Opinion of the Advocate-General
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Mr President,
Members of the Court,
1 . A - Upon the abolition of the State monopoly with regard to the transportation by sea and the industrial processing of bananas and trade in bananas a tax was introduced in Italy with effect from 1 January 1965 on fresh and dried bananas and banana meal by Law No 986 of 9 October 1964 . Initially set at LIT 70 per kilogram in the case of fresh and dried bananas, since 1982 it has been LIT 525 per kilogram ( LIT 1*500 per kilogram of banana meal ). The tax is collected by the customs authorities on importation ( import volume in 1985 : 357*500 tonnes ); as far as bananas produced in Italy are concerned ( according to the Italian Government, domestic production amounted to 100 tonnes in 1985 and to as much as 120 tonnes in previous years ), the tax becomes due on sale by the producer and is collected by the local revenue authorities .
2 . That tax was applied when Cooperativa Co-Frutta Srl, hereinafter referred to as "Co-Frutta", the plaintiff in the main proceedings in which the request was made for a preliminary ruling, imported into Italy between August and November 1982 bananas from Colombia ( which were in free circulation in the Benelux countries ). In Co-Frutta' s view that was unlawful, and it brought an action for the repayment of the tax .
3 . Co-Frutta bases its claim primarily on the prohibition of charges having equivalent effect to customs duties which is laid down in Articles 9 and 12 of the EEC Treaty . It contends that that prohibition is applicable because bananas are not cultivated in Italy ( a claim which, however, is factually incorrect, as we have been informed ) and because such taxes are not levied on other varieties of fruit which are grown in Italy . However, if the tax were to be regarded as internal taxation within the meaning of Article 95 of the EEC Treaty it would, in Co-Frutta' s view, be contrary to at least the second paragraph of Article 95, since it must be assumed that other products, partially or potentially in competition with bananas, are afforded indirect protection by the tax on bananas . That is so, it maintains, because Article 95 applies not only to goods originating in other Member States but also to goods which are in free circulation in another Member State .
4 . Lastly, Co-Frutta points to the fact that Colombia is a party to the General Agreement on Tariffs and Trade ( GATT ), and argues that the contested tax is incompatible with Article III of the GATT, which deals with national treatment of internal taxation and prohibits tax applied so as to afford protection to like domestic products .
5 . The Amministrazione delle Finanze dello Stato (( State Finance Administration )) contends that the tax on bananas cannot be regarded as a charge having equivalent effect to a customs duty : the tax is levied on consumption and not on importation, and is therefore a consumer tax independent of the origin of the goods and hence an internal tax within the meaning of Article 95 of the EEC Treaty . However, there can be no question of an infringement of Article 95, since that provision covers solely goods of Community origin ( whereas bananas are products of non-member countries ). It further contends that in fact no domestic products benefit indirectly from the tax on bananas .
6 . Since the national court considered that the case raised questions of Community law not yet settled by the Court of Justice, it suspended the proceedings by an order of 17 January 1985 ( which, however, did not reach the Court until 21 June 1985 ) and referred the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty :
"( 1 ) Does a charge described as a State consumer tax which is expressed to be imposed on both imported products and domestic products but in practice applies only to imported products because, as a result of environmental conditions, there is no domestic production of the product in question ( in this case bananas ) constitute a charge having an effect equivalent to a customs duty, prohibited by Articles 9 and 12 of the EEC Treaty?
( 2 ) Must a charge of that kind be regarded instead as internal taxation within the meaning of Article 95 of the EEC Treaty in view of the fact that, as its name indicates, it is imposed on the consumption of the goods in question and not on the importation thereof, even if it is in fact collected when the goods are cleared through customs and is imposed only on bananas and not on any other kind of fruit?
( 3 ) If it is to be regarded as internal taxation, is the charge in question contrary to the second paragraph of Article 95 and as such prohibited, inasmuch as its purpose is to protect other fruit, in particular all home-grown fruit?
( 4 ) If the matter falls to be considered, must Article 95 be applied only to products originating in the Member States of the Community or also to products which are in free circulation?
( 5 ) If Article 95 of the EEC Treaty is held to be inapplicable to products originating in non-member countries, is a charge which is contrary to Article 95 as regards products of the Member States also contrary to Article III of the General Agreement on Tariffs and Trade ( GATT ) as regards products originating in the territory of the contracting parties to the Agreement?"
