Judgment — ECLI:EU:C:1997:371
Date: 1997-07-17
Language of the case: Danish
Court formation: Sixth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Taxation;Free movement of goods;Commercial policy;Customs Union;Internal taxation;Charges having an equivalent effect
Concepts: Prohibition of taxation on imported products in excess of that imposed on similar domestic products;The various agreements concluded by the Community;Recovery of undue payment;General
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgment
1. Tax provisions — Internal taxation — Import surcharge on port duty — Discrimination
between domestic products and products imported from another Member State — Prohibited
(EEC Treaty, Art. 95)
I - 4263
SUMMARY —JOINED CASES C-114/95 AND C-115/95
2. International agreements — EEC/Sweden Agreement — Prohibition of all tax discrimination
against the products of the other contracting party — Import surcharge on port duty — Pro­
hibited
(EEC/Sweden Agreement, Art. 18)
3. Tax provisions — Internal taxation — Levied on products imported directly from non-
member countries — Article 95 of the Treaty not applicable
(EEC Treaty, Art. 95)
4. Community law — Direct effect — National duties incompatible with Community law —
Repayment — Duty imposed or approved by a Member State — Proceeds of the duty allo­
cated to other administrative operators — Determination by national law of the operator
required to make repayment — Whether permissible — Conditions
5. Tax provisions — Internal taxation — Charges incompatible with Community law — Repay­
ment — Limitation period — Application of national law — Whether permissible — Condi­
tions
(EEC Treaty, Art. 95)
1. It is contrary to Article 95 of the Treaty
for a Member State to impose a 40%
import surcharge on a general duty levied
on goods loaded, unloaded, or otherwise
taken on board or landed within its ports
or in the deep-water approach channels
to its ports where goods are imported by
ship from another Member State.
2. Article 18 of the Agreement between the
European Economic Community and the
Kingdom of Sweden imposes on the con­
tracting parties a rule against discrimi­
nation in matters of taxation, which is
dependent only on a finding that the
products affected by a particular system
of taxation are of like nature, and which
prohibits discrimination arising from any
measure or practice having a direct or
indirect effect on the way in which taxes
imposed on the other contracting party's
products are determined, applied or col­
lected. It follows that a goods duty which
forms part of a general system of internal
dues applying systematically to categories
of products according to objective criteria
applied without regard to the origin of
the products constitutes an internal meas­
ure of a fiscal nature within the meaning
of Article 18 of that Agreement.
Accordingly, a 40% import surcharge on
a general duty levied on goods loaded,
unloaded, or otherwise taken on board or
landed within its ports or in the deep-
water approach channels to its ports
where goods are imported by ship is
contrary to Community law where it is
I - 4264
TEXACO AND OLIESELSKABET DANMARK
applicable to goods imported from a non-
member country with which the Com­
munity has concluded an agreement con­
taining provisions similar to those of
Article 18 of the Agreement between the
European Economic Community and the
Kingdom of Sweden.
3. Article 95 of the Treaty applies only to
products from the Member States and,
where appropriate, to goods originating
in non-member countries which are in
free circulation in the Member States. It
follows that that provision is not appli­
cable to products imported directly from
non-member countries. Furthermore, for
trade with non-member countries, as far
as internal taxation is concerned, the
Treaty does not include any rule analo­
gous to that laid down in Article 95.
4. Where a Member State has imposed or
approved a duty contrary to Community
law, it is required in principle to repay the
duty levied in breach of Community law.
If the proceeds of the duty have been
allocated to independent operators sub­
ject to local authority control, it is not
contrary to Community law for the
action for repayment of those duties to lie
against one of those operators, provided
that the rules governing such actions are
not less favourable than those governing
similar domestic actions and are not so
framed as to render virtually impossible
or excessively difficult the recovery of
duty unduly paid.
5. It is not contrary to Community law for
a national limitation period applicable to
claims for repayment of duties levied in
breach of Article 95 of the Treaty or a
provision similar to Article 18 of the
Agreement concluded between the Euro­
pean Economic Community and the
Kingdom of Sweden to run from an ear­
lier point in time than that from which
the duties were discontinued.
The laying down of reasonable limitation
periods, which is an application of the
fundamental principle of legal certainty,
cannot be regarded as rendering virtually
impossible or excessively difficult the
exercise of rights conferred by Commu­
nity law.
I - 4265