Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. By interlocutory judgment of 28 October 1986 the Vredegerecht (Local Court) for the Canton of Beveren-Waas asked the Court to interpret the provisions of the EEC Treaty on competition, establishment, the free movement of services and the prevention of discriminatory taxation in relation to the Belgian rules concerning the interest payable on savings deposits.

2. The Belgian Government suggests, recalling the Court's judgment of 16 December 1981 in Case 244/80 Foglia v Novello [1981] ECR 3045, that the Court should disclaim jurisdiction. In its view, the main proceedings are fictitious and were, in any event, instituted as a pretext, as is borne out by seven factors: (a) the plaintiff's lawyer is a trainee in the chambers of the lawyer representing ASPA; (b) the parties have submitted joint conclusions asking for the proceedings to be suspended and for a reference to be made to the Court of Justice; (c) the parties chose by agreement the court of Beveren-Waas in preference to the court of Antwerp, which has territorial jurisdiction; (d) the dispute is devoid of purpose since, apart from precluding the grant of tax relief, the Decree of 13 March 1986 does not prohibit ASPA from applying more favourable terms to savings deposits; (e) since the proceedings were instituted before a local court, the Belgian Government was unable to put forward its arguments in those proceedings; (f) in so far as the Court's judgment would exert pressure on the Treasury Minister, it would be inutiliter data; and (g) proceedings instituted by a credit institution for the annulment of the contested legislation are pending before the Belgian Council of State.

3. As the Court will recall, Question (a), in which I summarized and rephrased the first two questions submitted by the national court, asks the Court to establish whether the legislation of a Member State which makes a tax exemption conditional on the application of uniform interest rates to savings deposits is contrary to the Community rules of competition.

4. I now come to Question (b) which in substance reproduces the third question submitted by the Belgian court. It seeks to ascertain whether the legislation of a Member State, which reserves the benefit of tax exemption to deposits denominated in national currency and held at credit institutions operating within the territory of the State concerned, is contrary to the rules of primary legislation on establishment, the free movement of services and the prevention of discriminatory taxation.

5. In the light of all the foregoing considerations, I suggest that the questions submitted to the Court of Justice by the Vredegerecht for the Canton of Beveren-Waas by interlocutory judgment of 28 October 1986 in the case pending before it between Pascal Van Eycke and ASPA NV should be answered as follows :

1 Translated from the Italian.