1 BY JUDGEMENT OF 16 JULY 1974, REGISTERED AT THE COURT ON 17 JULY, THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED THREE QUESTIONS UNDER ARTICLE 177 OF THE EEC TREATY CONCERNING THE INTERPRETATION OF CERTAIN PROVISIONS OF COMMUNITY LAW IN RELATION TO NETHERLANDS REGULATIONS INTRODUCING CERTAIN LEVIES IN THE BULB TRADE SECTOR .
2 THESE QUESTIONS WERE PUT IN THE COURSE OF PROCEEDINGS IN WHICH A COMPANY WHICH CULTIVATES AND SELLS FLOWER BULBS OBJECTS TO PAYMENT OF CERTAIN SUMS CLAIMED FROM IT AS LEVIES CHARGEABLE ON BULBS OF THE 1972 SEASON .
3 THESE LEVIES ARE A SO-CALLED 'SURPLUS' LEVY AND A SO-CALLED 'TRADE' LEVY IN THE BULB SECTOR;
4 THE EFFECT OF THE REGULATIONS GOVERNING THE SURPLUS LEVY IS THAT EVERY PURCHASER IN POSSESSION OF A TRADE CARD ISSUED BY THE TRADE ORGANIZATION IN THE ORNAMENTAL PLANTS SECTOR BENEFITS FROM A REDUCTION ON THE SELLING PRICE AND THAT EVERY SELLER IS OBLIGED TO PAY THE LEVY UPON THE SALE OF BULBS TO A PURCHASER, INCLUDING EVERY FOREIGN PURCHASER, NOT IN POSSESSION OF THE CARD, THE ALLOWANCE AND THE LEVY BEING OF THE SAME AMOUNT;
5 THE LEVY IS NOT CHARGED IN CASES WHERE THE BULB PRODUCER USES THE BULBS FOR FLOWER GROWING ON HIS OWN PREMISES AND, FOR A CERTAIN TIME IN 1973, THIS ALSO APPLIED IN THE CASE OF A PURCHASER IN POSSESSION OF A TRADE CARD WHO USED THE BULBS HIMSELF FOR FLOWER GROWING .
6 THE REVENUE FROM THE LEVY IS PAID INTO A FUND WHOSE MAIN PURPOSE IS TO FINANCE THE PURCHASE OF BULBS WHICH ARE SUBMITTED FOR DESTRUCTION BECAUSE THEY HAVE NOT FETCHED ON THE MARKET THE MINIMUM PRICE FIXED BY THE FUND .
7 THE EFFECT OF THE REGULATIONS GOVERNING THE TRADE LEVY IS THAT IT IS IMPOSED AND COLLECTED PURSUANT TO RULES WHICH, GENERALLY SPEAKING, ARE SIMILAR TO THE RULES GOVERNING THE SURPLUS LEVY, THOUGH THERE ARE DIFFERENCES BETWEEN THEM ON SEVERAL POINTS OF DETAIL OF CONSIDERABLE COMPLEXITY .
8 IT IS, INTER ALIA, PROVIDED THAT THE REDUCTION TO BE GRANTED BY THE SELLER, LIKE THE AMOUNT OF THE LEVY TO BE PAID ON SALES TO NETHERLANDS PURCHASERS, ARE 5 PER CENT LOWER THAN THE AMOUNT OF THE LEVY TO BE PAID ON SALES TO A FOREIGN PURCHASER .
9 THE REVENUE FROM THE LEVY IS PAID INTO A FUND FOR FINANCING TRADE PURPOSES IN THE BULB GROWING SECTOR, FOR FINANCING SCIENTIFIC RESEARCH, GENERAL TRADE PUBLICITY AND OTHER GENERAL TRADE PURPOSES . FIRST QUESTION
10 THE FIRST QUESTION ASKS WHETHER ARTICLE 16 OF THE EEC TREATY AND ARTICLE 10 OF REGULATION NO 234/68 ON THE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN LIVE TREES AND OTHER PLANTS, BULBS, ROOTS AND THE LIKE, CUT FLOWERS AND ORNAMENTAL FOLIAGE ARE TO BE INTERPRETED AS MEANING THAT LEVIES SUCH AS THOSE IN DISPUTE CONSTITUTE CHARGES HAVING EQUIVALENT EFFECT TO CUSTOMS DUTIES ON EXPORT .
