1BY AN ORDER OF 14 SEPTEMBER 1978 WHICH WAS RECEIVED AT THE COURT ON 2 OCTOBER 1978 , THE PRETORE OF REGGIO EMILIA REFERRED TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY FOUR PRELIMINARY QUESTIONS CONCERNING THE INTERPRETATION OF CERTAIN COMMUNITY PROVISIONS .
2THESE QUESTIONS ARE RAISED IN THE CONTEXT OF A DISPUTE OVER THE LEGALITY OF CONTRIBUTIONS TO THE CASSA CONGUAGLIO ZUCCHERO ( SUGAR EQUALIZATION FUND ) IMPOSED UNDER ORDER NO 15/1978 OF THE COMITATO INTERMINISTERIALE DEI PREZZI ( INTERDEPARTMENTAL COMMITTEE ON PRICES , HEREINAFTER REFERRED TO AS ' ' THE PRICE COMMITTEE ' ' ) OF 4 JULY 1978 ( GAZZETTA UFFICIALE NO 187 , P . 4853 ).
3THE PRETORE WONDERED WHETHER IN THE LIGHT OF THE CASE-LAW OF THE COURT CERTAIN PROVISIONS OF THAT DECISION WERE COMPATIBLE WITH COMMUNITY LAW , IN PARTICULAR WITH REGULATION NO 3330/74 OF THE COUNCIL OF 19 NOVEMBER 1974 ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OFFICIAL JOURNAL 1974 L 359 , P . 1 ), WITH THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) AND WITH ARTICLE 12 OF THE EEC TREATY .
4IN ORDER TO DECIDE THE QUESTION OF THE COMPATIBILITY OF THE PRICE COMMITTEE ORDER WITH COMMUNITY LAW , THE PRETORE ASKED THE FOLLOWING QUESTIONS :
' ' 1 . IN THE LIGHT OF THE JUDGMENTS OF THE COURT OF JUSTICE IN CASE 23/75 ( REY SODA ) AND IN CASE 77/76 ( CUCCHI V AVEZ ), MUST THE PROVISIONS CONTAINED IN ARTICLES 33 TO 44 OF REGULATION ( EEC ) NO 3330/74 CONCERNING SUGAR BE INTERPRETED IN SUCH A WAY THAT THE IMPOSITION BY THE GOVERNMENT OF A MEMBER STATE ON SUGAR HELD IN STOCK ON ITS TERRITORY ON 5 JULY 1978 OF A PECUNIARY CHARGE ACCORDING TO THE FOLLOWING CRITERIA :
( A ) IT IS IMPOSED BY A MEASURE OF THE NATIONAL GOVERNMENT ALTHOUGH IT WAS NOT AUTHORIZED BY THE COMMUNITY INSTITUTIONS ;
( B ) IT IS IMPOSED WITH IMMEDIATE EFFECT UPON SUGAR HELD IN STOCK BY COMMERCIAL UNDERTAKINGS AND CONSEQUENTLY HAS RETROACTIVE EFFECT IN THAT IT DOES NOT ALLOW THE UNDERTAKINGS TO CHOOSE BETWEEN BUYING SUGAR WITH THE CONSEQUENT IMPOSITION OF THE CHARGE AND NOT BUYING SUGAR WITH THE CONSEQUENT EXEMPTION FROM THE CHARGE ;
( C ) IT IS IMPOSED AT THE CHANGE-OVER FROM ONE MARKETING YEAR TO THE NEXT , IN THE ABSENCE OF THE GROUNDS MENTIONED IN ARTICLE 33 OF REGULATION NO 3330/74 WHICH JUSTIFY RECOURSE TO THE PROVISIONS TO BE ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 36 OF THAT REGULATION ,
MUST BE REGARDED AS IMPROPER AND PROHIBITED AND THAT IT MUST BE HELD THAT THE COMMUNITY INSTITUTIONS ALONE ARE COMPETENT WITH REGARD TO SUGAR?
2 . MUST THE PROVISION CONTAINED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY OF ROME CONCERNING THE PROHIBITION ON DISCRIMINATION BE INTERPRETED IN SUCH A WAY THAT A NATIONAL CHARGE ON SUGAR IMPOSED ACCORDING TO THE CRITERIA SET OUT ABOVE IN QUESTION 1 IS TO BE CONSIDERED IMPROPER AND PROHIBITED IN THAT IT IS NOT IMPOSED SOLELY WHEN THE SUGAR IS HELD BY NATIONAL INDUSTRIAL PRODUCERS , WHICH ENJOY A COMPLETE AND EXCLUSIVE EXEMPTION FROM PAYMENT THEREOF ( WHILST ALL OTHER TRADERS ARE LIABLE TO THE SAID CHARGE , ALBEIT TO VARYING DEGREES)?
