Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

This request for the interpretation of certain articles of the Treaty of Rome, submitted to you by the Vrederechter of the Second Canton of Antwerp, is important for more than one reason. First, because it arises from a dispute concerning the contribution, introduced by the Belgian Laws of 12 April 1960 and 28 July 1962, which importers of unworked diamonds are required to make to the Sociaal Fonds voor de Diamantarbeiders. Before referring this matter to you, the national court gave lengthy consideration to the much discussed problem of the relationship between the Treaty and subsequent legislation and came to a conclusion along the lines of your judgment of 15 July 1964 in Costa v ENEL (Case 6/64 [1964] ECR 585). Furthermore, you will be dealing once again, in relation to a specific case, with concepts which have been the subject of a great deal of case-law, such as those of a charge having equivalent effect and of internal taxation and you will have to fix the limits of the rights of States. Finally, I would add that the issues raised here are not unconnected with those which you will be called on to consider in Case 24/68, brought by the Commission of the Communities against the Italian Government over the statistical levy imposed by that State on imports and exports.

I

Although the issues concern, and can only concern, the interpretation of Community provisions, in this instance Articles 9, 12, 13, 18 and 95 of the Treaty, their scope can only be understood and a proper reply given if they are looked at in the context of the dispute which gave rise to them at national level. For this reason I propose to deal with this aspect first.

1. The Law of 12 April 1960 established in Belgium a social fund for diamond workers (Sociaal Fonds voor de Diamantarbeiders) similar to those already in existence for other categories of workers, the purpose of which is the financing, award and payment of additional social benefits to such workers. Under Article 2(a) of that Law, as amended by the Law of 28 July 1962, the Fund is financed by means of contributions payable by all importers of unworked diamonds at a rate of of the value of the unworked diamond imported. However, the second subparagraph of the same article states that the King may grant exemption from contribution where the value of the diamond does not exceed BF 300 per carat or where it is imported from the Netherlands within the framework of the exchange agreement between the diamond industries of Belgium and the Netherlands.

2. The conditions of application of the Law and the position of the diamond market in Belgium have been described at length by the representatives of the parties to the main action, both in their written statements and at the hearing. Without going into detail, let me point out that Antwerp is more than merely a centre of the diamond industry; it is the centre of the international diamond market in which world prices are determined. Antwerp is the principal customer of the Diamond Trading Co., the distribution centre for De Beers, and also receives unworked stones from other sources, in particular from other States of the Community which are no more producers of diamonds than is Belgium. The raw material for the local industry and the products of that industry are traded in this market which also sells very large quantities of unworked and worked diamonds intended for other centres. The perfection of the organization, which is the result of a long tradition, is such that orders may be placed with firms operating in its for diamonds, both unworked and worked, on the faith of a detailed description.

3. As they considered that the contribution laid down by the Law of 28 July 1962 amounted in fact to a charge having an effect equivalent to a customs duty within the meaning of Article 12 of the Treaty, various trade associations and importers of unworked diamonds submitted to the Commission at the end of that year a complaint that in their view the Belgian State had failed to fulfil its obligations.

4. At the same time as these steps were being taken at Community level, other proceedings were begun before the competent Belgian court in which some 200 importers, against which the Social Fund brought an action for payment of these contributions, based their defence on the provisions of the Treaty. It was in these circumstances that the Vrederechter of the Second Canton of Antwerp chose two test cases, the Brachfeld case (involving an importer of unworked diamonds) and the Chougol case (involving an importer of industrial diamonds), entered in your Register under the numbers 2/69 and 3/69 respectively, and requested you in identical judgments of 24 December last to interpret certain articles of the Treaty.

II

A —. Question 1, which concerns Articles 9, 12, 13, 18 and 95 of the Treaty, asks you, first, whether the duties or charges having equivalent effect referred to in those articles or in certain of them must have all the characteristics of a charge of a fiscal nature and, secondly, whether these duties or charges are restricted to those which provide revenue for the Treasury or serve to reduce its burdens, or whether they include in a general way all those which a Member State imposes when imports are made, whatever their purpose, be it fiscal, administrative or social.

B —. The purpose of Questions 2, 3 and 4 in respect of the same articles is to determine whether the decisive factor is the nature of the imposition or its effect, whether the equivalent effect lies in an identity of purpose or in an identity of results of the imposition and whether the results must be assessed from the point of view of the amounts collected or from that of their influence on the free movement of goods. In other words, it is necessary to decide which are the decisive factors in order to assess, in relation to the Treaty, the customs duties and charges having equivalent effect referred to in Articles 9, 12 and 13 and the internal taxation on imported goods referred to in Article 95. A distinction must be made on this point.

C —. However, these indications only constitute a first approach to the problem. In Question 5(a) and (b), you are asked whether the concept of obstacles to trade always presupposes that the duty imposed is discriminatory or protective in effect and whether obstacles to trade could exist in the absence of competition from domestic products.

D —. In the remainder of Question 5 the Belgian court is attempting to clarify the scope of Article 12 by comparing it successively with other articles of the Treaty. But the various problems which it refers to you are at times presented in somewhat obscure terms and seems to be less directly connected with the action.

E —. Sixth and final question. It is noted in the judgment referring the matter that a special feature of this action is that the applicants in the main action are importers of a raw material who consider that they have been injured by their own government, and that they are unable to show that a producer of a similar raw material is favoured within the State which has taken the measure in dispute, as Belgium produces no diamonds of its own. They may, however, consider themselves to have been placed at a disadvantage in relation to their competitors in other countries who are not required to bear such a charge. On the other hand, Belgian undertakings which work diamonds enjoy an advantage in relation to those in other Member States, and that at the expense of importers, since the latter have to bear a part of the social security contributions which ought to be borne by such undertakings themselves.

If I now sum up the answers which might be given to the questions submitted to you, accepting that you consider that they all call for a reply, my conclusions would briefly be as follows:

In my opinion the decision as to costs incurred before this Court is a matter for the Vrederechter of the Second Canton of Antwerp.

1 Translated from the French.