1.

The first problem which must be considered is the defendant's contention that the Commission has no interest in bringing this action, which should therefore be declared inadmissible.

The defendant points out that the provision of which the applicant is complaining was contained in a law authorizing expenditure only for the years 1982 and 1983. During that period, no subsidies of the kind in question were ever actually paid and payment after the expiry of the law is not possible, so that it may be said that the law remained a dead letter. It is also important to note that a new bill was prepared for the succeeding period which did not contain the contested provision. There is therefore no question of the provision which the applicant regards as contrary to the Treaty remaining in effect.

In my view, that argument is not particularly convincing.

2.

Let me now consider whether or not the claim is well founded. With regard to the question of whether the contested Italian rules are to be regarded as a measure having equivalent effect to a quantitative restriction within the meaning of Article 30 of the EEC Treaty, there is no doubt that subsidies granted from public funds for the purchase of particular goods, when they are subject to a condition that only domesticallyproduced goods may be acquired, constitute discrimination against similar goods coming from other Member States. Such a clear inducement would undoubtedly have the effect of directing demand towards domestic products rather than imported goods, thus reducing the flow of imports. It is also significant that, as the Court was told, the statement of reasons on which the bill covering the years 1984 to 1986 was based, and which no longer contains the nationality clause, states that a protectionist clause is no longer necessary. One is thus compelled to conclude that the Italian measure is covered by the formula which the Court has developed in interpreting Article 30 : that is, it constitutes trading rules enacted by a Member State ‘which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’ (Case 8/74 [1974] ECR 837, at p. 852). ( 3 )

That view is strengthened by the Court's judgment in Case 249/81. ( 4 ) That case concerned measures adopted by the State for the purpose of promoting sales of Irish products. As the Court is aware, it was decided that since the measures were an incentive to buy domestic products and thus were intended to influence the conduct of consumers, and because they were designed to achieve the substitution of domestic products for foreign products and thereby reduce imports, they were liable ‘to affect the volume of trade between Member States’ (paragraph 25 of the decision). The judgment in Case 192/84, ( 5 ) a case recently brought against the Hellenic Republic, is also of interest. It was decided in that case that the grant of more favourable credit terms for the purchase of machinery made in Greece was a measure having equivalent effect to a quantitative restriction within the meaning of Article 30 because it was an inducement to purchasers to buy machines produced in Greece.

3.

There is thus nothing further of interest to this case to be deduced from the aforementioned Commission directive and in particular Article 2 (3) (k) thereof, according to which measures having equivalent effect to quantitative restrictions include those measures which ‘hinder the purchase by private individuals of imported products only, or encourage, require or give preference to the purchase of domestic products only’.

As the Court is aware, the defendant considers that that provision refers only to measures which are addressed to private individuals and to all consumers. That is not so in this case because the measure at issue concerns only a small group of about 20 beneficiaries (identifiable municipal transport undertakings without independent legal personality) and because it calls only for the acquisition of prototypes, not ordinary market products.

If an opinion on that point is needed, I would say only that it is not certain that that interpretation of the provision in question is in fact the correct one. It is well known that the directive does not seek to provide a complete list of the measures covered by Article 30 but merely a series of particularly noteworthy examples thereof. From that point of view, it is important to note that the Italian measures under consideration are very similar to the measures described in Article 2 (3) (k) as regards their purpose and effects. Furthermore, the applicant can also rely in this case on that part of Article 2 (2) which refers to measures which favour domestic products. The least that can be said is that there is no doubt that the Court is dealing with such a situation.

The applicant was thus right to refer to the definitions contained in the directive, which in fact provides support for its assessment of the Italian measures.

4.

Before making a final judgment of the applicant's position, two objections put forward by the defendant must be considered.

It referred in its defence to the fact that its aim was not to induce municipal transport undertakings to replace their entire fleet, but merely to provide an incentive to buy a limited number of prototypes: thus it sought to make clear the relatively limited economic scope of the measures. It also pointed out that Article 30 was not relevant because the measure in question related to aid. The Treaty provides for a special procedure in such cases and only an assessment in the light of Article 92 is relevant.

It is certainly true that a subsidy which is accorded only to certain domestic undertakings cannot be regarded as a measure having equivalent effect to a quantitative restriction within the meaning of Article 30. That is abundantly clear from the judgment in Case 74/76. ( 7 ) With regard to the present case, it must be noted, on the one hand, that it appears very questionable whether the Italian measure is actually covered by Article 92. On the other hand, the applicant places particular emphasis on the significance of the fact that in the aforementioned judgment it was also emphasized that aspects of aid which are not necessary for the attainment of the object of the aid may be distinguished from the rest and may be regarded as infringing particular provisions of the Treaty, including Article 30 thereof.

Inasmuch as the Italian measure provides for aid to municipal transport undertakings and encourages them to make use of energy-saving vehicles, it would appear that Article 92 is not applicable because the beneficiaries do not compete with one another, and thus the public subsidies provided for cannot give rise to any distortion of competition, which is the relevant factor in regard to Article 92. In so far as the purpose of the measure and, more particularly, of the nationality clause, may also be regarded as that of granting indirect aid to vehicle manufacturers, with a view to promoting research into and development of energy-saving vehicles, it is also questionable whether it is correct to speak of aid to producers within the meaning of Article 92. They do not receive any financial aid which would permit them to reduce their costs but rather, through the purchaser of the vehicle, who receives part of the purchase price from the State, they receive consideration for goods which they supply. It is thus difficult to speak of aid granted to the vehicle manufacturers. The measure is in fact one designed to direct demand towards particular products and that, as has been shown, is clearly covered by Article 30.

That question does not require a thoroughgoing investigation since the applicant's argument based on the second basic principle mentioned in Case 74/76 ( 8 ) appears to be convincing in this case. If it were to be assumed that the measure concerned is in fact in the nature of aid, it would also be clear, in view of its purpose which relates to energy policy (promotion of the use of electric vehicles by the transport undertakings), that the contested clause is not essential for that purpose and that the same result could also be achieved by promoting the purchase of similar foreign vehicles. To that extent, it can therefore be said that the condition constitutes an unnecessary aspect of the aid which is undoubtedly contrary to other provisions of the Treaty, including Article 30. The same can also be said in regard to the measure's other objective, namely promotion of the development of domestic production of electric vehicles. In fact, it must be supposed that if the purpose of the measure was in any way to induce municipal transport undertakings to buy such vehicles, the mere possibility that the Italian undertakings in question might make such a purchase abroad, would be a sufficient incentive to produce vehicles of that kind without there being any need for discrimination of the kind involved in the measures contested here. From that point of view also it is thus difficult to deny that the measure is in the nature of a subsidy and it cannot therefore be argued that it may only be assessed with reference to Article 92 of the EEC Treaty.

5.

It can be seen from the foregoing that the applicant's interpretation of the contested measure cannot be refuted and it is thus correct to speak of an infringement of Article 30. Although the defendant did not seek to justify the measure under Article 36, it can be shown fairly quickly that such a justification is not possible. The essential point is quite simply that, as was emphasized in the judgment in Case 238/82, ( 9 ) Article 36 relates only to measures of a non-economic nature. The measure in question in this case is not of such a nature since, as the Court was expressly assured, Article 13 of Law No 308 is designed to attain objectives in the fields of energy policy and research policy, which cannot easily be excluded from the economic sphere.