Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. By a judgment of 29 September 1984, the Cour d'appel [Court of Appeal], Douai, asked the Court to give a preliminary ruling on the interpretation of Article 33 of the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value-added tax: uniform basis of assessment (Official Journal 1977, L 145, p. 1). That article provides that without prejudice to other Community provisions, the provisions of this directive shall not prevent a Member State from maintaining or introducing taxes on insurance contracts, taxes on betting and gambling, excise duties, stamp duties and, more generally, any taxes, duties or charges which cannot be characterized as turnover taxes.

2. The Caisse de compensation de l'Organisation autonome nationale de l'industrie et du commerce [Compensation Fund of the National Independent Organization for Trade and Industry] (Organic) is a social security institution. One of its duties is to collect a solidarity levy (contribution sociale de solidarité) and a mutual assistance charge (taxe d'entr'aide) to which commercial companies, with certain exceptions, are liable. The method of calculating and collecting those levies is laid down in Law No 70-13 of 3 January 1970 and Law No 70-657 of 13 July 1972.

3. During the procedure before the Court of Justice, written observations were submitted by Organic, the Government of the French Republic, and the Commission of the European Communities. Rousseau Wilmot SA presented its case only at the hearing.

4. Let us begin at the beginning. The first two directives dealing with fiscal matters (67/227/EEC and 67/228/EEC of 11 April 1967, Official Journal, English Special Edition 1967, p. 14 et seq.) were adopted to harmonize the national legislation concerning turnover taxes. It was thus intended to eliminate factors which, like the levies in question, were capable of either falsifying the conditions of competition or impeding the free movement of goods and services in the Common Market. The Member States were thus required to enact legislation to replace, within a specified time-limit, their systems of turnover taxes by a common system of value-added tax (Article 1 of the First Directive). Moreover, from the entry into force of the legislation adopted for that purpose, the Member States could no longer maintain or introduce any measure providing for flatrate equalization of turnover taxes on importation or exportation in intra-Community trade.

5. At this point I do not consider it necessary to examine in detail the rules concerning the contribution sociale de solidarité and the taxe d'entr'aide. The judgment for reference already makes clear that: (a) those levies do not attach either to deliveries of goods or the provision of services for gain within the country, or to imported products, but to the whole economic activity of commercial undertakings; (b) the basis of assessment is not constituted by the consideration for each taxable transaction but by the turnover of the undertaking during the preceding financial year; and (c) the class of persons liable to them is limited to certain legal persons and, consequently, does not include natural persons even if they engage in an economic activity. It seems to me that that is sufficient to arrive at a conclusion which does not leave any room for doubt: the two levies lack the generality, neutrality and transparency which, as I have already shown, characterize the common tax and, consequently, charges prohibited by Article 33 of the Directive.

6. In the light of the foregoing considerations, I propose that the Court reply to the question referred to it by the Cour d'appel, Douai, by judgment of 29 September 1974 in the proceedings pending before that court between Rousseau Wilmot SA and Organic as follows :

1 Translated from the Italian.