11 THE PARTIES IN THE MAIN ACTION APPEAR TO BE IN AGREEMENT THAT THE SURPLUS LEVY HAS THE SAME IMPACT ON INTERNAL MARKETING IN THE NETHERLANDS AND ON EXPORTATION OF THE PRODUCTS CONCERNED, BUT THEY DISAGREE ON THE QUESTION WHETHER THE HEAVIER CHARGE IMPOSED ON EXPORTS OWING TO THE DIFFERENT RATES OF THE TRADE LEVY IS OFFSET BY OTHER FACTORS WHICH ARE PART AND PARCEL OF THE OVERALL PATTERN OF THE NETHERLANDS REGULATIONS ON THE SUBJECT OF BULB AND FLOWER PRODUCTION .
12 THE COURT CANNOT, WITHIN THE FRAMEWORK OF PROCEEDINGS BROUGHT UNDER ARTICLE 177 OF THE TREATY, SETTLE A DIFFERENCE OF THIS KIND WHICH, LIKE ANY OTHER ASSESSMENT OF THE FACTS INVOLVED, IS WITHIN THE PROVINCE OF THE NATIONAL COURT .
13 THE PROHIBITION ON THE LEVYING OF CHARGES HAVING EQUIVALENT EFFECT TO CUSTOMS DUTIES ON EXPORT IN TRADE WITHIN THE COMMUNITY COVERS ANY CHARGE LEVIED AT THE TIME OF OR BY REASON OF EXPORT OF THE PRODUCT IN QUESTION WHICH PRODUCES THE SAME RESTRICTIVE EFFECT AS A CUSTOMS DUTY ON THE FREE MOVEMENT OF GOODS .
14 TO THE EXTENT THAT IT MAY BE ESTABLISHED THAT APPLICATION OF AN INTERNAL LEVY FALLS MORE HEAVILY ON EXPORT SALES THAN ON SALES WITHIN THE COUNTRY CONCERNED THE LEVY HAS AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON EXPORT .
15 MOREOVER, IF AN INTERNAL LEVY IS THE SAME ON DOMESTIC SALES AND ON EXPORTS, IT MAY BE NECESSARY TO TAKE INTO ACCOUNT THE USE TO WHICH THE REVENUE FROM THESE CHARGES IS PUT .
16 IF, IN FACT, A LEVY IS DESIGNATED TO FINANCE ACTIVITIES WHICH SERVE TO MAKE MARKETING WITHIN THE COUNTRY MORE PROFITABLE THAN EXPORTATION OR IN ANY OTHER WAY TO GIVE PREFERENTIAL TREATMENT TO THE PRODUCT INTENDED FOR THE INTERNAL MARKET, TO THE DETRIMENT OF THAT INTENDED FOR EXPORT, IT IS LIABLE TO IMPEDE EXPORTS AND THUS TO HAVE AN EFFECT EQUIVALENT TO A CUSTOMS DUTY .
17 THE ANSWER TO THIS QUESTION THEREFORE MUST BE THAT AN INTERNAL LEVY MAY HAVE AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON EXPORT WHEN ITS APPLICATION FALLS MORE HEAVILY ON EXPORT SALES THAN ON SALES WITHIN THE COUNTRY, OR WHEN THE LEVY IS INTENDED TO FUND ACTIVITIES LIKELY TO MAKE INTERNAL MARKETING MORE PROFITABLE THAN EXPORTATION OR IN ANY WAY TO GIVE PREFERENTIAL TREATMENT TO THE PRODUCT INTENDED FOR MARKETING WITHIN THE COUNTRY, TO THE DETRIMENT OF THAT INTENDED FOR EXPORT . SECOND QUESTION
18 THE SECOND QUESTION ASKS THE COURT TO RULE WHETHER ARTICLE 40 OF THE TREATY AND ARTICLE 1 OF REGULATION ( EEC ) NO 234/68 OR ANY OTHER PROVISION OR GENERAL PRINCIPLE OF COMMUNITY LAW MEAN THAT, AS REGARDS THE SECTOR DEFINED IN ARTICLE 1 OF REGULATION ( EEC ) NO 234/68, DUTCH BODIES HAVING LEGISLATIVE CAPACITY ARE NO LONGER PERMITTED TO MAKE ANY MARKET-REGULATORY PROVISIONS SUCH AS THAT CONTAINED IN THE 'REGULATION - SURPLUS LEVY' AND IN THE 'REGULATION - TRADE LEVY' EXCEPT FOR THE PURPOSE OF CARRYING INTO EFFECT THE PROVISIONS OF REGULATION ( EEC ) NO 234/68 OR ANY OTHER PROVISIONS OF COMMUNITY LAW .
