(65)
         		 It is, therefore, only in exceptional circumstances, having regard to overriding reasons of legal certainty, that the Court
      has been able to restrict for the persons concerned the opportunity of relying upon the provision thus interpreted with a
      view to calling in question legal relationships established in good faith. 
         			(66)
         		
      
        74.      In this case, the analysis has shown that there was no objective uncertainty as to the scope of Article 25 EC. No significant
      evidence has been produced to cast doubt on the incompatibility of such a tax with Community law. The only exceptions to the
      foregoing are those cases where the tax was claimed before the judgment in Legros and Others, cited above, was delivered. Until that judgment, the municipality could reasonably have considered that tax not to be incompatible
      with Community law, at least in so far as it was imposed on purely internal trade. However, the analysis carried out in that
      judgment should have raised serious doubts as to the validity of the contested tax. Moreover, that was the approach taken
      by the Court in the judgment in Simitzi, cited above.
      
      
        75.      Since the tax at issue is similar to the one at issue in Simitzi, it seems sensible to me to apply to it the approach adopted in that judgment. The Court will then be able to find that the
      Treaty provisions concerning charges having equivalent effect to customs duties cannot be relied on in support of claims for
      refunds of amounts levied by way of the contested tax before 16 July 1992, except by claimants who had, before that date,
      initiated legal proceedings or raised an equivalent claim.
      
      
        76.      I should add, in the alternative, that, if the Court were to decide to uphold the analysis I am proposing, there would be
      no need to adopt a different solution in this regard. First, it is fair to say that the judgment in Legros and Others, cited above, created a new legal position in this area which the parties concerned were entitled to regard as stable and
      clear. Second, the solution proposed does not seek to achieve a result different from that following from the judgment in
      Simitzi, even if the analysis on which the solution is based arrives at that result by a new route.
      
       
      VI –  Conclusion
        77.      In the light of the foregoing considerations, I propose that the Court should reply as follows to the question referred in
      this case:
      (1)     A tax levied by a Member State on goods by reason of their being transported out of the territory of a municipality of that
      Member State constitutes a charge having equivalent effect to a customs duty in so far as it is imposed on goods exported
      to another Member State.
      (2)     Any situations resulting from the application to the contested tax of the provisions of the EC Treaty concerning charges having
      equivalent effect to a customs duty must, where they concern products dispatched to another part of the national territory,
      be assessed in the light of the general principles of Community law and, in particular, the principle of non-discrimination.
      (3)     The Treaty provisions relating to charges having equivalent effect to customs duties cannot be relied on in support of claims
      for refunds of amounts levied by way of the contested tax before 16 July 1992, except by claimants who had, before that date,
      initiated legal proceedings or raised an equivalent claim. 
      
      
       1 –
         
         Original language: Portuguese.
      
      2 –
         
         It is to be noted that similar questions concerning the application of this tax have been referred to the Court for a preliminary
            ruling in four cases currently pending which have been the subject of an order for joinder (Cases C-426/03 to C-429/03 GE.M.E.G. and Others).
            
         
      
      3 –
         
         Joined Cases C-363/93, C-407/93, C-408/93 to C-411/93 LancryandOthers [1994] ECR I‑3957, and Joined Cases C-485/93 and C-486/93 Simitzi [1995] ECR I-2655. The starting point for this case-law can be found in Case C-163/90 LegrosandOthers [1992] ECR I-4625.
            
         
      
      4 –
         
         See, in particular, Joined Cases C-321/94 to C-324/94 Pistre and Others [1997] ECR I-2343, and Case C-448/98 Guimont [2000] ECR I-10663.
            
         
      
      5 –
         
         According to the submissions made at the hearing, it would seem, in any event, that those amendments do not alter the nature
            or scope of the legislation under examination in this case.
            
         
      
      6 –
         
         Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraphs 6 and 7.
            
         
      
      7 –
         
         In this respect, the situation is different from that which gave rise to the Order of the Court in Case C-326/95 Banco de Fomento e Exterior [1996] ECR I-1385, in which it held the questions referred to it to be manifestly inadmissible.
            
         
      
      8 –
         
         See, in particular, Joined Cases C-180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, paragraphs 52 and 53.
            
         
      
      9 –
         
         See, in particular, Case 244/78 Union laitière normande [1979] ECR 2663, and Telemarsicabruzzo and Others, cited above in footnote 6.
            
         
      
      10 –
         
         See, in particular, Case 104/79 Foglia [1980] ECR 745, and Case 244/80 Foglia [1981] ECR 3045.
            
