Opinion of the Advocate General — ECLI:EU:C:1997:87
Date: 1997-02-27
Language of the case: Danish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Free movement of goods;Transport;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 — Import surcharge on port duty — Characterization as
an internal tax and not a charge having effect equivalent to a customs duty — Criteria
(EC Treaty, Arts 9, 12 and 95)
2. Tax provisions — Internal taxation — Import surcharge on port duty — Discrimination
between domestic products and products imported from another Member State — Prohibition
— Scope
(EC Treaty, Art. 95)
I - 4085
SUMMARY — CASE C-90/94
3. Tax provisions — Internal taxation — Charges incompatible with Community law — Recov­
ery — Limitation period — Application of national law — Whether permissible — Conditions
(EC Treaty, Art. 95)
1. An import surcharge levied on a general
goods duty payable for the use of a Mem­
ber State's commercial ports must be
assessed in the light of Article 95 and not
Articles 9 to 13 of the Treaty, where the
general duty to which the surcharge is
added forms part of a general system of
internal dues applying systematically to
categories of products according to objec­
tive criteria applied without regard to the
origin of the products and the surcharge
is an integral part of the duty itself and is
not a separate duty. That last condition is
satisfied if the amount of the surcharge is
expressed as a percentage of the duty and
the surcharge and duty are levied on the
same legal basis, at the same time, in
accordance with the same criteria and
through the same authorities and the rev­
enue raised is paid to the same recipients.
2. 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.
Differential taxation where the criterion
for charging a higher rate is the importa­
tion itself and where, therefore, domestic
products are by definition excluded from
the heaviest taxation cannot be regarded
as compatible with Community law.
3. Application to a claim for repayment
based on breach of Article 95 of a rule of
national law under which proceedings for
recovery of charges unduly paid are time-
barred after a period of five years is not
contrary to Community law, even if the
effect of that rule is to prevent, in whole
or in part, the repayment of those
charges.
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 - 4086