19 ARTICLE 40 ( 2 ) OF THE TREATY PROVIDES THAT A COMMON ORGANIZATION OF AGRICULTURAL MARKETS SHALL BE ESTABLISHED TAKING THE FORM OF COMMON RULES ON COMPETITION, COMPULSORY COORDINATION OF THE VARIOUS NATIONAL MARKET ORGANIZATIONS, OR A EUROPEAN MARKET ORGANIZATION .
20 UNDER ARTICLE 40 ( 3 ) THE COMMON ORGANIZATION ESTABLISHED IN ONE OR OTHER OF THESE FORMS MAY INCLUDE ALL MEASURES REQUIRED TO ATTAIN THE OBJECTIVES OF THE COMMON AGRICULTURAL POLICY, IN PARTICULAR REGULATION OF PRICES, AIDS FOR THE PRODUCTION AND MARKETING OF THE VARIOUS PRODUCTS, STORAGE AND CARRY-OVER ARRANGEMENTS, AND COMMON MACHINERY FOR STABILIZING IMPORTS OR EXPORTS .
21 ARTICLE 1 OF REGULATION NO 234/68 PROVIDES THAT THE COMMON ORGANIZATION OF THE MARKET ESTABLISHED THEREUNDER SHALL COMPRISE COMMON QUALITY STANDARDS AND A TRADING SYSTEM IN THE SECTOR CONCERNED .
22 ARTICLE 12 OF THE REGULATION PROVIDES THAT THE COUNCIL SHALL ADD FURTHER PROVISIONS TO THE REGULATION AS MAY BE REQUIRED IN THE LIGHT OF EXPERIENCE .
23 THE SECOND RECITAL OF THE PREAMBLE TO REGULATION NO 234/68 STATES THAT THE PRODUCTION OF LIVE TREES AND OTHER PLANTS, BULBS, ROOTS AND THE LIKE, CUT FLOWERS AND ORNAMENTAL FOLIAGE IS OF PARTICULAR IMPORTANCE TO THE AGRICULTURAL ECONOMY OF CERTAIN REGIONS OF THE COMMUNITY AND DECLARES THE NEED TO PROMOTE THE RATIONAL MARKETING OF SUCH PRODUCTION AND TO ENSURE STABLE MARKET CONDITIONS .
24 AS REGARDS BULBS IN PARTICULAR, IT IS NOT DISPUTED THAT EXPORTS FROM THE NETHERLANDS REPRESENT MORE THAN 90 PER CENT OF THE TOTAL EXPORTS FROM MEMBER STATES .
25 ONCE THE COMMUNITY HAS, PURSUANT TO ARTICLE 40 OF THE TREATY, LEGISLATED FOR ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN A GIVEN SECTOR, MEMBER STATES ARE UNDER AN OBLIGATION TO REFRAIN FROM TAKING ANY MEASURE WHICH MIGHT UNDERMINE OR CREATE EXCEPTIONS TO IT .
26 FOR THIS REASON IT IS FIRST OF ALL NECESSARY TO CONSIDER WHETHER A SET OF REGULATIONS SUCH AS THOSE UNDER REVIEW IS COMPATIBLE WITH REGULATION NO 234/68 HAVING REGARD NOT ONLY TO THE EXPRESS PROVISIONS OF THE LEGISLATION BUT ALSO TO ITS AIMS AND OBJECTS .
