C-142/80

In Joined Cases 142 and 143/80

REFERENCES to the Court under Article 177 of the EEC Treaty by the Corte d'Appello [Court of Appeal], Milan, for a preliminary ruling in the actions pending before that court between, on the one hand,

AMMINISTRAZIONE DELLE FINANZE DELLO STATO

and,

on the other hand,

ESSEVI SPA, having its registered office in Milan (Case 142/80),

Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the procedure and fruit, and "first category" spirits the observations submitted under Article produced from other raw materials. 20 of the Protocol on the Statute of the Court of Justice of the EEC may be That legislation provides for three types summarized as follows: of tax: manufacturing tax, charged under the consolidated Law of 8 July 1924; ordinary State tax introduced by Decreto Legge [Decree-Law] No 635 of 27 April I — Facts and written procedure 1936; special State tax, established by Decreto Legge [Decree-Law] No 1200 of 6 October 1948. All those provisions The Italian legislation dealing with excise have been amended subsequently on duty on spirits distinguishes between several occasions. two categories of spirits according to the method of production: "second The manufacturing tax is charged on all category" spirits, distilled from wine, spirits intended for human consumption, marc, residue from wine-making and whether they be first or second category

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In the those prescribed by the Italian legislation. case of spirits obtained synthetically from raw materials extracted from the earth The rules governing certificates were laid the rate of that duty is a multiple of the down by a ministerial order of 24 August rate applied to spirits obtained by a 1977. A circular was issued by the process of fermentation and derived Minister for Finance on 17 January 1979 from sugar-cane or sugar-beet molasses dealing with the contents of those and from comparable materials. covering documents and stating the authorities empowered to issue them in each Member State. The ordinary State tax is charged at the full rate (LIT 60 000 per hectolitre of anhydrous alcohol at the time of the Previously, by writs of 13 January 1976 events which gave rise to the main and 22 July 1977 respectively, Essevi actions) on all imported spirits and SpA, whose registered office is in Milan, domestically-produced spirits belonging and Carlo Salengo, an undertaking to the first category. However, various established in Genoa, had instituted reduced rates are applied to certain proceedings before the Tribunale domestically-produced spirits depending [District Court], Milan, against the on the raw material from which they Amministrazione delle Finanze dello

The wine and marc) or they are taxed at a two undertakings consider that the reduced rate (spirits made from dates or charging of that State tax is contrary in raisins, figs and carobs or other fruits). particular to Article 95 of the EEC Treaty and that it has the effect of subjecting the imported product to internal taxation in excess of the fiscal The exemption from ordinary State tax burden borne by similar domestic granted to certain types of second products. category spirits produced domestically, in particular to potable spirits distilled from wine, was extended to imported By judgments of 1 June 1978, in the case spirits by Article 20 of Decreto Legge of Salengo, and 7 October 1978, in the No 46 of 18 March 1976, converted into case of Essevi, the Tribunale found that Law No 249 of 10 May 1976, provided a relationship of similarity existed that they are accompanied by a certi- between cognac of French origin and ficate approved by the Minister for domestically-produced potable spirits

distilled from wine and held that as In a further reasoned opinion addressed regards imports taking place after 1 to the Italian Republic on 31 July 1978 January 1962, the date on which the the Commission reversed its position second stage of the common market adopted in the reasoned opinion began, there was an infringement of delivered on 28 February 1969 and held Article 95 of the EEC Treaty in these that it was contrary to the Treaty to cases by virtue of the fact that the total continue to apply the ordinary State tax fiscal burden borne by the imported to spirits imported from other Member foreign product was in excess of the States. fiscal burden borne by the similar domestic product.

spirits distilled from wine and imported from other Member States While the appeals were pending the a system of taxation including the Suprema Corte di Cassazione, [Supreme State tax of LIT 60 000 per hectolitre Court of Cassation], composed of of pure alcohol (LIT 90 000 as from members of all its divisions, delivered March 1976), which is not provided two judgments, Nos 1317 and 1321 of 1 for in the case of similar domestic March 1979, in which it held in actions products and is not charged thereon, having the same subject-matter as those Italy has infringed Article 95 of the before the Corte d'Appello, Milan, that EEC Treaty; Italy's right to use taxation as an instrument of its agricultural policy and — whether, after the commencement of temporarily to maintain differential the second stage referred to in the taxation in the spirits sector at the rate of third paragraph of Article 95 as being LIT 60 000 per hectolitre of pure alcohol the final date for the abolition of as a result of the application of the State national rules conflicting with the tax had been expressly recognized by the principle of equal tax treatment laid Commission in the reasoned opinion which it had addressed to the Italian down in the first and second Republic under Article 169 of the EEC paragraphs of the said article, it is

Registry on 12 June 1980.

