61994CC0090_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 The Østre Landsret (Eastern Regional Court, Denmark) has referred a series of questions concerning the compatibility with Community law of a surcharge formerly levied by Denmark on goods imported from abroad into certain maritime ports and of the system of port duties generally.
2 Although neither Case C-90/94 (Haahr Petroleum) nor Case C-242/95 (GT-Link) has been joined with Joined Cases C-114/95 and C-115/95 (Texaco and Olieselskabet), there is a substantial overlap between the issues raised in all cases.
I accordingly propose to deliver a joint Opinion.
3 The applicants in Haahr Petroleum and Texaco and Olieselskabet import petroleum, petroleum products or solid fuels into Denmark through the defendant ports.
The applicant in GT-Link operates ferry routes between the Danish port of Gedser, owned by the defendant, and the German ports of Travemünde and Rostock.
Background and national legislation
4 All cases concern the lawfulness of certain port duties levied in Denmark.
In order to understand the operation of the port duties, some familiarity with the general framework for the regulation of ports is helpful.
5 For geographical reasons, Denmark has an unusually large number of ports and harbours in relation to its size, and imports and exports are predominantly transported by sea (the Ministry of Transport in Haahr Petroleum gives a figure of 70% of imported goods).
Ports used for the commercial transport of goods, vehicles and persons (of which there are 73) are classified for regulatory purposes as commercial ports.
Authorization to establish a commercial port is granted by the Minister of Transport. The majority of ports authorized to operate commercially are independent operators under local authority control; some are State-owned, belonging to the Ministry of Transport or the Danish State railway;
there are also a number of private undertakings authorized to establish commercial ports, which they operate in accordance with the conditions laid down in the relevant authorization.
The port of Copenhagen has a special status, including its own system of duties.
6 The defendant ports in Haahr Petroleum and Texaco and Olieselskabet are commercial ports, mostly run by local authorities but some State-run or private.
During the periods at issue in all three cases, commercial ports were governed by Law No 239 of 12 May 1976 on commercial ports (`the 1976 Law'). (1)
The port in question in GT-Link is owned by the defendant Danske Statsbaner (`DSB'), the Danish State railway.
Although the Minister for Public Works had exempted ports owned by DSB from the provisions of the 1976 Law, exempted ports were subject to parallel regulations which fixed the port duties at the same rates as those set for provincial commercial ports under the 1976 Law.
DSB in addition operates a ferry service out of Gedser in competition with the applicant in GT-Link.
7 Various duties are required to be paid for the use of public and some private commercial ports in Denmark (including the defendant private port in Haahr Petroleum). Shipping and goods duties must be paid for berthing, as well as for the disembarkation and embarkation of goods, vehicles and persons.
Special duties are charged for the use of cranes, warehouses and storage facilities etc.
The duties are paid either directly to the port authorities or, in the case of public commercial ports, to an undertaking leasing wharfage space from the port.
In the latter case, the lessee undertaking guarantees under the standard leasing contract drawn up by the Ministry to pay to the port a specified amount in annual shipping and goods duties.
If its receipts are less than that amount it makes good the deficit.
8 Under the 1976 Law, shipping and goods duties were determined centrally by the Minister for Public Works (now the Minister for Transport) after discussions with the management of the commercial ports.
The duties were set out in regulations for each port drawn up in accordance with the common regulations thus prepared.
Ministerial practice was to set the rates of duty so as to create funds to cover expenditure incurred in the running and maintenance of the port and ensure a reasonable degree of self-financing for necessary extensions and modernization. Rates were calculated on the basis of the economic conditions obtaining in the 22 provincial commercial ports regarded as being the most important in terms of commercial traffic volume.
Thus for the relevant periods the shipping and goods duties were, subject to a few exceptions, identical throughout the defendant ports and for the port owned by DSB.
9 Shipping duty is payable by all ships, vessels and all floating installations for the right to berth in the port or in the deep-water approach channels.
It is calculated as a fixed amount according to gross (registered) tonnage either each time the vessel puts in or as an amount payable on a monthly basis.
Vessels of under 100 gross (registered) tonnes are among those exempt from the duty. In the port of Gedser, the relevant regulations required ferry operators to pay a monthly charge for each vessel, based on gross (registered) tonnage, which conferred the right to unlimited docking during the month in question.
10 Goods duty has been payable since at least 1930.
The basic provision on goods duty in the regulations applying to all the defendant ports and the port owned by DSB was worded as follows during the period from 1984 to 31 March 1990:
`II. Goods duty General provisions
The rules set out in the present section shall be applied for the calculation of goods duty.
In the case of goods imported from outside Denmark, a 40% surcharge shall be added to the duty.'
11 Goods duty is payable on all goods unloaded, loaded or otherwise taken on board or landed within the port or in the deep-water approach channels.
The duty is calculated as an amount per tonne.
The regulations provide that it is payable in the first instance by the vessel or its local agent prior to the vessel's departure, but is ultimately borne by the recipient or the sender of the goods from whom the vessel is entitled to claim reimbursement;
it was stated at the hearing, however, that in most ports the port authorities invoice the charge directly to the recipient of the goods.
The duty is levied when the goods cross the quayside.
There are exemptions and special rates of duty for specified categories of goods, none of which is relevant to these cases.
The revenue generated by the import surcharge accrues to the ports as part of their overall income from duties.
12 The basic duty is imposed both on goods coming into a port by ship and on goods leaving a port by ship.
In the case of goods imported into a commercial port by ship from outside Denmark, irrespective of the country of origin of the goods, a 40% surcharge was payable during the relevant periods.
That surcharge is at issue in all the cases;
the basic rate goods duty is additionally at issue in GT-Link.
13 The surcharge was added to the duty from 1956 until its abolition in the context of an alteration of the rating system in provincial ports on 31 March 1990.
It was introduced in the context of a general adjustment to the level of port rates made in the light of a report by the Committee for rates of duty for ports and bridges set up by the Ministry for Public Works in 1954.
That report made the following points about an increase in the duty charged on imported goods:
`B. Proposal for increases in the rates of duty
The Committee considers that the increases required in the rates of duty should be imposed on both shipping and goods duties;
however, the increase should be made in such a way that the objective (increase of income for the ports) is not jeopardized through commercial traffic being totally or partially diverted from the ports with the result that goods are instead conveyed by road or rail.
That would certainly happen to a large extent in the case of domestic transport if, for instance, one were to introduce an indiscriminate increase in the general percentage surcharge on shipping and goods duties.
Increases in duty must for that reason be imposed on those categories of transport which may be regarded as least sensitive to increases and which are also such important sources of income for ports that even small increases will generate the desired extra revenue without affecting the price level to any appreciable extent.
...
So far as goods duty is concerned, the implementation of the principle referred to means that it will be necessary to concentrate on the turnover of foreign goods inasmuch as the greater part of the goods which are imported into or exported from Denmark are most naturally transported by sea and the danger that this business will be diverted from ports merely if the goods duty is increased can therefore to some extent be discounted.
Even though goods duty makes up only a small percentage of the price of the goods, every effort should be made to ensure that increases in duty are arranged in such a way that any weakening of the competitiveness of undertakings is kept to a minimum.
The most appropriate solution may therefore be that part of the extra revenue generated through goods duty should be derived exclusively from an increase in the duty on imported goods.
An increase in this form will certainly have some effect on export trades such as agriculture (through the importation of fertilizers and feedstuffs) and industry (through the importation of raw materials).
However, as the goods duty on such bulk and raw materials is appreciably lower than that imposed on their derivatives, the effect of the increase in duty on imports will be much more limited for the undertakings in question than the effect of the increase in duty on exports.'
14 The Committee also recommended a minor increase in shipping duty;
it is not clear whether that increase was effected.
15 It appears that goods duty at the basic rate is imposed in the port of Copenhagen, but not the import surcharge. This is not directly relevant to the issues raised in these cases, but is mentioned by several parties in the context of various arguments.
The legislation is apparently applied in such a way that no surcharge is payable in the port of final destination where goods are technically imported (but without being disembarked) into Copenhagen by sea from another country and then transported by sea to another commercial port in Denmark where they are unloaded.
16 In a leisurely exchange of correspondence between the Commission and Denmark, beginning shortly after the latter's accession to the Community in 1973, the Commission informed Denmark of its view that the import surcharge was contrary to Article 95 of the Treaty.
The correspondence petered out in 1977 with no action being taken by either party.
The issue was rekindled in 1988 when the applicant in Haahr Petroleum wrote to the Commission requesting it to examine whether the import surcharge had been authorized. The Commission wrote to the Danish Government in 1989 repeating its view that the surcharge was contrary to Article 95.
17 On the basis of that letter the Danish Government decided on a general overhaul of port duties, in the context of which the surcharge was abolished with effect from 1 April 1990.
In order to ensure that the ports should continue to receive the same revenue despite the abolition of the surcharge, the basic rate of goods duty applicable to goods irrespective of their provenance was increased.
Since then the legislation on port duties has been liberalized in several stages;
commercial ports are now free to set their own rates of duty.
Case C-90/94 Haahr Petroleum
18 The applicant in Haahr Petroleum has since 1984 imported petroleum and petrol into Denmark from other Member States and from third countries through the commercial ports of Åbenrå, Ålborg, Horsens, Kastrup, Næstved, Odense, Struer and Vejle in order to refine and resell it.
All of these ports are under local authority control save the port of Kastrup, which is a private port.
By application submitted on 5 November 1991, the applicant sought from the Østre Landsret an order that the defendant ports refund all import surcharges levied on it from 1 January 1984 to 31 March 1990, totalling approximately DKR 9.6 million. The Østre Landsret decided to stay the proceedings and by order dated 8 March 1994 requested the Court to give a preliminary ruling on the following questions:
`1. Is the special 40% import surcharge on the goods duty ordinarily levied to be regarded as coming under the EEC Treaty rules on the Customs Union, including Articles 9 to 13, or under Article 95 of that Treaty?
2. Are the EEC Treaty rules on the Customs Union, including Articles 9 to 13, or Article 95 of that Treaty to be understood as meaning that it is incompatible with those provisions to impose a special 40% import surcharge on the goods duty ordinarily levied if that import surcharge is imposed exclusively on goods imported from outside Denmark?
3. If Question 2 is answered in the affirmative, under what circumstances can such a duty be justified on the ground that it represents consideration for a service provided or on grounds of transport policy (Article 84(2) of the EEC Treaty)? (2)
4. If the special import surcharge is held to be incompatible with the EEC Treaty, does that finding apply to the whole of that surcharge levied since Denmark's accession to the EEC Treaty or does it apply only to the increase in the import surcharge which came into effect after the date specified?
5. If it is held that the import surcharge is incompatible with Community law, will the fact that a claim for reimbursement may be time-barred under national rules on limitation periods have the full or partial effect that the import surcharge cannot be reimbursed?'
19 The Østre Landsret subsequently indicated that it was proposing to request a preliminary ruling from the Court in two further cases (Texaco and Olieselskabet) raising similar issues and that it would not decide Haahr Petroleum until rulings in all cases had been made.
Joined Cases C-114/95 and 115/95 Texaco and Olieselskabet
20 The applicants in these cases import refined petroleum products, such as diesel and petrol, and (in the case of Texaco) solid fuels into Denmark from other Member States, from countries with which the Community has concluded free-trade agreements and from non-member countries which do not have any free-trade agreement with the Community.
21 The defendants in Texaco are the commercial ports of Middelfart, Århus, Struer, Esbjerg, Ålborg, Skagen, Fredericia, Nørre Sundby, Hobro, Randers, Åbenrå and Thyborøn.
The defendants in Olieselskabet are the Ministry of Transport and the commercial ports of Fredericia, Køge, Odense, Holstebro-Struer, Vejle, Åbenrå, Ålborg, Århus, Frederikshavn and Esbjerg.
All the ports mentioned are under local authority control except the State-run ports of Esbjerg, Skagen, Thyborøn and Frederikshavn.
22 In the proceedings pending before the Østre Landsret in Case C-114/95, Texaco seeks a declaration that the defendant ports are under an obligation to repay all import surcharges levied from 1 May 1988 to 31 March 1990, totalling approximately DKR 3.2 million.
In the proceedings in Case C-115/95, Olieselskabet seeks a declaration that the defendant ports are under a joint obligation with the Ministry of Transport to repay the import surcharges levied from 1 January 1988 to 1 April 1990, totalling approximately DKR 2.5 million, and to acknowledge that they are under a duty to repay the surcharges levied over the period from 1 July 1977 to 31 December 1987.
It had not proved possible at the time of the order for reference to quantify the claim in respect of this latter period.
