C-302/88
ECLI:EU:C:1990:234
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HENNEN OLIE
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 6 June 1990 *
Mr President, In ordering the attainment of this result, the Members of the Court, direttive leaves Member States with a wide choice as to the laws, regulations or admin- istrative provisions to be adopted for that purpose. In particular, no indication is given as to whether stocks must be established and managed on a centralized basis by a public authority designated for that purpose, or 1. The national court making the present whether they may be constituted on a preliminary reference has submitted to the decentralized basis, as it were, within the Court of Justice two questions concerning premises of undertakings operating in the the compatibility with Article 34 of the EEC sector concerned. Moreover, no information Treaty of the Netherlands law which is provided as to the details or form of the implements Council Directive 68/414/EEC financial arrangements for stocks. of 20 December 1968.'
The Netherlands Government implemented the directive by means of the Wet Voor- raadvorming Aardolieprodukten of 21 It should be pointed out that the case October 1976 (Law on the Stockpiling of concerns a dispute of some complexity both Petroleum Products, hereinafter referred to with regard to the facts and to the scope of as *WVA'). the relevant national legislation. It therefore appears to me appropriate to provide some details at the outset and to refer for further The WVA creates an obligation to maintain information to the Report for the Hearing. stocks which it imposes on persons who produce or import petroleum products in the Netherlands. Stocks must be maintained at a level corresponding to a percentage (90 divided by 365) of the products placed on the domestic market in the Netherlands 2. Member States are required under during the preceding year. For the purpose Directive 68/414 to establish stocks of of establishing reserves, however, no petroleum products with a view to coping account is taken of quantities exported to with potential interruptions to fuel supplies. other countries. Stocks, which are obviously proportionate to the volume of domestic requirements, must, under the terms of Article 1, be main- tained at a level corresponding to at least 65 The WVA also provides that, subject to days' (subsequently increased to 90 days') conditions determined from time to time by average daily internal consumption in the the Minister for Economic Affairs, the obli- preceding calendar year. gations here in question may be assumed by a third party, wholly or in part, and that this has the effect of releasing the original * Original language: Italian. I — OJ, English Special Edition, 1968 (II), p. 586. party from his obligations.
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For this purpose, the Stichting Interim received authorization. Some members Centraal Orgaan Voorraadvorming Aardo- withdrew from Icova and resumed the lieprodukten (Provisional Central Board for maintenance of stocks on their account. the Stockpiling of Petroleum Products, hereinafter referred to as 'Icova') was set up on 7 September 1978. This body, which interested undertakings were free to join, was designed precisely to take over the obli A new and definitive order in these gation to maintain stocks, in return for the arrangements was not achieved until an payment of a contribution. Since, as I have amendment to the WVA was adopted on 24 already pointed out, there was no obligation December 1986 and entered into force on 1 in respect of exported products, it is obvious January 1987. Under that amendment, Icova that no contribution was owed with regard was replaced by a permanent body called to such products. COVA, to which was assigned the task of managing, at reduced cost, the stocks of petroleum products in the Netherlands. It should be pointed out that, under the new system, the stockpiling is financed by a levy, It is clear that Icova was under public similar to a tax, imposed on all petroleum control: the members of the Executive products which are subject to excise duty on Council were ministerial nominees; the mineral oils. This levy is refunded if the majority of the members of the Council product is exported. were appointed directly by the competent ministers (the Minister for Economic Affairs and the Minister for Finance), while the remainder were selected from a group representing the economic sectors con 3. With those initial remarks, I shall now go cerned; acts of the body were subject to on to examine the case as brought before approval by the Minister for Economic the national court, bearing in mind that the Affairs, who also had the power to direct, facts occurred prior to the amendment of supervise and, if necessary, to take 1986. decisions.