II — W r i t t e n o b s e r v a t i o n s sub- (c) In its judgment of 15 October 1969 mitted to the C o u r t in 16/69 Commission v Italian Republic [1969] ECR 377 the Court of Justice held that potable spirits were not agri- cultural products and therefore could not 1. After drawing attention to the benefit from the derogations from the principal aspects or the Italian system of general rules of the Treaty established by taxation on spirits and to certain Articles 38 to 46 in relation to agri- questions of fact relevant to the main culture. actions, Essevi and Salengo, the respondents in the main actions, submitted observations on the legal issues In the Charmasson judgment the Court which may be summarized as follows: held that derogations from the general

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v ESSEVI AND SALENGO

rules of the Treaty under a national argument that any fiscal measure of a organization of the market were protectionist or discriminatory nature permitted only temporarily and that the constitutes an "aid" and is lawful in the retention of a national organization of absence of a negative statement from the the market could not be envisaged Commission under Article 93 (2) of the beyond the transitional period. Treaty is untenable.

As it is a case of measures contrary to (c) In its judgment of 27 February 1980 the first and second paragraphs of Article in Case 169/78 Commission v Italian 95, they should in any case, under the Republic [1980] ECR 385, the Court recognized the legitimacy of certain terms of the third paragraph of Article exemptions or tax concessions provided 95, have been abolished by the beginning that the Member States which make use of the second stage of the common of such possibilities extend the benefit market. thereof in a non-discriminatory manner to imported products in the same situation. In no case, according to that judgment, can differences in tax Use of the State tax as a State aid treatment of a discriminatory or protective nature be accepted as legitimate.

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AMMINISTRAZIONE DELLE FINANZE DELLO STATO v ESSEVI AND SALENGO

a measure of aid compatible, albeit only domestic undertakings producing potable provisionally, with the common market. spirits distilled from wine has all the Moreover, at the time when this second characteristics of aid designed to ensure reasoned opinion was delivered the the maintenance and development of a system for charging the State tax had particular sector of production and undergone radical alteration involving in constitutes a typical form of support for particular equality of treatment extended an important domestic industry for the by Article 20 of Decreto Legge No 46 of purpose of stabilizing an entire sector of 18 March 1976 to domestic products and the market. As such, there is absolutely products imported from other Member no doubt that it falls within the ambit of States as regards the effects of the Articles 92 and 93. exemptions and reliefs. Thereafter the problem therefore arises in completely different terms.

(e) The fact that an aid may be tolerated on the basis of Articles 92 to 94 means that it cannot also be subjected to (c) The court which made the appraisal in the light of the general reference is itself convinced in principle prohibition on fiscal discrimination laid that decisions taken by the Commission down by Article 95. A favourable tax under Article 93 of the Treaty are system which constitutes an aid cannot binding on the national court. The ruling fall within the ambit of Article 95. Only which it has requested from the Court Article 92 et seq., as opposed to Article concerns essentially the interpretation 95, are applicable to tax reliefs, which, and validity of the measures by which being designed to favour certain under- the Commission allowed the differential takings or certain products, come under taxation to be maintained provisionally. Article 92.

Article 92 expressly refers to aid granted necessity be determined in the light of "in any form whatsoever". To exclude the procedure prescribed in Article 93". tax reductions from the scope of the rules on aids so as to subject them solely to the rules contained in Article 95 would be tantamount to substituting an unusable instrument for the "precision instrument" of Articles 92 and 93. Therefore an aid consisting solely of tax relief may be judged only in the light of the principles of Article 92 and by means of the procedure laid down in Article 93. It would be incompatible with the tenor of those rules and with the division of responsibilities effected thereby to allow (f) That proposition is not invalidated private persons to rely on the very by the judgment of the Court of 21 May different rules of Article 95 in order to 1980 in Case 73/79 Commission v Italy challenge directly before national courts [1980] ECR 1533. That case concerned the compatibility of such a tax benefit an aid granted in the form, not of a tax with Community law. To grant that in relief, but of a direct subsidy and the such a case the national court may question of a possible breach of the examine directly the compatibility of the prohibition of fiscal discrimination was aid with Community law, either with examined with regard to the source of Article 95 or with any provision other finance for the aid. than Article 92, would call in question the division of responsibilities established by Article 93 and would deprive the function assigned to the Commission in this field of all substance.

