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This reference for a preliminary ruling originates in the following facts:

On 19 June 1978 the undertaking Nuova Commissionaria Zuccheri di Walter Beneventi, Reggio Emilia, ordered from the undertaking I.C.A.P. Distribution, San Maurizio (Reggio Emilia), 430 quintals of French granulated sugar in paper bags of 50 kg net, at the current price fixed by the Comitato Interministeriale dei Prezzi [Interdepartmental Committee on Prices, hereinafter referred to as ‘the Price Committee’]. Approximately 300 quintals were to be delivered before 1 July and the remainder in the course of August owing to shortage of available warehousing space on the buyer's premises. The sugar was to be of standard quality (second category) for which Community legislation lays down the target price and the intervention price.

After despatching 250 quintals of this sugar to Beneventi on 28 June, then 60 quintals on 3 July, I.C.A.P. informed him on 22 August 1978 that it would deliver the remaining 120 quintals within the next few days. However, it notified the buyer that owing to the entry into force on 5 July 1978 of Price Committee ‘Provvedimento’ [Order] No 15/1978 of 4 July 1978, the price of the sugar would be increased by Lit. 19.50 per kg following the increase in the ordinary ‘sovrapprezzo’ [surcharge] to which there must be added as ‘sfioramento’ [‘skimming-off’ levy] a special charge of Lit. 21 per kg in respect of sugar still held in stock by the seller on 5 July 1978. Following the buyer's request to postpone delivery of the remainder of the order until August, I.C.A.P. stated that it would itself have to pay the sum of Lit. 252000 (2100120) in respect of the sugar stored in its warehouses on 5 July on behalf of the buyer.

Consequently it told the buyer that it would include on its invoice this surcharge in relation to the old price, which itself had been increased by Lit. 19.50 per kg.

Having received the invoice relating to the remaining 120 quintals on 24 August 1978, Beneventi informed its seller on 29 August 1978 that it had no objection to the increase of Lit. 19.50 per kg for the ordinary ‘sovrapprezzo’ resulting from the new Price Committee price, but was not in agreement with the increase of Lit. 21 per kg as ‘sfioramento’, an increase which the ‘European Community’ had several times held to be unlawful.

On 5 September 1978 I.C.A.P. repeated its request for payment of the surcharge of Lit. 252000.

On 12 September 1978 it brought an action against Beneventi before the Pretore of Reggio Emilia for payment of the said sum.

In reply, Beneventi disputed the validity of the claim for the surcharge resulting from the application of Order No 15/1978 to the remainder of the order still stored in the supplier's warehouses after 5 July 1978.

As in the dispute which gave rise to the Cucchi v Avez case (judgment of 25 May 1977 [1977] ECR 988), the Federazione Nazionale Comercianţi Alimentari — Sindacato Nazionale Zucchero [National Food Trade Federation — National Sugar Association] (Federgrossisti) — intervened in support of Beneventi's conclusions. By an order of 14 September 1978, the Pretore of Reggio Emilia allowed the intervention of Federgrossisti and decided to stay the proceedings and refer the case to this Court under Article 177 of the EEC Treaty for a preliminary ruling on certain questions directly calling in question the legality of the Italian provision in the light of Regulation No 3330/74 of the Council of 19 December 1974 on the common organization of the market in sugar and the second subparagraph of Article 40 (3) and Article 12 of the EEC Treaty. It is therefore more in the nature of a ‘disguised’ action for failure of a Member State to fulfil its obligations.

II —

This is not the first time that the Court has had to deal with the compatibility of Community legislation with the system of the Price Committee's ‘special surcharge’. Therefore I shall refrain from describing its aims and objectives.

By its judgment of 30 October 1975 in the Rey Soda case [1975] ECR 1280, the Court of Justice declared invalid Article 6 of Regulation No 834/74 of the Commission of 5 April 1974 laying down requisite provisions to prevent the sugar market being disturbed as a result of the price increase in this sector for the 1974/75 sugar marketing year. The Court held (in paragraph 29 of the decision, [1975] ECR at p. 1303) that the Commission ‘was validly enabled … to adopt … a provision providing for the imposition of a pecuniary charge on holders of stocks of sugar in a Member State as a result of an alteration in the common prices and in these prices expressed in national currencies at the change-over to a new sugar year’, but it had to determine the essential basic rules itself; those rules had to comprise a statement of the parties liable and the bases of calculation of the tax as well as a definition of the concept of ‘excessive stocking’ in respect of each class of business, having regard to the size of the undertakings.

Following that judgment, by Regulation No 2680/77 of 5 December 1977 the Commission expressly acknowledged the illegality of the authorization which it had given Italy and the right of traders who had paid the charge introduced by the Price Committee to have it reimbursed. It defined what was to be understood by ‘holder of sugar’ and by exempt ‘working stocks’, and it laid down the limits of the amount of the charge which Italy was authorized to levy. That country was required to adopt the measures necessary to apply the regulation, in particular to reimburse sums ‘collected in excess’, and to inform the Commission in writing without delay of the measures adopted. The regulation had retroactive effect as from 10 April 1974.

The measure now at issue in the main action is intended, as regards sugar held in stock by wholesalers, importers and retailers on 5 July 1978, to ‘skim off’ part of the profit margin resulting from the difference between the maximum selling prices applicable in Italy for those classes of persons at the change-over from the 1977/1978 marketing year to the 1978/1979 marketing year.

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