Opinion of Mr advocate-general Trabucchi

Mr President,

Members of the Court,

1. The Court is faced with the task of giving a preliminary ruling on the interpretation of Regulation (EEC) No 234/68 of the Council of 27 February 1968 on the establishment of a common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage. It is the same document on which a preliminary ruling was given in the judgment delivered on 30 October last in Van Haaster (Case 190/73). On that occasion the question was whether Article 10 of the Regulation, which prohibits any kind of quantitative restriction or measure having equivalent effect in intra-Community trade in the products covered by the regulation, also prohibited national interventions which, while not directly affecting trade, affect production by imposing a restriction on the quantity of articles produced. In this case we are first asked whether this provision, which forbids the levying of any customs duty or charge having equivalent effect, excludes the application of national charges of the kind described as surplus levy and trade levy which were the subject of three regulations issued in 1971 and 1972 by a Dutch public authority, the Produktschap voor Siergewassen (Ornamental Plant Authority) to which we shall refer from now on as the PVS.

2. In its first question the Dutch court requests the interpretation of the said Article 10 of Regulation No 234/68 and of the corresponding provision of Article 16 of the EEC Treaty of the two types of charges in question; in its second, the court asks whether Article 40 of the Treaty and Article 1 of the Regulation or indeed other provisions or general principles of Community law mean that in the live plants sector, which is the subject of the Regulation concerned, the creation of market organizations like that covered by the PVS regulations on the surplus levy and on the trade levy is no longer permitted except for the purpose of implementing the basic Community Regulation.

3. In the light of these precedents, we must now consider whether, bearing in mind other general provisions or principles of Community law which must govern application of Regulation No 234/68 and the working of the common market organization, the Regulation is such as to preclude the application, on sales of products covered by the relevant common organization, of internal charges of a fiscal nature and of the type which was the subject of the 1971 and 1972 Regulations of the PVS referred to earlier.

4. As for the exemption of the Dutch bulbgrower who puts bulbs produced by him to immediate use for the production of flowers on his premises, a situation on which the plaintiff in the main action bases part of his case, this does not appear to contain anything of a manifestly discriminatory character or, from any other point of view, to be incompatible with a Community rule. This exception is the objective outcome of the condition that the charge shall apply only to products put on the market and the exemption may well be justified on practical grounds. But, once again, we are faced with the obvious limitations of the procedure for a preliminary ruling and the need for the Commission to make a preliminary study in depth of all the circumstances.

5. As regards, more specifically, the surplus levy this, as we have seen, serves to finance machinery used to prevent bulbs being put on the market at a price lower than the minimum price fixed by a national authority. The fact that Regulation No 234/68 provides for minimum prices to be fixed for the products concerned when exported to third countries, without any corresponding provision for sales in the common market, certainly does not allow us, by arguing in reverse, to conclude that a system of minimum prices for sales within the Community should be held to be prohibited, not even if it has been instituted and maintained in operation unilaterally by the national authority. On the contrary, precisely because the common organization has not, as far as the internal market is concerned, provided any intervention machinery on the subject of prices, the validity of an appropriate national system of intervention cannot, in principle, be ruled out.

6. The position with regard to the trade levy is not so clear. This is partly because it is difficult to ascertain the amount involved and the different ways in which the levy is applied to the various categories of product, and partly because the purposes for which the income from the levy is used are less well defined.

7. Finally, the Dutch court refers a third question whose object is the interpretation of Article 93 (2) of the EEC Treaty in the light of the letter addressed on 9 February 1972 by the Vice-President of the Commission to the Netherlands Minister of Foreign Affairs concerning application of Article 93 to certain aids granted by the State in the sector with which we are concerned. In the light of the close connexion which, in the view of the national court, exists between the question of interpretation of the aforesaid provision of the Treaty and the Commission letter referred to, one could even limit oneself here to observing that the letter expressly refers to the application only of paragraph 1 of Article 93, which refers to the Commission keeping systems of aid existing in Member States under constant review, while paragraph 3 refers to plans to introduce fresh aids or at least to make changes in existing arrangements.

8. The fact that certain aspects of the national system of intervention to which the Dutch court refers are not wholly transparent has prevented me from speaking with complete assurance on all the points I have been considering. However, in a case involving a preliminary ruling on questions of interpretation, it is primarily the duty of the national court to establish the facts to which Community law must be applied. If the facts fit one or other of the possibilities I have suggested, the national court will draw the necessary conclusions. In particular, it must treat the internal levies as inapplicable insofar as they are capable of giving rise to differences of treatment between purchasers in the country concerned and in other Member States; or are in breach of the restraints laid down in Article 10 of Regulation No 234/68; or, in any case, are in conflict with the objects and the proper working of the common market organization (due account being taken of what has been explained on the subject of quality standards); or, finally, whether in connexion with such measures there has been a failure to meet the formal requirements of Article 93 (3) of the EEC Treaty.

I therefore propose that the questions of the Dutch court should be answered as follows:

1 Translated from the Italian.