courts. It is for the Commission to judge paragraph of Article 174 of the EEC at its discretion the compatibility of the Treaty, which is general in scope, as aid with the common market. It made applicable to the present proceedings legitimate use of that discretion, resulting instituted pursuant to Article 177. in an affirmative decision which cannot be challenged by any national court. On the basis of the general principle of legal certainty the Court has found that The merits of the Commission's appraisal it has the power, in exceptional cases, to are not the subject of the questions restrict the possibilities open to persons raised in the order for reference and concerned to rely on its own judgments, cannot in any event be reviewed by the even if they are in the nature of purely Court. interpretative decisions. The principles of legal certainty and of the protection of legitimate expectation prevent the re- opening of matters which have been (h) The judgment of 15 October 1969 definitively disposed of with the agree- whereby the Court held that potable ment of all concerned by means of the spirits are not agricultural products is payment and recovery in good faith of a clearly of no relevance to the decision tax expressly held compatible with the to be given in the present case. common market by the responsible Indisputably, the general rule laid down institution. by Article 92 applies also to aids granted to non-agricultural products in order to encourage indirectly activities which come within the field of agriculture. 3. The Commission, after recounting the facts which gave rise to the main action, the context in which the orders As regards the Charmasson judgment, it for reference were made and the suffices to note that in the present case it principal provisions of the rules is a question of applying not a special governing the State tax, submits obser- system, but the general rule relating to vations on matters of law which may be aids, the effects of which extend beyond summarized as follows: the transitional period. It may also be observed that the present case concerns not the merits of the discretionary appraisal of the compatibility of the aid, The Commission's position with regard to but solely the existence of the power certain tax advantages granted by Member exercised by the Commission under States Article 93.

(b) The Commission, by implication at immediately entail the amendment of the least, modified its point of view national provisions which the Com- following the Court's judgment of 15 mission considers contrary to Com- October 1969. The Commission's munity law. Nor can it regularize position became more explicit after the situations existing under national Charmasson judgment: by letters of 31 legislation which are contrary to the July 1975 and 18 June 1976, then by the provisions of Community law. reasoned opinion of 31 July 1978, it informed the Italian Government of the reasons why the reasoned opinion of 1969 must be regarded as no longer valid and the State tax treated as incompatible (c) Hence a reasoned opinion does not with Article 95 of the EEC Treaty. create any new obligation for Member States, it does not confer new rights upon them or impair existing rights arising under Community rules. A fortiori The effect of reasoned opinions delivered it cannot alter the personal rights of pursuant to Article 169 of the EEC Treaty individuals which national courts are obliged to safeguard at all times, even when a divergent reasoned opinion exists. (a) A reasoned opinion which the Commission delivers pursuant to Article 169 in the performance of the tasks conferred on it by Article 155 of the Treaty is an administrative measure (d) To accept any other proposition intended to express the Commission's would be to make the direct effect of point of view. It concludes the inquiry Community provisions dependent upon stage of the administrative procedure for the interpretation given to them by the dealing with infringements and at the Commission. The judicial procedure laid same time constitutes a condition down in the second paragraph of Article precedent to the commencement of an 169 would thus be rendered redundant. action (where appropriate) before the Court. Although it reflects the authority which attaches to the supervisory function conferred upon the Commission by Article 155 and to the enforcement The interpretation of Article 95 of the function provided for in Article 169, EEC Treaty in relation to the State tax such a reasoned opinion is a measure issuing from one of the parties to a dispute between the Commission and a Member State and it defines the latter's obligations under the rules of The questions to which the Court is Community law. It is subject to judicial requested to reply raise issues which are review by the Court, which alone is essentially concerned with Article 95. invested by the Treaty with the power to declare the law and to give an authori- tative interpretation of the Treaty.

