C-332/92

2. That is the question, which might have been thought settled since the judgment in the Geddo case, 1that the Court is requested to reconsider in the questions referred by the Vercelli Conciliatura (Lay Magistrate's 4. It is that 'contract duty' which is at the Court) and the Pretura Circondariale (Dis­ heart of this matter, as it was earlier in the trict Magistrate's Court). Let there be no Geddo case. mistake: the plaintiffs in the main proceed­ ings are seeking here the outright reversal of the case-law. 2 — GURI (Official Gazette of the Italian Republic) of 12 Octo­ ber 1931, No 236. 3 — Article 1. 4 — On the tasks of the Authority, see its observations at p. 13 et * Original language: French. seq. of the French translation. 5 — See Article 9 of Royal Decree-Law No 1183 of 11 1 — Case 2/73 Riseria Litigi Geddo v Ente Nazionale Risi [1973] August 1933, GURI, No 218 (Annex 8 to the Authority's ECR 865. observations).

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5. The Geddo rice mill had bought from an 8. The Court pointed out that the 'contract Italian producer paddy rice for processing duty' affected 'domestic products alone on into an edible product and for export, part completion of a contract covering them' and within the Community and part to a non- not 'goods by reason of their crossing the 6 member country. That purchase had been frontier', and classed it as an 'internal tax' declared to the Authority which had levied not constituting a charge having equivalent 9 contract duty. The purchaser took legal effect to a customs duty on exports. action for reimbursement, on the ground that Community law precluded such a charge.

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member country — making refunds payable 14. In Cases C-333/92 and C-335/92, the — in the Eurico Italia case. Moreover, the Conciliatura and the Pretura Circondariale Community regulation applicable here is for Vercelli have referred to the Court for a Council Regulation (EEC) No 1418/76 of 21 preliminary ruling two questions, in identical June 1976 on the common organization of terms, on whether non-reimbursement, in 1 the market in rice, 1which contains a provi­ the event of export to another Member State, sion identical to that in Article 17 (2) of the infringes (1) the general prohibition of dis­ abovementioned Regulation No 359/67, now crimination in Community law and, in par­ 1 repealed. 2 ticular, of the second subparagraph of Art­ icle 40 (3) and Article 5 of the EEC Treaty, or (2) the general principle according to which exported products are to be taxed where they are consumed.

12. Nearly 20 years after the Geddo judg­ ment, is it not the fear of a substantial increase in contract duty, together with threats to the competitiveness of Italian rice, which have led the rice mills, plaintiffs in the 15. In addition to the question whether con­ main proceedings, to challenge afresh the tract duty is compatible with the general compatibility of the duty with Community 13 principle of non-discrimination, the Concil­ law? iatura of Vercelli, in Case C-332/92, asks whether non-reimbursement of the contract duty, in the event of export to a non-member country, contravenes Article 17 (2) of the abovementioned Council Regulation (EEC) No 1418/76: refunds made to purchasers of Italian rice have contract duty deducted from them and are, therefore, less than those paid to other Community traders.

18. In the first place, the Authority and H 21. Secondly, the Authority raises several the Italian Government 15 pointed out that procedural objections: (i) the court malung the questions submitted had been asked the reference does not have jurisdiction to within the context of a summary procedure decide on the substance of the claim for a called 'di ingiunzione' (order) purely on the refund of the contract duty, (ii) it failed to basis of claims made by the plaintiff com­ take the Court's decisions into consideration, panies, without any hearing inter partes. in particular the Geddo judgment, (iii) the questions referred are mere 'pretexts', having regard both to the insignificant amount of the sums claimed and also to the economic weight of the traders concerned.