23 The national court stayed the proceedings and referred the following questions (Questions 1 to 4, subject to minor differences of wording, are common to both cases; Questions 5 to 7 were referred in Case C-115/95 only):
`1. Must the compatibility with Community law of a 40% surcharge on a general goods duty, which is levied by a Member State when goods are imported by ship from another Member State, be assessed in the light of
A: - Articles 9 to 13 of the EEC Treaty, if necessary in conjunction with Articles 18 to 29 and Council Regulation No 2658/87 (3) adopted pursuant thereto, or
-
Article 95 of the EEC Treaty?
or in so far as it is assumed that the case relates to services in respect of which consideration is paid, (4) under
B: - Article 84 of the EEC Treaty and Council Regulation No 4055/86 on freedom to provide services? (5) or
- Articles 90 and 86 of the EEC Treaty on abuse of a dominant position, in which connection the question arises as to whether Council Regulation No 4055/86 is relevant for determining whether the surcharge is compatible with Community law?
2. Is it consistent with the Community-law provision(s) specified in the reply to Question 1 that a 40% surcharge on a general goods duty should be levied on imports of goods by ship from another Member State?
3. Will the reply to Question 2 be the same if the goods are imported by ship into a Member State from a non-member country with which the European Economic Community had an agreement containing provisions corresponding to Articles 6 and 18 of the agreement between the Kingdom of Sweden and the European Economic Community, and the determination is made in the light of such a (free-trade) agreement?
4. Will the reply to Question 2 be the same if the goods are imported into a Member State directly from a non-member country with which the European Economic Community did not have a (free-trade) agreement?
5. Does it follow from Community law that a Member State which has imposed or approved a duty contrary to Community law is liable to repay the duty, even though the proceeds of the duty have been allocated to independent operators subject to local authority control?
6. In view of the fact that it follows from the established case-law of the Court of Justice that the repayment of duties levied in breach of Community law must have regard to the substantive and formal requirements laid down in national legislation, and that the Court of Justice held at paragraph 12 of its judgment in Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595 that entitlement to the repayment of charges levied by a Member State contrary to the rules of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting charges having an effect equivalent to customs duties or, as the case may be, the discriminatory application of internal taxes, the following question arises:
must the case-law of the Court of Justice be understood as meaning that Community law contains an unconditional obligation to repay duties which, according to the replies to Questions 1 to 4, may be contrary to Community law, but that this obligation is such that the detailed conditions for the actual processing of the claim for repayment are subject, within certain limits laid down in the case-law of the Court of Justice, to relevant national legislation?
7. If it is held that the 40% surcharge on the general goods duty is contrary to Community law, including (free-trade) agreements entered into, is it compatible with Community law that a limitation period laid down in national law for repayment claims runs from an earlier point in time than that from which the Member State in question discontinued the duty which was contrary to Community law?'
Case C-242/95 GT-Link
24 The applicant, GT-Link A/S, has operated a ferry route between Gedser (in Denmark) and Travemünde (in former West Germany) since 1987 and a ferry route between Gedser and Rostock (in former East Germany) since 1990.
The ferries appear to be used principally by heavy goods vehicles.
The defendant, Danske Statsbaner (DSB), the Danish State railway company, is a State-owned undertaking.
Its principal activities revolve around the operation of railways and ferry routes;
it also owns, inter alia, the port in Gedser, from where it operates ferry routes in competition with GT-Link.
25 The regulations governing Gedser provided that (i) in the case of goods conveyed by registered motor vehicles on ferry vessels operated by GT-Link on the Gedser-Travemünde route, goods duty was payable to the Port of Gedser and paid to DSB on the basis of a weekly statement to be submitted by GT-Link A/S;
(ii) DSB's vessels, including hired vessels, were exempt from port duties, irrespective of whether they were used as light or signal vessels or otherwise;
and (iii) vessels belonging to the German State railway were exempt from payment of port duties (both shipping duty on the vessels themselves and goods duty on goods transported therein) in the same way as DSB was exempt from paying duties in ports belonging to the German State railway.
26 GT-Link's right to use the port of Gedser was conferred by agreement between it and DSB.
That agreement required GT-Link to pay shipping and goods duties (on goods conveyed by registered motor vehicles on its vessels) to the port in accordance with the regulations, which it duly did from February 1987 when it took over the Gedser-Travemünde route.
In September 1989 GT-Link brought an action before the Østre Landsret seeking an order that DSB repay DKR 30 396 000 in respect of port duties levied by DSB from February 1987 to December 1989 or in the alternative that DSB be ordered to reimburse the goods duty import surcharge paid by the applicant over the same period, totalling DKR 6 016 000.
27 The Østre Landsret stayed the proceedings and referred the following questions to the Court:
`1. Is a special surcharge of 40% of a goods duty which, as described in this order for reference, is ordinarily levied for the use of ports authorized by the Danish Minister for Transport to operate as commercial ports to be regarded as coming under the EEC Treaty rules on the Customs Union, including Articles 9 to 13, or under Article 95 of that Treaty?
2. Are the EEC Treaty rules on the Customs Union, including Articles 9 to 13, or Article 95 to be understood as meaning that it is incompatible with those provisions to impose a special surcharge of 40% of the goods duty ordinarily levied if that surcharge is imposed exclusively on goods imported from outside Denmark?
3. If Question 2 is answered in the affirmative:
under what circumstances can such a duty be justified on the ground that it represents consideration for a service provided or on grounds of transport policy pursuant to the Title in the EEC Treaty dealing with transport? (6)
4. If the special surcharge is held to be incompatible with the EEC Treaty, does that finding apply to the whole of that surcharge levied since the Member State's accession to the EEC Treaty or does it apply only to the increase in the surcharge which came into effect after that date?
5. Does Community law impose special requirements with regard to national rules on the burden of proving that the conditions for application of Article 86 of the EEC Treaty have been satisfied?
6. If it is assumed that a public undertaking that owns and operates a commercial port occupies a dominant position, can it constitute an abuse of that position, contrary to Article 86 of the Treaty, that the commercial port levied the duties described above and laid down by the Minister for Transport for the use of public and private commercial ports?
7. If Question 6 is answered in the affirmative:
do the persons or undertakings on whom the duty was imposed have any right under Community law to seek reimbursement or compensation?
8. If it is assumed that a public undertaking that owns and operates a commercial port occupies a dominant position, can an abuse of that position, contrary to Article 86 of the Treaty, lie in the fact that the commercial port does not impose the port duties described in this order for reference on its own ferry route or on that of its cooperation partner?
9. If the answers to Questions 1, 2, 4, 6 and/or 8 are in the affirmative:
can the particular duties and tasks assigned to the defendant result in a finding that the situation is none the less permissible under Article 90(2) of the Treaty?'
28 Written observations in Haahr Petroleum were submitted by Haahr Petroleum, the defendant ports, the Ministry of Transport, intervener, the United Kingdom and the Commission.
Written observations in Texaco and Olieselskabet were submitted by Texaco, Olieselskabet, the Ministry of Transport jointly with the defendant State ports, the defendant local authority ports and the Commission.
Written observations in GT-Link were submitted by GT-Link, DSB and the Commission.
29 At the common hearing for all the cases Haahr Petroleum, Texaco, Olieselskabet, GT-Link, the local authority ports, the Ministry of Transport jointly with the defendant State ports and the Commission were represented.
DSB notified the Court before the hearing that, having in the interim sold the port of Gedser to the parent company of GT-Link, it would not be represented.
30 I propose to approach the various issues raised by the questions referred in the following order.
31 First I will consider whether the goods duty import surcharge is a customs duty or a charge having an effect equivalent to a customs duty within the meaning of Articles 9 to 13 of the Treaty or internal taxation within the scope of Article 95 of the Treaty (Question 1 in Haahr Petroleum and GT-Link;
Question 1(A) in Texaco and Olieselskabet). That analysis will encompass (i) the questions whether the surcharge is justified as consideration for services provided or on grounds of transport policy (Question 3 in Haahr Petroleum and GT-Link;
Question 1(B) in Texaco and Olieselskabet);
(ii) the questions whether any finding of incompatibility with EC law applies to the whole of the surcharge levied since Denmark's accession or only to the increase since accession to the Community (Question 4 in Haahr Petroleum and GT-Link);
and (iii) the lawfulness of the surcharge both vis-à-vis other Member States (Question 2 in all cases) and vis-à-vis non-member countries with which the Community has or does not have a free-trade agreement (Questions 3 and 4 in Texaco and Olieselskabet).
32 Secondly, I will consider whether either the surcharge in particular (Question 1(B) in Texaco and Olieselskabet) or the system of port duties generally as it is applied in the port of Gedser (Questions 6, 8 and 9 in GT-Link) is contrary to Articles 86 and 90 of the Treaty.
In the context of this analysis I will consider the lawfulness of a national rule concerning the burden of proof (Question 5 in GT-Link).
33 Finally, I will consider the following issues relating to repayment of the surcharge and the port duties:
(i) the effect of (a) in general, national procedural conditions (Question 6 in Olieselskabet), (b) more specifically, a national limitation period for claims for reimbursement (Question 5 in Haahr Petroleum) and (c) more specifically still, the lawfulness of the fact that that limitation period started to run before the Member State in question discontinued the surcharge (Question 7 in Olieselskabet); (ii) the effect on liability to repay of the fact that the proceeds of the duty have been allocated to independent operators subject to local authority control (Question 5 in Olieselskabet) and (iii) the right to reimbursement of persons or undertakings which have paid the levy if it is found to have been levied contrary to Article 86 of the Treaty (Question 7 in GT-Link).
Nature of the surcharge
34 The national court in all cases raises the question whether the goods duty import surcharge comes under the Treaty rules on the Customs Union, including Articles 9 to 13, or under Article 95 of the Treaty.
35 Articles 9, 12 and 13 of the Treaty, in so far as is relevant to these cases, provide as follows:
`Article 9
1. The Community shall be based upon a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect ...
Article 12
Member States shall refrain from introducing between themselves any new customs duties on imports or exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other.
Article 13
...
2. Charges having an effect equivalent to customs duties on imports, in force between Member States, shall be progressively abolished by them during the transitional period.
...'
36 The national court in Texaco and Olieselskabet also refers to Articles 18 to 29 of the Treaty, which concern the setting up of the Common Customs Tariff, and Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff. (7)
37 Article 95 of the Treaty provides as follows:
`No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.
Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.
Member States shall, not later than at the beginning of the second stage, repeal or amend any provisions existing when this Treaty enters into force which conflict with the preceding rules.'
38 The aim of those provisions is to achieve neutrality between imported and domestic goods of Member States in order to facilitate the free movement of goods and the establishment of the single market.
Articles 9 to 13 impose an absolute prohibition on customs duties and charges having equivalent effect;
since that prohibition would be nugatory if it could be circumvented by the imposition of a heavier internal tax burden on imported goods, it is complemented by Article 95, which prohibits discriminatory indirect taxation.
As might be expected given the identity of objective and the complementary nature of Article 95, the line between the parallel concepts of customs duties and charges having an equivalent effect, on the one hand, and internal taxation contrary to Article 95, on the other, is very fine;
this is reflected in the vigorous arguments in the alternative put forward by all the applicants.
39 In principle the difference may be reflected in the fact that a charge will be unlawful in toto, a tax only in part, namely to the extent that it exceeds the burden (actual or potential) on the domestic product.
Here of course the whole of the surcharge would in either event be unlawful. There is however in these cases a further significant difference:
much of the surcharge at issue was paid on imports from third countries, and as will be seen in that context (8) the lawfulness of the surcharge depends on whether it is correctly analysed as a charge having an effect equivalent to a customs duty or discriminatory internal taxation.
40 However fine the line between the two concepts may be in a particular case, it is clear that a given levy cannot be both a charge having an equivalent effect under Articles 9 to 13 and internal taxation under Article 95. (9)
The proposition that the two provisions are mutually exclusive, now hallowed by constant repetition, is based not only on conceptual differences - for example, that charges having an equivalent effect and internal taxation are governed by different systems, (10) that Articles 9 to 13 aim at any impediment to intra-Community trade whereas Article 95 is limited to impediments favouring national products, (11) and that charges having equivalent effect were to be `purely and simply' abolished whereas Article 95 provides solely for the elimination of any form of discrimination in the treatment of domestic and imported products (12) - but also on the more pragmatic ground that the original timetable for compliance by Member States with the relevant provisions differed. (13)
The Court has provided some guidance in distinguishing between the two concepts.
41 Although its contours have shifted slightly over the decades, there remains a core definition of charges having equivalent effect, first developed by the Court in a series of seminal cases in the 1960s.
That definition, constructed in 1969 (14) and using elements formulated in the earlier cases, (15) continues to be cited in the most recent cases as encapsulating the essential elements. (16) The Court in the 1969 cases ruled:
`any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect ... even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with any domestic product.
...
... it follows from Articles 95 et seq. that the concept of a charge having equivalent effect does not include taxation which is imposed in the same way within a State on similar or comparable domestic products, or at least falls, in the absence of such products, within the framework of general internal taxation ...'