products, similar domestic products (b) Moreover, it never occurred to being totally exempt therefrom. the Italian administrative authorities themselves to present the State tax as an "aid", still less to request the The reply to this question is obvious. Commission to embark upon the Moreover, in the context of the main procedure laid down in Article 93. actions the discrimination against imported products is affected by an ag- gravating circumstance: the European In any event, the incompatibility of the Agricultural Guidance and Guarantee duty with Article 92 is manifest: it is Fund grants considerable amounts of aid clearly an "operating" aid rather than a each year to the Italian distilleries development aid, it is ' entirely lacking producing potable spirits distilled from in transparency, does not entail any wine; French cognac does not enjoy such reciprocal undertaking on the part of the aid. beneficiaries, for example with regard to restructuring or reorganization, and does not possess the element of degressivity (b) The question whether after the which is a feature of sectoral aids. commencement of the second stage it is possible to permit exceptions to the prohibition of fiscal discrimination laid down by Article 95 and to continue pre- The replies to be given to the questions existing discriminations in a Member referred to the Court State undoubtedly requires a negative reply. There can be no question of any exception and, moreover, it is not possible to make compliance with Article The questions submitted by the Corte 95 conditional on the attainment of the d'Appello, Milan, should be answered as objectives laid down in other provisions follows : of the Treaty, such as Article 99. This view is supported by recent decisions of the Court. (a) Reasoned opinions delivered by the Commission under the first paragraph of Article 169 of the EEC The State tax in relation to Article 92 of Treaty cannot affect the rights and the EEC Treaty obligations of the Member States deriving from provisions of Com- munity law. The Court of Justice (a) In its replies to the questions put by ensures that reasoned opinions are in the Court the Commission states that it conformity with Community law has never examined the State tax in through the procedure laid down in relation to Articles 92 and 93 (1) of the the second paragraph of Article 169 Treaty, never described it as an "aid" of the EEC Treaty. and never adopted any "decision" in that regard. Thus, adhering wholly and unconditionally to the case-law of the Reasoned opinions are not binding Court, it has accorded to the Italian upon national courts. In particular, State tax treatment which in all respects they cannot alter or impair personal resembles that applied to numerous other rights which provisions of Com- instances of internal taxation contrary to munity law confer upon private Article 95 of the Treaty. persons and which national courts

3 The respondents in the main action instituted proceedings before the Tribunale [District Court], Milan, for the recovery of the taxes paid on the ground that Article 95 of the EEC Treaty had been infringed during the above-mentioned periods and obtained judgment, on 26 January and 1 June 1978 respectively, against the Italian State Finance Administration which was ordered to repay the taxes improperly levied.

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v ESSEVI AND SALENGO

5 The Corte d'Appello takes the view that the factors mentioned above are not such as resolve entirely the problem raised before it. It points out that although, in its opinion of 28 February 1969, the Commission acknowledged that Italy was entitled to maintain and to apply the contested system of taxation as an instrument of its agricultural policy, several new factors have arisen since that date. In this connexion, it refers to the judgment delivered by the Court on 15 October 1969 in Case 16/69 Commission v Italy [1969] ECR 377 in which it was held that potable spirits, liqueurs and other spirituous beverages were not agricultural products within the meaning of the Treaty, to the judgment of 10 December 1974 in Case 48/74 Charmasson [1974] ECR 1383 in which barriers to trade between the Member States were held to be incompatible with the common market after the expiry of the transitional period even where such barriers form part of a national organ- ization of the market and, finally, to the reasoned opinion which the Commission addressed to the Italian Republic on 31 July 1978 on differential taxation in relation to the imposition both of the State tax and of the manu- facturing tax.

6 Having regard to those new factors as well as to the arguments adduced by the State Finance Administration, the Corte d'Appello has requested the Court to declare by way of a preliminary ruling:

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"— First, what is the effect to be attributed to the aforesaid opinions delivered by the Commission under Article 169 of the EEC Treaty; then whether, by applying to potable spirits distilled from wine and imported from other Member States a system of taxation including the State tax of LIT 60 000 per hectolitre of pure alcohol (LIT 90 000 as from March 1976), which is not provided for in the case of similiar domestic products and is not charged thereon, Italy has infringed Article 95 of the EEC Treaty;

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v ESSEVI AND SALENGO

This differential system, which places imported products at a disadvantage, is contrary to Article 95 of the Treaty . . .

The Commission has already communicated its observations on these problems to the Italian Government by letter of 4 November 1965. By letter of 12 February 1966 from the Italian Permanent Representation, the Italian Government informed the Commission of its views. According to the Italian Government, the purpose of the differential taxation of spirits is to enable the various raw materials for the production of alcohol to be used for that purpose and thereby ensure the sale of certain raw materials from which alcohol for agricultural purposes may be produced. Consequently, this differential system could be abolished only once provision for Italian agri- cultural interests in this sector is made within the framework of the common agricultural policy for spirits. Secondly, the Italian authorities contend that discrimination which is at least as serious exists in the other Member States, such as that resulting from the existence of the monopolies in France and Germany.

