Opinion of Mr advocate general Mayras

Mr President,

Members of the Court,

I —. This reference for a preliminary ruling originates in the following facts:

II —. This is not the first time that the Court has had to deal with the compatibility of Community legislation with the system of the Price Committee's special surcharge. Therefore I shall refrain from describing its aims and objectives.

III —. (1) It follows from Article 33 of Regulation No 3330/74 that in order to prevent the market in sugar being disturbed as a result of an alteration in price levels at the change-over from one marketing year to the next — whether that alteration is due to an adjustment of the price in units of account or of the rate of the green currency — the functioning of the common organization of the market and in particular the formation of producer prices must in principle be governed by the general Community provisions as laid down in general rules amended annually with the result that any specific interference with this function is strictly limited to the cases expressly provided for. The Court so held in its judgment in the Cucchi case (paragraph 31 of the decision), and it added (in paragraph 34 of the decision) that this provision is as much concerned with the consequences of an alteration in rates of exchange as with those of an alteration in intervention prices and …, under the common agricultural policy, both are matters within the Community's exclusive powers. Moreover, according, to the judgments of 26 February 1976 in Case 65/75 Tasca [1976] ECR 291 at p. 309 and in Joined Cases 88 to 90/75 SA DAM [1976] ECR 323 at p. 340, a maximum price, in any event in so far as it applies to imported products, constitutes a measure having an effect equivalent to a quantitative restriction prohibited by Article 30 when it is fixed at such a low level that, having regard to the general situation of imported products compared to that of domestic products, dealers wishing to import the product in question into the Member State concerned can do so only at a loss. It will be for the national court to decide whether the Italian Order No 15/1978 affects the formation of prices for sugar marketed in Italy, having regard both to the direct relationship between that measure's adoption and the Community adjustment of the price of sugar resulting from Council Regulation No 1399/78 of 20 June 1978 fixing the prices applicable to sugar for the 1978/1979 marketing year, and to the 7.2 % devaluation in the representative green rate of the Italian lira decided as from the 1978/1979 marketing year by Council Regulation No 976/78 of 12 May 1978. It will also be for the national court to decide whether the charge of Lit. 21 which the Price Committee empowered the Cassa Conguaglio Zucchero [Sugar Equalization Fund] to levy results from the increase decided at Community level and constitutes a sum which only Community legislation could order to be confiscated or specially appropriated. (2) A measure of the kind mentioned involves a breach of the principle of nondiscrimination laid down in the second subparagraph of Article 40 (3) of the Treaty to the extent to which it constitutes a special charge differentiated according to the capacity of the trader on whom it is imposed. Granulated sugar imported from Member States held in stock by Italian producers on 5 July 1978 was exempted from the charge — and the Suiker Unie and other cases have shown that Italian refiners import not inconsiderable quantities of it — whereas the same sugar of Community origin held in stock at the same date by Italian wholesalers, importers and retailers was subject to it. It deprives the latter of an advantage which is conferred on other traders by a directly applicable Community provision. In so far as the levying of it depends on the capacity of those on whom it is imposed, a charge of this kind constitutes a charge having equivalent effect the levying of which is prohibited by Article 21 (2) of Regulation No 3330/74. (3) Finally, it may be wondered whether the ultimate aim and effect of a measure of this kind are not to cause the adaptation aid authorized by Article 38 (2a) of Regulation No 3330/74 (as amended by Article 2 of Council Regulation No 1396/78 of 20 June 1978) to the benefit of Italian beet-growers and refiners to be financed in part by a charge levied on imports of sugar, that is to say in the end by the foreign suppliers whom it is precisely a question of supplanting. Such a consequence would be contrary to Article 41 of Regulation No 3330/74 and to the Court's judgments of 19 June 1973(Capolongo [1973] ECR 611) and of 18 June 1975(IGAV[1975] ECR 699). However, such a finding ought to be made by the Commission acting on the basis of Article 93 or 169 of the Treaty rather than by the national court, which cannot be asked to carry out laborious inquiries involving sometimes uncertain comparisons.

My opinion is that the Court should rule that the system of sugar prices adopted within the frame-work of the common organization of the market in sugar and of the subsequent provisions adopted by the Community authorities precludes a Member State from being able to intervene unilaterally in order to fix the consumer selling price of that product within its territory in reliance upon the need to protect its economy against speculative practices and to guarantee supplies to consumers.

1 Translated from the French.