1 BY ORDER OF 21 OCTOBER 1976 , RECEIVED AT THE COURT REGISTRY ON 28 OCTOBER 1976 , THE PRETURA DI RECCO REFERRED TO THE COURT FOUR QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLE 13 ( 2 ) OF THE TREATY AND OF COUNCIL REGULATIONS NO 1009/67/EEC OF 18 DECEMBER 1967 AND NO 3330/74 OF 19 DECEMBER 1974 ON THE COMMON ORGANIZATION OF THE MARKET IN SUGAR ( OJ , ENGLISH SPECIAL EDITION 1967 , P . 304 , AND OJ L 359 OF 31 . 12 . 1974 , P . 1 ). THESE TWO QUESTIONS ARE SUBMITTED IN CONNEXION WITH PROCEEDINGS BETWEEN TWO ITALIAN UNDERTAKINGS .
2 INTERZUCCHERI , THE PLAINTIFF IN THE MAIN ACTION , SOLD 10 000 KILOGRAMMES OF SUGAR TO DITTA REZZANO E CAVASSA , THE DEFENDANT IN THE MAIN ACTION , AND THE LATTER REFUSED TO PAY THE PART OF THE PURCHASE PRICE REPRESENTING THE CHARGE CALLED THE SURCHARGE ( SOVRAPPREZZO ), PAID ON THE GOODS BY THE PLAINTIFF IN THE MAIN ACTION , ON THE GROUND THAT THIS TAX WAS INCOMPATIBLE WITH COMMUNITY PROVISIONS . INTERZUCCHERI THEREUPON APPLIED TO THE PRETORE FOR AN ORDER THAT THE DEFENDANT SHOULD PAY THE SUM IN QUESTION . ON 21 OCTOBER 1976 THE ASSOCIAZIONE NAZIONALE TRA GLI INDUSTRIALI DELLO ZUCCHERI , DEL LIEVITO E DELL ' ALCOOL ( ' ASSOZUCCHERO ' ) APPLIED TO INTERVENE IN THE CASE IN SUPPORT OF THE PLAINTIFF AND CLAIMED THAT THE OBJECTIONS RAISED BY THE DEFENDANT SHOULD BE DISMISSED .
3 BY THE ORDER CITED ABOVE THE NATIONAL COURT ALLOWED THE INTERVENTION , FOUND THAT THE QUESTION OF COMMUNITY LAW RAISED BY THE PARTIES WAS THE SAME AS THAT WHICH THE PRETORE DI ABBIATEGRASSO HAD REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING IN CASE 77/76 , CUCCHI V AVEZ , AND DECIDED TO REFER TO THE COURT FOUR QUESTIONS DESIGNED TO ESTABLISH THE COMPATIBILITY OR OTHERWISE WITH COMMUNITY LAW OF THE CONTESTED SURCHARGE ( SOVRAPPREZZO ).
I - GENERAL OBSERVATIONS
4 IT IS CLEAR FROM THE ORDER REFERRING THE MATTER TO THE COURT THAT THE ANSWER TO THE QUESTIONS SUBMITTED IS TO ENABLE THE NATIONAL COURT TO DETERMINE THE COMPATIBILITY OR OTHERWISE WITH COMMUNITY LAW OF THE CHARGE CALLED THE SURCHARGE ( SOVRAPPREZZO ) INTRODUCED BY A MEASURE OF THE CIP , THE PROCEEDS OF WHICH ARE INTENDED TO FINANCE ADAPTATION AIDS TO THE ITALIAN BEET PRODUCERS AND SUGAR-PROCESSING INDUSTRY . IN ITS OBSERVATIONS , THE GOVERNMENT OF THE ITALIAN REPUBLIC CONTENDS THAT THE GRANT OF THESE AIDS WAS EXPRESSLY AUTHORIZED BY ARTICLE 38 OF REGULATION ( EEC ) NO 3330/74 FOR THE 1975/1976 TO 1979/1980 SUGAR-MARKETING YEARS . IT CONSIDERS THAT THIS AUTHORIZATION EMPOWERS IT TO FIND THE FUNDS NECESSARY FOR FINANCING BY MEANS WHICH APPEAR TO IT TO BE THE FAIREST AND MOST APPROPRIATE WITHIN THE LIMITS OF COMMUNITY LAW .