27 REGULATION NO 234/68 CONTAINS NO REFERENCE, EITHER IN POSITIVE OR IN NEGATIVE TERMS, TO THE COMPATIBILITY OR OTHERWISE OF NATIONAL REGULATIONS, PRESENT OR FUTURE, WITH THE COMMON MARKET ORGANIZATION ESTABLISHED BY ITS PROVISIONS .
28 CONSIDERATION MUST THEREFORE BE GIVEN TO THE QUESTION WHETHER THE EXISTENCE OF A NATIONAL INTERVENTION MECHANISM, SUCH AS THAT ESTABLISHED BY THE NETHERLANDS REGULATIONS, IS OF SUCH A NATURE AS TO UNDERMINE THE AIMS AND OBJECTS OF REGULATION NO 234/68 .
29 WHEN THE VOLUME OF NATIONAL PRODUCTION IS OF SUCH MAGNITUDE IN THE COMMON MARKET AS THAT OF BULB PRODUCTION IN THE NETHERLANDS, A MECHANISM OF THIS KIND CAN BE OF VALUE IN PROMOTING THE RATIONAL MARKETING OF PRODUCTION AND ENSURING STABLE MARKET CONDITIONS NOT ONLY IN THE MEMBER STATE CONCERNED BUT ALSO THROUGHOUT THE COMMUNITY .
30 IT IS STILL NECESSARY, HOWEVER, TO STUDY NOT ONLY THE NATIONAL INTERVENTION MECHANISM AS A WHOLE BUT ALSO ITS CONSTITUENT PARTS, ESPECIALLY THE QUALITY STANDARDS WHICH MUST BE SATISFIED BY PRODUCTS TO QUALIFY FOR INTERVENTION, IN THEIR RELATIONSHIP TO THE QUALITY STANDARDS FIXED BY THE COMMUNITY FOR THE MARKETING OF THE PRODUCTS .
31 IN THIS CONNEXION NATIONAL QUALITY STANDARDS WHICH ARE LESS DEMANDING THAN COMMUNITY STANDARDS MAY TEND TO ENCOURAGE THE PRODUCTION OF UNMARKETABLE BULBS .
32 IF THE EXTRA COST WHICH THIS IMPOSES ON THE FUND FINANCING THE INTERVENTION IS COVERED BY THE LEVY AND THUS DISTRIBUTED AMONG THE MARKETED PRODUCTS, INCLUDING EXPORTS, THIS MILITATES AGAINST THE AIM PURSUED BY THE COMMON ORGANIZATION OF THE MARKET AND THE REGULATIONS ARE TO THAT EXTENT INCOMPATIBLE WITH IT .
33 THE PLAINTIFF IN THE MAIN ACTION CONTENDS THAT THE NETHERLANDS REGULATIONS ON THE SURPLUS LEVY AND THE TRADE LEVY EMBODY ELEMENTS OF DISCRIMINATION WHICH ARE IN BREACH OF THE PRINCIPLES ENSHRINED IN THE TREATY .
34 IN THIS CONTEXT, THE PROHIBITIONS AGAINST DISCRIMINATION WHICH REQUIRE TO BE CONSIDERED ARE THE OUTCOME, FIRST, OF THE PRINCIPLE UNDERLYING ARTICLE 95 OF THE TREATY CONCERNING INTERNAL TAXATION AND, SECOND, OF THE PROVISION IN THE SECOND PARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY UNDER WHICH COMMON ORGANIZATIONS OF THE AGRICULTURAL MARKETS SHALL EXCLUDE ANY DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS WITHIN THE COMMUNITY .
35 REGULATIONS SUCH AS THOSE UNDER CONSIDERATION CONFLICT WITH THE PROHIBITIONS WHICH ARE EMBODIED IN THESE PROVISIONS, IF ONLY BY ANALOGY, IN CIRCUMSTANCES WHERE EXPORTED GOODS ARE SUBJECT TO A HEAVIER CHARGE THAN THOSE PLACED ON THE NATIONAL MARKET, OR WHERE THE REVENUE FROM THE CHARGE IS INTENDED TO PLACE NATIONAL PRODUCTS AT AN ADVANTAGE .
