Opinion of Advocate General Lenz delivered on 13 May 1993

1 Original language: German.

2 A consolidated version of Law No 53 is printed in the Official Journal of the Italian Republic (GURI) No 65 of 8 March 1983, p. 1798.

3 The rate of tax is 8% for certain television sets (second paragraph of Article 4 of Law No 53).

4 GURI No 83 of 25 March 1983, p. 2326.

5 The seventh paragraph of Article 2 of the regulation is worded as follows: Il valore imponibile dei prodotti importati è costituito dal valore alla frontiera italiana determinato sulla base del valore in dogana ai sensi del regolamento comunitario 1224/80/CEE, aumentato degli eventuali costi ed oneri per la resa alla frontiera italiana, ivi compresi i diritti dovuti per l'immissione in Ubera pratica nella Comunità economica europea e diminuito delle eventuali componenti del prezzo pagato o da pagare che concernono il trasporto e la commercializzazione all'interno del territorio doganale nazionale.

6 In the order making the reference for a preliminary ruling it is stated that the tax is levied on the basis of the value of the goods plus local taxes and border charges (dazi comunali e dińtti di confine). It is however apparent from the pleading lodged with the Court by OTO SpA that this is a case of rather loose wording or a mistake. In that pleading OTO SpA complains that the Italian authorities levied consumption tax (also) on the amount of import duty (dazio doganale).

7 On the other hand, there would be no such difference in treatment if the consumption tax were calculated in accordance with the procedure laid down in the Regulation of 23 March 1983 (see footnote 3 above). The basis of assessment for goods from nonmember countries would in any event include the costs of clearing the goods for free circulation in the Community. In its written observations the Italian Government adopts the view that the interpretation of the second paragraph of Article 4 of Law No 53 can (and must) lead to the same result. Whether such an interpretation is possible must be decided by the Italian courts. The question referred to the Court is clearly based on the view that such an interpretation is not possible and the Italian regulation leads to the unequal treatment described above.

8 [1977] ECR 595, paragraph 28.

9 Case 193/85 Co-Frutta [1987] ECR 2085, paragraph 10.

10 See my Opinion in the Co-Frutta case, cited above, p. 2095 et seq.

11 Judgments in Case 184/85 Commission v Italy [1987] ECR 2013; Case 193/85 ibid, (footnote 8), paragraphs 12 to 13; judgment in Joined Cases C-228/90, C-229/90, C-230/90, C-231/90, C-232/90, C-233/90, C-234/90, C-339/90 and C-353/90 Simba [1992] ECR I-3713, paragraph 7.

12 Judgment in Case 193/85 Co-Frutta, cited above, (footnote 8), paragraph 12.

13 Judgment in Steinike and Weinlig, cited above, (footnote 7), paragraph 28. In that judgment the Court of Justice referred to the tax charge on the domestic products being made good wholly or in part. However, it is apparent from the more recent case-law, that only the complete making good of the tax charge leads to the charge in question being regarded as a charge having an effect equivalent to a customs duty (cf. judgment in Joined Cases C-149/91 and C-150/91 Sanders [1992] ECR I-3899, paragraph 20).

14 Consistent case-law, see most recently the judgment of 18 March 1993 in Case C-280/91 Finanzamt Kassel v Viessmann [1993] ECR I-971, paragraph 17.

15 Cf. in this respect the judgment in Case 247/86 Alsatel v Novasam [1988] ECR 5987, paragraph 8, in which the Court came to the conclusion that the court of reference had refused by implication to seek from the Court a ruling on the interpretation of a provision not mentioned in the question.

16 See, for example, the judgment in Case 193/85 Co-Frutta, cited above, (footnote 8), paragraphs 25 and 28.

17 See point 8 above.

18 Judgments in Case 20/67 Tivoli [1968] ECR 199, at p. 204; Case 148/77 Hamen [1978] ECR 1787, at paragraph 23; Case C-353/90 Simba, cited above, (footnote 10), paragraph 14.

19 Cited above, (footnote 17), at paragraph 24. See also the judgment in Simba, cited above, (footnote 10), at paragraphs 18 and 19.

20 That does not preclude the Italian rule having an indirect effect on goods destined for other Member States. If, in the above example, the manufacturer in the nonmember country decides to transfer to an Italian distributor the distribution of his goods destined for the Italian market, it may be entirely sensible to entrust the supply of other Member States also to that undertaking.

21 Judgment in Joined Cases 37/73 and 38/73 Diamant Arbeiden v Indiamex [1973] ECR 1609, at paragraph 9 (my emphasis). See also the judgment in Case 266/81 SIOTv Ministero delle Finanze [1983] ECR 731, at paragraph 18, and the judgment in Case 51/87 Commission v Council [1988] ECR 5459, at paragraph 6.

22 Judgment in Joined Cases 37/73 and 38/73 Diamant Arbeiders, cited above, (footnote 20), paragraph 13.

23 Judgment in Joined Cases 37/73 and 38/73 Diamant Arbeiders, cited above, (footnote 20), paragraphs 13 and 14.

24 Judgment in Joined Cases C-228/90, C-229/90 etc., Simba, cited above, (footnote 10), at paragraph 25.

25 It may however be noted that even in the Court's view that strict conceptual distinction between charges equivalent to customs duties and internal taxation only applies in principle (en principe) (judgment in Simba, cited above, (footnote 10), at paragraph 25).

26 See point 13 above.

27 Cf. Article 11 A 2(a) and B 3(a) of the Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes (OJ 1977 L 145, p. 1, last amended by Council Directive 92/77 of 19 October 1992, OJ 1992 L 316, p. 1).