5 AUTHORIZATION UNDER ARTICLE 38 OF REGULATION ( EEC ) NO 3330/74 TO GRANT THE AIDS PROVIDED FOR THEREIN CANNOT BE TAKEN TO MEAN THAT ANY METHOD OF FINANCING THESE AIDS , WHATEVER ITS CHARACTER OR CONDITIONS , IS COMPATIBLE WITH COMMUNITY LAW . IN THE FINANCING OF THE AID GRANTED , THE NATIONAL AUTHORITIES ARE IN PARTICULAR SUBJECT NOT ONLY TO THE OBLIGATIONS ARISING UNDER THE TREATY BUT ALSO TO THOSE ARISING UNDER THE OTHER PROVISIONS OF REGULATION ( EEC ) NO 3330/74 . A METHOD OF FINANCING WHICH PROVIDES FOR DEROGATION FROM THE OTHER PROVISIONS MUST ARISE FROM AN EXPRESS PROVISION OR , AT LEAST , A FORM OF WORDS WHICH MAKE CLEAR THE COUNCIL ' S INTENTIONS IN THIS RESPECT . THERE ARE NO WORDS ENABLING SUCH DEROGATION TO BE MADE AND THIS MUST BE BORNE IN MIND IN ANSWERING THE QUESTIONS SUBMITTED .
II - THE QUESTIONS RELATING TO THE SURCHARGE
6 THE FIRST QUESTION IS WHETHER ARTICLE 13 ( 2 ) OF THE TREATY AND ARTICLE 21 ( 2 ) OF REGULATION ( EEC ) NO 3330/74 AND ARTICLE 20 ( 2 ) OF REGULATION NO 1009/67/EEC PREVENT THE APPLICATION , IN TRADE BETWEEN THE MEMBER STATES ON THE MARKET IN SUGAR , OF A NATIONAL MEASURE IMPOSING A CHARGE ON ANY QUANTITY OF SUGAR , WHETHER HOME PRODUCED OR IMPORTED , THE PROCEEDS OF WHICH ARE USED FOR THE EXCLUSIVE BENEFIT OF NATIONAL SUGAR REFINERIES AND BEET PRODUCERS .
7 ARTICLE 9 OF THE TREATY , WHICH AT THE MATERIAL TIME WAS THE SAME AS THE ARTICLE 13 REFERRED TO IN THE QUESTION , PROHIBITS THE IMPOSITION OF CUSTOMS DUTIES ON IMPORTS OF ALL CHARGES HAVING EQUIVALENT EFFECT IN TRADE BETWEEN MEMBER STATES . LIKEWISE ARTICLE 20 ( 2 ) OF REGULATION NO 1009/67/EEC AND ARTICLE 21 ( 2 ) OF REGULATION ( EEC ) NO 3330/74 PROHIBIT , SAVE AS OTHERWISE PROVIDED IN THOSE REGULATIONS OR BY DEROGATION DETERMINED BY THE COUNCIL , THE LEVYING OF ANY CUSTOMS DUTY OR CHARGE HAVING EQUIVALENT EFFECT .
8 AS WAS RULED IN THE JUDGMENTS OF 19 JUNE 1973 ( CASE 77/72 , CAPOLONGO ( 1973 ) ECR 611 ) AND OF 18 JUNE 1975 ( CASE 94/74 , IGAV ( 1975 ) ECR 699 ), THE PROHIBITIONS CONTAINED IN ARTICLES 9 AND 13 ARE AIMED AT ANY TAX DEMANDED AT THE TIME OR BY REASON OF IMPORTATION AND WHICH , BEING IMPOSED SPECIFICALLY ON IMPORTED PRODUCTS TO THE EXCLUSION OF THE SIMILAR DOMESTIC PRODUCT , RESULTS IN THE SAME RESTRICTIVE CONSEQUENCES ON THE FREE MOVEMENT OF GOODS AS A CUSTOMS DUTY BY ALTERING THE COST PRICE OF THAT PRODUCT . ON THE OTHER HAND , THE FACT THAT A CHARGE IS APPLIED WITHOUT DISTINCTION TO DOMESTIC PRODUCTS AS WELL AS TO PRODUCTS FROM OTHER MEMBER STATES GIVES RISE TO THE QUESTION WHETHER THE TAXATION AT ISSUE FALLS WITHIN THE PROHIBITION IN ARTICLES 9 AND 13 OR THE RULE AGAINST DISCRIMINATION IN MATTERS OF INTERNAL TAXATION LAID DOWN BY ARTICLE 95 .
9 ONE AND THE SAME SCHEME OF TAXATION CANNOT , UNDER THE SYSTEM OF THE TREATY , BELONG SIMULTANEOUSLY TO BOTH THE CATEGORIES MENTIONED , HAVING REGARD TO THE FACT THAT THE CHARGES REFERRED TO IN ARTICLES 9 AND 13 MUST SIMPLY BE ABOLISHED WHILST , FOR THE PURPOSE OF APPLYING INTERNAL TAXATION , ARTICLE 95 PROVIDES SOLELY FOR THE ELIMINATION OF ANY FORM OF DISCRIMINATION , DIRECT OR INDIRECT , IN THE TREATMENT OF THE DOMESTIC PRODUCTS OF A MEMBER STATE AND OF PRODUCTS ORIGINATING IN OTHER MEMBER STATES . FINANCIAL CHARGES WITHIN A GENERAL SYSTEM OF INTERNAL TAXATION APPLYING SYSTEMATICALLY TO DOMESTIC AND IMPORTED PRODUCTS ACCORDING TO THE SAME CRITERIA ARE NOT TO BE CONSIDERED AS CHARGES HAVING EQUIVALENT EFFECT .