B - I would make the following observations .
7 . 1 . As Questions 1 and 2 show, the prime concern of the national court is to have a precise definition of the expression "charges having an effect equivalent to customs duties" and to distinguish the "internal taxation" referred to in Article 95 of the EEC Treaty .
8 . ( a ) Co-Frutta considers in that regard - this is now clear - that what is involved is a charge equivalent in effect to a customs duty; it points to the fact that, according to the definitions in the case-law of the Court, it is not necessary for there to be discrimination between identical products; the products in question must simply be similar . It considers that view to be confirmed by statements in a note of 11 April 1972 of the Italian Permanent Representation concerning the nature of the former banana monopoly ( in which reference is made to protecting home-produced fruit, which might be threatened by competition from bananas ) and by the fact that it was after the abolition of the banana monopoly that the consumer tax was introduced, which is four times as high as the customs duty and amounts to 80% of the value of the bananas ( also after the abolition of the monopoly import quotas were set for bananas and recourse was made to Article 115 of the Treaty ).
9 . Co-Frutta considers that, in any event, it cannot be contended that the tax in question forms part of a general system of taxation within the meaning of Article 95 and the case-law pertaining thereto, since the tax is charged upon importation irrespective of subsequent use ( and hence no provision is made for repayment of the tax in the event that the bananas do not come onto the market owing to their spoiling in the ripening stage ). Furthermore, of the exotic fruit listed in Chapter 8 of the Common Customs Tariff only bananas, which appear under heading No 08.01*B, are subject to the tax whilst for the purposes of VAT ( 2 %) no distinction is made between fruit falling under headings 08.01 to 08.12 .
10 . For its part, the Italian Government considers that the tax cannot be regarded as a charge having an effect equivalent to a customs duty . The decisive factor in that regard is that the tax also applies to domestically produced bananas - which do exist - and that the resulting revenue is not used for a specific purpose ( that is to say, to benefit domestic production ) but to finance the activities of the State generally .
11 . In the result, the Commission also took that view . Admittedly, it considered that it was not a simple matter to classify the tax since it applied to only a few tropical products . However, in the end it nevertheless came down in favour of the application of Article 95 and the view that the tax on bananas was part of the Italian system of consumer taxes . It was persuaded to take that view by the fact that such consumer taxes are also charged on coffee and cocoa ( and, moreover, also on spirits, beer, sugar, sweeteners, oils and margarines ) and by the fact that Italy does not import a large number of tropical products in significant quantities .
12 . ( b ) To my mind the relevant case-law reveals a certain trend with regard to the distinction in question .
13 . Initially, it was considered important that charges having an effect equivalent to customs duties should lead to the same discriminatory or protective results as customs duties and should be imposed specifically upon imported products to the exclusion of similar domestic products ( judgment of 14 December 1962 in Joined Cases 2 and 3/62 ( 1 )). The Court' s judgment in Case 20/67 ( 2 ) still referred to "protective effects" ( similar to those of levies ), "protective purpose" and "a specific tax on imported products ".
14 . There has been a plain movement away from this approach in later cases . In the judgment in Case 24/68 ( 3 ) it was emphasized that the discriminatory or protective effect is not the decisive factor ( which is obvious since it is also material in connection with Article 95 ). It has also been made clear that it does not depend on the fact that only imports are taxed; instead, a charge having an effect equivalent to a customs duty may be involved even where domestic products are also taxed but the proceeds of the tax have the purpose of "financing activities for the specific advantage of the taxed domestic products, so as to make good, wholly or in part, the fiscal charge imposed upon them" ( judgment in Case 94/74; ( 4 ) see also judgment in Case 78/76 ( 5 )).
15 . Accordingly, for the purposes of distinguishing between charges having an effect equivalent to customs duties and internal taxes, ever greater emphasis has been placed upon whether the charge applies to whole classes of domestic or foreign products which are all in the same position ( judgment in Case 78/76, cited above, paragraph 30 ) or, as is made clear by the judgments in Case 90/79 ( 6 ) and in Case 158/82, ( 7 ) whether it forms part of a general system of internal dues applied systematically in accordance with the same criteria to both national products and imported or exported products .