         
      
      11 –
         
         See, in particular, Joined Cases C-37/96 and C-38/96 Sodiprem and Others [1998] ECR I-2039, paragraph 22.
            
         
      
      12 –
         
         Case 238/82 Duphar and Others [1984] ECR 523, paragraph 30.
            
         
      
      13 –
         
         Case 267/86 Van Eycke [1988] ECR 4769, paragraph 16, and, most recently, Case C-198/01 Consorzio Industrie Fiammiferi [2003] ECR I-0000, paragraphs 45 and 46.
            
         
      
      14 –
         
         See, in particular, Case 286/81 Oosthoek’s Uitgeversmaatschappij [1982] ECR 4575, paragraph 9; Case 98/86 Mathot [1987] ECR 809, paragraphs 7 to 9; Case C-332/90 Steen [1992] ECR I‑341, paragraph 9; and Case C-108/98 RI.SAN. [1999] ECR I-5219, paragraph 23.
            
         
      
      15 –
         
         .Simitzi, cited above in footnote 3, paragraphs 21 and 25. The Court refers, in this connection, to Legros and Others and Lancry and Others, cited above in footnote 3.
            
         
      
      16 –
         
         See, by analogy, Simitzi, cited above in footnote 3, paragraph 22.
            
         
      
      17 –
         
         See, in particular, Case 158/82 Commission v Denmark [1983] ECR 3573, paragraph 24, and the Opinion of Advocate General Mancini in that case.
            
         
      
      18 –
         
         See, in particular, Joined Cases C-441/98 and C-442/98 Michaïlidis [2000] ECR I-7145. That case concerned a charge imposed only on the export of tobacco products.
            
         
      
      19 –
         
         Case 24/68 Commission v Italy [1969] ECR 193, paragraphs 9 and 14.
            
         
      
      20 –
         
         See, in particular, Joined Cases 2/69 and 3/69 Social Fonds voor de Diamantarbeiders [1969] ECR 211, paragraph 18.
            
         
      
      21 –
         
         .Commission v Italy, cited above in footnote 19, paragraph 7.
            
         
      
      22 –
         
         See, in particular, Case 7/68 Commission v Italy [1968] ECR 423, Case 29/72 Marimex [1972] ECR 1309, paragraph 7, and Michaïlidis, cited above in footnote 18, paragraph 17.
            
         
      
      23 –
         
         .Commission v Italy, cited above in footnote 19, paragraph 11.
            
         
      
      24 –
         
         See, in particular, Case 63/74 Cadsky [1975] ECR 281, paragraph 8, and Case 132/82 Commission v Belgium [1983] ECR 1649, paragraph 8.
            
         
      
      25 –
         
         Defendant’s observations, p. 12. It will, after all, be recalled that Law No 75/1999, interpreting Law No 749/1911, provides
            that the marble tax is decided in relation ‘to the municipality’s overheads directly or indirectly arising from activities
            in the local marble industry’.
            
         
      
      26 –
         
         See, by analogy, Cadsky, cited above in footnote 24, paragraph 8.
            
         
      
      27 –
         
         See, by analogy, Case C-389/00 Commission v Germany [2003] ECR I-2001, paragraphs 35 and 36.
            
         
      
      28 –
         
         See, in particular, Marimex, cited above in footnote 22, paragraph 7, and Case 78/76 Steineke & Weinlig [1977] ECR 595, paragraph 28.
            
         
      
      29 –
         
         See, in particular, Case 90/79 Commission v France [1981] ECR 283, paragraph 14.
            
         
      
      30 –
         
         See, in particular, Case 158/82 Commission v Denmark [1983] ECR 3573, and Case C-109/98 CRT France International [1999] ECR I-2237.
            
         
      
      31 –
         
         In his Opinion in CRTFranceInternational, cited above in footnote 30, Advocate General Cosmas points out that, in determining the classification which must be made
            in such a case, the Court is not oblivious to the background to the imposition of the contested charge or to its objective
            (point 25).
            
         
      
      32 –
         
         Opinion of Advocate General Tesauro in Lancry and Others, cited above in footnote 3, point 28.
            
         
      
      33 –
         
         This concern is one of the essential grounds of the Court’s reasoning in that case. It should be noted that the term ‘Community
            customs territory’ is generally used by the Court to refer to the spatial scope of the Treaty provisions concerning the customs
            union, not as a designation of competence conferred as such on the Community.
            