36 THE REPLY TO THE QUESTION REFERRED MUST THEREFORE BE THAT ( A ) A NATIONAL INTERVENTION MECHANISM IS INCOMPATIBLE WITH REGULATION NO 234/68 ON THE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN LIVE PLANTS INSOFAR AS PRODUCTS WHICH DO NOT SATISFY COMMUNITY STANDARDS LAID DOWN UNDER THE REGULATION QUALIFY FOR THE INTERVENTION; ( B ) AN INTERNAL LEVY ON SALES OF A PRODUCT IS INCOMPATIBLE WITH THE PROHIBITION OF DISCRIMINATION EMBODIED IN THE EEC TREATY WHEN IT FALLS MORE HEAVILY ON EXPORT SALES THAN ON SALES ON THE NATIONAL MARKET OR WHEN THE REVENUE FROM THE LEVY IS DESIGNED TO PLACE NATIONAL PRODUCTS AT AN ADVANTAGE .
37 THIS REPLY, GIVEN IN PROCEEDINGS UNDER ARTICLE 177 OF THE TREATY, CANNOT PREJUDICE THE OUTCOME OF ANY INVESTIGATION BY THE COMMISSION TO ESTABLISH WHETHER THE NATIONAL MEASURES IN QUESTION CONSTITUTE AIDS INCOMPATIBLE WITH ARTICLE 92 OF THE TREATY . THIRD QUESTION
38 THE THIRD QUESTION ASKS THE COURT TO DECLARE WHETHER ARTICLE 93 ( 3 ) MUST BE UNDERSTOOD AS MEANING THAT THE PROCEDURE REFERRED TO IN THE SECOND SENTENCE OF THAT PARAGRAPH ALSO INCLUDES THE GIVING OF NOTICE, AS DEFINED IN ARTICLE 93 ( 2 ) AND TO WHICH PARAGRAPH ( 3 ) REFERS; AND, IF THE ANSWER IS IN THE AFFIRMATIVE, WHETHER ARTICLE 93 ( 3 ) MUST BE INTERPRETED AS MEANING THAT SUCH GIVING OF NOTICE ON THE PART OF THE COMMISSION HAS AS A CONSEQUENCE THAT THE RELEVANT NATIONAL SUPPORT MEASURE MUST NOT BE CARRIED INTO EFFECT FOR AS LONG AS THE PROCEDURE PREVIOUSLY REFERRED TO HAS NOT RESULTED IN A FINAL DECISION .
39 IT IS CLEAR FROM THE JUDGMENT OF REFERENCE THAT THIS QUESTION WAS PUT AS A CONSEQUENCE OF A DOCUMENT LODGED BY THE PLAINTIFF IN THE MAIN ACTION AND QUOTING A LETTER ADDRESSED BY THE COMMISSION ON 9 FEBRUARY 1972 TO THE NETHERLANDS MINISTER OF FOREIGN AFFAIRS .
40 IT IS, HOWEVER, CLEAR FROM THE HEADING OF THE LETTER THAT ITS SUBJECT-MATTER WAS NOT THE GIVING OF NOTICE WITHIN THE MEANING OF PARAGRAPH ( 2 ) OF THE ARTICLE BUT THAT IT AROSE IN THE COURSE OF AN INVESTIGATION OF AID SYSTEMS BEING UNDERTAKEN BY THE COMMISSION PURSUANT TO PARAGRAPH ( 1 ) OF THE ARTICLE .
41 IN FACT, THE LETTER CONTAINS PROPOSALS DRAWN UP NOT UNDER ARTICLE 93 ( 3 ) BUT UNDER THE SECOND SENTENCE OF PARAGRAPH ( 1 ), AS WAS CONFIRMED BY THE COMMISSION IN THE OBSERVATIONS WHICH IT SUBMITTED BEFORE THE COURT DURING THE PRESENT PROCEEDINGS .
42 IN THE VIEW OF THE COURT, THESE CIRCUMSTANCES ROB THE QUESTION OF ANY POINT .