Opinion of Advocate General

Mr President,

Members of the Court,

1. The Supremo Tribunal Administrativo (Supreme Administrative Court) of Portugal has referred to the Court for a preliminary ruling five questions on the interpretation of provisions of the EEC Treaty in order to enable it to rule on the legality under Community law of a parafiscal charge.

2. A Forestry Products Institute (Instituto dos Produtos Florestais) was established in Portugal by legislation in 1972. The Institute was a body for economic coordination and had its own legal persona.

3. As in the cases concerning parafiscal charges on which the Court has previously ruled, it is the use to which the charge is put that forms the background to the questions as to whether it is compatible with Community law. Thus, the national court points out in this regard that the charge is

4. According to the information in the case, the Institute was abolished in 1988, when its duties were taken over by the Ministry of Agriculture, and the various charges on forestry products were no longer levied.

5. The Court has had the opportunity, most recently in three judgments delivered on 16 December 1992, to consider the interpretation of the Treaty provisions relevant to the present proceedings. Those judgments were delivered in cases concerning the levying of parafiscal charges within the agricultural sector in Belgium. The cases in question are Case C-17/91 Lornoy [1992] ECR I-2623, Joined Cases C-144/91 and C-145/91 Demoor Gilbert en Zonen [1992] ECR I-6613, and Case C-114/91 Claeys [1992] ECR I-6559. Those judgments contain in large measure the answers to the questions which have been submitted by the Supremo Tribunal Administrativo. I shall refer in what follows to the judgment in Case C-17/91 Lornoy.

The interpretation of Articles 9 and 12, Article 95 and Article 30 of the EEC Treaty

6. The first, second and fifth questions submitted by the Supremo Tribunal Administrativo are as follows:

7. The third question submitted by the Supremo Tribunale Administrativo is worded as follows:

8. It is clear from the order for reference that the national court is familiar with the Court's case-law on the legality of parafiscal charges. Thus, it is evident that, by its third question, the national court is seeking clarification on the criteria which, according to the Court's case-law, are relevant to the application of the Treaty rules on parafiscal charges.

9. On this basis, the first more detailed analysis to be made was that formulated as follows by Advocate General Tesauro in his Opinion of 25 June 1992 in Lornoy:

10. The second detail which may be appropriate has also found clear expression in the Court's case-law. The Court has emphasized that the parafiscal charge will be unlawful only if the revenue generated by the charge is used to support activities which specifically benefit the taxed domestic products (emphasis added). There will thus be no prohibited set-off if the revenue generated by the charge is not used solely for the benefit of the domestic products on which it has been levied, but is also of benefit to imported products. This, for instance, may be the case where the revenue is used for general consumer information with a view to promoting sales of the product in question, whether manufactured domestically or imported.

11. It is in my opinion also possible to be more specific with regard to the third question from the Supremo Tribunal Administrativo cited above. So far as I can ascertain, that question in fact consists of two sub-questions: first, whether the application of one of the two alternative prohibitory provisions in the Treaty requires that the advantage conferred on domestic products by the use made of the revenue is quantifiable in economic terms, inasmuch as it is must be possible to determine more accurately the value of the economic advantages enuring to domestic products through application of the charge; second, whether it is sufficient that the economic advantages enuring to domestic products benefit domestic production merely in general terms, or whether it is necessary that it should be demonstrable that individual domestic producers have received specific set-off for the charges which they have paid.

12. On the basis of the Court's case-law, the answer to the first sub-question must, in my view, be that the advantage for domestic production must be quantifiable in economic terms. It must be possible, on the basis of the information available, to determine, at least in percentage terms, how much compensation for domestic production was represented by the application of the revenue generated by the charge. If the compensation is full, that is to say, 100% or more, the prohibition set out in Article 12 will be applicable, and if the compensation is less than 100%, Article 95 will be applicable. The correctness of that result, in my view, already follows from the fact that the prohibition in Article 95 can be applied only if it can be determined in this manner how large the partial set-off will be.

13. The second sub-question was, in my view, correctly answered as follows by Advocate General Tesauro in his Opinion in Lornoy:

14. In his Opinion in Lornoy, Advocate General Tesauro, like the Advocates General in the earlier similar cases, stressed that:

15. In his Opinion in Lornoy, Advocate General Tesauro mentioned that certain principles should be laid down in cases such as the present with regard to the allocation of the burden of proof. He accordingly proposed that persons subject to the charge who contest its legality should bear the burden of establishing that the revenue generated by the charge is being used to finance aid which benefits domestic products subject to the charge, while the national authorities should, if the person subject to the charge has discharged his burden of proof, be required to demonstrate that the set-off is not in full.

The interpretation of Article 92 of the Treaty

The fourth question submitted by the Supremo Tribunal Administrativo is as follows:

In its judgment in Lornoy, the Court replied as follows to a similar question:

In my opinion, the Court can provide a similar reply to the question submitted by the Supremo Tribunal Administrativo and with reference to the grounds for that reply set out in paragraphs 27 to 32 of the judgment in Lornoy.

16. I have already mentioned that the fundamental rules governing the contested Portuguese scheme were laid down in 1972, that is to say, prior to Portugal's accession to the EC, and that in 1986, the year in which the rules contested in the present case were adopted, there were merely changes designed to remove earlier points of inconsistency with Community law. In the light of this, there may be reason in the present case to mention in the judgment that the duty to submit State-aid measures to the Commission applies under Article 93(3) only to new measures, that is to say, measures introduced after Portugal's accession to the EC or measures which were amended in material respects after Portugal's accession.

Conclusion

17. In the light of the foregoing, I propose that the Court reply as follows to the questions which have been submitted:

1 Original language: Danish.