         
      
      34 –
         
         To do so, the Court must have taken frontier to have a meaning which is not consistent with the definition commonly accepted
            in public international law. The Dictionnaire de la terminologie du droit international public, edited by J. Basdevant, defines ‘frontière’ as follows: ‘Limite du territoire d’un État. Limite déterminant où commencent et finissent les territoires de deux États voisins’ (Limit of the territory of a State. Limit determining where the territories of two neighbouring States begin and end). (The
            same definition appears in the Dictionnaire de droit international public, edited by Salmon J., Bruylant, Brussels, 2001, p. 520.) A similar definition can be found in the Encyclopedia of Public International Law, edited by Bernhardt R., under the entry ‘Boundaries’.
            
         
      
      35 –
         
         That was in fact the position expressed by some legal academics: in particular, Keppenne, J.-P., and van Ypersele, P., ‘Vers
            une application du droit communautaire à des obstacles à la libre circulation des marchandises à l’intérieur d’un État membre’,
            Journal des tribunaux de droit européen, 1994, p. 179, and Rigaux, A., and Simon, D., in their commentary on Lancry and Others, cited above, Europe, 1994, No 361.
            
         
      
      36 –
         
         See, to that effect, d’Oliveira, H.U.J., ‘Is reverse discrimination still possible under the Single European Act?’, Forty years on: the evolution of private international law in Europe, Kluwer, Deventer, 1990, pp. 71 to 86.
            
         
      
      37 –
         
         In support of that reasoning, Advocate General Geelhoed took the legitimate view that, with the capital market that emerged
            within the Economic and Monetary Union now unified, a purely internal situation can no longer be said to exist in respect
            of the free movement of capital. He thus considers the unity of the capital market to be similar to that which has existed
            for a longer time in the Community customs territory (Opinion in Joined Cases C‑515/99, C-519/99 to C‑524/9 and C-526/99 to
            C-540/99 Reisch and Others [2002] ECR I-2157, points 104 and 105).
            
         
      
      38 –
         
         The contradiction is also noted by legal academics, in particular by Oliver, P., Free Movement of Goods in the European Community, Sweet & Maxwell, No 6 103 to 6 106, 2003.
            
         
      
      39 –
         
         That extension has taken two distinct forms in the Court’s recent decisions: cases where national legislation which is discriminatory
            or hinders access to the market of a Member State itself creates and maintains a difference in treatment obstructing intra-Community
            trade (Pistre and Others, cited above in footnote 4, and Case C-254/98 TK-Heimdienst [2000] ECR I‑151), or cases where, in view of the relevant circumstances, the Court wishes to give the national court a useful
            answer which will enable it to assess the national legislation in the proceedings before it (Guimont, cited above in footnote 4, and Reisch and Others, cited above in footnote 37).
            
         
      
      40 –
         
         See, in particular, Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I‑6097, the Opinion of Advocate General Tesauro in Case C-292/92 Hünermund and Others [1993] ECR I-6787, and the Opinion of Advocate General Tizzano in Case C‑442/02 CaixaBank France [2004] ECR I-0000, points 62 and 63. See also, to that effect, Bernard, N., ‘La libre circulation des marchandises, des personnes
            et des services dans le traité CE sous l’angle de la compétence’, Cahiers de droit européen, 1998, in particular p. 26.
            
         
      
      41 –
         
         See, by analogy, Joined Cases 314/81 to 316/81 and 83/82 Waterkeyn and Others [1982] ECR 4337, paragraphs 11 and 12.
            
         
      
      42 –
         
         .Lancry and Others, cited above in footnote 3, paragraph 31.
            
         
      
      43 –
         
         On this issue, see, most recently, the Opinion of Advocate General Léger in Case C-294/01 Granarolo [2003] ECR I-0000, point 78 et seq.
            
         
      
      44 –
         
         See, in particular, Case 86/78 Peureux [1979] ECR 897, paragraph 38, Case 355/85 Driancourt [1986] 3231, paragraphs 10 and 11, and Case 98/86 Mathot [1987] ECR 809, paragraph 7. See also the more moderate position adopted by Advocate General Mischo in Joined Cases 80/85
            and 159/85 Edah [1986] ECR 3359, where he says: ‘[r]everse discrimination is clearly impossible in the long run within a true common market,
            which must of necessity be based on the principle of equal treatment. Such discrimination must be eliminated by means of the
            harmonisation of legislation.’
            
         
      
      45 –
         
         See, to that effect, Case C-132/93 Steen [1994] ECR I-2715, paragraph 10.
            
         
      
      46 –
         
         One example is the uncertainty of the French courts with regard to the judgment of the Court of Justice finding the French
            rules on the advertising of alcoholic beverages to be unlawful: see Isaac, G., ‘La condamnation du régime français de publicité
            pour les boissons alcooliques’, Revue trimestrielle de droit européen, 1983, p. 470 et seq.
            