42 The reference to `domestic or foreign goods' reflects the fact that the ruling was used in identical terms in both the 1969 cases, one of which concerned a duty on imports and the other of which concerned a duty on both imports and exports.
The definition is reformulated to refer solely to imported goods in many of the subsequent cases. (17)
The significance of the origin of the taxed products was stressed in a subsequent series of cases beginning with Steinike und Weinlig v Germany, (18) in which the Court added to the abovementioned definition (or minor variations of it):
`The essential characteristic of a charge having an effect equivalent to a customs duty, which distinguishes it from internal taxation, is that the first is imposed exclusively on the imported product whilst the second is imposed on both imported and domestic products.'
43 That essential feature is invoked in support of arguments both for and against regarding the goods duty import surcharge as a charge having equivalent effect.
It goes to what I perceive to be the central issue in these cases, namely whether the surcharge is severable:
if it is regarded as a separate and discrete levy, then clearly it applies solely to imports and is prima facie contrary to Articles 9 to 13;
if however it is regarded as a specific application of the goods duty as a whole, then it is an aspect of a wider tax imposed on both domestic and imported products and hence within the scope of Article 95 and contrary to that article to the extent that it is discriminatory in effect.
In this context it is important to distinguish the fact that a tax is levied at the moment of importation from the question whether it is imposed solely on imports:
the former is conceptually a separate issue from the latter.
The fact that the chargeable event for a given tax is importation is not decisive for the purposes of its categorization under Articles 9 to 13 on the one hand and Article 95 on the other:
the chargeable event for value added tax on imports, for example, occurs when the goods are imported, but that does not of course mean that it is a charge on imports.
44 It may be noted that the fact that a tax or levy is collected by a body governed by public law other than the State or is collected for its benefit and is a charge which is special or appropriated for a specific purpose cannot prevent its falling within the field of application of Article 95. (19)
45 An analysis of the structure of the goods duty and the surcharge supports the view that the surcharge falls within the framework of internal taxation and hence falls to be assessed in accordance with Article 95.
The duty is imposed on both imported and domestic products, being part of a general system of internal taxes payable for the use of commercial ports and their facilities.
It is payable on all goods landed in the port, whether they arrive from abroad or from another Danish commercial port.
The rate however varies according to the category of goods, being composed of a basic rate and a percentage supplement;
that basic structure has been in force since 1937.
It is clear from the legislative history of the surcharge that it was introduced as an increase in the rate at which the existing goods duty was to be applicable to imported goods and not as a new distinct duty.
The legal basis for the levying of the basic duty and the surcharge was the same, namely the regulations of the defendant ports decreed by the Minister for Transport pursuant to the 1976 Law.
Finally, the exemptions and special rates of duty for specified categories of goods apply equally to the surcharge.
46 The arrangements for the collection of the surcharge further support the argument that it is an integral part of the general goods duty.
There are no specific administrative formalities linked to levying the surcharge. Both the basic rate and the surcharge are levied at the same time by the same authorities and calculated by reference to the weight of the goods and, for the purpose of determining whether any exemption or special rate applies, to the type of goods.
The chargeable event (namely unloading) is the same in both cases and the revenue generated accrues without distinction to the port concerned.
The provenance of the goods and hence the rate of duty definitively payable is ascertained only when the definitive calculation is carried out.
47 Olieselskabet, as part of its principal argument that the surcharge is a charge having an effect equivalent to a customs duty, submits that, even if the surcharge appears to constitute internal taxation, it is none the less a charge having equivalent effect since it is indirectly used to support trade in national products.
Olieselskabet cites Capolongo v Maya (20) as authority for that argument.
48 In that case, the Court ruled that a duty within the general system of internal taxation applying systematically to domestic and imported products according to the same criteria can nevertheless constitute a charge having an effect equivalent to customs duty on imports when such contribution is intended exclusively to support activities which specifically benefit the taxed domestic product. (21) Olieselskabet argues that, since the import surcharge accrues to the benefit of each port and thereby contributes to the transport of national goods, both internally or by way of export, at the lower prices which result from the fact that they are subject to the goods duty without the import surcharge, it comes within the Capolongo exception and is hence a charge having an effect equivalent to a customs duty.
49 In my view, that argument is misconceived.
The Capolongo exception applies where the proceeds of a duty levied without distinction on domestic and imported products benefit solely domestic products. (22)
In these cases, the proceeds of the goods duty as a whole, accruing to the port concerned and funding its infrastructure, benefit both imports and domestic products which are loaded or unloaded at that port.
50 In my view therefore the goods duty import surcharge falls within the framework of general internal taxation and as such its compatibility with Community law falls to be assessed under Article 95 of the Treaty.
Fee for services?
51 Various parties raise the argument that the surcharge represents a fee for services provided and, as such, is not a charge having an effect equivalent to a customs duty. Since I do not consider that the surcharge falls within the definition of charges having equivalent effect in any event, in my view that argument is irrelevant to these cases.
I will however address it in case it should be considered relevant;
it may be noted that the Ministry of Transport in Haahr Petroleum raises the argument in the context of Article 95.
The Ministry submits that the surcharge will not be discriminatory for the purposes of that article if it is in fact a fee for extra services provided for imports since in those circumstances the imports and domestic goods could not be regarded as comparable.
52 The Court has accepted, albeit reluctantly, that `it is not impossible that in certain circumstances a specific service actually rendered may form the consideration for a possible proportional payment for the service in question'. (23)
In that event, the payment at issue will not be classified as a charge having equivalent effect and may be lawful.
Strict criteria must be met, however, for a charge to fall within this definition:
the service provided must represent a specific and identifiable benefit actually and individually conferred (24) and there must be a direct link between the amount paid and that benefit. (25)
53 To my mind, the argument that in these cases the surcharge is simply a fee for services benefiting the importer is not convincing for the following reasons.
54 It is argued that the surcharge remunerates both the use of port facilities generally and the specific facilities necessitated by imports.
55 As Olieselskabet points out, the use of port facilities generally is prima facie covered by separate charges, namely the shipping duty and other specific levies mentioned in the order for reference.
Moreover, it must not be forgotten that the surcharge represents only part of the total goods duty levied by a particular port:
the duty levied at a basic rate on all imports and exports is presumably also intended as a fee for certain port services.
It is perhaps arguable that those duties are therefore in reality fees for services, but to the extent that they are so it is clear that the same services cannot also represent consideration for the surcharge.
In any event, the fact that the rate of goods and shipping duty is set centrally and is therefore the same for all ports, notwithstanding assumed differences in the range of services provided, and that the surcharge is levied at 40% in all ports, militates against that argument.
Finally, as Haahr Petroleum (and, mutatis mutandis, GT-Link) points out, a given boat with a cargo of imported goods in fact receives the same services as an equivalent boat with a cargo of domestic goods.
56 The defendant ports and the Ministry of Transport submit that goods imported from abroad tend to be transported in bigger ships which necessitate special facilities, deep-water channels etc., and that the surcharge is accordingly a fee for extra services necessary for imports. It may be noted that both Texaco and Olieselskabet dispute the premiss of that argument, Texaco adding that the distance between Danish ports and numerous foreign ports is no greater than the distance between Danish ports.
It may also be thought unlikely to be a valid argument in the case of ferries carrying heavy goods vehicles plying in opposite directions, as in GT-Link.
In any event, there are a number of flaws in the argument.
57 First, as Haahr Petroleum, Olieselskabet and the Commission point out, ship size is already reflected in the level of shipping duty which it pays, that duty being determined by reference to a ship's gross registered tonnage.
Indeed, the displacement and hence size of a given ship importing goods may be regarded as indirectly reflected in the basic rate of goods duty, since that is calculated by reference to the weight of the goods.
It may be noted that the Ministry of Transport and DSB make this point, stating that goods duty is based on weight precisely because the expenses of unloading, quay space etc. depend on the weight of the goods concerned.
58 Secondly, as Olieselskabet and GT-Link point out, if the intention of the import surcharge was to pay for the extra port facilities needed by bigger ships, a fairer method of achieving that end would have been to structure the surcharge accordingly, for example by exempting smaller ships (although if the surcharge was still expressed to be payable by reference to imports only, it would none the less be prima facie contrary to Community law to the same extent as the surcharge at issue).
59 Moreover, as Haahr Petroleum, Olieselskabet and the Commission point out, ships transporting exports presumably use the special deep-water facilities to the same extent as ships transporting imports;
again the goods so transported are not subject to an equivalent surcharge.
The obverse point is made by GT-Link, namely that imported goods benefit from no specific service over and above that provided for exported goods.
60 Finally, a ship which imports foreign goods via Copenhagen where no surcharge is payable, and then continues to one of the other commercial ports where it unloads the goods is making identical demands on the port facilities as it would have done had it imported the goods directly into that commercial port, but it appears that no surcharge is payable in those circumstances; (26)
it is even stated by the Ministry of Transport and the defendant State ports in Texaco and Olieselskabet that the same applies where a ship passes via another Danish port without unloading there.
That too appears to me to undermine any argument that the surcharge is payment for services by way of the use of special port facilities.
61 It is moreover clear from the historical background to the introduction of the surcharge, as set out in the order for reference, (27) that the principal reason for imposing a specific surcharge on imported goods rather than generally raising the rate of existing shipping and goods duties was to avoid diverting national traffic to rail and road, rather than any ground relating to compensation for increased use of port facilities by ships transporting imported goods.
As Olieselskabet points out, there is moreover no mention in the Report of the Committee for rates of duty for ports and bridges of ship size as a factor relevant to the recommendation to impose an import surcharge.
62 The defendant ports in Haahr Petroleum and the local authority ports in Texaco and Olieselskabet argue that, since use of the ports is not obligatory, the surcharge is a fee.
There is an obvious fallacy in that argument: although the Court has ruled that a charge for a compulsory service, for example a health inspection, will normally be regarded as a charge having an effect equivalent to a customs duty, (28)
it does not follow that a charge for any non-obligatory service falls outside the definition of charges having equivalent effect.
63 Moreover, that argument cannot in any event be regarded as tenable unless the service in question is genuinely optional, which will rarely be the case of services performed by a public undertaking enjoying a monopoly or quasi-monopoly.
Those defendant ports seek to meet this point with the assertion that, given that there is apparently no import surcharge on the flat-rate goods duty levied in the port of Copenhagen, the applicant could have avoided payment by shipping its goods to that port and transporting them on from there by rail, road or smaller boat.
That argument however surely suggests if anything that the surcharge is not simply a fee for the use of the port facilities since otherwise it would be perverse not to impose it equally in Copenhagen, which is by far the largest port.
There can in any event be no satisfactory comparison with the situation in Copenhagen without further details of the duties imposed in that port - the documents before the Court indicate little more than that it has its own system of duties.
64 Finally in relation to the argument that the surcharge is a fee for services, the defendant ports and the Ministry of Transport in Haahr Petroleum, the local authority ports in Texaco and Olieselskabet and DSB refer to SIOT v Ministero delle Finanze, (29) in which the Court stated that, for the purposes of determining whether charges or fees represent the costs of transportation or other services connected with transit, it is necessary to take account not only of direct or specific services connected with the movement of goods but also of the more general benefits derived from the use of harbour waters or installations for the navigability and maintenance of which the public authorities are responsible. (30)
That ruling is cited with a view to refuting the argument that a fee which is identical for all ports cannot for that reason be regarded as proportionate or directly linked to the service allegedly remunerated.
The argument however appears to me to miss the essential point that all users of the port facilities should pay for the more general benefits referred to in SIOT, since those benefits are available to and enjoyed by all users, not only importers, whereas it is of course only the latter who are liable to pay the surcharge at issue.
65 The defendants in Haahr Petroleum further refer to a Commission proposal on airports, (31) which they submit reflects mutatis mutandis the approach of the Court in SIOT to charges for ports.
The preamble to the proposal states:
`Whereas users must not only be charged for the airport facilities and services they use, irrespective of the origin of the traffic in the Community, but they must also bear their fair share of the cost of providing airport facilities and services which are considered essential for the efficient, safe and environmentally acceptable functioning of an airport.' (32)
66 The proposal of course has no legal weight.
In any event, the recital set out above must be read in the light of Article 12(1) of the proposal, which requires charges to be inter alia non-discriminatory.
It may be noted that the Commission states in the explanatory memorandum that there are differences in most Member States between the tariffs applicable to internal air traffic and those applicable to intra-Community air traffic, and urges airport authorities to eliminate those differences which are not demonstrably related to cost differences. (33)
Article 84 and Regulation No 4055/86
67 The Danish Ministry of Transport, the defendant State ports and DSB argue that neither the goods duty itself nor the import surcharge falls within the scope of either Articles 9 to 13 or Article 95 of the Treaty;
they are instead covered by the Treaty rules relating to transport (Articles 74 to 84, and in particular Article 84(2)) and Regulation No 4055/86 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries. (34)
68 Article 84(2), the legal basis of Regulation No 4055/86, enables the Council, acting by a qualified majority, to decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport, and incorporates certain procedural provisions. It is not necessary for the purpose of assessing this argument to set out the regulation, which as its title suggests seeks to liberalize the provision of services to maritime transport.