The Commission does not altogether deny the existence of the agricultural problems posed by spirits in Italy. For this reason it maintains that the differential taxation provided for under Italian legislation and attributable to the imposition of the State tax may be permitted provisionally since the State tax constitutes, in a manner of speaking, an instrument of Italian agricultural policy on spirits, enabling the latter to be sold on the market regardless of their origin and irrespective of the cost of the raw material.

"In Italy, domestically-produced spirits are subject to State taxes at the rate of LIT 60 000 per hectolitre of pure alcohol and to a manufacturing tax of LIT 60 000 per hectolitre of pure alcohol. Numerous reductions are provided for by law, particularly in the case of potable spirits distilled from wine and from marc which are exempt from the State tax and subject to a manufac- turing tax of LIT 53 000 per hectolitre in the case of potable spirits distilled from wine and of LIT 50 000 per hectolitre in the case of potable spirits distilled from marc.

On the other hand, potable spirits distilled from wine and from marc and imported into Italy are subject to State taxes at the rate of LIT 60 000 per hectolitre of pure alcohol and to a manufacturing tax of LIT 60 000 per hectolitre of pure alcohol .. .

As early as November 1965 the Commission drew the attention of the Italian Government to the discriminatory nature of this system.

Subsequently, by letter of 8 May 1968, the Commission initiated, for infringement of Article 95 of the EEC Treaty, the procedure provided for in Article 169 of the Treaty. In its reply, given by letter of 23 July 1968 from the Italian Permanent Representation, the Italian Government informed the Commission that it had no intention of abolishing the differential taxes in question until the national monopolies existing in Germany and in France were modified and a common agricultural policy was established in this sector .. .

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v ESSEVI AND SALENGO

The arguments adduced are not capable, except in one respect, of calling in question the grounds on which the views expressed by the Commission in its letter of 8 May 1968 are based. Above all, it must be pointed out that in no circumstances may the Member States rely on similar infringements by other Member States in order to escape their own obligations under the provisions of the Treaty.

1 1 Since the Commission was not fully satisfied with the response of the Italian authorities to this new action on its part, it delivered on 31 July 1978 a reasoned opinion on differential taxation concerning the charging of the

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manufacturing tax and the State tax on spirits. As before, the reasoned opinion was not followed by the initiation of proceedings before the Court.

12 The Italian Government has argued before the Court that the contested system of taxation is in reality merely an aid in favour of agriculture granted in the form of a tax advantage reserved to domestic production. It takes the view that this system of aid was upheld by the reasoned opinion of 28 February 1969 and that, in the absence of any measure to the contrary, that authorization still subsists and must therefore be accepted as being valid by the national courts. Even in the absence of any authorization, that aid may be maintained by virtue of Article 93 on the ground that it predates the entry into force of the Treaty.

S i g n i f i c a n c e of t h e a t t i t u d e s a d o p t e d a n d t h e o p i n i o n s d e l i v e r e d by t h e C o m m i s s i o n u n d e r t h e p r o c e d u r e p r o v i d e d for in A r t i c l e 169

13 The purpose of the questions submitted by the Corte d'Appello is in the first place to establish the legal significance and authority of opinions delivered by the Commission under the procedure for instituting proceedings under Article 169 of the Treaty against a State for failure to fulfil its obligations. More precisely, the question is one of determining the legal effect of an assurance of the kind given by the Commission in its letter of formal notice of 8 May 1968 and its opinion of 28 February 1969, issued pursuant to Article 169 of the Treaty, authorizing Italy provisionally to maintain a system of so-called "differential taxation".

17 A fortiori, the Commission cannot, in the attitudes which it adopts and in the opinions which it is obliged to deliver under Article 169, exempt a Member State from compliance with its obligations under the Treaty. Such assurances cannot have the effect, in particular, of precluding individuals from relying in legal proceedings, on the rights conferred upon them by the Treaty in order to contest any legislative or administrative measures of a Member State which may be incompatible with Community Law.

18 The answer to the first part of the questions submitted should therefore be that opinions delivered by the Commission pursuant to Article 169 have legal effect only in relation to the commencement of proceedings before the Court against a State alleged to have failed to fulfil its obligations under the Treaty and that the Commission may not, by adopting an attitude in the context of that procedure, release a Member State from its obligations or impair rights which individuals derive from the Treaty.