In the order making the reference, the It should, however, be pointed out that national court points out that undertakings while Icova, in the intentions of the legis which were members of Icova normally lature, represented the first step towards a passed on the contribution for the main permanent and centralized structure for the tenance of stocks in the selling price on the management of stocks, the situation was domestic market. Traders who purchased characterized for a number of years by a from those undertakings were faced with high degree of fluidity. Other bodies this additional price component both in assisted Icova in assuming the obligation to respect of products which were then resold maintain stocks. A number of undertakings on the domestic market and in respect of made their own arrangements. Ministerial those products which were subsequently authorization to transfer such an obligation re-exported elsewhere. Such traders, when to Icova was initially granted to six under exporting, consequently found themselves in takings, and then only partially; it was not a de facto unfavourable position vis-à-vis until later that a further 17 undertakings selling undertakings which were members of
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HENNEN OLIE
Icova: while the latter — as I have already of the category that considers itself to be stated — did not incur any charge in respect placed at a disadvantage. of exported products, non-member traders bore the charge, in the case of those products too, of the price supplement resulting from the passing-on by their 4. In that regard, it should first be borne in suppliers of the contribution already paid to mind that while the directive in question, Icova. According to the national court, this which is based on Article 103, provides that disadvantage was such as to lead some Member States are to be required to traders, including the plaintiff, to suspend establish fuel stocks of a determined their own exports. capacity, it provides no details concerning the procedures whereby such stocks are to be established, managed and financed; there is, for instance, nothing to prevent a State I should stress that the order making the from entrusting maintenance of stocks to a reference limits itself to considering the public body and subsidizing the associated divergent positions, with regard to exports, costs by means of an allocation from the of members of Icova on the one hand, and central budget (which is, moreover, the of their customers on the other. However, position at least in Germany and Italy in this subject covers a wider scope, as has respect of a part of national stocks, as tran become clear also from the observations spires from the material supplied by the submitted to the Court, because it also Commission at the Court's request). In covers the case of any Netherlands trader particular, it should be noted that the who obtained petroleum products from an directive does not make any provision undertaking, whether or not belonging to concerning the method whereby the costs of Icova, which was required by law to stockpiling, imposed on specific categories maintain stocks and consequently to bear an of undertakings, may or can be passed on in additional cost component which was then the selling prices on the domestic market or passed on to some degree in its own selling in the event of export. prices.
Thus, the situation to which the national Of course, even in this context, in which court appears to be referring is that in there is a wide margin of discretion, which a disparity in competitive position Member States are obliged to comply with arises within the same State between two the rule laid down in Article 34 of the categories of traders operating at different Treaty. As interpreted by the Court, levels of marketing. Such a disparity, in however, that provision precludes only turn, subsequently affects the export 'national measures which have as their prospects of one of the two categories specific object or effect the restriction of vis-à-vis the other. patterns of exports and thereby the estab lishment of a difference in treatment between the domestic trade of a Member State and its export trade, in such a way as to provide a special advantage for national The question referred to the Court is production or for the domestic market of whether a situation of this kind involves an 2 the State in question'. infringement of Article 34 and whether such an infringement would cease to exist if 2 — Judgment in Case 237/82 /ongeneel Kaai v Netherlands provision were made for refunding in favour [1984] ECR 483.
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5. It does not seem to me that the There is therefore no reason to fear any Netherlands provisions can be regarded as substantial distortion in this regard of inconsistent with that principle. Just as is the patterns of trade for the purposes of Article case in the majority of the other Member 34 of the EEC Treaty. States, a specific category of undertakings in the Netherlands dealing in petroleum products is required by law to maintain stocks in proportion to the amounts which they sell on the domestic market.
The management of such stocks, in the Netherlands as elsewhere, obviously involves a charge which, as the Commission 6. If we turn now to the particular situation has correctly pointed out, is included in the of those traders who purchased petroleum total operating costs of the undertakings. Of products from undertakings required to course, the situation in the Netherlands, like maintain stocks, the situation described by that in some other Member States, is char the national court concerning the market in acterized by the fact that the undertakings the Netherlands appears to be similar in placed under this obligation may choose to every respect to that which exists in the transfer it to a body operating under State other Member States. Such traders, as the
control. In such a case, the management of Commission pointed out, normally find the stocks is financed by a payment included in the purchase price that portion (calculated, on the basis of a fixed of the stockpiling costs which their sellers percentage rate, according to sales on the have been obliged to incur and, in so far as domestic market). Such a payment, market conditions permit, have then sought however, is in practice always incorporated to pass on. as an element in the costs of the under
taking. Therefore, irrespective of the arrangement selected — membership of Icova, management of stocks on one's own account or transfer of the obligation to a third party other than Icova — there is no reason to hold that the application of the We are dealing here, however, with legislation here in question entails a specific something that is a matter of obvious restriction on patterns of exports. The costs economic logic; the cost of stockpiling is of stockpiling which are directly or indi passed on in the selling prices in just the rectly incurred by the undertakings will be same way as other charges which also derive passed on in the domestic and export selling from statutory provisions, such as, for prices solely on the basis of considerations instance, social welfare charges or those of a commercial nature.