69 The Danish Minister of Transport, the defendant State ports and DSB contend that the tax is levied for legitimate transport policy objectives, namely the financing of the commercial ports and taxing long-distance maritime traffic more heavily than short-distance.
In their view it follows from Corsica Ferries France (35) that taxes pursuing a transport-policy objective are to be assessed by reference to the transport rules of the Treaty, in particular Article 84(2) and Regulation No 4055/86.
With regard to the period before the entry into force of that Regulation (namely 1 January 1987), Denmark was free to apply rules such as those at issue.
70 Corsica Ferries France concerned charges levied by the French customs directorate on the operator of ferries between Corsica and Italy.
The charges were levied on all passengers travelling to or from a port situated in Europe and thus applied to all passengers who embarked, disembarked or transferred in Corsican ports.
In contrast, operators of ferries between Corsica and mainland France were liable to pay charges only on passengers travelling to Corsica.
The charges were alleged to be contrary to Article 59 of the Treaty.
71 The Court noted that under Article 61(1) of the Treaty freedom to provide services in the field of transport was to be governed by the provisions of the Title relating to transport and that it was only in Regulation No 4055/86 that the Council had adopted the measures necessary to achieve freedom to provide services in maritime transport between Member States.
The Court concluded that at the relevant time in that case, namely in 1981 and 1982, freedom to provide services in maritime transport had not yet been implemented and consequently the Member States were entitled to levy a charge such as that at issue. (36)
72 In my view, the analogy with Corsica Ferries France is weak and the argument based on it is not convincing.
As pointed out by Texaco and Olieselskabet, the disputed charge in that case was a tax payable by the shipowner on passengers embarked, disembarked or transferred in certain maritime ports, and as such was obviously liable to affect the freedom to provide maritime transport services, the subject-matter of Regulation No 4055/86.
A tax on the importation of goods, on the other hand, borne by the recipient or the sender of the goods, may more naturally be seen as liable to affect the free movement of goods, and, being fiscal, will be dealt with under Article 95.
In any event, as is argued by Olieselskabet, it is clear from Corsica Ferries Italia (37) that Regulation No 4055/86 will not exonerate discriminatory conduct which falls within its scope:
in that case, the regulation was held to prohibit a Member State from applying different tariffs for identical piloting services where the tariffs indirectly discriminated against economic operators according to their nationality.
73 In any event, as pointed out by Olieselskabet, it is clear from previous case-law of the Court that the mere fact that a charge is levied in the context of a transport policy does not take it outside the ambit of Article 95. (38)
74 That is not to say of course that the surcharge may not in addition, as the Commission suggests, have a restrictive effect on the freedom to provide maritime transport services and thus be contrary at least to Regulation No 4055/86 from the date when that regulation entered into force.
Although Corsica Ferries France establishes that the maritime transport sector was not liberalized until that point, so that measures which restrict the freedom to provide services may none the less have been permissible before that date, it does not necessarily follow from that case that an explicitly discriminatory measure was permissible.
However in my view it is not necessary to decide this point for the purposes of these cases;
it has moreover not been fully addressed by the parties.
75 The Ministry of Transport in Haahr Petroleum refers to the Commission proposal on airports (39) in support of its argument that transport policy considerations may justify differential taxes at airports and, by analogy, at ports. That proposal however appears to be of little assistance in that regard:
it requires charges for airport use to be both non-discriminatory and reasonably related to the costs of the facilities and services provided, subject only to the possibility of reduced charges in isolated regions, which are required to be notified as State aid.
76 By way of a slightly different argument based on transport, the Ministry of Transport in Haahr Petroleum and DSB submit that there is no justification for describing the surcharge, or even - notwithstanding its name - the goods duty, as a tax on goods:
it is rather a tax linked to a particular form of transport.
The inference is that, not being imposed on products, the surcharge does not fall within the scope of Article 95.
77 The structure and history of the goods duty generally and the surcharge specifically weigh heavily against such an interpretation.
In particular it may be noted, as pointed out by the Commission, that the duty is calculated by reference to the weight of the goods and ultimately borne by the recipient of the goods.
Even if it were the case, however, that the surcharge was imposed on a mode of transport rather than the goods transported, that would not of itself be sufficient to take it outside the scope of Article 95:
as Olieselskabet points out, the Court in Schöttle (40) ruled that, in view of the general scheme and objectives of Article 95, the concept of tax on a product must be interpreted in a wide sense and that a charge imposed on international transport of goods by road according to the distance covered on the national territory and the weight of the goods in question fell within that concept. (41)
78 Furthermore, the fact that goods imported in other ways - for example, via Copenhagen or by road or air - are not subject to the duty does not, contrary to the submission of DSB, prevent its being a tax on goods, any more than does the fact that certain goods are exempt from it:
what is relevant to the classification of the tax is the items which are subject to it, not those which escape it.
Compatibility of the surcharge with Article 95
79 I therefore remain of the view that the goods duty import surcharge, being levied within the framework of general internal taxation, falls within Article 95 of the Treaty.
Since it is clearly discriminatory, the surcharge is unlawful.
80 The defendants in Haahr Petroleum argue that differential taxation may none the less be compatible with Article 95 since the Court has permitted internal taxation which differentiates on the basis of objective criteria. The local authority ports in Texaco and Olieselskabet and DSB further argue that the size of the importing boat is an objective criterion which justifies the surcharge.
Those arguments are based on a failure to distinguish two separate issues.
81 It is true that the Court ruled at a relatively early stage that pecuniary charges relating to a general system of internal dues applied systematically in accordance with the same criteria to domestic and imported products alike fall within the scope of Article 95 rather than Articles 9 to 13.
The reference to the same criteria, repeated in numerous subsequent cases, arose because in Marimex, the first case in which the proposition was formulated, (42) the national court had specifically asked whether it was relevant to the categorization of the disputed charge (for the sanitary inspection of live cattle and beef and veal on crossing the frontier) that corresponding animals and meat produced domestically were subject to a charge `calculated in accordance with criteria which are not comparable to the criteria employed to determine the amount of the pecuniary charge imposed on imported live cattle and beef and veal'. Given that background, it is clear that the Court formulated the proposition for the purposes of categorization of the charge:
the charge at issue in Marimex, where the allegedly corresponding domestic charge was calculated on the basis of criteria which were not comparable, was a charge having an effect equivalent to a customs duty;
in contrast, a charge applied to both domestic and imported products in accordance with the same criteria falls to be assessed under Article 95 rather than Articles 9 to 13:
to the extent, however, that it is discriminatory in effect, it will be contrary to Article 95.
82 Thus in, for example, Chemial Farmaceutici v DAF, (43) a case referred to by the defendants in Haahr Petroleum apparently in support of their argument, the Court was considering the lawfulness under Article 95 of the application of differential rates of taxation to alcohol produced by fermentation and to synthetic alcohol.
It stated that differentiation on the basis of objective criteria, such as the nature of the raw materials used or the production processes employed, was compatible with Community law provided, inter alia, that the detailed rules were such as to avoid any form of discrimination, direct or indirect, in regard to imports from other Member States. (44)
83 There are numerous cases in which the Court has considered whether differential rates of taxation based on objective criteria none the less have the effect of discriminating against imports contrary to Article 95. (45) I do not however consider that they are relevant to these cases, where tax is levied at an explicitly higher rate on imports of goods from other Member States.
84 Moreover the notion of differential rates of taxation based on objective criteria assumes a direct link between the differentiation and the criteria.
It is clear that in these cases the size of the importing boat cannot be so regarded, since it is not tied in to the application of the surcharge.
85 Finally, I will consider the relevance to the lawfulness of the charge of national production of the products at issue.
Although this question has not been argued in any depth in the written observations, it was raised at the hearing.
86 It seems to me that Article 95 would be applicable in the present cases even if there were no domestic production of the relevant products.
The mere fact that at a given moment there happens to be no domestic production of a particular product does not mean that a Member State may lay down tax rules which expressly provide for heavier taxation of imports than would be applicable to the same domestic product if it existed.
The first paragraph of Article 95 applies to rules which by their very terms tax imported products more heavily, actually or potentially, than similar domestic products.
It is true that where there are no domestic products the tax does not directly protect existing production.
However, by taxing imports of the same product more heavily a Member State favours potential domestic production and induces manufacturers to transfer production to its territory.
87 The difficulty with the contrary view is particularly clear in the case of a general tax such as that in issue in the present cases.
It would be impracticable to suggest that the extent of the illegality of the general import surcharge varied from day to day according to the existence of domestic production of particular types of goods and that an importer of a consignment of goods could recover the surcharge only in respect of that part of the consignment for which he could establish that there happened to be domestic production at the moment when the tax was levied.
88 It would moreover lead to a lacuna in the Treaty if a surcharge imposed exclusively on imports were held to fall within the scope of Article 95 rather than Articles 9 to 13 because it formed part of a system of internal taxation but were found not to infringe Article 95 on account of the absence of domestic production at the material time. The present cases are entirely different from those cases, which have come more frequently before the Court, raising the issue of the similarity or interchangeability of imported products with domestic products subject to different taxes or rates of tax.
In those cases a comparison between the domestic product and the imported product is of course necessary.
89 It is true that in Commission v Denmark (46) the Court held that `Article 95 cannot be invoked against internal taxation imposed on imported products where there is no similar or competing domestic production'.
However, in that case the tax in question, a registration duty levied on new motor vehicles, applied without distinction to imported and domestic products.
The tax provided no inducement to manufacturers to switch production to Denmark.
The issue in the case was whether the tax was none the less contrary to Article 95 because, in the absence of domestic production, it applied in practice only to imports and was imposed at an unusually high rate.
The Court could have found discrimination to exist only on the assumption that Denmark would have imposed a lower rate of tax had there been significant domestic production.
The outcome of the case would, I think, have been different if - by analogy with the present cases - the Danish rules had by their very terms imposed a surcharge specifically on imported cars over and above the normal rate of tax applicable internally and to imports.
90 The national court in GT-Link asks whether, in the event that the Court considers that the import surcharge is prima facie contrary to Articles 9 to 13 or 95, it may none the less be lawful by virtue of Article 90(2) of the Treaty.
I consider this provision in some depth below (47) in the context of a possible defence to a finding that levying the port duties is contrary to the competition rules of the Treaty, and would refer to the views I express in that context, which apply mutatis mutandis in this context also.
91 The final issue raised by the national court in relation to the lawfulness of the surcharge under Articles 9 to 13 or Article 95 is whether, if the surcharge is held to be incompatible with the Treaty, that finding applies to the whole of the surcharge levied since Denmark's accession to the Community or only to the increase in the surcharge which came into effect after that date.
92 It is unclear from the wording of the question precisely what the national court is asking.
At first sight, it appears to suggest that the rate of the surcharge has increased since Denmark's accession to the Community and to ask whether the whole of the surcharge levied since 1973 is unlawful or merely the amount by which it subsequently increased.
The rate of the surcharge has however remained static since it was introduced in 1954, so that the question cannot have the meaning suggested.
93 There is however an alternative interpretation of the question.
Although the rate of the surcharge as a percentage of the underlying goods duty has not changed since Denmark's accession, the rate of the goods duty itself, and hence the amount payable by way of the surcharge on a given weight of imported goods, has increased:
according to the order for reference in Haahr Petroleum, the surcharge per tonne of petroleum increased steadily from 308 øre in 1984 to 388 øre in 1990, reflecting a rise in the basic goods duty from 770 øre to 970 øre in the same period.
According to the defendant ports in Haahr Petroleum, in 1973 the surcharge on petroleum products was 186 øre.
It may be, therefore, that the national court is asking whether the import surcharge is unlawful in toto or only to the extent of the increase since 1973.
94 If it is as I believe correct to analyse the surcharge as falling within the scope of Article 95, the question has no relevance:
it is unlawful in toto.
If however the Court were to rule instead that the surcharge was a charge having an effect equivalent to a customs duty the question would similarly have no relevance in so far as concerns imports from other Member States:
although such increases may have been contrary to the `standstill obligation' set out in Article 36 of the Act of Accession (48) which required the progressive abolition of such charges, the charges should all have been abolished in accordance with the timetable laid down by that provision before any of the periods at issue in these cases.
95 However, with regard to imports from third countries with which the Community had at the relevant time no free-trade agreement it may be argued that any increase after 1973 was contrary to the common customs tariff and hence unlawful.
I deal with that issue below, in the general context of the lawfulness of the surcharge in those circumstances.