16 . That was held to apply in Case 90/79 ( which concerned a French levy on reprographic machines imposed on the use of reprography ) manifestly because the levy in question was borne by a range of very different machines classified under various customs headings . In contrast, in Case 158/82 ( concerning a charge for the health inspection carried out on groundnuts and groundnut products upon importation into Denmark ) the claim that the contested charge was an internal tax was rejected on the ground that the concept of "whole classes of products" implied a much larger number of products than a group comprising solely groundnuts, groundnut products and Brazil nuts, which was a very limited number of products ( paragraph 24 of the judgment ).
17 . ( c ) Having regard to those decisions of the Court and the arguments put forward by the Italian Government, it was asked in the course of the oral proceedings what was the actual extent of the taxation on Italian-produced bananas, that is to say, figures were sought for the relevant tax revenue with a view to revealing the existence and significance of the purported taxation of domestic production . Unfortunately, a satisfactory answer was not received; all that was forthcoming was data on Italian banana production, which is very low ( as I mentioned at the beginning of this Opinion ), and the remark that the amount of tax revenue can easily be calculated on the basis of Article 3 of Decree-Law No 688 of 30 September 1982 .
18 . ( aa ) There would be a certain amount of justification for concluding ( since the Italian Government has not yet exercised the right which it reserved in its reply to obtain and produce further information ) that it has not been proved to the Court that a consumer tax is also charged on Italian-produced bananas and therefore that that part of the relevant legislation is of no practical significance . It should not be excessively difficult in practice to determine the revenue which may result from the taxation of Italian bananas and provide the Court with a picture, at least based on a year, within a reasonable time .
19 . Clearly, however, on the basis of that conclusion the tax on bananas could not be regarded as an internal due within the meaning of the Court' s case-law . One certainly could not describe the system involved as being "applied systematically in accordance with the same criteria to domestic products and imported products alike" ( judgment in Case 314/82 ( 8 )). The only possibility remaining - since there would be no corresponding charge in respect of comparable home-produced goods ( within the meaning of paragraph 16 of the judgment in Case 314/82 ) - would be that the tax constitutes a charge having an effect equivalent to a customs duty .
20 . ( bb ) If, however, the first part of the conclusion is not accepted and the matter is approached simply on the basis that the law provides for the tax to be charged on Italian-produced bananas too, there must be serious reservations, even on that basis, about following the assessment advocated by the Italian Government and the Commission and, by contrast, solid arguments supporting Co-Frutta' s view that the tax is a charge having an effect equivalent to a customs duty .
21 . The aforementioned judgment in Case 90/79 concerning the French levy on reprographic machines is of particular relevance since it makes it clear that the origin and aim of the tax arrangements have an important role to play in the assessment ( in that case it transpired that the tax arrangements in question had their origin in the breach made in the protection of copyright by the increase in the use of reprography and were designed to subject, if only directly, the users of those processes to a charge which compensated for that which they would normally have had to bear ((( 1981 )) ECR 283, paragraph 16 at p . 302 ).
22 . If that approach is applied in this case it appears, as Co-Frutta rightly contends, that the tax at issue is not "of an essentially fiscal nature" ( judgment in Case 20/67 (( 1968 )) ECR 199, at p . 205 ) and intended chiefly to earn revenue for the State but is rather in the nature of a measure of commercial policy . That can be said in view of what has been learned about the former banana monopoly from the note of the Italian Permanent Representation, mentioned earlier, and bearing in mind that it was upon the abolition of the banana monopoly that the tax at issue was introduced, which, although it takes the form of a consumer tax, nevertheless ( as is also clear from that note ) has primarily a protective function - a characteristic, according to the judgment in Case 94/74, of charges having an effect equivalent to customs duties .
23 . Consequently, even if the tax were applied to Italian bananas - which, as we have seen, is extremely doubtful - its aim remains a matter of commercial policy, since the ratio of home-produced to imported bananas is 1:3 600 . Furthermore, the tax is not charged on production since it does not become due until sale by the producer . Consequently, it does not affect products which are never put on sale, and that is liable to reduce even further the significance of the fact that Italian bananas are liable to the tax . Even if the tax is actually charged on Italian bananas that does not alter, on the basis of the economic approach adopted herein, the nature of the tax as a measure of commercial policy and hence its equivalence to a customs duty even though it is called a State consumer tax .