3 . MUST THE PROVISION CONTAINED IN ARTICLE 12 OF THAT TREATY , CONCERNING THE PROHIBITION ON THE INTRODUCTION OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES , BE INTERPRETED IN SUCH A WAY THAT THE CHARGE DESCRIBED ABOVE IN QUESTIONS 1 AND 2 IS TO BE CONSIDERED IMPROPER AND PROHIBITED IN THAT , WITH REGARD TO THE ORIGIN OF THE SUGAR , IT IS IMPOSED EXCLUSIVELY ON SUGAR PRODUCED IN THE COMMUNITY WHICH IS PRESENT IN ITALY ON 5 JULY 1978 AND ON THE OTHER HAND IS NOT IMPOSED ON HOME-PRODUCED SUGAR HELD IN STOCK BY NATIONAL INDUSTRIAL PRODUCERS ON THAT DATE?
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
' '
5AS TO QUESTION 1 , IN ITS JUDGMENT OF 25 MAY 1977 IN CASE 77/76 CUCCHI V AVEZ ( 1977 ) ECR 987 AT PP . 1010 AND 1011 , REFERENCE FOR A PRELIMINARY RULING , THE COURT RULED :
' ' 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 . ' '
6IT EMERGES FROM THE OBSERVATIONS OF THE DEFENDANT AND THE INTERVENER IN THE MAIN ACTION ON THE ONE HAND , AND THOSE OF THE ITALIAN GOVERNMENT AND THE COMMISSION ON THE OTHER , THAT THEY ARE IN DISAGREEMENT OVER THE QUESTION WHETHER THE PRICE COMMITTEE ORDER AT ISSUE IS TO BE REGARDED AS ' ' A SPECIFIC MEASURE INVOLVING INTERVENTION IN THE MACHINERY OF PRICE FORMATION ' ' AS ENVISAGED BY THE JUDGMENT CITED .
7 ACCORDING TO THE ITALIAN GOVERNMENT AND THE COMMISSION , THE ORDER ONLY PROVIDED FOR A CHARGE TO BE PAID ON STOCKS ON 5 JULY 1978 AND CALCULATED EXCLUSIVELY ON THE BASIS OF THE DIFFERENCES BETWEEN THE NEW NATIONAL PRICES AND THOSE PREVIOUSLY IN FORCE ' ' WITH THE EXCEPTION OF THE AMOUNT OF THE INCREASE IN PRODUCER PRICES LAID DOWN AT COMMUNITY LEVEL FOR THE 1978/1979 MARKETING YEAR ' ' .
8IT WAS ALSO SUBMITTED THAT THE ORDER WAS RESTRICTED TO THE DISTRIBUTION AND CONSUMPTION STAGES AND AVOIDED REFERENCE TO SUGAR HELD IN STOCK BY PRODUCERS PRECISELY SO AS NOT TO AFFECT IN ANY WAY THE MACHINERY OF PRICE FORMATION RESULTING FROM THE OPERATION OF COMMUNITY RULES .
9ON THE OTHER HAND , ACCORDING TO THE DEFENDANT AND THE INTERVENER IN THE MAIN ACTION , THE INCREASES IN NATIONAL PRICES REFERRED TO IN THE ORDER ARE CLOSELY CONNECTED WITH THE INCREASES IN COMMUNITY PRICES , SO THAT IN FACT THE CHARGE IMPOSED CONSTITUTES A MEASURE INVOLVING INTERVENTION .
10WITHIN THE FRAME-WORK OF THE PROCEDURE UNDER ARTICLE 177 , IT IS NOT FOR THE COURT TO APPLY THE COMMUNITY RULES WHICH IT HAS INTERPRETED TO NATIONAL MEASURES OR SITUATIONS .
11ON THE OTHER HAND IT IS INCUMBENT UPON THE NATIONAL COURTS TO DECIDE WHETHER OR NOT THE COMMUNITY RULE AS INTERPRETED BY THE COURT UNDER ARTICLE 177 APPLIES TO THE FACTS AND MEASURES WHICH ARE BROUGHT BEFORE THEM FOR THEIR ASSESSMENT .
12A DISPUTE SUCH AS THE ONE OUTLINED ABOVE IS THEREFORE A MATTER TO BE ASSESSED BY THE NATIONAL COURT .
13MOREOVER , NEITHER THE QUESTION RAISED NOR THE OBSERVATIONS SUBMITTED IN THE COURSE OF THESE PROCEEDINGS RAISE ANY NEW ISSUES GIVING GROUNDS FOR CLARIFYING OR SUPPLEMENTING THE OPERATIVE PART OF THE JUDGMENT OF 25 MAY 1977 .
14THEREFORE THE ANSWER TO QUESTION 1 SHOULD BE IN TERMS IDENTICAL TO THOSE OF THE OPERATIVE PART OF THAT JUDGMENT .
15AS TO QUESTION 2 , IT PRESUPPOSES AN ANSWER IN THE AFFIRMATIVE TO QUESTION 1 .
