Opinion of Mr Advocate General Tesauro

Mr President,

Members of the Court,

1. The national court making the present preliminary reference has submitted to the Court of Justice two questions concerning the compatibility with Article 34 of the EEC Treaty of the Netherlands law which implements Council Directive 68/414/EEC of 20 December 1968.

2. Member States are required under Directive 68/414 to establish stocks of petroleum products with a view to coping with potential interruptions to fuel supplies. Stocks, which are obviously proportionate to the volume of domestic requirements, must, under the terms of Article 1, be maintained at a level corresponding to at least 65 days' (subsequently increased to 90 days') average daily internal consumption in the preceding calendar year.

3. With those initial remarks, I shall now go on to examine the case as brought before the national court, bearing in mind that the facts occurred prior to the amendment of 1986.

4. In that regard, it should first be borne in mind that while the directive in question, which is based on Article 103, provides that Member States are to be required to establish fuel stocks of a determined capacity, it provides no details concerning the procedures whereby such stocks are to be established, managed and financed; there is, for instance, nothing to prevent a State from entrusting maintenance of stocks to a public body and subsidizing the associated costs by means of an allocation from the central budget (which is, moreover, the position at least in Germany and Italy in respect of a part of national stocks, as transpires from the material supplied by the Commission at the Court's request). In particular, it should be noted that the directive does not make any provision concerning the method whereby the costs of stockpiling, imposed on specific categories of undertakings, may or can be passed on in the selling prices on the domestic market or in the event of export.

5. It does not seem to me that the Netherlands provisions can be regarded as inconsistent with that principle. Just as is the case in the majority of the other Member States, a specific category of undertakings in the Netherlands dealing in petroleum products is required by law to maintain stocks in proportion to the amounts which they sell on the domestic market. The management of such stocks, in the Netherlands as elsewhere, obviously involves a charge which, as the Commission has correctly pointed out, is included in the total operating costs of the undertakings. Of course, the situation in the Netherlands, like that in some other Member States, is characterized by the fact that the undertakings placed under this obligation may choose to transfer it to a body operating under State control. In such a case, the management of the stocks is financed by a payment (calculated, on the basis of a fixed percentage rate, according to sales on the domestic market). Such a payment, however, is in practice always incorporated as an element in the costs of the undertaking. Therefore, irrespective of the arrangement selected — membership of Icova, management of stocks on one's own account or transfer of the obligation to a third party other than Icova — there is no reason to hold that the application of the legislation here in question entails a specific restriction on patterns of exports. The costs of stockpiling which are directly or indirectly incurred by the undertakings will be passed on in the domestic and export selling prices solely on the basis of considerations of a commercial nature. Indeed, inasmuch as from the order making the reference it would seem to be the case that at least undertakings which are members of Icova tend (without, however, being bound to do so by any rule) to pass the cost of stockpiling exclusively or predominantly on to domestic sales, which alone are taken into account for the purpose of fixing the level of stocks, it should be concluded that such sales are in fact burdened by the stockpiling costs to a greater extent than are exports. There is therefore no reason to fear any substantial distortion in this regard of patterns of trade for the purposes of Article 34 of the EEC Treaty.

6. If we turn now to the particular situation of those traders who purchased petroleum products from undertakings required to maintain stocks, the situation described by the national court concerning the market in the Netherlands appears to be similar in every respect to that which exists in the other Member States. Such traders, as the Commission pointed out, normally find included in the purchase price that portion of the stockpiling costs which their sellers have been obliged to incur and, in so far as market conditions permit, have then sought to pass on.

7. Of course, with regard to exports, traders are in a different position to that of their suppliers, particularly if the latter tend to pass on stockpiling costs mainly in their domestic sales (which, after all, are those which determine the amount of those costs). This difference in position, however, results, not from the legal framework introduced by the Netherlands legislature, but rather from the free choices made by the undertakings concerned; that, moreover, would appear to be the normal consequence of the fact that the traders here in question occupy various positions in the marketing chain. Confirmation of this may be found in the fact that the situation described by the national court is, as I have already stated, analogous in all respects to that which has arisen in the other Member States where traders further down the commercial chain are similarly faced with an increase in price resulting from the fuel charges borne by their suppliers, and have no possibility of obtaining a refund when those products are re-exported.

8. In limine, one final observation. The Commission, particularly in its written observations, has asked whether the national rules in question (that is to say, those prior to the amendment of 1986) might not possibly be examined from the standpoint of Article 95 of the Treaty.

9. In conclusion, I propose that the Court of Justice should give the following reply to the national court:

1 Original language: Italian.

2 OJ, English Special Edition, 1968 (II), p. 586.

3 Judgment in Case 237/82 /ongeneel Kaai v Netherlands [1984] ECR 483.