24 . Another factor which played an important role in Case 90/79 ( where the levy in question was borne by a range of very different machines - paragraph 17 of the judgment ) is also relevant especially if, in addition, regard is had to the specific features of the Danish situation considered in Case 158/82, in which it was held that owing to the limited number of products involved the charge concerned could not be regarded as part of a system of internal dues applied systematically to whole classes of products . In that connection one must not be misled in this case by the fact that the tax on bananas was classed as a consumer tax, a kind of tax which is levied on the most varied goods, without this affecting the fact that the general view is that the products in question are - as the Commission argued - not products in general use .
25 . It is significant - quite apart from the fact that the taxes on coffee and cocoa are manifestly traditional consumer taxes - that bananas are the sole product in the category of exotic fruit to be subject to the tax . That makes it difficult in practice to consider that the taxation of whole groups or classes of products is involved and to take the view that the tax on bananas is part of a general system of internal dues .
26 . ( d ) In the light of all the foregoing it should therefore be held with regard to Questions 1 and 2 that the contested Italian tax on bananas should not be assessed in the light of Article 95 ( even if it is also charged on Italian bananas ) but should be classed as a charge having an effect equivalent to a customs duty, which necessitates its being assessed in the light of Articles 9 and 12 of the EEC Treaty .
27 . 2 . The next two questions raised by the national court refer solely to Article 95 of the EEC Treaty . The Court is asked to interpret Article 95 in two respects : first its material scope is to be determined ( that is to say, whether it is to be applied only to products originating in other Member States of the Community ), and secondly the scope of the second paragraph of Article 95 ( manifestly the only provision contemplated by the national court ) is to be defined .
28 . Since, in my opinion, Article 95 does not afford a way of resolving the issues raised in the main proceedings, it is, in my estimation, superfluous to consider the two questions mentioned . Nevertheless, in case the Court should not agree with my assessment of the first two questions, I shall state my views, albeit briefly, with regard to Article 95 .
29 . ( a ) As far as the material scope of Article 95 is concerned, the Italian Government considers that Article 95 covers only goods which originated in another Member State and not goods which are simply in free circulation in another Member State . That view is also taken by the Commission, which argues that Article 95 does not apply to bananas from non-member countries but only to bananas from Member States which are producers of bananas .
30 . Co-Frutta, on the other hand, considers that Article 95 also covers goods which are merely in free circulation in other Member States . It bases that view on the relationship which, it maintains, exists between Article 9 et seq ., Article 30 and Article 95 and on the fact, emphasized by the Court in its previous decisions, that Article 95 supplements Articles 9 and 12 .
31 . As regards the second aspect now under consideration, the Italian Government argues that the first paragraph of Article 95 is inapplicable to the tax on bananas because bananas and domestic fruit not subject to the consumer tax are not complete substitutes for each other as far as the consumer is concerned and therefore are not similar within the meaning of Article 95 . It refers in this connection to the rules of the common organization of the market in fruit and vegetables as laid down in Regulation No 1035/72 ( Official Journal, English Special Edition 1972 ( II ), p . 437 ) and to the fact that bananas fall under a separate heading in Chapter 8 of the Common Customs Tariff .
33 . It considers that the second paragraph of Article 95 is also inapplicable, on the ground that the tax on bananas does not favour Italian fruit only but also fruit from other Member States . On the other hand, the Commission considers - like Co-Frutta - that bananas are definitely capable of satisfying the same needs as domestic fruit ( apples, pears, peaches, plums, apricots, cherries, oranges, mandarins ) and therefore can be regarded as being similar . As a result, it is contrary to the second paragraph of Article 95 to charge a tax solely on bananas and, in that manner, to protect other fruit from undesired competition .
33 . ( b ) In my view, the fourth question, which now must logically be dealt with first, can only be answered in the way advocated by the Italian Government and the Commission .
34 . That is not only because the Court has expressly stated that Article 95 applies only to goods originating in the Member States ( see judgment in Case 106/84 ( 9 )).