Lawfulness of the surcharge vis-à-vis non-member countries with which the Community has a free-trade agreement
96 Article 95 prohibits discriminatory taxation on the products of other Member States.
The national court has also asked in Texaco and Olieselskabet whether the import surcharge is lawful in so far as it is levied on imports of goods from a non-member country with which the European Economic Community had an agreement containing provisions corresponding to Articles 6 and 18 of the free-trade agreement which applied at the material times between the Community and Sweden. (49)
That question arises because part of the surcharge whose reimbursement is sought by Texaco and Olieselskabet was levied on imports of petroleum products and solid fuel from Norway and Sweden.
The relevant provisions of the free-trade agreement which applied at the material times between the Community and Norway (50) are identical to those set out below.
97 Article 6 of the Agreement between the Community and Sweden prohibits charges having an effect equivalent to customs duties on imports.
The first paragraph of Article 18 provides as follows:
`The Contracting Parties shall refrain from any measure or practice of an internal fiscal nature establishing, whether directly or indirectly, discrimination between the products of one Contracting Party and like products originating in the territory of the other Contracting Party.'
98 For the reasons which I have set out above in relation to its imposition on imports from other Member States, I do not consider that the surcharge has the attributes of a charge having an effect equivalent to a customs duty.
It is in my view however clearly a `measure ... of an internal fiscal nature establishing ... discrimination between [imports and domestic products]' within the meaning of Article 18 of the free-trade agreement with Sweden.
99 An identically worded provision in the former free-trade agreement between the Community and Portugal was considered by the Court in Kupferberg. (51)
The Court held that it was directly applicable and capable of conferring upon individual traders rights which the courts must protect. (52)
Admittedly, the Court stated in Kupferberg and Metalsa (53) that the interpretations given to Article 95 of the Treaty could not be applied by way of simple analogy to the free-trade agreement before it (in the latter case, between the Community and Austria):
the Court continued, however, that the relevant provision of the free-trade agreement was to be interpreted according to its terms and in the light of the objective which it pursued in the system of free trade established by the agreement.
100 In the present cases the surcharge is contrary both to the express wording and to the objectives of the free-trade agreement in question, which are expressed to include the provision of fair conditions of competition for trade between the Contracting Parties and the removal of barriers to trade. (54)
It is accordingly in my view contrary to Article 18 of the free-trade agreement between the Community and Sweden to the extent that it is levied on goods originating in Sweden, and contrary, mutatis mutandis, to corresponding provisions of other free-trade agreements.
I should mention that I am not persuaded by the argument of the local authority ports in Texaco and Olieselskabet that the surcharge, which they argue falls within the scope of Article 95, does not fall within the scope of Article 18 of the free-trade agreement because it is linked to transport.
Those ports argue that the Court's statement in Schöttle (55) that the concept of tax on a product should for the purposes of Article 95 be interpreted in a wide sense should not be extended to Article 18.
That argument however, even if it is valid, is not to my mind relevant to these cases, since it is manifestly clear that the surcharge is a tax on goods.
101 In my view also, for the reasons set out above, (56) Article 18 is applicable in the present cases even if there were no domestic production of the products at issue.
102 It may be noted that, as the Ministry of Transport and the State ports in Texaco and Olieselskabet point out, the Court in Legros (57) ruled that the term `charge having equivalent effect' in Article 6 of the free-trade agreement between the Community and Sweden was to be interpreted in the same way as the term appearing in the Treaty. (58)
Lawfulness of the surcharge vis-à-vis non-member countries with which the Community has no free-trade agreement
103 The national court in Texaco and Olieselskabet has also asked whether the import surcharge is lawful in so far as it is levied on imports of goods from a non-member country with which the European Economic Community had no free-trade agreement at the material time.
This question arises because part of the surcharge reclaimed by Texaco and Olieselskabet was levied on imports of petroleum products and solid fuel from Poland and the former East Germany.
It may be noted that Texaco's arguments that that part of the surcharge is unlawful is based on the assumption that the surcharge is a charge having an effect equivalent to a customs duty, although its principal argument as to the lawfulness of the surcharge is that the surcharge is not such a charge but rather falls to be assessed in accordance with Article 95 of the Treaty.
104 The Court has held (59) that a tax which falls within the scope of Article 95 in so far as it is imposed on products coming from other Member States does not come within the scope of that article in so far as concerns products imported directly from third countries. (60)
105 Therefore in the absence of any specific agreement with the non-member countries concerned, the surcharge is not unlawful as a matter of Community law in so far as it was applicable to goods being imported from those countries.
106 Goods originating in non-member countries and already in free circulation in the Community before import into Denmark would however be covered by Article 95:
see Co-Frutta. (61)
107 The position would however be different if the surcharge were correctly analysed as a charge having an effect equivalent to a customs duty.
Although, for the reasons set out above, I do not consider that it should be so analysed, I propose to address this issue briefly since it has been pleaded with some vigour both in certain written observations and at the hearing.
The matter is of more than academic significance, since in all cases the applicants imported a proportion of the products at issue from non-member countries with which the Community had at the relevant time no free-trade agreement.
108 The Court in the second Diamantarbeiders case (62) considered in some depth the issue of whether a Member State was free to impose charges having an effect equivalent to customs duties on imports from third countries in the absence of a free-trade agreement.
109 The Court referred to the common customs tariff, established in accordance with Articles 18 to 29 of the Treaty and introduced by Regulation No 950/68 (63) of the Council, subsequently repealed by Regulation No 2658/87. (64)
The Court ruled as follows:
`The Member States may not, subsequent to the establishment of the Common Customs Tariff, introduce, in a unilateral manner, new charges on goods imported directly from third countries or raise the level of those in existence at that time.
The reduction or elimination of existing charges on goods imported directly from third countries is a matter for the institutions of the Community.' (65)
110 The Court also stated that charges already in existence at the time of accession to the Community may only be considered to be incompatible with Community law pursuant to provisions adopted by the Community. (66)
In that case, importers of diamonds from third countries had challenged a charge having an effect equivalent to a customs duty levied on imports;
the recipient of the levy (a social fund for diamond workers) countered by arguing that nationals of Member States could not substantiate the existence of any incompatibility of the levy with the Treaty unless the Commission, acting under Articles 155 and 169 of the Treaty, had established the existence of a serious obstacle to the working of the customs union and of the Common Customs Tariff and intervened to abolish the levy.
The Court, following the Opinion of Advocate General Warner, accepted that argument.
111 The same principle would apply mutatis mutandis to the surcharge at issue in these cases if the Court were to rule, contrary to my view, that that surcharge was a charge having an effect equivalent to a customs duty.
Competition aspects
GT-Link
112 The national court asks whether, on the assumption that a public undertaking that owns and operates a commercial port occupies a dominant position, it can constitute abuse of that position contrary to Article 86 of the Treaty (i) for the commercial port to levy the goods and shipping duties laid down by the Minister for Transport for the use of public and private commercial ports (Question 6) or (ii) for the commercial port not to impose the goods and shipping duties on its own ferry route or on that of its cooperation partner (Question 8), and whether, if the answer to either Question 6 or Question 8 is in the affirmative, the particular duties and tasks assigned to DSB can result in a finding that the situation is none the less permissible under Article 90(2) of the Treaty (Question 9).
The national court also asks whether Community law imposes special requirements with regard to national rules on the burden of proving that the conditions for application of Article 86 have been satisfied (Question 5).
113 Article 86, which prohibits abuse by one or more undertakings of a dominant position within the common market or a substantial part of it in so far as such abuse may affect trade between Member States, provides that abuse may consist in, inter alia:
`(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
...
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
...'.
114 Article 90 provides, in so far as is relevant to this case:
`1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 6 and Articles 85 to 94.
2. Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. ...'
115 DSB, the State-owned railway company, is clearly an undertaking for the purposes of Article 86 and a public undertaking for the purposes of Article 90(1);
this is in any event assumed by the relevant questions.
Burden of proof
116 Before turning to the substantive competition issues raised, I will consider the national court's fifth question.
117 That question appears to be concerned with a Danish procedure, `provokation'.
In accordance with that procedure, one party may invite the other party to provide relevant information.
If the party requested fails to comply and the court considers that it does in fact have the information in its possession, the court may shift the burden of proof of the facts concerned to that party. (67)
118 The question arises because GT-Link, in support of its principal claim in the main proceedings that the port duties are contrary to Article 86 of the Treaty, requested DSB to produce accounts for the port of Gedser for 1988 and 1989, specifically with a view to establishing the level of profit.
DSB allegedly failed to produce such accounts. GT-Link accordingly instructed accountants to prepare estimated accounts for Gedser on the basis of 1991 operating budget figures produced by DSB in conjunction with accounting guidelines applicable to Danish State undertakings;
GT-Link wishes to rely on those constructed accounts unless DSB proves that they are incorrect.
119 To my mind, there is nothing to suggest that the national rule is objectionable as it stands.
It is clear that `any requirement of proof which has the effect of making it virtually impossible or excessively difficult to secure the repayment of charges levied contrary to Community law would be incompatible with Community law': (68)
that is not however the effect of the procedural rule at issue.
Subject to that overriding proviso, repayment of taxes may be sought only within the framework of the conditions as to both substance and form laid down by the national law. (69)
120 The same principle applies, mutatis mutandis, to a national rule concerning evidence or procedure and applying to actions at law intended to ensure the protection of the rights which individuals derive from the direct effect of Community law, including national rules on the burden of proving that the conditions for application of Article 86 have been satisfied.
In this context it may be noted that Article 86 creates direct rights in respect of the individuals concerned which the national court must safeguard. (70)
121 I will now turn to the substantive competition questions raised by the national court in GT-Link.
Article 86
122 Questions 6 and 8 are formulated on the assumption that the port owner and operator is in a dominant position. GT-Link none the less devotes considerable energies to demonstrating that DSB was in fact in a dominant position, apparently prompted by concerns about the Court's reluctance to answer hypothetical questions.
Those concerns are in my view misconceived.
The fact that the national court is, for the purposes of the ruling sought, asking this Court to assume the existence of a certain factual situation which, ultimately, it will be for the national court to determine cannot oust the Court's jurisdiction to answer the questions put.
123 If the Court answers the two questions in the affirmative, the national court will of course have to be satisfied that DSB was in fact in a dominant position for the purposes of Article 86 before it can find that that provision has been infringed.
124 On Question 6, GT-Link submits that it is an abuse for an undertaking in a dominant position to charge unreasonably high prices for the use of its facilities, and produces various figures in support of its contention that the duties are unreasonably high.
DSB's arguments focus on the fact that the levels of duty were set centrally with a view to the ports as a whole being self-financing;
it argues that for it to levy duties set in such a manner does not constitute an abuse of a dominant position.
125 In my view, those arguments are not material to the question put.
It is true that if the duties are unreasonably high they may constitute unfair trading conditions within the meaning of Article 86(a):
whether that is so, however, is a matter for the national court. My understanding of Question 6 is that the national court is asking, not whether the duties themselves are unfair within the meaning of Article 86, but whether otherwise abusive conduct by a public undertaking in a dominant position may be exonerated by virtue of the fact that it was done in compliance with a requirement of or authorization by a public authority.
126 As the Court has pointed out, the concept of abuse is an objective concept: (71)
abuse may therefore, for example, exist independently of any element of fault on the part of the dominant undertaking. (72)
Volition is similarly an unnecessary ingredient:
the Court has ruled that the fact that abusive conduct is encouraged by a national law does not take it outside the scope of Article 86; (73)
similarly, the fact that national law purports to require an undertaking to act in an abusive manner cannot prevent the conduct from being unlawful and unenforceable, although it might be relevant if in proceedings before the Commission there were a question of imposing a fine.
127 Moreover, as the Commission points out, national legislation which requires a public undertaking or an undertaking to which a Member State has granted a special or exclusive right to act contrary to Article 86 is incompatible with Community law.
Although Article 86 is directed at undertakings, the Treaty imposes a duty on Member States not to adopt or maintain in force any measure which could deprive that provision of its effectiveness. That duty derives both generally from Article 5, which requires Member States to abstain from any measure which could jeopardize the attainment of the objectives of the Treaty, and more specifically from Article 90(1), which provides that, in the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States are neither to enact nor to maintain in force any measure contrary inter alia to the rules provided for in Articles 85 to 94. (74)
In this context an analogy may be drawn with the Court's approach to Article 85 of the Treaty, which prohibits certain anti-competitive agreements, decisions and concerted practices:
the Court has ruled that it would be contrary to a Member State's obligation not to adopt or maintain in force any measure which would deprive Article 85 of its effectiveness if it were to require or favour the adoption of agreements, decisions or concerted practices contrary to Article 85 or to reinforce the effects thereof. (75)
128 With regard to Question 8, it will be recalled that (i) DSB was in effect exempt from paying goods duty on goods conveyed by motor vehicles on its ferries whereas GT-Link was required to account to DSB for goods duty on goods so conveyed on its ferries;
(ii) DSB's vessels were exempt from shipping duties and (iii) vessels belonging to the German State railway were exempt from port duties (both goods and shipping) in Gedser in the same way as DSB was exempt from duties in ports belonging to the German State railway.