         
      
      47 –
         
         Cited above in footnote 4.
            
         
      
      48 –
         
         Following settled case-law, see, in particular, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59.
            
         
      
      49 –
         
         .Guimont, cited above in footnote 4, paragraph 23.
            
         
      
      50 –
         
         Some domestic legal systems are particularly ill-equipped to combat discrimination arising from the application of national
            legislation. These are systems which make no provision for judicial review of the constitutionality of legislation, or, if
            they do, provide only for preventive review. That is the case, in particular, in France and the United Kingdom.
            
         
      
      51 –
         
         Case 127/75 Bobie [1976] ECR 1079, paragraph 9.
            
         
      
      52 –
         
         See, to that effect, Due, O., and Gulmann, C., ‘Restrictions à la libre circulation intracommunautaire et situations purement
            internes’, Une Communauté de droit. Festschrift für Gil Carlos Rodríguez Iglesias, Verlag, Berlin, 2003, in particular p. 383.
            
         
      
      53 –
         
         See, in particular, Case 115/78 Knoors [1979] ECR 399, paragraphs 20 and 24, and Driancourt, cited above in footnote 44, paragraph 10.
            
         
      
      54 –
         
         Although this has no legal implications, it should be noted that Article 2 of the Draft Treaty establishing a Constitution
            for Europe provides that the Union’s values are ‘common to the Member States in a society of pluralism, tolerance, justice,
            solidarity and non-discrimination’ and Article 3 thereof sets the Union the objective, in particular, to combat discrimination.
            
         
      
      55 –
         
         See Advocate General Stix-Hackl’s comments on the position of the general principles in the Community legal order in her Opinion
            of 18 March 2004 in Case C-36/02 Omega, pending before the Court.
            
         
      
      56 –
         
         In the Court’s case-law, that phrase applies both to justifications provided by States on the basis of overriding requirements
            in the general interest (Case C-368/95 Familiapress [1997] ECR I‑3689, paragraph 24) and to those based on the public policy provisions laid down by the Treaty (Case C-260/89
            ERT [1991] ECR I-2925, paragraph 43).
            
         
      
      57 –
         
         It should be pointed out that, in a decision of 30 December 1997, the Corte costituzionale (Italy) disapplied an item of national
            legislation which gave rise to reverse discrimination following the application of Article 28 EC to part of that legislation
            (Decision No 443, paragraph 5 of the grounds, published in the Rivista di diritto internazionale, 1998, p. 531). In that case, the Corte costituzionale based its decision solely on the national constitutional principles
            of equality and freedom of economic initiative. However, other national courts faced with a similar situation may not be able
            to find in their national law the ways and means of arriving at such a solution.
            
         
      
      58 –
         
         Joined Cases 117/76 and 16/77 Ruckdeschel and Others [1977] ECR 1753, paragraph 7.
            
         
      
      59 –
         
         See, to that effect, in particular, the study by Lenaerts, K., ‘L’égalité de traitement en droit communautaire. Un principe
            unique aux apparences multiples’, Cahiers de droit européen, 1991, pp. 3 to 41.
            
         
      
      60 –
         
         See, in particular, Case 186/87 Cowan [1989] ECR 195, and Case C-224/98 D’Hoop [2002] ECR I-6191. See also, to that effect, the Opinion of Advocate General Lagrange in Case 13/63 Italy v Commission [1963] ECR 165, in which the Advocate General states that ‘it is thus only within the sphere of the ends pursued that the
            principle must be respected’, and the Opinion of Advocate General La Pergola in Case C-85/96 Martínez Sala [1998] ECR I-2691, in which the Advocate General describes the principle as a ‘corollary of the freedom of movement’.
            
         
      
      61 –
         
         .Martínez Sala, cited above in footnote 60, and Case C-413/99 Baumbast and R [2002] ECR I‑7091. Between those two judgments, the Court developed its case-law on the subject, in Case C-274/96 Bickel and Franz [1998] ECR I-7637, Case C‑184/99 Grzelczyk [2001] ECR I-6193, and D’Hoop, cited above in footnote 60.
            
         
      
      62 –
         
         See, to that effect, the Opinion of Advocate General La Pergola in MartínezSala, cited above in footnote 60, point 23.
            
         
      
      63 –
         
         Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR I-3171, paragraph 23.
            
         
      
      64 –
         
         Case 44/84 Hurd [1986] ECR 29, paragraph 55.
            
         
      
      65 –
         
         Case 61/79 Denkavit italiana [1980] ECR 1205, paragraph 16.
            
         
      
      66 –
         
         .Legros and Others, cited above in footnote 3, paragraphs 30 to 36.