35 . It is especially relevant in that connection - as the Court has also emphasized - that Article 95 is not applicable to imports from non-member countries ( I refer to the judgment in Case 20/67 and the judgment in Case 148/77, ( 10 ) in which it was held that, for trade with non-member countries, and as far as internal taxation is concerned, the Treaty does not include any rule similar to that laid down by Article 95; instead such relations are governed by the arrangements laid down by international agreement ). Consequently, Article 95 restricts only to a limited extent the fiscal sovereignty of the Member States in order to favour intra-Community trade ( as Mr Advocate General Capotorti pointed out in his Opinion in Case 148/77 ). However, that could occur, thus nullifying the freedom existing under the Treaty vis-à-vis non-member countries, if Article 95 were to be applied to goods which are imported via other Member States having been in free circulation there .
36 . Finally, the wording of the first paragraph of Article 95 (" products of other Member States ") supports that contention, as does Article 9*(2 ), which, significantly, provides that only certain parts of the Treaty are to apply to goods in free circulation . That is further supported by the view that the intention of Article 95 - as it appears from its position in the Treaty - is to secure undistorted competition in the common market ( to ensure free movement of goods between the Member States in normal conditions of competition, as is stated in paragraph 10 of the Court' s judgment in Case 106/84 ), whereas protection against competition from third countries is ensured by the Common Customs Tariff and specific agreements .
37 . It follows that the only possible conclusion is that Article 95 does not apply to imported goods originating in non-member countries which are merely in free circulation in another Member State, and that hence Article 95 is irrelevant as regards the facts of the main proceedings .
38 . ( c ) Accordingly I need not now consider the other matter raised in connection with Article 95, namely the interpretation of the scope of its second paragraph, which is the subject of the third question put by the national court, especially since I shall have an opportunity to discuss that matter in connection with Case 184/85, in which an action has been brought against Italy for allegedly failing to fulfil its obligations under the Treaty .
39 . 3 . The only outstanding question now is the fifth, which refers to Article III of the General Agreement on Tariffs and Trade ( GATT ). That question seeks to ascertain whether a charge which is contrary to Article 95 in so far as it is levied on products of the Member States is also contrary to Article III of the GATT in so far as it is levied on products originating in the territory of contracting parties to that agreement .
40 . ( a ) In that regard the Italian Government observes that reliance cannot be placed on the GATT in this case for two reasons . Firstly, it is not capable of conferring rights on individuals ( a view shared by the Commission as regards Article III ), and secondly Article III applies to contracting parties only, and the country of origin in this case, Colombia, cannot be regarded as such since it has signed a provisional protocol only and therefore cannot be deemed to be a contracting party . In addition, the Italian Government points out that Article 95 of the EEC Treaty and Article III of the GATT are not co-extensive . In particular, Article III applies to like products only ( that is to say, as appears from an explanatory note thereto, products which are in direct competition with each other and are directly substitutable for each other ); therefore there is no provision in the GATT corresponding to the second paragraph of Article 95 .
41 . Co-Frutta contended in the oral proceedings, inter alia, that the question of the direct applicability of the GATT is manifestly irrelevant for the national court . The Court of Justice has thus, in any event, to provide an interpretation of the substance of Article III of the GATT and, in that regard, it must unquestionably be held to correspond to Article 95 of the EEC Treaty .
42 . ( b ) As far as that issue is concerned, it must first be pointed out that the Community has been substituted for the Member States as regards fulfilment of the obligations imposed by the GATT, as a result of the entry into force of the Common Customs Tariff with effect from 1 July 1968 ( as is stated in the judgment in Joined Cases 267 to 269/81 ( 11 )). Accordingly, since that date GATT commitments have also constituted Community obligations . Hence the GATT should receive uniform application throughout the Community . It follows that the Court must have jurisdiction to determine the scope and effects of the GATT uniformly for the Community ( as is also pointed out in the aforesaid judgment ); the mandatory effect of GATT commitments - according to the judgment of the Court in Case 38/75 ( 12 ) - must be determined by reference to the relevant provisions of Community law, even when the compatibility of national provisions with Community obligations is being considered .
