Opinion of Mr Advocate General Jacobs delivered on 23 September 1999. - Charalampos Dounias v Ypourgio Oikonomikon. - Reference for a preliminary ruling: Symvoulio tis Epikrateias - Greece. - Taxes on imported goods - Taxable value - Articles 30 and 95 of the EC Treaty (now, after amendment, Articles 28 EC and 90 EC) - Regulation (EEC) No 1224/80. - Case C-228/98.



European Court reports 2000 Page I-00577



Opinion of the Advocate-General

1. In this case the Simvoulio tis Epikratias (Greek Council of State) has referred a series of questions concerning the compatibility with Community law, and in particular with Articles 30 and 95 of the EC Treaty (now, after amendment, Articles 28 and 90 EC), of national legislation determining the method of calculating the taxable value of imported goods for the purposes of certain indirect taxes and laying down rules for settling customs disputes in relation to such goods.

2. The main proceedings arise out of events which occurred in 1986; it appears that at least some of the taxes concerned were abolished with effect from 1 January 1987. The applicant, who had imported second-hand photocopiers from Germany into Greece, disputed the basis on which certain taxes were levied on those imported goods. His complaint led to legal proceedings in which he is seeking to establish the liability of the Greek State in respect of damage allegedly suffered by him as a result of acts of the public authorities in charging the taxes. The proceedings have culminated in an appeal to the Greek Council of State which has sought guidance from this Court on the following questions:

(1) Is the method set out in Law No 1477/1984, in particular Articles 1(2), 2(3), 3(3) and 4(3) thereof, and Article 16 of Law No 1642/1986 for calculating taxable value for the purposes of the taxes laid down by those Laws contrary to the provisions governing the European Economic Community, in particular Articles 30 and 95 of the Treaty of Rome?

(2) Is Council Regulation (EEC) No 1224/80 of 28 May 1980 also directly applicable where a tax provided for under the legislation of a Member State applies to goods imported from another Member State?

(3) If the answer to the preceding question is in the affirmative, is Article 11 of that Regulation contrary to the provisions of the Treaty of Rome and in particular Article 30 thereof?

(4) If the answer to Question 2 is in the negative, is the reference in the abovementioned provisions of Laws Nos 1477/1984 and 1642/1986 to Council Regulation (EEC) No 1224/80 of 28 May 1980 contrary to the provisions of the Treaty of Rome and in particular Article 30 thereof?

(5) If the answer to Question 2 is in the negative, is Article 16 of the Code of Legislation relating to the Customs Tariff (Codifying Decree of 25/30 July 1920), as replaced by Article 1 of Law No 428/1943, contrary to the provisions of the Treaty of Rome and in particular Article 30 thereof?

(6) Is the administrative procedure for settling disputes provided for in Article 10 of the abovementioned Code of Legislation relating to the Customs Tariff and Article 136 of Presidential Decree No 636/1977 contrary to the provisions of the Treaty of Rome and in particular Article 30 thereof, where a domestic tax is levied on goods imported from another Member State?

(7) Are the provisions of Article 50 of Presidential Decree No 341/1978, in conjunction with Article 152 of the Code of Fiscal Procedure and Article 4 of Law No 1406/1983, contrary to the provisions of the Treaty of Rome and in particular Article 30 thereof, where proceedings are brought before an administrative court seeking to establish the liability of the State with a view to obtaining reparation for damage resulting from the infringement of provisions governing the European Economic Community?

3. Written observations have been submitted by the applicant, the Greek Government, the Council and the Commission, all of whom were represented at the hearing.

The national legislation

4. The national legislation is set out briefly in the order for reference and more fully in the observations of the Commission and the Greek Government.

5. Following its accession to the European Economic Community, Greece adopted Law No 1477/1984 in order to harmonise the indirect taxes existing at that time with the principles of Community law. The first chapter of the Law, entitled Harmonisation of taxable amount and rates, governs the four indirect taxes at issue, namely turnover tax, stamp duty, the special consumption tax and the regularising tax, in Articles 1, 2, 3 and 4 respectively.

Turnover tax

6. Article 1 provides that turnover tax is applied to national and imported products at rates determined as a percentage of the taxable value determined in accordance with Article 1(2), which provides as follows.