16IF IT WERE ESTABLISHED THAT THE MEASURE REFERRED TO DOES NOT COME WITHIN THE MACHINERY OF PRICE FORMATION COVERED BY THE COMMUNITY RULES AND DOES NOT CONSTITUTE AN INTERVENTION IN THAT MACHINERY , IT WOULD FOLLOW THAT ARTICLE 40 OF THE TREATY , WHICH APPLIES ONLY TO THE AREAS COVERED BY COMMUNITY LAW , WOULD NOT BE APPLICABLE .
17EVEN IF IT WERE WITHIN THE AMBIT OF ARTICLE 40 , A MEASURE WHICH , AS REGARDS PRICE FORMATION , DISTINGUISHED BETWEEN THE PRODUCTION STAGE AND SUBSEQUENT STAGES OF MARKETING WOULD NOT BY VIRTUE OF THAT FACT ALONE BE DISCRIMINATORY WITHIN THE MEANING OF THAT ARTICLE .
18THE POSITION MIGHT BE DIFFERENT IF IT WERE ESTABLISHED THAT IMPORTED SUGAR WAS OR WAS NOT SUBJECT TO CHARGES ACCORDING ONLY TO WHETHER IT WAS HELD IN STOCK BY PRODUCERS OR ON THE OTHER HAND BY OTHER TRADERS .
19HOWEVER , THE QUESTION DOES NOT CONTAIN ANY INFORMATION ON THIS POINT , WHILST THE WORDING OF QUESTION 3 INDICATES THAT THAT IS NOT THE SITUATION REFERRED TO .
20THE QUESTION IS THEREFORE TOO GENERAL TO LEND ITSELF TO A SUITABLE REPLY .
21AS TO QUESTION 3 , IT SEEKS TO OBTAIN CLARIFICATION OF THE RULING WHICH THE COURT LAID DOWN IN ITS AFORESAID JUDGMENT OF 25 MAY 1977 .
22PARAGRAPH 1 OF THE OPERATIVE PART OF THAT JUDGMENT IS IN THE FOLLOWING TERMS :
' ' 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 . ' '
23THE NATIONAL COURT OBVIOUSLY WONDERED WHETHER THE FACT THAT A MEASURE ' ' IS IMPOSED EXCLUSIVELY ON SUGAR PRODUCED IN THE COMMUNITY WHICH IS IN ITALY ON 5 JULY 1978 ' ' AND NOT ' ' ON HOME-PRODUCED SUGAR HELD IN STOCK BY NATIONAL INDUSTRIAL PRODUCERS ON THAT DATE ' ' IS SUCH AS TO BRING THAT MEASURE WITHIN ARTICLE 12 OF THE TREATY .
24IN THIS CONNEXION IT MUST AGAIN BE POINTED OUT THAT THE FACT THAT A MEASURE APPLIES TO A PRODUCT , NOT AT THE PRODUCTION STAGE BUT ONLY AT DIFFERENT STAGES OF ITS MARKETING , DOES NOT NECESSARILY MAKE THE MEASURE DISCRIMINATORY WITHIN THE MEANING OF THE JUDGMENT CITED .
25IN PRINCIPLE SUGAR PRODUCED IN THE COMMUNITY WHICH IS HELD IN ITALY WILL BE AT THE STAGE OF MARKETING OF THE PRODUCT , WHEREAS HOME-PRODUCED SUGAR HELD IN STOCK BY A PRODUCER MAY BE REGARDED AS STILL BEING AT THE PRODUCTION STAGE .
26SINCE THIS QUESTION HAS NOT RAISED ANY ISSUES GIVING GROUNDS FOR CLARIFYING OR SUPPLEMENTING THE OPERATIVE PART OF THE JUDGMENT CITED , IT SHOULD BE ANSWERED IN IDENTICAL TERMS .
27AS TO QUESTION 4 , THE ANSWER DEPENDS PRIMARILY UPON A CONSIDERATION OF THE WORDING AND THE RULES FOR THE IMPLEMENTATION OF THE MEASURE AT ISSUE AND UPON AN ASSESSMENT OF THOSE TWO FACTORS WITHIN THE FRAMEWORK OF THE NATIONAL LEGAL SYSTEM .
28THE QUESTION THEREFORE RAISES A PROBLEM OF THE APPLICATION RATHER THAN A QUESTION OF THE INTERPRETATION OF COMMUNITY LAW .
29IN THESE CIRCUMSTANCES , THE ANSWER MUST BE CONFINED TO MERE REPETITION OF THE LAST SENTENCE OF PARAGRAPH 2 , OF THE OPERATIVE PART OF THE JUDGMENT OF 25 MAY 1977 CITED ABOVE .
COSTS
30THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
31SINCE THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ,
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRETORE OF REGGIO EMILIA BY AN ORDER OF 14 SEPTEMBER 1978 , HEREBY RULES :
1 . 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 .
2 . 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 .
