Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. The co-responsibility levy which is at issue in this reference for a preliminary ruling was introduced by Council Regulation No 1079/77 of 17 May 1977 as a result of the following finding:

2. The co-responsibility levy occupies a special place among the measures adopted by the Community, since it is considered by the legislature to be a means of operating directly on the balance between supply and demand in order to establish a more direct link... between production and outlets for milk products (second recital in the preamble to Regulation No 1079/77).

3. In this reference for a preliminary ruling, the applicant in the main proceedings has challenged the rules for calculating the co-responsibility levy in an action brought before the Pretura Unificata [Magistrate's Court], Cremona.

4. As is clear from the order of the Pretura Unificata, the question whether or not the co-responsibility levy constitutes a tax is of particular importance to the national court. Under Italian law, if it were a tax, the Pretura Unificata would have no jurisdiction to hear the case. So far as I know, this is the first time that the Court has been asked to rule on this type of question, involving a potential connection between the nature of a Community charge and the rules on jurisdiction of national courts.

5. The second question submitted to the Court by the national court asks whether the regulations introducing the co-responsibility levy are lawful in view of the principle of nondiscrimination laid down in the second paragraph of Article 40 (3) of the EEC Treaty, which provides that a common organization of agricultural markets shall exclude any discrimination between producers or consumers within the Community.

6. The plaintiff in the main proceedings and the Italian Government complain that the institutions did not, in attributing responsibility for the creation of surpluses which depend largely upon the fat content of the milk, distinguish between the different producers. They argue that the uniform application of the levy is also contrary to the aim of the Community rules since, as the national court has stressed, it might be the result of manifest inconsistency amounting to misuse of powers.

7. In their observations the institutions are concerned chiefly to refute the foundation of that argument, namely the existence of a causal link between the imbalance on the market and the fat content of the milk.

8. It seems to me that the arguments put forward by the institutions cannot be refuted. Moreover, they are supported by the following table of statistics, supplied by the Commission at the Court's request, on the butter and skimmed-milk powder held by intervention agencies in the EEC.

9. It remains to be decided whether the submissions concerning the introduction in 1984 of the additional levy are capable of altering that conclusion.

10. In answer to the questions referred to the Court for a preliminary ruling by the Pretura Unificata, Cremona, I therefore propose that the Court should rule as follows:

1 Translated from the French.