Opinion of the Advocate General — ECLI:EU:C:2000:136
Date: 2000-03-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Taxation;Free movement of goods;Customs Union;Internal taxation;Charges having an equivalent effect
Procedure: Reference for a preliminary ruling
Origin: Greece

Summary of the Judgment 
1. Free movement of goods — Customs duties — Charges having equivalent effect — 
Internal taxation — Ad valorem charge on exported products, not imposed on either 
the same products on the domestic market or those imported from another Member 
State — Criterion for classification 
(EC Treaty, Arts 9, 12 and 95 (now, after amendment, Arts 23 EC, 25 EC and 90 EC) 
and Art. 16 (repealed by the Treaty of Amsterdam)) 
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SUMMARY — JOINED CASES C-441/98 AND C-442/98 
2. Community law — Direct effect — National charges incompatible with Community 
law — Repayment — Arrangements — Application of national law — Consideration 
of any passing on of the tax — Permissibility — Unlawfulness of any presumption or 
rule of evidence, by virtue of which the taxpayer concerned has to prove that he has not 
passed the tax on 
1. An ad valorem charge on exported 
tobacco products, which is not levied 
either on the same tobacco products 
when they are sold on the domestic 
market or on those imported from 
another Member State, cannot escape, 
by reason of its social objective, classi­
fication as a charge having equivalent 
effect to a customs duty on exports that 
is incompatible with Articles 9 and 12 
of the Treaty (now, after amendment, 
Articles 23 EC and 25 EC) and Arti­
cle 16 of the Treaty (repealed by the 
Treaty of Amsterdam), unless the alleg­
edly comparable charge levied on 
domestic products is applied at the 
same rate, at the same marketing stage 
and on the basis of a chargeable event 
which is identical to that giving rise to 
a charge on exports. 
(see para. 26 and operative part 1) 
2. Although Community law does not 
preclude a Member State from refusing 
repayment of charges levied in breach 
of its provisions where it is established 
that repayment would entail unjust 
enrichment, it does preclude any pre­
sumption or rule of evidence intended 
to shift to the trader concerned the 
burden of proving that the charges 
unduly paid have not been passed on 
to other persons and to prevent him 
from adducing evidence in order to 
refute any allegation that the charges 
have been passed on. 
(see para. 42 and operative part 2) 
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