7. For national products, taxable value is determined on the basis of gross receipts from the sale by industrial undertakings and craftsmen of goods manufactured by themselves in accordance with Articles 2 and 3(1) of Decree-Law No 660/1937 on turnover tax. Those gross receipts include taxes other than stamp duty, contributions and other general charges. Further details concerning the meaning of gross receipts are included in Decree-Law No 660/1937: discounts to the purchaser are deducted, provided that they are mentioned on the invoice or document evidencing the sale; if the sale price includes turnover tax, it is deducted; the value of the raw materials, if exempt or already subject to turnover tax, is deducted; commissions, brokerage fees, interest and accessory costs, such as transport, installation, assembly, loading, handling, etc., are included, even if payable by the purchaser, as are the value of services provided for the sale and, in general, for the marketing of the product.

8. For imported goods the taxable value is determined on the basis of the customs value taken into account for the application of customs duties on import, in accordance with Regulation No 1224/80 on the valuation of goods for customs purposes; that customs value includes buying commissions, packing and transport costs, insurance to the place of introduction of the goods into the territory and interest on capital. To that must be added import duties paid, any Community anti-dumping duties or countervailing charges and taxes (other than stamp duty), contributions and other general charges imposed on imported goods.

Stamp duty

9. Article 2(1) of Law No 1477/1984, entitled Stamp duty, provides that stamp duty is to be calculated, for imported and national products sold within the country, by application of the same rates on the taxable value defined in accordance with Article 2(2). Article 2(2) provides that the taxable value is determined on the basis of the total sale price, including interest on credit sales, customs duties, taxes, contributions and general charges for the account of the purchaser. For imported goods turnover tax is also to be added to the taxable value.

The special consumption tax

10. Article 3 of Law No 1477/1984, entitled Amalgamation of excise duties and luxury goods tax, provides that the special consumption tax (which results from the amalgamation of the two abovementioned taxes) is to be levied at the same rates on goods manufactured or processed on the national territory and on imported goods; the rates are expressed as a percentage of the taxable value determined in accordance with Article 3(3) or by net weight. Article 3(3) provides that the taxable value is to be determined for national products on the basis of the manufacturer's or processor's sale price without any other charge and for imported products on the basis of the customs value for import duty in accordance with Regulation No 1224/80, plus buying commission, packing, transport and insurance costs to the place of introduction of the goods into national territory, interest on capital, import duties and any Community anti-dumping or countervailing charges.

The regularising tax

11. As indicated above, Law No 1477/1984 was enacted following Greece's accession to the European Economic Community. According to the Greek Government, a special relationship was established in the field of tax harmonisation; the protective aspects of indirect taxation (differences in the bases of assessment and in the rates) were not abolished immediately after accession but adapted so that the additional fiscal burden on imports was progressively reduced from 1 July 1984 until 1 January 1989, when it was totally eliminated. It may be noted that that timetable differs from that envisaged by the Act of Accession, which permitted the continuation of certain differential charges for a transitional period finishing by 1 January 1986.

12. Article 4 of Law No 1477/1984 provides that, to compensate for the reduction in the bases of assessment and rates, a regularising tax is imposed on imported goods, irrespective of their country of origin, at a percentage of the taxable value determined in accordance with Article 4(3). Article 4(3) provides that the taxable value is based on the customs value taken into account for the application of import duties in accordance with Regulation No 1224/80, including buying commission, packing, transport and insurance costs up to the place of introduction into national territory, interest on capital and import duties.

Value added tax

13. Law No 1642/1986, referred to in the national court's first and fourth questions, introduced value added tax into Greece pursuant to the Sixth Directive with effect from 1 January 1987. Article 16 concerns the taxable value of imported goods. Since Law No 1642/1986 entered into force after the events which gave rise to the main proceedings, its provisions are not relevant to the case before the Court and I will not consider them further.

Collection of tax and settlement of disputes

14. Tax levied on foreign goods is to be collected in accordance with the provisions of Greek customs legislation. Article 10 of the Code of Legislation relating to the Customs Tariff provides that goods are to be classified by the customs authorities in the relevant category for customs clearance and that, in the event of objections being raised by a consignee of imported goods, any dispute is to be resolved by the competent commission, namely the First Instance Commission and the Higher Commission for Disputes concerning Customs Duties. At the time when the applicant's case was referred to it, the Higher Commission was constituted pursuant to Article 136 of Presidential Decree No 636/1977 and had final administrative jurisdiction to settle such disputes. At that time, such disputes could be brought before an administrative court by means of an appeal, but according to the national court the applicant apparently did not bring such an appeal because he was satisfied with the decision of the Higher Commission.

15. Article 16 of the Code of Legislation relating to the Customs Tariff provides that in the event of a customs dispute the goods shall not be released to the consignee unless he pays such customs duties as are required by the customs authorities.

