Opinion of Mr Advocate General Mayras

Mr President,

Members of the Court,

The Pretura di Castell'Arquato, by an order of 6 September 1979, has referred to your Lordships, pursuant to Article 177 of the Treaty of Rome, questions for a preliminary ruling on the interpretation or Article 95 of that Treaty with reference to the Italian legislation on the taxation of denatured alcohol, because he considers that the examination of the legality of the increase in the State tax at issue, laid down by Law No 506 of 18 August 1978, becomes decisive as a preliminary question to be resolved for the purposes of the decision.

These questions are very similar to those referred to your Lordships by an order made in chambers on 30 January 1980 by the Honorary Vice-Pretore of Casteggio which are the subject-matter of Case 46/80.

I —. In this case Chemial Farmaceutici SpA of Turin [hereinafter referred to as Chemial] has asked the Pretura to order DAF SpA of San Giorgio Piacentino [hereinafter referred to as DAF] to give effect to an offer for sale made on 18 July 1978 and accepted by the parties inter se on 27 July 1978 relating to a sample of 20 hectolitres of synthetic ethyl alcohol, having an alcoholic strength of 90o, imported from a Member State and denatured, to be supplied on 15 September 1978.

II —. It is in fact apparent that Chemial, by means of these proceedings, is seeking, on the basis of an important judgment of the Court of Justice (judgment of 10 October 1978 in Case 148/77 H. Hansen jun. & O. G Balle GmbH & Co. v Hauptzollamt Flensburg [1978] ECR 1787 et seq.) to persuade your Lordships to rule that the Italian Republic, by continuing to apply the special tax of LIT 6000 per hectolitre of denatured synthetic alcohol, introduced by Decreto Legge No 1200 of 6 October 1948, as amended by Decreto Legge No 836 of 16 September 1955 — which was later increased to LIT 12000 by Law No 506 of 18 August 1978 — has failed to fulfil its obligations under Article 95 of the Treaty.

Ill —. Moreover your Lordships have not been taken in by this device; although none of the Member States — not even the Italian Republic — nor the Commission have requested that the case be decided in plenary session, your Lordships have not made an order assigning it to a chamber.

I submit that your Lordships should hold that the Court of Justice does not have jurisdiction to rule on the questions referred to it by the national court. If your Lordships do not accept this solution I shall request you to permit me to give my opinion on the substance of the case.

1 Translated from the French.