16 19. In the Politi case, in which the Presi­ dent of the Tribunale di Torino (District Court of Turin), in a similar procedure, 22. The Court has already answered the first referred several questions to the Court, the point in the Debus judgment " in these lack of an inter partes hearing was held by terms: the Court not to preclude the reference in so far as:

'As far as the doubts raised by the Commis­ sion as to the admissibility of the reference

'(...) the President of the Tribunale di Torino is performing a judicial function within the meaning of Article 177 and (...) he consid­ 17 — Point 5. 18 — Sec also the judgment in Case 338/85 Panimi [1988] ECR 2041 at paragraph 8. Sec also my Opinion in Case C-24/92 Corbiaii [1993] ECR 1-1277, at 1-1287, para­ graphs 8 to 10, and in Case C-277/91, C-318/91 and C-319/91 Ligur Carm [1993] ECR I-6621, at I-6632, at 14 — Observations, pp. 2 and 3 of the French translation. paragraph 14. 15 — Observations, p. 1 of the French translation. 19 — Cases C-13/91 and C-113/91 Debus [1992] ECR 1-3617, at 16 — Judgment in Case 43/71 Poliu [1971] ECR 1039. paragraph 8.

24. As to the third point, the case-law is consistent: Article 177, based on a clear sep­ aration of the duties belonging respectively 'Although the Court, when giving a ruling to national courts and the Court, does not under Article 177, has no jurisdiction to allow the latter to assess the relevance of the

21 — Judgment in Case C-186/90 Durighello [1991] ECR I-5773, at paragraph 8. 20 — Judgment in Joined Cases 28/62,29/62and 30/62 Da Costa 22 — Observations of the defendant in the main proceedings, [1963] ECR 31, at p. 38. p. 12 of the French translation.

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apply the Community rule to a specific case 30. Is contract duty, therefore, compatible or, consequently, to pronounce upon a pro­ with the second subparagraph of Article 40 vision of national law, it may however pro­ (3) of the Treaty, which prohibits discrimina­ vide the national court with the factors of tion between producers and consumers interpretation depending on Community law within the Community? which might be useful to it in evaluating the 2 effects of such provision.' 3

31. In his Opinion for the Geddo judgment, Mr Advocate General Trabucchi had refor­ mulated in these terms the discrimination alleged by the purchasers of rice: 'the Italian 27. Let me, therefore, now turn to the first business which buys paddy rice in Italy is question. being discriminated against in comparison with its competitors in the Community, because the latter obtain their supplies on the world market without having to pay the contract duty, and (...) this interferes with the proper working of the mechanisms used to 25 implement the common policy on prices'. The rice producer who buys Italian paddy rice thus bears an extra cost from which the 28. Under Article 9 of Decree-Law No 1237 purchaser of rice produced in another Mem­ of 2 October 1931, a purchaser is to pay con­ ber State is exempt. tract duty to the Authority on every contract for the sale of Italian paddy rice.

37. The Court ruled in that case that:

34. The situation of such purchasers cannot be compared with that of purchasers of '(...) In providing that Member States shall paddy rice produced in another Member take all appropriate measures to ensure that State who are not subject to the payment of their obligations are carried out and shall the duty but who do not have access either abstain from any measure liable to jeopar­ to the services of a body such as the Author­ dize the attainment of the objectives of the ity. Treaty, Article 5 imposes a general obligation on Member States, the actual significance of which depends, in each particular case, on the provisions of the Treaty or on the rules 28 laid down within its general framework'.

35. It follows that the terms of the compar­ ison do not in the present case permit the application of the second subparagraph of Article 40 (3) of the Treaty and that, without its even being necessary to consider the 38. It follows that if the national rules do not conflict with the second subparagraph of Article 40 (3) of the Treaty, they are not, here, incompatible with Article 5 either. 26 — See judgment in Case 203/86 Spain v Contici! [1988] ECR 4563, at paragraph 25, my italics. 27 — On this point, see the Opinion of Mr Advocate General Trabucchi in Case 2/73 Geddo [1973] ECR 881, in particu­ lar at p. 890. 28 — Point 4.

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39. If the introduction of contract duty does on the subject of a temporary national duty not conflict with the second subparagraph of imposed by Ireland on live domestic bovine Article 40 (3) of the Treaty, is it compatible animals at the time of their delivery (with the with the price fixing mechanism provided for exception of imported bovine animals): by the common organization of the market in rice? Does it interfere with the working of that common organization? That is the claim of the plaintiffs in the main proceedings who, drawing attention to the requirements of the third subparagraph of Article 40 (3) of the Treaty, point out that rice '(...) is subject to a common price policy which is based on common criteria and uniform methods of 29 calculation'.