43 . According to the case-law of the Court the first question to be asked when assessing the compatibility of national provisions with the GATT is whether the relevant GATT provision is capable of conferring rights on individuals . Consequently, it is not possible to avoid the question by considering the interpretation of the relevant GATT provisions ( in this case Article III ) directly . As the Court is aware, this question has already arisen in past cases before the Court with regard to various GATT provisions and it has always been answered in the negative . That conclusion has been reached primarily on the basis of considerations pertaining to the general scheme of GATT ( see paragraph 23 of the judgment in Joined Cases 267 to 269/81 (( 1983 )) ECR 801, at p . 830 ) - that is to say, the Agreement was based on negociations undertaken on a reciprocal and mutually advantageous basis and was characterized by the great flexibility of its provisions, in particular those concerning the possibilities of derogation, the measures which might be taken in cases of exceptional difficulty and the settlement of differences between the contracting parties .
44 . Those considerations plainly also apply to Article III of the GATT . It must therefore also be held with regard to that provision - as the Italian Government and the Commission have argued - that it can no more confer rights on individuals than Articles II and XI, which were the subject of earlier cases of the Court . It follows that Article III cannot be used as a criterion for assessing the lawfulness of the Italian consumer tax on bananas . It is therefore unnecessary to analyse its scope in detail and consider whether it does in fact apply only to like products which are in direct competition with each other and whether it is narrower than the second paragraph of Article 95 of the EEC Treaty .
C - In the light of the foregoing I propose that the questions put by the Tribunale di Milano should be answered in the following terms :
Questions 1, 2 and 3
45 . A charge - even if it is imposed on both imported products and domestic products alike - does not form part of a system of internal taxation within the meaning of Article 95 but is to be regarded as a charge having an effect equivalent to a customs duty if it was introduced chiefly for reasons of commercial policy and not for fiscal reasons and covers only certain individual products and not groups and classes of products determined on the basis of the same criteria .
Question 4
46 . Article 95 applies only to products from other Member States and not to products from non-member countries which are in free circulation within the Community .
Question 5
47 . Article III of the GATT confers no rights on individuals which can be invoked in proceedings before national courts for the purposes of checking the compatibility of national provisions with that provision . Accordingly, there is no need to interpret the substance of that provision or to determine its precise scope ( as regards the products concerned ).
(*) Translated from the German .
( 1 ) Judgment of 14 December 1962 in Joined Cases 2 and 3/62 Commission v Grand Duchy of Luxembourg and Kingdom of Belgium (( 1962 )) ECR 425, at p . 432 .
( 2 ) Judgment of 4 April 1968 in Case 20/67 Firma Kunstmuehle Tivoli v Hauptzollamt Wuerzburg (( 1968 )) ECR 199, at p . 205 .
( 3 ) Judgment of 1 July 1969 in Case 24/68 Commission v Italian Republic (( 1969 )) ECR 193, at p . 201 .
( 4 ) Judgment of 18 June 1975 in Case 94/74 Industria Gomma Articoli Vari, IGAV v Ente Nazionale per la Cellulosa e per la Carta, ENCC, (( 1975 )) ECR 699, paragraph 15/17 at p . 710 .
( 5 ) Judgment of 22 March 1977 in Case 78/76 Firma Steinike und Weinlig v Federal Republic of Germany (( 1977 )) ECR 595, at p . 613 .
( 6 ) Judgment of 3 February 1981 in Case 90/79 Commission v French Republic (( 1981 )) ECR 283, at p . 301 .
( 7 ) Judgment of 9 November 1983 in Case 158/82 Commission v Kingdom of Denmark (( 1983 )) ECR 3573, at p . 3586 .
( 8 ) Judgment of 20 March 1984 in Case 314/82 Commission v Kingdom of Belgium (( 1984 )) ECR 1543, paragraph 11, at p . 1555 .
( 9 ) Judgment of 4 March 1986 in Case 106/84 Commission v Kingdom of Denmark (( 1986 )) ECR 833 .
( 10 ) Judgment of 10 October 1978 in Case 148/77 H . Hansen Jun . & O . C . Balle GmbH & Co . v Hauptzollamt Flensburg (( 1978 )) ECR 1787 .
( 11 ) Judgment of the Court of 16 March 1983 in Joined Cases 267 to 269/81 Amministrazione delle Finanze dello Stato v Società Petrolifera Italiana SpA ( SPI ) and SpA Michelin Italiana ( SAMI ) (( 1983 )) ECR 801 .
( 12 ) Judgment of 19 November 1975 in Case 38/75 Douaneagent der NV Nederlandse Spoorwegen v Inspecteur der Invoerrechten en Accijnzen (( 1975 )) ECR 1439, at p . 1450 .
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