Opinion of the Advocate General — ECLI:EU:C:2001:260
Date: 2001-05-10
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Taxation;Free movement of goods;Customs Union;Internal taxation;Charges having an equivalent effect
Procedure: Reference for a preliminary ruling
Origin: Denmark

Summary of the Judgment 
1. Tax provisions — Internal taxation — Parafiscal charge on pigs levied in respect of 
every animal produced in a Member State and slaughtered in that Member State or 
exported live which benefits those two types of production — Classification as a tax 
having an equivalent effect to customs duties — Excluded — Classification as an 
internal charge — Conditions 
(EC Treaty, Arts 9,12 and 95 (now, after amendment, Arts 23 EC, 25 EC and 90 EC)) 
2. State aid — Commission decision authorising a tax scheme as State aid — Obstacle 
to examination by national courts of compatibility with other Treaty provisions — No 
obstacle 
(EC Treaty, Arts 92 (now, after amendment, Art. 87 EC) and 93 (now Art. 88 EC)) 
1. A levy charged by a body established 
under public law according to identical 
criteria on pigs produced in a Member 
State for slaughter on the domestic 
market or for live export to other 
Member States, the revenue from 
which is allocated to activities benefit­
ing the two types of production, does 
not fall under the prohibition of 
charges having equivalent effect to 
customs duties on exports within the 
meaning of Article 9 of the Treaty 
(now, after amendment, Article 23 EC), 
Article 12 of the Treaty (now, after 
amendment, Article 25 EC) and 
Article 16 of the Treaty (repealed by 
the Treaty of Amsterdam). Such a levy 
may, however, be classified as discrimi­
natory internal taxation prohibited by 
Article 95 of the Treaty (now, after 
amendment, Article 90 EC) if and to 
the extent to which the advantages 
deriving from the use made of its 
revenue compensate in part the charge 
imposed on pigs produced for slaughter 
in the Member State concerned, 
thereby placing at a disadvantage the 
production of pigs for live export to 
other Member States. 
(see para. 49, operative part 1) 
2. The fact that a national levy is intended 
to finance an aid scheme authorised by 
the Commission pursuant to the Treaty 
provisions on State aid does not pre­
clude a national court from examining 
whether such a levy is compatible with 
other directly effective Treaty provi­
sions. 
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NYGÁRD 
This assessment carried out by national 
courts makes it possible to guarantee 
individuals the legal protection deriv­
ing from the direct effect of the Com­
munity law provisions and, should 
those provisions be infringed, to re­
establish internal legality, without 
thereby encroaching on the central 
and exclusive role which Articles 92 
(now, after amendment, Article 87 EC) 
and 93 (now Article 88 EC) of the 
Treaty reserve to the Commission in 
determining whether aid is compatible 
with the common market. 
(see paras 62, 65, operative part 2) 
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