29 — Observations oí tlie plaintiffs in the main proceedings, p. 13 of the French translation. Sec also p. 22 et seq. 30 — Sec the third and fourth recitals to and the first title of Council Regulation (EEC) No 1418/76. 42. The court therefore held that it was for 31 — See the seventh recital to Council Regulation (EEC) No 1418/76: 'Whereas the target price, intervention prices the national court to decide whether that and threshold prices should, in the course of the marketing duty had effects which obstructed the work­ year, be subject to a certain number of monthly increases in order to take account, inter alia, of storage costs and inter­ ing of the machinery established by the com­ est charges for storing rice in the Community and of the need to ensure that the disposal of stocks conforms to mar­ mon organizations of the market, taking into ket requirements'. 32 — See the Commission' reply to the first question asked by the Court. 33 — Joined Cases 36 and 71/80 Irish Creamery Milk Suppliers Association [1981] ECR 735. 34 — Paragraph 20.

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OPINION OF MR DARMON — JOINED CASES C-332/92, C-333/92 AND C-335/92

account its rate and duration and also the sit­ which 'any charge imposed on a domestic uation on the market in question, and more product is as a rule reimbursed when the particularly the number of products to product is exported to other countries'. 35 which it applied. The Court observed that:

'A short-term duty on a large number of 38 products may be neutral in the sense that it 45. As the Commission rightly points out, does not alter the structure of agricultural this duty is not a tax on consumption but a production. On the other hand, if the duty parafiscal charge. Moreover, the Court encourages producers to replace some of the defined it in 1973 as 'an internal tax affecting production of the goods subject to the duty domestic products alone on completion of a by production of goods not subject thereto, contract covering them and designed to build the duty is liable to create distortion on a up a fund to promote national produc­ 36 39 number of markets.' tion'.

'(...) although Article 95 prohibits any Mem­ ber State from imposing internal taxation on 51. I turn, finally, to the third question: is products imported from other Member the non-reimbursement of contract duty States in excess of that on national products, compatible with the rule laid down by Art­ it does not prohibit the imposition on icle 17 (2) of Council Regulation (EEC) national products of internal taxation in No 1418/76 by virtue of which the refund on excess of that on imported products. export is to be the same for the whole Com­ munity? Is there an infringement of that pro­ vision if the exporter must pay a contract duty which reduces the amount of the refunds granted by the Community?

Disparities of this kind do not come within 41 the scope of Article 95 (...).'

52. The Court has already considered that 43 question in Geddo. Mr Advocate General Trabucchi raised the point then, in his Opin­ ion, that:

49. In this case, the national legislation does not prejudice the principle that internal tax­ ation should be neutral with respect to com­ petition between domestic products and imported products. The levy related to 'The contract duty is applied to rice pro­ encouraging national production does not duced in Italy, regardless of whether it is affect the production of the other Member States. 42 — See, on this point, the Opinion of Mr Advocate General Mischo for the Morvianjudgment cited above, at paragraph 51. 41 — Judgment in Case 86/78 Peureux [1979] ECR 897, at para­ 43 — The second paragraph of point 6, and paragraph 2 of the graphs 32 and 33. operative part.

44 — Geddo, at p. 891. 47 — Ibid., point 6. 45 — Observations of the Italian Government, p. 4 of the French 48 — Which, moreover, was already in existence when the export translation. refunds were established. 46 — See Geddo judgment, last paragraph of point 5. 49 — Observations, pp. 8 and 17 of the French translation.

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58. I therefore propose that the Court rule as follows:

(1) Articles 5 and 40 (3) of the EEC Treaty do not in principle preclude non­ reimbursement of an internal tax levied on contracts for the purchase of paddy rice produced in a Member State and designed to build up a fund to assist national production.

(2) It is, however, for the national court to decide whether, and if so to what extent, such a duty has the effect of impeding the proper functioning of the price mechanisms established by the common organization of the market in rice.