16. Article 49 of Presidential Decree No 341/1978 concerning procedure before ordinary administrative courts requires parties wishing to adduce witness evidence to produce in advance affidavits sworn before a Justice of the Peace or a notary. Article 50 provides that the court may in exceptional cases and subject to Articles 152 to 157 of the Code of Fiscal Procedure hear witnesses of its own motion or on the request of a party unless witness evidence is excluded on account of the questions or relationships concerned. Article 152(1) of that Code provides that the court may in exceptional cases hear witnesses of its own motion or on request of a party unless hearing witnesses is excluded by the substantive law applicable to the proceedings and requires the decision concerning the hearing of witnesses to designate the witnesses to be heard and to justify the decision to hear them.

17. Article 1(2)(8) of Law No 1406/1983 provides that proceedings concerning State liability for compensation are within the jurisdiction of the ordinary administrative courts. Article 4 refers to Articles 50 to 65 of Presidential Decree No 341/1987 but not to Article 49 thereof. It follows that in such proceedings the parties may not adduce witness evidence before the administrative court, although the court may of its own motion or at the request of a party order witnesses to be heard in exceptional cases.

Regulation No 1224/80

18. Article 3(1) of Regulation No 1224/80 provides that, subject to provisos not relevant to this case:

The customs value of imported goods determined under this Article shall be the transaction value, that is, the price actually paid or payable for the goods when sold for export to the customs territory of the Community, adjusted in accordance with Article 8 ...

19. Article 8(1) provides:

In determining the customs value under Article 3, there shall be added to the price actually paid or payable for the imported goods:

(a) the following, to the extent that they are incurred by the buyer but are not included in the price actually paid or payable for the goods:

(i) commission and brokerage, except buying commissions,

(ii) the cost of containers which are treated as being one for customs purposes with the goods in question,

(iii) the cost of packing, whether for labour or materials;

(b) the value, apportioned as appropriate, of the following goods and services where supplied directly or indirectly by the buyer free of charge or at reduced cost for use in connection with the production and sale for export of the imported goods, to the extent that such value has not been included in the price actually paid or payable:

(i) materials, components, parts and similar items incorporated in the imported goods,

(ii) tools, dies, moulds and similar items used in the production of the imported goods,

(iii) materials consumed in the production of the imported goods,

(iv) engineering, development, artwork, design work, and plans and sketches undertaken elsewhere than in the Community and necessary for the production of the imported goods;

(c) royalties and licence fees related to the goods being valued that the buyer must pay, either directly or indirectly, as a condition of sale of the goods being valued, to the extent that such royalties and fees are not included in the price actually paid or payable;

(d) the value of any part of the proceeds of any subsequent resale, disposal or use of the imported goods that accrues directly or indirectly to the seller;

(e) (i) the cost of transport and insurance of the imported goods, and

(ii) loading and handling charges associated with the transport of the imported goods

to the place of introduction of the goods into the customs territory of the Community.

20. Article 11 provides:

If, in the course of determining the customs value of imported goods, it becomes necessary to delay the final determination of such customs value, the importer shall nevertheless be able to withdraw his goods from customs if, where so required, he provides sufficient guarantee in the form of a surety, a deposit or some other appropriate instrument, covering the ultimate payment of customs duties for which the goods may be liable.

The first question

21. By its first question, the national court essentially asks whether the method set out in Law No 1477/1984 (the law to harmonise indirect taxes) for calculating taxable value for the purposes of turnover tax (Article 1(2)), stamp duty (Article 2(3)), the special consumption tax (Article 3(3)) and the regularising tax (Article 4(3)) is contrary to Community law, in particular Articles 30 and 95 of the EC Treaty (now, after amendment, Articles 28 and 90 EC).

22. I would note at the outset that, although the Court has no jurisdiction under Article 177 of the Treaty (now Article 234 EC) to rule on the question whether provisions of national legislation are compatible with the Treaty, it may provide the national court with all such criteria for the interpretation of Community law which may enable it to answer that question.

23. In my view the compatibility of the contested taxes falls to be assessed under Article 95 of the Treaty.

24. It is settled law that obstacles to trade which are of a fiscal nature do not in general fall within the prohibition in Article 30 on quantitative restrictions on imports and measures having equivalent effect but fall to be assessed by reference to Articles 9 to 12 (now, after amendment, Articles 23 to 25 EC) or Article 95 of the EC Treaty depending on whether they are on the one hand customs duties or charges having equivalent effect or on the other hand financial charges within a general system of internal taxation. It is clear that the turnover tax, stamp duty and the consumption tax, which are imposed on both imported and domestic products, are part of a general system of internal taxation of goods; I will consider the correct categorisation of the regularising tax after I have considered the compatibility with Article 95 of those three taxes.

