Opinion of Advocate General

Mr President,

Members of the Court,

1. In the present case the Court is once again called upon to rule on a system of parafiscal charges to finance State aid. The disputed German charge is levied inter alia on pork when presented for health inspection at the slaughterhouse. It is applied, at the same rate and on the same conditions, to both domestic meat and meat from other Member States. By law the charge is credited to a Fund, which uses the revenue to finance the promotion of German agricultural, forestry and food products.

The interpretation of the tax provisions of the Treaty

2. The criteria for applying the tax provisions of the Treaty to systems of parafiscal charges such as that which is the subject of the present dispute have been exhaustively defined by the Court. Moreover, on this point there is complete unanimity of views among the parties.

3. As regards the case in point, it should be noted that the German Government emphatically denies that the disputed charge is used to finance aid solely for the benefit of domestic meat producers. It maintains that the activities of the Fund consist in the conduct of advertising campaigns designed exclusively to promote the consumption of finished meat-based food products. Moreover, it argues that the effect of such advertising on imports of the raw material are entirely neutral. In its view, the increase in the demand for finished products leads to an expansion in the overall number of outlets for both domestic and imported meat. In those circumstances, therefore, the case-law mentioned above is entirely inapplicable, in that the aid granted by the Fund does not specifically benefit only domestic products subject to the charge but has a stimulatory effect which benefits both domestic and imported meat alike.

4. One further aspect remains to be examined in this regard. The national court asks whether Article 95 has been infringed specifically on account of the fact that the meat imported by Scharbatke, before becoming liable to the disputed German charge, had already been subject to a similar charge in the exporting country, namely the Netherlands. In other words, by referring to the principles laid down by the Court with regard to value added tax (VAT) in the Schul judgment, the national court wishes to ascertain whether, in applying national tax legislation to imported products, the authorities of the importing country should take account of similar charges already levied on the same products in the exporting country.

Interpretation of the provisions on State aid

5. On several occasions the Court has stated the criteria for applying Article 92 et seq. to systems of parafiscal charges designed to finance the granting of aid to domestic products liable to the charge.

Conclusion

6. In the light of the foregoing considerations, I consider that the Court should reply as follows to the national court's questions:

1 Original language: Italian.

2 Sec most recently the judgments in Case C-17/91 Lomoy [1992] ECR I-6523, in Joined Cases C-149 and C-150/91 Sanders [1992] ECR I-3899 and in Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l'Ouest [1992] ECR I-1847.

3 Case 15/81 Schul v Inspecteur der Invoerrechten en Accijnzen [1982] ECR 1409.

4 See R. Wägenbaur, in Megrct, Le droit de la Communauté économique européenne. Vol. 5, p. 21.