Judgment — ECLI:EU:T:2002:34
Date: 2002-02-20
Language of the case: German
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Concepts: Excise duties;Basis of liability
Procedure: Action for damages - unfounded
Origin: Germany

Summary of the Judgment 
1. Non-contractual liability — Conditions — Legislative measure involving choices of 
economic policy — Sufficiently serious breach of a superior rule of law for the 
protection of individuals — Abolition by the Community legislature of tax exemption 
arrangements for products supplied in the context of the transport of passengers 
between the Member States — Community liability — Not incurred 
(Art. 288, second para., EC; Council Directive 92/12, Art. 28) 
II - 515 
SUMMARY — CASE T-170/00 
2. Non-contractual liability — Conditions — Abolition by the Community legislature 
of tax exemption arrangements for products supplied in the context of the transport of 
passengers between the Member States — Lawful act — Lack of unusual and special 
damage — Community liability — Not incurred 
(Art. 288, second para., EC; Council Directive 92/12, Art. 28) 
1. The implementation, by acts of a legis­
lative nature, of Article 8 a of the 
Treaty (which was inserted by the 
Single European Act, subsequently 
became Article 7a of the Treaty and 
then, after amendment, Article 14 EC), 
which provides that 'the internal mar­
ket shall comprise an area without 
internal frontiers', manifestly falls 
within the ambit of economic policy 
choices and of the Community institu­
tions' wide discretion, with the result 
that non-contractual liability of the 
Community can be incurred in that 
respect only if it is found that there has 
been a clear, that is to say, a manifest 
and serious, breach of a higher-ranking 
rule of law for the protection of 
individuals. 
The abolition by the Council of the tax 
exemption arrangements for products 
supplied in the context of passenger 
transport by air or sea between the 
Member States, laid down in Article 28 
of Directive 92/12 on the general 
arrangements for products subject to 
excise duty and on the holding, move­
ment and monitoring of such products, 
and the fact that the Commission has 
not submitted proposals to the Council 
for the maintenance of such arrange­
ments cannot give rise to non-contrac­
tual liability on the part of the Com­
munity on the basis of unlawful con­
duct causing damage to an undertaking 
providing intra-Community transport 
by ferries selling tax-free goods on 
board. The abolition of the tax exemp­
tion in question, on the ground that it 
is contrary to the principle of an area 
without internal frontiers, cannot be 
held to be a wrongful act, and certainly 
not one of a serious and manifest 
nature, since, in the context of the area 
without internal tax frontiers created 
by the Single European Act, within 
which all goods are subject to excise 
duty, there is no higher-ranking rule of 
law obliging the Community legislature 
to link the mere crossing a national 
frontier in a boat to a tax exemption 
for goods bought during the journey. 
On the contrary, the principle of a 
single area authorises the legislature to 
treat such transport for tax purposes in 
the same way as, for example, travel 
within a single State, which has neither 
internal frontiers nor purely transport-
related tax exemptions, or intra-Com­
munity transport by coach or train 
which does not benefit from 'tax-free' 
arrangements either. 
(see paras 46-50, 53) 
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FORDE-REEDEREI v COUNCIL AND COMMISSION 
2. In the event of the principle of Com­
munity liability for a lawful act being 
recognised in Community law, a pre­
condition for such liability would in 
any event be the existence of 'unusual' 
and 'special' damage to be defined as 
follows: special damage is that which 
affects a particular class of economic 
operators in a disproportionate manner 
by comparison with other operators 
and unusual damage is that which 
exceeds the limits of the economic risks 
inherent in operating in the sector 
concerned, the legislative measure that 
gave rise to the damage pleaded not 
being justified by a general economic 
interest. 
As regards the abolition by the Council 
of the tax exemption arrangements for 
products supplied in the context of 
passenger transport by air or sea 
between the Member States, laid down 
in Article 28 of Directive 92/12 on the 
general arrangements for products sub­
ject to excise duty and on the holding, 
movement and monitoring of such 
products, and the fact that the Com­
mission has not submitted proposals to 
the Council for the maintenance of 
such arrangements, those two con­
ditions are clearly not satisfied where 
an undertaking has, following the 
abolition of the tax exemption in 
question, ceased to exercise its com­
mercial activity of providing intra-
Community transport by ferries selling 
tax-free goods on board since, first, the 
Directive concerns the undertaking 
only in its objective capacity as an 
economic operator which, after the 
expiry of the transitional arrangements 
under Article 28, could engage in an 
economic activity to which the Direc­
tive applied, in the same way as all the 
other economic operators within the 
Community carrying on the same 
activity and since, second, the econ­
omic and commercial risks inherent in 
that activity were not exceeded as the 
activity, which was centred on a tax 
exemption, was inevitably exposed to 
the risk of changes to Community tax 
law. 
(see paras 56-59) 
II - 517