Opinion of Mr advocate-general Trabucchi

Mr President,

Members of the Court,

1. In the judgment in Case 77/72, (Capolongo v Maya [1973] ECR 622) the Court, answering questions referred for a preliminary ruling mainly concerning Articles 13 and 92 of the EEC Treaty, raised in connection with the contribution to the Ente nazionale per la cellulosa e per la carta (National Board for Cellulose and Paper, ENCC levied on packaging imported into Italy, had declared itself as follows:

2. The Pretore of Abbiategrasso re-submits the questions of interpretation regarding Article 13 (2) of the Treaty which was also referred in Case 77/72. In the present case, however, the question is more specific, because, in framing it, the Pretore epitomizes a number of features which make it possible to identify and distinguish more closely, than in the earlier case the issues in connexion with which an interpretation of the EEC Treaty is being sought. The essential features the internal charge concerning which the Italian Court is seeking interpretation of Article 13 (2) are the following:

3. The levy to which the Italian court refers consists of a national charge which resembles a tax falling on national products or on products of other Member States imported for consumption in Italy. The conditions under which it is applied are identical in the case of each category of product.

4. However, in Capolongo, the Court ruled as follows: A duty falling within a general system of internal taxation applied systematically to national and imported products according to the same criteria can nevertheless constitute a charge having an effect equivalent to a customs duty on exports, when such duties are intended exclusively to support activities which specifically benefit the taxed domestic product.

5. In the circumstances envisaged by the court making the reference, the application of these principles tends to prevent the ruling in Capolongo from providing it with adequate guide-lines on which to reach a decision in the main action. Indeed, more than half the outgoings of the Ente is allocated to activities associated with products, such as newsprint and paper for periodicals, other than those on which the charge collected by the Ente is levied. In certain cases the man who produces paper or cardboard and the man who produces newspapers are one and the same person. But, apart the fact that such identity is purely a matter of chance, it must be borne in mind that the mandatory reduction in the price of newsprint and the exceptions made in favour of the periodical press are of specific benefit to the publishers concerned, whereas the national producers of these types of paper can derive only indirect advantage therefrom, if at all, in so far as these measures may increase the national demand for newsprint and, as has already been indicated, in so far as, more particularly, they may be placed in a position of advantage in the Italian market compared with foreign producers of newsprint.

6. Viewing the reference from the Italian Court against the background of the actual requirements of the situation and bearing in mind what has been said concerning the effect of Article 13 (2), I believe that its first question could best be considered under Article 95.

7. As regards the second question which is, however, in my view, superfluous, it suffices to point out that the right of private parties to have Article 13 (2) of the Treaty, which this Court has already declared to be directly applicable, enforced was created only after the date of expiry of the transitional period. In fact, the Decision of the Council of 26 July 1966 concerning earlier establishment of the customs union affected neither measures having equivalent effect to customs duties nor measures having equivalent effect to quantitative restrictions.

8. The third question asks whether, bearing in mind the consequences which flow from the reduction in the market price of paper subsidized by means of the abovementioned charge, the charge is not in conflict with Community law, given also that it enables the national paper mills, to the exclusion of Community competitors, to share out amongst themselves almost the whole of the Italian market in newsprint, thus creating a situation which contravenes Article 85 and 86 of the Treaty.

On the basis of the foregoing considerations, then, I recommend that the answer to the questions referred by the Pretore of Abbiategrasso should be to the following effect:

1 Translated from the Italian.