Those ports presumably include the two German ports served by GT-Link and DSB from Gedser, namely Rostock and Travemünde.
I shall refer to the German State railway as DB for simplicity, since there appears to be some discrepancy as to the precise entities involved.
According to the order for reference and DSB, the exemption applies to vessels which formerly belonged to the Deutsche Bahn but have since been transferred to the Deutsche Bahn's subsidiary Deutsche Fähregesellschaft Ostsee GmbH;
the German ports in issue appear to belong to the Deutsche Bahn.
According to GT-Link, the exemption applies to vessels owned by the Deutsche Bundesbahn and the (presumably former) Deutsche Reichsbahn.
129 GT-Link submits that the services provided by DSB to GT-Link and to DB were the same, namely permitting the ferries to use the port.
It is accordingly indisputable that dissimilar conditions were applied to equivalent transactions, contrary to Article 86(c) of the Treaty.
130 DSB makes a number of assertions.
First, it states that the fact that it does not impose the duties on itself for the use of its own port facilities is clearly not an abuse.
Secondly, it states that so exempting itself from the duties cannot be discriminatory, since it bears the costs of operating the port.
It concludes from these two statements that it is not in an economically better position because it does not pay the duties.
Finally, it argues that a requirement that it pay the duties would be a mere formality by which it would in effect be paying itself.
131 With regard to the exemption of DB from the duties, DSB states that that exemption does not entail the application of unequal conditions to equivalent services:
it is solely attributable to the fact that DSB itself is also exempted from port duties for the use of the corresponding German ports.
Again, it is argued that to require reciprocal payment of duties would be a mere formality.
132 The Commission submits that for the undertaking which operates both the port and its own ferry route to levy duties on one of its competitors but not on itself prima facie represents the application of dissimilar conditions to equivalent transactions with that competitor contrary to Article 86(c).
In addition, if the duties charged yield an unreasonable profit after payment of the costs of operating the port there will be unfair prices within the meaning of Article 86(a).
If on the other hand the duties reflect merely the costs to DSB of operating the port enhanced by a reasonable profit margin, then by implication there is no infringement of Article 86.
133 In my view it is essential to disentangle the separate issues of excessive profit and exemption from duties.
As already indicated, for an undertaking in a dominant position to charge excessive prices may in itself constitute an abuse contrary to Article 86(a).
Question 8, which asks whether it can constitute an abuse of an assumed dominant position for the port not to impose the duties on its own ferry route or on that of its cooperation partner, is concerned specifically with the issue of exemption from duties, although as will be seen the two issues are linked.
134 As the Commission states, the exemption of DSB in its capacity as operator of certain ferry routes from the port duties which are imposed on GT-Link, its competitor on those routes, appears at first sight to be a clear case of applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, contrary to Article 86(c).
First appearances may, however, be deceptive, and closer scrutiny may reveal that the apparently dissimilar conditions are in fact comparable.
135 It seems to me however that Article 86(c) might be applicable in so far as DSB subsidized its ferry business by not allocating to that part of its business the cost of port services used, while making a charge for port facilities to its competitors on the market for ferry services.
Comparison of the conditions applied by DSB in its capacity as port operator to GT-Link and to DSB in its capacity as ferry operator is made difficult by the fact that all the operations are conducted within a single entity, possibly without separate accounts being available. In such circumstances it would appear necessary for the national court to ascertain whether the prices charged by DSB in its capacity as ferry operator are sufficient to cover an appropriate proportion of its costs as port operator, together with a reasonable profit margin.
In the absence of separate accounts the national court might find it relevant to consider whether the prices charged by DSB for its ferry operations are abnormally low and, if so, whether that may be explained by other factors.
If the national court finds that DSB is charging excessive prices for its port operations that may provide greater scope for cross subsidies to its other operations.
136 As regards the exemption of DB from the port duties, in order to determine whether there is an infringement of Article 86 it is necessary to ascertain the amount which DB would charge a third party for the services which it provides to DSB.
DSB may then provide to DB without charge services of a value corresponding to that amount (the value of DSB's services being calculated at the rate applicable in the case of third parties) without infringing Article 86(c).
In such a case the arrangement is simply equivalent to the setting off of debts and it is therefore irrelevant whether the duties charged by DSB for its port operations were unreasonably high (although it should be borne in mind that, as indicated above, unreasonably high duties may infringe Article 86(a)).
Article 90(2)
137 Finally, the national court asks whether Article 90(2) may in effect afford a defence to DSB if its conduct in imposing the duties on GT-Link but not on itself or its partner is found to be prima facie contrary to Article 86.
138 It will be recalled that the effect of Article 90(2) is to derogate from, inter alia, the competition rules of the Treaty for undertakings entrusted with the operation of services of general economic interest, in so far as the application of such rules would obstruct the performance, in law or in fact, of the particular tasks assigned to them, provided that the development of trade is not affected to such an extent as would be contrary to the interests of the Community.
139 GT-Link refers to the Commission's findings in its decision concerning a refusal to grant access to the facilities of the port of Rødby (76) to the effect that the application of the competition rules in that case (which concerned the Danish Government's refusal to allow a Swedish-owned company to operate from the Danish port of Rødby, owned and operated by DSB) did not impede the particular task entrusted to DSB, namely to organize rail services and manage the port facilities at Rødby.
140 It is the duty of the national court to investigate whether an undertaking which invokes the provisions of Article 90(2) for the purpose of claiming a derogation from the rules of the Treaty has in fact been entrusted by a Member State with the operation of a service of general economic interest (77) and, if so, whether its conduct is necessary in order to enable it to perform its task. (78) It must be borne in mind that, since Article 90(2) provides for a derogation from the rules of the Treaty, there must be a strict definition of those undertakings which can take advantage of it. (79)
It should also be noted that the Danish Government has stated in its written observations in Haahr Petroleum, in connection with its argument that the port facilities and services are provided by way of consideration for the goods duty import surcharge, that those are not provided in the public interest, being instead specific benefits to the importer.
141 DSB and the Commission submit that the operation of a port may be of general economic interest. (80)
The Commission adds however that there appears to be no reason to consider that the application of Article 86 in this case would prevent DSB from performing its task of making available the port facilities.
Its imposition of the port duties will constitute an abuse only if the national court concludes that they are excessive or discriminatory, in which case they cannot be regarded as necessary for the performance of the task assigned to DSB.
That to my mind is an unassailable argument, and I accordingly conclude that there is no scope for the application of Article 90(2) in this case.
Texaco and Olieselskabet
142 The applicants in these cases raise a further argument that the imposition of the import surcharge by the defendant ports and the Minister of Transport is contrary to Articles 90(1) and 86 of the Treaty.
143 In these cases, although both Texaco and Olieselskabet provide convincing arguments to the effect that the defendant ports are `public undertakings [or] undertakings to which Member States grant special or exclusive rights', the national court has not provided sufficient information for the Court to reach any view as to the relevant market for a finding of (individual or collective) dominant position.
This may be contrasted with the order for reference and questions in GT-Link, where the Court is asked to rule on certain competition aspects of the port duties in general on the basis of clearly defined assumptions.
I have accordingly dealt with Article 86 and, since it is also relevant in that context, Article 90(1), in more detail in relation to that case.
Issues relating to repayment of the surcharge
144 The national court has raised questions in three of the four cases before the Court (81) as to the compatibility with Community law of national procedural conditions, in particular time-limits on claims for repayment of overpaid tax, and as to the extent of the State's liability to repay an unlawful tax where it was paid by the taxpayer to independent operators subject to local authority control.
The effect of national procedural conditions
145 The national court's fifth question in Haahr Petroleum asks whether, if the import surcharge is incompatible with Community law, national limitation periods may be invoked to defeat claims for reimbursement.
The national court's sixth question in Olieselskabet is framed in much more general terms, but it appears from the order for reference and from the written observations which have been submitted to the Court that it too is essentially concerned with the lawfulness of national limitation periods.
The seventh question in Olieselskabet asks in effect whether the limitation period in the case of a tax found to be contrary to Community law should not start to run until the tax has been abolished.
It is apparent that these questions concerning the compatibility with Community law of the national limitation period were prompted by the perceived uncertainty as to the effect vis-à-vis rights rooted in Community law of national time-limits in the light of this Court's judgment in Emmott. (82)
146 The limitation period for actions is in general 20 years in Denmark.
By way of exception, a 1908 statute (83) contains a list of certain actions for which the period is five years.
That list includes actions by way of condictio indebiti, or claims for the recovery of money paid by mistake.
It appears that that provision applies to actions for the recovery of overpaid tax.
The five-year period appears to run from when the creditor was (or would have been had he been reasonably diligent) in a position to claim his debt.
147 The Court has consistently held in a long line of cases starting with Rewe and Comet in 1976 (84) that, in the absence of Community rules on the subject, it is for the domestic legal system of each Member State to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which individuals derive from the direct effect of Community law, provided that such conditions are not less favourable than those relating to similar actions of a domestic nature nor framed so as to render virtually impossible or excessively difficult the exercise of rights conferred by Community law.
148 That principle applies - and indeed was first applied - to limitation periods laid down by national law for the recovery of duties levied in contravention of Community law.
The imposition by a Member State of a reasonable time-limit for taking legal proceedings to recover such duties cannot be considered to make reliance on Community law virtually impossible or excessively difficult. (85) The laying down of such time-limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the taxpayer and the administration concerned. (86)
149 It may further be noted that in Just (87) the Court explicitly reaffirmed the principle first articulated in Rewe and Comet in the specific context of the Danish time-limit for the recovery of overpaid tax.
In that case the Court was asked, inter alia, whether Community law contained any rules of significance for deciding the question of the repayment of taxes found to be contrary to Article 95.
150 The Court pointed out that national systems tended to adopt one of two different approaches to the problem of taxes and other charges paid but not owed.
In certain cases specific procedural conditions and time-limits applied both to complaints submitted to the tax authorities and to legal proceedings brought with regard to such claims:
it was with a view to the operation of such remedies that the Court held in Rewe and Comet that it was compatible with Community law to lay down reasonable limitation periods.
In other cases such claims must be brought before the ordinary courts:
such actions are available for varying lengths of time, in some cases for the limitation period laid down by the general law. (88)
151 The Court noted that the system applied in Denmark belonged to the latter group:
`refunding of charges paid but not owed is sought in the ordinary courts by means of an action for recovery of the sums paid but not owed subject to a limitation period which is, in principle, five years'.
The Court invoked the principle which it had laid down in Rewe and Comet, reiterating that it was for the domestic legal system of each Member State to determine the procedural conditions governing actions intended to ensure the protection of the rights which subjects derived from the direct effect of Community law, provided that such conditions were not less favourable than those applicable to analogous domestic actions and did not make it impossible in practice to exercise the rights which the national courts are bound to protect. (89)
152 The question then arises whether that well-established principle is in any way affected by the judgment in Emmott, (90) which is relied upon by Haahr Petroleum and Olieselskabet.
In Emmott, a case concerning the Equal Treatment Directive, (91) the applicant was not granted equal benefits pursuant to the directive until 28 January 1988, even though the directive took effect on 23 December 1984.
Mrs Emmott's claim for equal benefits from 23 December 1984 was resisted by the Irish authorities on the ground that she had failed to make her application within the three-month period from the date when the grounds arose as required by Irish law.
The Court held:
`So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights.
That state of uncertainty for individuals subsists even after the Court has delivered a judgment finding that the Member State in question has not fulfilled its obligations under the directive and even if the Court has held that a particular provision or provisions of the directive are sufficiently precise and unconditional to be relied upon before a national court.
Only the proper transposition of the directive will bring that state of uncertainty to an end and it is only upon that transposition that the legal certainty which must exist if individuals are to be required to assert their rights is created.
It follows that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.' (92)
153 Olieselskabet submits in particular that the national authorities are precluded from relying on a limitation period laid down by national law which started to run before the date when the goods duty import surcharge was abolished, namely 1 April 1990.
That argument relies on Emmott as authority for the proposition that the Danish regulation imposing the surcharge contrary to Community law created such legal uncertainty for Olieselskabet that Community law precludes the national limitation period from starting to run before the point at which nationals were in a position fully to appreciate their rights.
154 The defendants in Haahr Petroleum (including the Danish Ministry of Transport, intervener) and Olieselskabet seek to distinguish Emmott on the basis that the prohibition in Article 95 cannot be equated with provisions of a directive.
They also variously refer to the Court's rulings in Johnson (93) and Steenhorst-Neerings (94) to support their interpretation of Emmott.
The United Kingdom, which submitted observations in Haahr Petroleum, similarly refers to Steenhorst-Neerings, arguing that the Court in that case recognized that the principle in Emmott was of narrow application.
The Commission refers to the principle developed by the Court in Rewe and Comet and submits that the national limitation period for claims for the recovery of overpaid tax complies with the conditions laid down in those cases for the recovery of tax levied in breach of Community law.