Compatibility with Article 95 of a system of differential t a x a t i o n of s p i r i t s

19 The purpose of the second part of the questions submitted is to ascertain whether a Member State may impose on spirits originating in other Member States a fiscal charge from which similar domestic products are, in whole or in part, exempt.

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22 To make the grant of a tax exemption or the benefit of a reduced rate of taxation conditional upon the possibility of inspecting production on national territory constitutes, however, a condition which by definition cannot be satisfied by similar products from other Member States. The effect of such a requirement is to preclude in advance those products from qualifying for the tax advantage in question and to confine that advantage to domestic production. It is therefore apparent that such a system of taxation is dis- criminatory in nature and as such comes within the prohibition laid down by Article 95.

23 The answer to the second part of the questions submitted should therefore be that a system of taxation of spirits organized in such a way as to confine

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v ESSEVI AND SALENGO

exemptions or reduced rates of tax to domestic production alone constitutes discrimination prohibited by Article 95 of the Treaty.

T e m p o r a l effect of A r t i c l e 95 a n d its r e l a t i o n s h i p t o t h e s y s t e m of aids

24 The point raised by the third part of the questions submitted is whether, on the expiry of the period laid down by the third paragraph of Article 95, a Member State could have been authorized to maintain, by way of exception, pre-existing discrimination in the system of taxation applicable to the im- portation of potable spirits distilled from wine.

29 The answer to the third part of the questions submitted should therefore be that, under the third paragraph of Article 95, the rule against discrimination set out in the first two paragraphs of that article became fully effective as from 1 January 1962 and that a Member State could no longer be authorized to maintain after that date any pre-existing fiscal discrimination in the system applicable to the importation of potable spirits originating in other Member States.

T e m p o r a l effect of t h e p r e s e n t j u d g m e n t

30 In the observations which it has submitted to the Court, the Italian Government has contended that, should the Court find that the attitudes adopted by the Commission with regard to the application in the present case of the prohibition contained in Article 95 have no effect, it should limit the scope of its judgment to any improper levying of taxes which may take place in the future, whilst recognizing, as regards the past, the definitive nature of the effects of the exemption granted by the Commission.

31 In this regard, it relies first on the precedent set by the judgment of 8 April in Case 43/75 Defrenne [1976] ECR 455 in which the Court found, on the basis of the general principle of legal certainty, that it had the power to restrict, in exceptional cases, the right of those concerned to rely upon its judgments. An additional consideration in the circumstances is, according to the Italian Government, the need to protect its legitimate expectation regarding the validity of a tax measure expressly authorized by the Community executive.

35 With regard to the argument deduced from the taxes which the respondents in the main action seek to recover have been passed on to the consumers, it is necessary to state that the protection of rights guaranteed in the matter by the Community legal order does not require an order for the recovery of charges unduly levied to be granted in conditions which would involve an unjust enrichment of those entitled. There is therefore nothing, from the point of view of Community law, to prevent national courts from taking account in accordance with their national law of the fact that it has been

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possible for taxes unduly levied to be incorporated in the prices of the under- taking liable for the tax and to be passed on to the purchasers (judgment of 27 March 1980 in Case 61/79 Amministrazione delle Finanze v Denkavit Italiana [1980] ECR 1205).

Costs

36 The costs incurred by the Government of the Italian Republic and by the Commission of the European Communities, which have submitted obser- vations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court.

On those grounds,

Mertens de Wilmars Pescatore Mackenzie Stuart Koopmans O'Keeffe

Bosco Touffait Due Everling

Delivered in open court in Luxembourg on 27 May 1981.

A. Van Houtte J. Mertens de Wilmars Registrar President

O P I N I O N OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED O N 1 APRIL 1981 1

Mr President, brought in 1976 and in 1977 respectively Members of the Court, by the undertakings Essevi, Milan, and Salengo, Genoa, against the Am- ministrazione Italiana delle Finanze 1. The two procedures for a pre- [Italian State Finance Administration]. liminary ruling in respect of which this The plaintiffs sought at first instance — opinion is given raise identical problems and obtained by judgments of the concerning the interpretation of Article Tribunale [District Court], Milan, of 95 of the EEC Treaty, that is to say, of 1 June and of 7 October 1978 — an the well-known prohibition of internal order for the recovery from the taxation of a discriminatory nature. The defendant of the sums levied by way of questions have been submitted to this State tax on certain consignments of Court by the Corte d'Appello [Court of French cognac imported by Salengo Appeal], Milan, and relate to two actions between 1960 and 1971 and by Essevi 1 — Translated from the Italian.