25. Article 95 of the Treaty prohibits Member States from imposing, 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 or of such a nature as to afford indirect protection to other products. This will of course preclude differences in the basis of assessment resulting in heavier taxes on imports: Grundig Italiana v Ministero delle Finanze. The Court ruled at an early stage that Article 95 had direct effect.

26. There appears to be some dispute as to whether there is any national production of photocopiers in Greece: the Greek Government asserted at the hearing that there was no domestic production while the Commission states in its written observations that there is. In my view, however, there are two grounds for considering that Article 95 is in principle applicable in the present case even if there is no domestic production of the relevant products.

27. First, as I stated in my Opinion in Haahr Petroleum, 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 equivalent domestic products if they 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 more heavily than domestic production would be taxed if it existed, a Member State favours potential domestic production and induces manufacturers to transfer production to its territory.

28. Secondly, it must be recalled that the goods in question in the main proceedings are second-hand photocopiers: even if there is no production of photocopiers in Greece that does not mean that there is no market for used photocopiers. As the Court stated in Commission v Denmark, imported used goods and those bought locally constitute similar or competing products.

29. Since the national legislation expressly distinguishes between imported and domestic goods in determining the taxable value for the purpose of turnover tax, stamp duty and the special consumption tax, and expressly imposes the regularising tax on imported goods alone, and since the goods in question are in any event used goods, I shall accordingly proceed on the basis that Article 95 is in principle applicable.

30. As the Commission notes, the national court's first question requires a comparison of the national provisions concerning the taxation of imported and of domestic goods in order to determine whether in practice the fiscal burden on imported goods is heavier than that on national goods.

31. With regard to turnover tax, the effect of the national legislation is that the taxable value is determined, both for national and for imported goods, by the sale price increased by both accessory expenses (commission, brokerage, insurance, transport, loading, handling) and taxes and charges of any kind to which the transaction has been subject up to the period in question. It therefore appears, as submitted by both the Greek Government and the Commission, that the taxable value on the basis of which the turnover tax is determined does not involve any higher tax on imported than on national products contrary to Article 95. I would add, however, that it is not for this Court to verify the facts underlying questions referred to it: the national court is moreover obviously in a better position to assess the effect of detailed legislation of the type at issue and thus to determine the comparative weight of the respective tax burdens.

32. The position with regard to stamp duty will be the same if turnover tax is included in the sale price for the purposes of taxable value in the case of both national and imported goods. It is not clear from the documents before the court whether that is so; it must thus be verified by the national court.

33. In contrast, the taxable value on the basis of which the special consumption tax is determined differs according to whether the goods are imported or domestic: for domestic products the taxable value is determined by the manufacturer's sale price with no other charge whereas for imported products it is determined by the customs value, namely the price actually paid or payable, increased however by all accessory expenses (sales commission, packing, transport and insurance, interest on capital). I accordingly agree with the Commission that that extension of the taxable value leads to heavier taxation of imported goods and is thereby contrary to Article 95.

34. Finally, the regularising tax imposed by Article 4(3) of Law No 1477/1984, being levied explicitly and solely on imported goods, is inherently discriminatory and contrary either to Article 95 or to Articles 9 to 12 of the EC Treaty. Those latter provisions prohibit customs duties and charges having equivalent effect, which the Court has defined as any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on ... foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense. It is clear that a given levy cannot be both a charge having an equivalent effect under Articles 9 to 12 and internal taxation under Article 95. Since in this case nothing turns on whether the tax is regarded as contrary to Article 95 or to Articles 9 to 12 (in either event it will be unlawful in toto), I do not consider it necessary or appropriate to analyse further which categorisation would be more appropriate. The distinction might, however, have been relevant had the facts occurred earlier, since between 1 January 1981 and 1 January 1986 transitional provisions governing the accession of Greece permitted the continuation of charges having equivalent effect to customs duties on imports on a reducing scale.

The second and third questions

35. By its second question, the national court asks whether Regulation No 1224/80 is directly applicable where a tax provided for under the legislation of a Member State applies to goods imported from another Member State. By its third question, which arises only in the event of an affirmative reply to the second question, the national court asks whether Article 11 of that Regulation is contrary to the EC Treaty and in particular Article 30.