10 THE SITUATION WOULD BE DIFFERENT ONLY IF SUCH A DUTY , WHICH IS LIMITED TO PARTICULAR PRODUCTS , HAD THE SOLE PURPOSE OF FINANCING ACTIVITIES FOR THE SPECIFIC ADVANTAGE OF THE TAXED DOMESTIC PRODUCTS SO AS TO MAKE GOOD , WHOLLY OR IN PART , THE FISCAL CHARGE IMPOSED UPON THEM . SUCH A FISCAL DEVICE WOULD IN FACT ONLY APPEAR TO BE A SYSTEM OF INTERNAL TAXATION AND ACCORDINGLY COULD BY REASON OF ITS PROTECTIVE CHARACTER BE TERMED A CHARGE HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES SO AS TO BRING ARTICLES 9 AND 13 AND THE PROVISIONS OF THE REGULATIONS QUOTED INTO OPERATION . SUCH A DEFINITION WOULD NEVERTHELESS IMPLY A CLEARLY ESTABLISHED CONNEXION BETWEEN , ON THE ONE HAND , THE COLLECTION OF A FISCAL DUTY LEVIED WITHOUT DISTINCTION ON THE PRODUCTS IN QUESTION , WHETHER DOMESTIC OR IMPORTED , AND , ON THE OTHER HAND , THE ADVANTAGE WHICH ENURES ONLY FOR THE BENEFIT OF THE DOMESTIC PRODUCTS BY REASON OF THE PROCEEDS OF THAT SAME DUTY .
11 IT IS THEREFORE FOR THE NATIONAL COURT TO ESTABLISH THE EXISTENCE OR OTHERWISE OF THIS CONNEXION AND TO TAKE INTO ACCOUNT , IN THE CIRCUMSTANCES , THE FACT THAT , ACCORDING TO THE INFORMATION ON THE FILE , IT APPEARS THAT THE REVENUE PRODUCED BY THE IMPOSITION OF THE CONTESTED CHARGE BENEFITS BEET-PRODUCERS AS WELL AS THE PROCESSING INDUSTRY IN SUCH A WAY THAT SUGAR , AS A PRODUCT DISTINCT FROM BEET , ONLY RECEIVES LESS THAN HALF OF THE FUNDS COLLECTED .
12 IT FOLLOWS FROM THE FOREGOING THAT THE ANSWER TO THE FIRST QUESTION MUST BE THAT A DUTY FALLING WITHIN A GENERAL SYSTEM OF INTERNAL TAXATION APPLYING TO DOMESTIC PRODUCTS AS WELL AS TO IMPORTED PRODUCTS ACCORDING TO THE SAME CRITERIA CAN CONSTITUTE A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON IMPORTS ONLY IF IT HAS THE SOLE PURPOSE OF FINANCING ACTIVITIES FOR THE SPECIFIC ADVANTAGE OF THE TAXED DOMESTIC PRODUCT ; IF THE TAXED PRODUCT AND THE DOMESTIC PRODUCT BENEFITING FROM IT ARE THE SAME ; AND IF THE CHARGES IMPOSED ON THE DOMESTIC PRODUCT ARE MADE GOOD IN FULL .
13 IN THESE CIRCUMSTANCES THE SECOND AND THIRD QUESTIONS , WHICH DEPEND ON AN AFFIRMATIVE ANSWER TO THE FIRST , NO LONGER ARISE .
14 THE FOURTH QUESTION IS WHETHER THE APPLICATION OF A PECUNIARY CHARGE SUCH AS THAT REFERRED TO IN THE FIRST QUESTION CONSTITUTES AN INFRINGEMENT OF THE PROHIBITION OF DISCRIMINATION BETWEEN PRODUCERS OR CONSUMERS LAID DOWN IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE TREATY . IN THIS CONNEXION IT IS SUFFICIENT TO NOTE THAT THE PROHIBITION OF ANY DISCRIMINATION BETWEEN THE PRODUCTS OF OTHER MEMBER STATES AND SIMILAR DOMESTIC PRODUCTS , LAID DOWN IN ARTICLE 95 OF THE TREATY , ENABLES ANY INFRINGEMENT OF FUNDAMENTAL COMMUNITY PRINCIPLES IN THE MATTER REFERRED TO BY THE NATIONAL COURT TO BE MORE SPECIFICALLY IDENTIFIED . IN CONSEQUENCE THERE IS NO NEED TO ANSWER THIS QUESTION EITHER .
COSTS
15 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , BOTH OF WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .
AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE PRETURA DI RECCO BY ORDER OF 21 OCTOBER 1976 HEREBY RULES :
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 .