155 Steenhorst-Neerings and Johnson concerned time-limits on claims for arrears of benefits.
The Court held that Community law did not preclude reliance on such time-limits even where the relevant directive had not been properly implemented in national law.
The Court distinguished Emmott, observing that the result in that case could be explained by `the particular circumstances of the case'.
I analysed the judgments in all three cases in some depth in my Opinion in Denkavit. (95)
I do not consider it necessary to repeat that analysis in these cases, notwithstanding the reliance on the two more recent judgments by some of those who have submitted observations. In my view, there are other reasons why the judgment in Emmott, whatever its precise scope and import, is not in any event applicable to these cases.
156 The Court in Emmott started by reiterating the principle which it had laid down in Rewe and Comet.
It then stated:
`Whilst the laying down of reasonable time-limits which, if unobserved, bar proceedings, in principle satisfies the two conditions mentioned [in those cases], account must nevertheless be taken of the particular nature of directives.' (96)
157 The Court referred in particular to the fact that, although directives left to the national authorities the choice of form and methods of transposition, Member States were required to ensure the full application of directives in a sufficiently clear and precise manner so that, where a directive was intended to create rights for individuals, individuals could ascertain the full extent of those rights and, where necessary, rely on them before the national courts.
So long as a directive had not been fully transposed into national law, individuals were unable to ascertain the full extent of their rights.
The Court concluded that, until such time as a directive had been properly transposed, a defaulting Member State could not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the directive and that a period laid down by national law within which proceedings must be initiated could not begin to run before that time. (97)
158 To the particular features of directives mentioned by the Court may be added some further points made by Advocate General Mischo.
The Advocate General stated his view that time could have started running against Mrs Emmott `from the date on which the directive ought to have been transposed only if it could be shown to the satisfaction of the national court that the applicant was aware from that time of the fact that the principle of equality of treatment laid down in Article 4 could be directly invoked by her'.
An individual could not normally be presumed to be aware of the content of directives, which were addressed to Member States, which were at the relevant time not required to be published in the Official Journal, and from the text of which in any event it was not normally possible to ascertain the date by which they were required to be transposed.
Nor could an individual know, before it had been decided by the Court, whether a given directive or provision of a directive had direct effect. (98)
159 All those factors may be relevant in determining whether, in particular circumstances, failure properly to transpose a directive may render the exercise of Community rights `excessively difficult' or - to use the formulation which I suggested in my Opinion in Van Schijndel (99) - `unduly difficult'.
None of them can have any relevance in the context of claims for the reimbursement of tax levied in contravention of Article 95.
160 The Court ruled in 1966 that the prohibition in Article 95 was `complete, legally perfect and consequently capable of producing direct effects on the legal relationships between the Member States and persons within their jurisdiction.
...
It follows from the foregoing that ... the prohibition contained in Article 95 produces (100) direct effects and creates individual rights of which national courts must take account.' (101)
161 That unequivocal proposition in my view undermines any argument seeking to extrapolate the ruling in Emmott to these cases.
162 As explained above, the Court in Emmott was concerned to ensure that an individual seeking to exercise rights deriving from Community law could not be defeated by national time-limits applicable before he was able to ascertain the full extent of those rights.
163 It is clear that there can be no question of the applicants in these cases, or indeed of any persons seeking repayment of taxes unlawfully levied in contravention of Article 95, having been unable to ascertain the extent of their rights, since those rights derive from a Treaty provision which dates from 1957, which was unequivocally declared by the Court to be of direct effect in 1966, and which has applied in Denmark - taking precedence over national rules to the contrary - since its accession on 1 January 1973.
It may be noted that the fact that the Court has not hitherto ruled that the tax in question is contrary to Community law is not relevant to its unlawfulness:
a ruling of the Court declares the law, it does not make it. (102)
In the words of Advocate General Reischl in his Opinion in Just (103) therefore:
`from the moment of Denmark's accession ... those subject to the law may rely before the national courts on ... Article 95, which in this connection takes precedence over national rules to the contrary.
If individuals rely upon this provision the levying of charges which are contrary to Article 95 must be declared inadmissible.'
164 The same may be said, mutatis mutandis, of provisions of free-trade agreements, at least where they have been duly published.
As stated above, (104) a provision such as that at issue was held by the Court in 1982 to be directly applicable and capable of conferring upon individual traders rights which the courts must protect. (105)
165 Haahr Petroleum appears to be of the view that the time-limits should not be applicable against it at all, arguing that, in view of the tardiness of both the Commission and the Danish Government in focusing on the unlawfulness of the surcharge at issue, it would be `shocking' if national time-limits could override Community law.
166 The effect of that argument would be that no limitation period at all was applicable to the applicants' right of action.
As stated by Advocate General Warner in Rewe: (106)
`This would be inconsistent with the common tradition of the legal systems of the Member States, which is to give effect to the maxim `Interest rei publicae ut sit finis litium' by, among other things, prescribing limitation periods for rights of action (albeit, as the Commission has pointed out, widely divergent ones), and also with the general approach of Community law, as exemplified in Article 173 of the EEC Treaty, Article 43 of the Statute of the Court and many other provisions.'
167 I am accordingly of the view that - even if, which as I have explained in my Opinion in Denkavit I do not accept, the judgment in Emmott can properly be regarded as establishing any general principle about the inapplicability of national time-limits where directives have not been correctly transposed - there are no grounds for extrapolating that principle to actions based on directly effective Treaty provisions or on duly published free-trade agreements.
The effect of allocation of the proceeds of the duty
168 The national court's fifth question in Olieselskabet asks whether it follows from Community law that a Member State which has imposed or approved a duty contrary to Community law is liable to repay the duty, even though the proceeds of the duty have been allocated to independent operators subject to local authority control.
This question arises because in the main proceedings Olieselskabet submitted that the Ministry of Transport was jointly liable with the defendant commercial ports to reimburse the import surcharge.
It is also indirectly relevant to Texaco, although the national court in that case has not specifically referred the issue to this Court: there, as in Olieselskabet, the defendant ports under local authority control argue that the Ministry of Transport, as the authority responsible for setting the rate, is under an obligation to indemnify them for such amounts as they may be required to reimburse or pay as compensation by reason of the rate set.
169 Olieselskabet refers to the Court's ruling in Francovich (107) to the effect that Member States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible.
In my view however the principles of Member State liability for reparation of loss and damage laid down in Francovich and subsequently developed in Brasserie du Pêcheur and Factortame (108) are not strictly relevant to the question who must repay a tax levied in contravention of Community law.
170 The concept of reimbursement is inherently simpler than that of compensation for damage.
The Court has ruled that entitlement to the repayment of charges levied by a Member State contrary to the rules of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting charges having an effect equivalent to customs duties or, as the case may be, the discriminatory application of internal taxes. (109)
More recently, in Comateb, (110) the Court referred to that ruling, adding `The Member State is therefore in principle required to repay charges levied in breach of Community law.'
171 It is of course the case that, in the absence of Community rules on the subject, it is for the domestic legal system of each Member State to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which individuals derive from the direct effect of Community law, provided that such conditions are not less favourable than those relating to similar actions of a domestic nature nor framed so as to render virtually impossible or excessively difficult the exercise of rights conferred by Community law. (111)
That principle applies to procedural conditions generally as well as to national provisions as to time-limits, considered in more detail above.
Therefore it is the national provisions as to the incidence of liability in these circumstances for overpaid tax which will in the first instance determine against which entity an action for repayment must lie, provided that the two conditions set out above are satisfied.
172 The phrase `virtually impossible' in the second condition required by this Court of national rules for the protection of individuals' rights under Community law is rendered in the French texts of the judgments concerned as either `en pratique impossible' (112) or `pratiquement impossible'. (113)
Both of these phrases have the clear sense of `impossible in practice', the former unambiguously.
Construing the conditions to be satisfied by national rules so as to invalidate a rule which had the effect of preventing in practice the exercise of rights derived from Community law is entirely consistent with the Court's approach in its case-law on this area.
173 Thus a national rule which required, in a case such as the present, that the taxpayer bring his action first against the tax-collecting body would not be objectionable, provided that the rule applied equally to claims for the repayment of tax wrongly paid according to national law. Where however a national rule precluded the taxpayer in such a case from pursuing his claim against the State which had unlawfully imposed the tax in circumstances where he was unable to recover in full from the tax-collecting body, for example because it had become insolvent (as may apparently be the case of the defendant ports if recovery of the levy is sought against them), then the effect of that rule would be to render impossible in practice the exercise of rights conferred by Community law and as a matter of Community law the taxpayer would be able to recover from the Member State which was responsible for imposing the unlawful tax.
The effect of passing on of the surcharge
174 It may finally be noted in the context of repayment of an unlawful tax that, by way of exception to the general principle that a Member State is required to repay charges levied in breach of Community law, there is no such requirement where it is established that the person required to pay such charges has actually passed them on. (114)
The Court has recently clarified the scope of this exception, ruling that a Member State may resist repayment to the trader of a charge levied in breach of Community law only where it is established that the charge has been borne in its entirety by another person and that reimbursement of the trader would constitute unjust enrichment.
It is for the national court to determine, in the light of the facts of each case, whether those conditions have been satisfied. If the burden of the charge has been passed on only in part, it is for the national authorities to reimburse the trader the amount not passed on.
The fact that there is a legal obligation to incorporate the charge in the cost price does not mean that there is a presumption that the entire charge has been passed on, even where failure to comply with that obligation carries a penalty.
Finally, where, although the charge has been passed on to the purchaser, domestic law permits the trader to claim that the illegal levying of the charge has caused him damage which excludes, in whole or in part, any unjust enrichment, it is for the national court to give such effect to the claim as may be appropriate. (115)
Reimbursement of a levy contrary to Article 86
175 The national court has asked in GT-Link whether, if the Court rules that it can constitute an abuse of a dominant position under Article 86 of the Treaty for DSB to levy the shipping and goods duties, the persons or undertakings on which the duties were imposed have any right under Community law to seek reimbursement or compensation.
176 It is settled law that Article 86 creates direct rights in respect of the individuals concerned which the national court must safeguard. (116)
The principle set out above will accordingly apply:
it is for the domestic legal system of the Member State concerned to determine the conditions governing actions to defend those rights, subject to the requirements of equivalence with actions to defend rights deriving from domestic law and of effectiveness, namely that it must be possible in fact to recover.
Conclusion
177 Accordingly I am of the opinion that the questions referred to the Court in the present cases should be answered as follows:
In Case C-90/94 Haahr Petroleum:
178 It is contrary to Article 95 of the EEC Treaty for a Member State to impose a 40% surcharge on a general goods duty on imports of goods by ship from another Member State.
179 Claims for the repayment of duties levied contrary to Community law are subject to the procedural conditions, including rules on limitation periods, laid down by the domestic legal system of the Member State concerned provided that such conditions are not less favourable than those relating to similar actions of a domestic nature nor framed so as to render impossible in practice or excessively difficult the exercise of rights conferred by Community law.
In Joined Cases C-114/95 and C-115/95 Texaco and Olieselskabet:
180 It is contrary to Article 95 of the EEC Treaty for a Member State to impose a 40% surcharge on a general goods duty on imports of goods by ship from another Member State.
181 It is contrary to a provision of a free-trade agreement between a non-member country and the European Community corresponding to Article 18 of the Agreement between the European Ecomonic Community and the Kingdom of Sweden for a Member State to impose a 40% surcharge on a general goods duty on imports of goods by ship from the non-member country concerned.
182 It is not contrary to Community law for a Member State to impose a 40% surcharge on imports of goods by ship from non-member countries with which the Community has no free-trade agreement.
183 A Member State which has imposed or approved a duty contrary to Community law is liable to repay the duty, even though the proceeds of the duty have been allocated to independent operators subject to local authority control, if the taxpayer would otherwise be unable in practice to recover the unlawful duty.
184 Claims for the repayment of duties levied contrary to Community law are subject to the procedural conditions, including rules on limitation periods, laid down by the domestic legal system of the Member State concerned provided that such conditions are not less favourable than those relating to similar actions of a domestic nature nor framed so as to render impossible in practice or excessively difficult the exercise of rights conferred by Community law.
185 It is not contrary to Community law for a national limitation period for claims for the repayment of duties levied contrary to Community law to run from an earlier point in time than that from which the Member State in question discontinued the duty in question.
In Case C-242/95 GT-Link:
186 It is contrary to Article 95 of the EEC Treaty for a Member State to impose a 40% surcharge on a general goods duty on imports of goods by ship from another Member State.
187 Community law imposes no special requirements with regard to national rules on the burden of proving that the conditions for application of Article 86 of the EEC Treaty have been satisfied provided that those rules are not framed so as to render impossible in practice or excessively difficult the exercise of rights conferred by Community law.