36. It is clear that Regulation No 1224/80, as is apparent from its title, its preamble and the wording of its provisions, applies only to the import into a Member State of goods originating in third countries. That view is shared by the applicant, the Greek Government, the Council and the Commission.

37. Since the third question is put only in the event that the second question is answered in the affirmative, it does not arise.

The fourth question

38. By its fourth question, which is put only in the event that the second question is, as I propose, answered in the negative, the national court asks whether the reference in national legislation such as Laws Nos 1477/1984 and 1642/1986 to Regulation No 1224/80 is contrary to the EC Treaty and in particular Article 30.

39. I have already indicated that in my view the compatibility with the Treaty of essentially fiscal provisions falls to be assessed by reference to Article 95 (or, if relevant, Articles 9 to 12) of the Treaty and not by reference to Article 30.

40. I agree with the Commission that the reference made by Law No 1477/1984 to Regulation No 1224/80 (which applies only to imports of goods originating in third countries) for the determination of the taxable value of goods imported from other Member States is not in itself contrary to the Treaty. I would add however that if the effect of the national legislation as a whole is that the taxable value of domestic goods is determined on a different basis for the purpose of the same tax, that will raise questions of its compatibility with Article 95; that has already been discussed in the context of the national court's first question.

The fifth, sixth and seventh questions

41. The national court's fifth, sixth and seventh questions concern the compatibility with the EC Treaty, and in particular Article 30, of certain national rules of procedure. The fifth question concerns a requirement that imported goods be retained by the customs authorities in the event of a customs dispute unless the consignee pays such customs duties as are required by the customs authorities. The sixth question concerns a requirement that customs disputes be resolved by an administrative procedure rather than by the administrative courts. The seventh and final question concerns the restriction of witness evidence in proceedings before an administrative court concerning State liability for damage resulting from a breach of Community law.

42. As indicated above, obstacles to trade which are of a fiscal nature do not in general come within the scope of Article 30 but rather fall to be assessed by reference to Articles 9 to 12 or Article 95 of the EC Treaty. In my view, rules governing the procedure applicable in the case of disputes concerning fiscal matters similarly come within the ambit of Article 95 rather than that of Article 30, and I will accordingly consider the national court's fifth, sixth and seventh questions in the light of Article 95.

43. It is settled law that, although it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law, those rules must fulfil two requirements: they must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law. National rules of evidence are of course subject to the same principle.

The fifth question - the retention of imported goods until payment in full

44. It is not apparent from the documents before the Court whether there is a comparable procedure applied in the event of a dispute concerning tax allegedly due in respect of domestic goods. The Commission suggests that there is a corresponding procedure in the case of turnover tax at least (although the Commission presents this point in the context of the sixth question). According to the Commission, for national products, the tax is determined on the basis of the taxpayer's declaration which is checked later, namely after release of the goods, whereas for imported products the taxpayer is required to have recourse to the administrative complaints procedure if he disputes the basis of assessment; until the end of that procedure the goods may not be released unless the taxpayer agrees to pay the amount of tax demanded. If the Commission's exposition of the equivalent procedure for national products is correct - a matter for the national court to determine - it is clear that the rules relating to disputes regarding turnover tax in respect of imported goods are less favourable than those governing similar domestic actions. The rules are accordingly contrary to Community law.

45. The documents before the Court provide no information as to the rules governing disputes concerning the other taxes at issue in this case which are imposed on both imports and domestic goods, namely stamp duty and the consumption tax, where such disputes arise out of the application of the tax to national products. If however there were similar differences between such rules and those set out above governing disputes concerning those taxes as applied to imported goods, then clearly the condition imposed by the Court that procedural rules governing the exercise of rights conferred by Community law may not be less favourable than those relating to similar domestic actions would not be satisfied and the procedure would to that extent be unlawful.

46. Even, however, if there is no corresponding procedure for similar domestic claims, or even if the corresponding procedure is equivalent in all respects, that will not necessarily mean that the procedure at issue is compatible with Community law. It is clear that the second limb of the principle laid down by the Court, namely that domestic procedural rules must not make it impossible in practice or excessively difficult to exercise Community law rights, will preclude rules the effect of which is to make it excessively difficult for the taxpayer to bring and pursue an action disputing the validity, as a matter of Community law, of taxes imposed on imported goods, even if the same treatment is extended to taxpayers who have similar claims arising from an infringement of national tax law. If the effect of the national rules is to make it impossible in practice or excessively difficult to dispute the validity of charges levied contrary to Community law, those rules are unlawful. A rule such as that at issue in the national court's fifth question may well have that effect on a small-scale importer, who will be required to pay the entire amount of tax claimed before his goods are released to him and who, according to the applicant, will receive no interest on any part of the tax found to be unlawful and subsequently - possibly some years later - repaid.