Indeed, inasmuch arising from compliance with environmental as from the order making the reference it rules. What is more important, however, is would seem to be the case that at least the fact that such is the result quite undertakings which are members of Icova regardless of the subsequent destination of tend (without, however, being bound to do the products. In other words, whatever the so by any rule) to pass the cost of stock purchase price which they have paid, traders piling exclusively or predominantly on to find themselves in the same position domestic sales, which alone are taken into whether they decide to resell on the account for the purpose of fixing the level domestic market or to export.
Once again, of stocks, it should be concluded that such therefore, it seems to me that no specific sales are in fact burdened by the stockpiling disadvantage for exports can be envisaged, costs to a greater extent than are exports. even indirectly.
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7. Of course, with regard to exports, The new system is without doubt intended traders are in a different position to that of to safeguard the commercial position of their suppliers, particularly if the latter tend exporters and, in particular, traders further to pass on stockpiling costs mainly in their down the commercial chain. Moreover, domestic sales (which, after all, are those what we have here is a measure which has which determine the amount of those costs). been adopted only in the Netherlands and it This difference in position, however, results, may readily be understood in view of the not from the legal framework introduced by export-oriented character of the petroleum the Netherlands legislature, but rather from industry in that State. In other words, it the free choices made by the undertakings represents a direct intervention to promote concerned; that, moreover, would appear to all levels of exports. However, we cannot be the normal consequence of the fact that conclude from this that the absence of such the traders here in question occupy various a mechanism results in a situation which is positions in the marketing chain. Confir incompatible with Article 34 of the Treaty. mation of this may be found in the fact that That provision does not give rise to an obli the situation described by the national court gation to guarantee to every trader optimum is, as I have already stated, analogous in all export prospects, still less opportunities respects to that which has arisen in the identical to those of a trader operating at a other Member States where traders further different marketing level, but merely the down the commercial chain are similarly obligation to ensure that exports as a whole faced with an increase in price resulting are not placed at a specific disadvantage from the fuel charges borne by their vis-à-vis the domestic market. suppliers, and have no possibility of obtaining a refund when those products are re-exported.
To sum up, it appears to me that, in Of course, that does not mean that no implementing the directive and in view of provision can be made for such a refund. the wide discretion provided for therein, That is what happened in the Netherlands Member States are obliged under Article 34 in the reforming legislation which came into only to refrain from introducing a system force in 1987. The new system, however, for establishing fuel stocks, the associated departs radically from its predecessor, charges for which fall principally on exports inasmuch as it envisages a centralized and on that account discriminate against system of management for national stocks them. On the other hand, Article 34 does and because it provides for financing by not impose any obligation to provide that means of a levy in the nature of a tax which exports should be exempted from every is added to the excise already burdening charge connected with stockpiling; legis petroleum products and reimbursed in the lation along those lines, such as that in force event that the latter are exported, no matter in the Netherlands since 1987, while it is by whom. The system thus specifically inspired by a clear intention to promote regulates the passing-on of the stockpiling exports, is not for that reason legally charge and at the same time ensures that the necessary. I do not believe, therefore, that charge is fully 'neutralized' in respect of the different legislation in force in the exports. Netherlands prior to that date could be
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considered to be incompatible with the the national court, does not appear relevant aforementioned article of the Treaty. to the appraisal of the present case. As was noted by all the other parties, the national legislation at the material time in this case 8. In limine, one final observation. The did no more than impose an obligation to Commission, particularly in its written establish stocks on those undertakings observations, has asked whether the national which marketed petroleum products. rules in question (that is to say, those prior Whether stockpiling was carried out by a to the amendment of 1986) might not particular undertaking on its own account possibly be examined from the standpoint of or was transferred to a third party (possibly Article 95 of the Treaty. Icova), the associated costs did not take on either the structural characteristics or the I must point out, however, that such an function of a fiscal levy. For that reason, I aspect, which in any case was not raised by do not believe that Article 95 is applicable.
9. In conclusion, I propose that the Court of Justice should give the following reply to the national court:
'Article 34 of the Treaty does not preclude the application of the Netherlands legislation in force up to 1 January 1987, which implemented Council Directive 68 / 414 / EEC . '
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