188 The fact that national law purports to require an undertaking in a dominant position to act in an abusive manner within the meaning of Article 86 of the EEC Treaty cannot prevent the conduct from being unlawful or unenforceable.
189 It is for the domestic legal system of the Member State concerned to determine the conditions governing actions to defend the rights conferred by Article 86 of the EEC Treaty provided that such conditions are not less favourable than those relating to similar actions of a domestic nature nor framed so as to render impossible in practice or excessively difficult the exercise of rights conferred by Community law.
190 Where a public undertaking that owns and operates a commercial port occupies a dominant position, an abuse of that position contrary to Article 86 of the EEC Treaty may lie in the fact that the commercial port does not impose the port duties on its own ferry route or on that of its cooperation partner.
Whether that is so may be ascertained in the first case from the level of its prices and in the second case from both the level of its charges to third parties and the value of the services provided by the undertaking and its cooperation partner respectively.
191 Neither excessive or discriminatory prices imposed by an undertaking in a dominant position nor an import surcharge imposed contrary to Community law can be regarded as necessary for the performance of the task assigned to the undertaking for the purposes of Article 90(2) of the EEC Treaty.
(1) - The 1976 Law was replaced with effect from 1 January 1991 by Law No 316 of 16 May 1990.
(2) - Although Question 3 in Haahr Petroleum (in contrast to the equivalent question in Texaco and Olieselskabet) refers to the duty rather than the surcharge, it is clear from its place in the scheme of the questions as a whole that it is the status of the surcharge rather than the goods duty generally that is at issue.
(3) - Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ 1987 L 256, p. 1.
(4) - The words `in so far as it is assumed that the case relates to services in respect of which consideration is paid' do not appear in the questions referred in Olieselskabet.
(5) - Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries, OJ 1986 L 378, p. 1.
(6) - See note 2.
(7) - Cited in note 3.
(8) - See paragraphs 103 to 111.
(9) - Case 57/65 Lütticke v Hauptzollamt Saarlouis [1966] ECR 205, p. 211.
(10) - Lütticke, cited in note 9.
(11) - Case 27/74 Demag v Finanzamt Duisburg-Süd [1974] ECR 1037, paragraph 7 of the judgment.
(12) - Case 94/74 IGAV v ENCC [1975] ECR 699, paragraph 13 of the judgment.
(13) - Case 10/65 Deutschmann v Germany [1965] ECR 469, p. 473.
(14) - Case 24/68 Commission v Italy [1969] ECR 193 (the `statistical levy' case), paragraphs 9 and 11 of the judgment;
Joined Cases 2/69 and 3/69 Diamantarbeiders v Brachfeld [1969] ECR 211, paragraphs 18 and 20.
(15) - In particular Joined Cases 2/62 and 3/62 Commission v Luxembourg and Kingdom of Belgium [1962] ECR 425, p. 432 (the `gingerbread' case);
Deutschmann v Germany, cited in note 13;
and Case 7/68 Commission v Italy [1968] ECR 423 (the `art treasures' case).
(16) - See, for example, Joined Cases C-485/93 and C-486/93 Simitzi v Municipality of Kos [1995] ECR I-2655, paragraph 15 of the judgment, and Case C-45/94 Cámara de Comercio, Industria y Navegación, Ceuta v Municipality of Ceuta [1995] ECR I-4385, paragraph 28.
(17) - See, for example, Case 29/72 Marimex v Amministrazione Finanziaria Italiana [1972] ECR 1309, paragraph 6 of the judgment; Case 77/72 Capolongo v Maya [1973] ECR 611, paragraph 12;
IGAV v ENCC, cited in note 12, paragraph 10.
(18) - Case 78/76 [1977] ECR 595, paragraph 28 of the judgment;
see also Case 15/81 Schul v Inspecteur der Invoerrechten en Accijnzen [1982] ECR 1409, paragraph 19; Case 193/85
Co-Frutta v Amministrazione delle Finanze dello Stato [1987] ECR 2085, paragraph 9;
and most recently the Opinion of Advocate General Tesauro in Ceuta, cited in note 16.
(19) - Case 74/76 Iannelli v Meroni [1977] ECR 557, paragraph 19 of the judgment.
(20) - Cited in note 17.
(21) - Paragraph 14 of the judgment.
(22) - See also IGAV v ENCC, cited in note 12, paragraph 17 of the judgment and Case 77/76 Cucchi v Avez [1977] ECR 987, paragraph 17.
(23) - Case 63/74 Cadsky v Istituto Nazionale per il Comercio Estero [1975] ECR 281.
(24) - Commission v Italy, cited in note 14, paragraph 16 of the judgment.
(25) - See for example Case C-111/89 Bakker Hillegom [1990] ECR I-1735, paragraphs 12 to 16 of the judgment.
(26) - See paragraph 15.
(27) - See paragraph 13.
(28) - See for example the cases listed in Case 1/83 IFG v Freistaat Bayern [1984] ECR 349, paragraph 8 of the judgment.
(29) - Case 266/81 [1983] ECR 731.
(30) - Paragraphs 20 and 21 of the judgment.
(31) - Proposal for a Council Regulation (EEC) on consultation between airports and airport users and on airport charging principles (COM(90) 100 final), OJ 1990 C 147, p. 6.
(32) - Tenth recital.
(33) - Paragraph 15.C(d).
(34) - Council Regulation (EEC) No 4055/86 of 22 December 1986, OJ 1986 L 378, p. 1.
(35) - Case C-49/89 Corsica Ferries France v Direction Générale des Douanes Françaises [1989] ECR 4441.
(36) - Paragraphs 10, 13 and 14 of the judgment.
(37) - Case C-18/93 [1994] I-1783, paragraphs 32 to 37 of the judgment.
(38) - See, for example, Case 20/76 Schöttle v Finanzamt Freudenstadt [1977] ECR 247.
(39) - Cited in note 31.
(40) - Cited in note 38.
(41) - Paragraphs 13 and 16 of the judgment.
See also my Opinion in Case C-195/90 Commission v Germany [1992] ECR I-3141, paragraphs 41 to 48.
(42) - Cited in note 17.
(43) - Case 140/79 [1981] ECR 1.
(44) - Paragraph 14 of the judgment.
(45) - See also my Opinion in Case C-113/94 Jacquier v Directeur Général des Impôts [1995] ECR I-4203, in particular paragraphs 21 to 27.
(46) - Case C-47/88 [1990] ECR I-4509, paragraph 10 of the judgment.
(47) - See paragraphs 136 to 140.
(48) - Act concerning the Conditions of Accession and the Adjustments to the Treaties - Accession to the European Communities of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, OJ, English Special Edition, 27 March 1972, p. 14.
(49) - Regulation (EEC) No 2838/72 of the Council of 19 December 1972 concluding an Agreement between the European Economic Community and the Kingdom of Sweden and adopting provisions for its implementation, OJ, English Special Edition 1972 (I), p. 98.
(50) - Regulation (EEC) No 1691/73 of the Council of 25 June 1973 concluding an Agreement between the European Economic Community and the Kingdom of Norway and adopting provisions for its implementation, OJ 1973 L 171, p. 1.
(51) - Case 104/81 Hauptzollamt Mainz v Kupferberg [1982] ECR 3641.
(52) - Paragraph 27 of the judgment.
(53) - Case C-312/91 [1993] ECR I-3751.
(54) - Article 1(b) and (c).
(55) - Cited in note 38.
(56) - At paragraphs 85 to 89.
(57) - Case C-163/90 Administration des Douanes et Droits Indirects v Legros and Others [1992] ECR I-4625.
(58) - Paragraph 26 of the judgment.
(59) - Joined Cases C-228/90 to C-234/90, C-339/90 and C-353/90 Simba and Others v Ministero delle Finanze [1992] ECR I-3713 and Case C-130/92 OTO v Ministero delle Finanze [1994] ECR I-3281;
see also the earlier cases cited by Advocate General Lenz in Simba.
(60) - Paragraph 18 of the judgment in OTO, paragraph 14 of the judgment in Simba.
(61) - Case 193/85 Co-Frutta v Amministrazione delle Finanze dello Stato [1987] ECR 2085.
(62) - Joined Cases 37/73 and 38/73 Diamantarbeiders v Indiamex [1973] ECR 1609.
(63) - Council Regulation (EEC) No 950/68 of 28 June 1968 on the common customs tariff, OJ, English Special Edition 1968 (I), p. 275.
(64) - Cited in note 3.
(65) - Operative part of the judgment;
see also most recently Case C-125/94 Aprile v Amministrazione delle Finanze dello Stato [1995] ECR I-2919 and Case C-126/94 Société Cadi Surgelés and Others v Ministre des Finances and Another, judgment of 7 November 1996.
(66) - Paragraph 20 of the judgment.
(67) - Article 344(2) of the Danish Code of Procedure.
(68) - Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 14 of the judgment.
(69) - San Giorgio, paragraph 12 of the judgment.
(70) - Case 127/73 BRT v SABAM and NV Fonior [1974] ECR 313, paragraph 22 of the judgment.
(71) - Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, p. 541.
(72) - See my Opinion in Case C-41/90 Höfner and Elser [1991] ECR 1979, p. I-2006.
(73) - Case 13/77 INNO v ATAB [1977] ECR 2115, paragraph 34 of the judgment;
see also Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, in particular the Opinion of Advocate General Van Gerven at p. 5916.
(74) - INNO v ATAB, cited in note 73, paragraphs 29 to 32 of the judgment;
see also Höfner and Elser, cited in note 72, paragraphs 26 to 27.
(75) - Joined Cases 209/84 to 213/84 Ministère Public v Asjes [1986] ECR 1425 (the `Nouvelles Frontières' case), paragraph 72 of the judgment.
(76) - Commission Decision 94/119/EC of 21 December 1993, OJ 1994 L 55, p. 52.
(77) - BRT v SABAM, cited in note 70.
(78) - Case C-393/92 Almelo [1994] ECR I-1477, paragraph 50 of the judgment.
(79) - BRT v SABAM, cited in note 70, paragraph 19 of the judgment.
(80) - Case 10/71 Ministère Public Luxembourg v Muller [1971] ECR 723.
(81) - Haahr Petroleum, Olieselskabet and GT-Link.
(82) - Case C-208/90 [1991] ECR I-4269.
(83) - Law No 274 of 22 December 1908.
(84) - Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989 and Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043;
see also most recently Case C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Another [1996] ECR I-389, paragraph 71 of the judgment.
(85) - See Rewe, paragraph 5 of the judgment;
Comet, paragraph 17.
(86) - Rewe, paragraph 5 of the judgment.
(87) - Case 68/79 Just v Ministry for Fiscal Affairs [1980] ECR 501.
(88) - Paragraphs 22 and 23 of the judgment.
(89) - Paragraphs 24 and 25 of the judgment.
(90) - Cited in note 82.
(91) - Council Directive 79/7 of 19 December 1978 on the progressive implementation of the provisions of equal treatment for men and women in matters of social security, OJ 1979 L 6, p. 24.
(92) - Paragraphs 21 to 23 of the judgment.
(93) - Case C-410/92 [1994] ECR I-5483.
(94) - Case C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475.
(95) - Case C-2/94 Denkavit Internationaal v Kamer van Koophandel en Fabrieken voor Midden-Gelderland [1996] ECR I-2827;
(It may be noted that the Court, having ruled that the levy contested in that case was lawful, did not address the issue of time-limits.)
(96) - Paragraphs 16 and 17.
(97) - Paragraphs 18 to 23 of the judgment.
(98) - Paragraphs 25 to 29 of the Opinion.
(99) - Joined Cases C-430/93 and C-431/93 Van Schijndel and van Veen v SPF [1995] ECR I-4705.
(100) - The English text reads `produced' but it is apparent from the French that the present tense is correct.
(101) - Lütticke, cited in note 9.
(102) - See for example Rewe, cited in note 84, paragraph 7 of the judgment and the Opinion of Advocate General Warner, pp. 2004 to 2005.
(103) - Cited in note 87, p. 530.
(104) - At paragraph 99.
(105) - Kupferberg, cited in note 51, paragraph 27 of the judgment.
(106) - Cited in note 84, p. 2004.
(107) - Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357.
(108) - Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029.
(109) - San Giorgio, cited in note 68, paragraph 12 of the judgment.
(110) - Joined Cases C-192/95 to C-218/95 Société Comateb and Others, judgment of 14 January 1997, paragraph 20.
(111) - See cases cited in note 84.
(112) - In for example Rewe, cited in note 84, Johnson, cited in note 93, Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599, Van Schijndel, cited in note 99, and FMC, cited in note 84.
(113) - See for example San Giorgio, cited in note 68, Just, cited in note 87, Francovich, cited in note 107, and Emmott, cited in note 82.
(114) - See most recently Comateb, cited in note 110, paragraph 21 of the judgment.
(115) - Comateb, paragraph 35 and operative part of the judgment.
(116) - BRT v SABAM, cited in note 70, paragraph 16 of the judgment.