The sixth question - resolution of customs disputes by administrative procedure

47. For the reasons given above in the context of the fifth question, a national provision requiring that disputes concerning the levying of taxes on imported goods be resolved by an administrative rather than a judicial procedure will infringe Community law if that procedure is less favourable than that governing similar domestic actions or renders virtually impossible or excessively difficult the exercise of rights conferred by Community law. If therefore the procedure at issue works to the disadvantage of importers of goods from other Member States, the national rule will be contrary to Community law on the basis of the case-law referred to in the context of the fifth question. If however the procedure applicable in the case of disputes concerning tax on imported goods is the same as that applicable in the case of disputes concerning tax on domestic goods, there will be no infringement of Community law provided that the exercise of Community rights is not unduly hindered.

48. I would add that Community law requires that a judicial remedy should be available against any decision of an administrative authority refusing the benefit of a Community law right. According to the order for reference, at the time the applicant's dispute was referred to the Higher Commission for Disputes concerning Customs Duties there was provision for appeal to an administrative court; the requirement of a judicial remedy accordingly appears to have been satisfied.

The seventh question - restriction of witness evidence

49. The national legislation at issue in the seventh question restricts the calling of witnesses in all types of case, precluding such evidence except where the court so orders in exceptional circumstances. The restriction thus applies whether the proceedings concern an infringement of national law or an infringement of Community law; the Commission accordingly submits that there is no discrimination against imported goods and the provisions are not contrary to Article 95.

50. That argument is in my view flawed. It is of course correct to say - as discussed above in the context of the national court's fifth and sixth questions - that the Court has frequently, when assessing the compatibility with Community law of national procedural rules, emphasised the requirement that those rules must not be less favourable than those governing similar domestic actions, which in itself might suggest that where the conditions are the same for both Community and national rights of action the rule is compatible with Community law. However, the Court has invariably added to that requirement the further condition that the rule must not render virtually impossible or excessively difficult the exercise of rights conferred by Community law. The fundamental principle of Community law requiring effective judicial protection of Community rights makes it essential that national courts ensure that national rules of evidence and procedure are not applied in such a way that that is the result. If the effect of the national rule at issue is - as appears to be the case - that in practice national courts restrict the calling of witnesses in proceedings in which such evidence is critical to the claimant's case, the rule does not satisfy that requirement and is accordingly contrary to Community law.

Conclusion

51. I accordingly conclude that the questions referred by the Simvoulio tis Epikratias (Greek Council of State) should be answered as follows:

(1) Legislation of a Member State which provides for different methods of calculating taxable value for the purposes of taxes levied on goods produced nationally on the one hand and goods imported from another Member State on the other hand is contrary to Article 95 of the EC Treaty (now, after amendment, Article 90 EC) if the effect of those provisions is that the fiscal burden on imported goods is heavier than that on national goods.

(2) Legislation of a Member State which provides that goods imported from other Member States are subject to a tax whereas equivalent goods produced nationally are not so subject is contrary to Article 95 or Articles 9 to 12 of the EC Treaty (now, after amendment, Articles 23 to 25 EC).

(3) Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes is not applicable to goods imported from another Member State.

(4) Legislation of a Member State which provides that imported goods are to be retained by the customs authorities in the event of a customs dispute unless the consignee pays such customs duties as are required by the customs authorities is contrary to Community law, and in particular Article 95 of the EC Treaty, if that procedure is less favourable than the corresponding procedure applicable in the case of disputes concerning taxes levied on domestic goods. Such legislation is furthermore contrary to Community law in any event if it makes it impossible in practice or excessively difficult for the taxpayer to exercise his Community law rights.

(5) Legislation of a Member State which provides that customs disputes are to be resolved by an administrative rather than a judicial procedure is contrary to Community law if that procedure is less favourable than the procedure applicable to disputes concerning taxes on domestic goods or if it could put at a disadvantage imports from other Member States or if there is no judicial remedy available against an administrative decision.

(6) Legislation of a Member State which restricts the type of evidence which may be adduced is contrary to Community law if it renders impossible in practice or excessively difficult the exercise of rights conferred by Community law.