Judgment — ECLI:EU:C:1997:376
Date: 1997-07-17
Language of the case: Danish
Court formation: Sixth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Taxation;Free movement of goods;Transport;Customs Union;Internal taxation;Charges having an equivalent effect;Dominant position
Concepts: Prohibition of taxation on imported products in excess of that imposed on similar domestic products;Public undertakings;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 — Prohibition
— Scope
(EEC Treaty, Art. 95)
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SUMMARY — CASE C-242/95
2. Competition — Dominant position — Abuse — Prohibition — Direct effect — Individual
rights — Safeguarded by national courts — Actions — National rules of procedure — Condi­
tions for their application — Burden of proof
(EEC Treaty, Art. 86)
3. Competition — Public undertakings and undertakings to which Member States grant special
or exclusive rights — LegisUtion concerning port duties to be paid for the use of ports belong­
ing to a public undertaking — Levying of an unreasonable amount of duty — Discrimination
between the rates charged to users of the public undertaking's own services and the rates
applicable, reciprocally, to some of its trading partners — Abuse of a dominant position —
Assessment by the national courts — Criteria
(EEC Treaty, Arts 86 and 90(1))
4. Competition — Undertakings entrusted with the operation of services of general economic
interest — Identification on the basis of the specific nature of the activity carried on — Subject
to the rules of the Treaty — Derogation — Conditions
(EEC Treaty, Art. 90(2))
5. Community law — Direct effect — National duties incompatible with Community law —
Repayment
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. It is for the domestic legal order of each
Member State to designate the courts and
tribunals having jurisdiction and to lay
down the detailed procedural rules,
including those relating to the burden of
proof, governing actions for safeguarding
rights which individuals derive from the
direct effect of Article 86 of the Treaty,
provided that such rules are not less
favourable than those governing similar
domestic actions and do not render virtu­
ally impossible or excessively difficult the
exercise of rights conferred by Commu­
nity law.
3. Where a public undertaking which owns
and operates a commercial port occupies
a dominant position in a substantial part
of the common market, it is contrary to
Article 90(1) in conjunction with Article
86 of the EEC Treaty for that undertak­
ing to levy port duties of an unreasonable
amount pursuant to regulations adopted
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GT-LINK v DSB
by the Member State to which it is
answerable or for it to exempt from pay­
ment of those duties its own ferry ser­
vices and, reciprocally, some of its trading
partners' ferry services, in so far as such
exemptions entail the application of dis­
similar conditions to equivalent services.
It is for the national court to determine
whether, having regard to the level of the
duties and the economic value of the ser­
vices supplied, the amount of duty is
actually unfair. It is also for the national
court to determine whether exempting its
own ferry services, and reciprocally those
of some of its trading partners, from pay­
ment of duties in fact amounts to the
application of dissimilar conditions to
equivalent services.
4. Dock work consisting of loading, unload­
ing, transhipment, storage and general
movement of goods or material of any
kind is not necessarily of general econ­
omic interest exhibiting special character­
istics compared with that of other econ­
omic activities. In any event, Article 90(2)
of the Treaty does not permit a public
undertaking which owns and operates a
commercial port to levy for the use of
port facilities duties which are contrary to
Community law and which are not neces­
sary to the performance of the particular
task assigned to it.
5. Persons or undertakings on whom duties
incompatible with Article 90(1) in con­
junction with Article 86 of the Treaty
have been imposed by a public undertak­
ing which is responsible to a national
ministry and whose budget is governed
by the Budget Law are in principle
entitled to repayment of the duty unduly
paid.
The only exception is where it is estab­
lished that the person required to pay
those charges has actually passed them on
to other persons. However, traders may
not be prevented from applying to the
courts having jurisdiction, in accordance
with the appropriate procedures of
national law, for reparation of loss caused
by the levying of charges not due, irre­
spective of whether those charges have
been passed on.
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