Keywords

Summary



Keywords

1 . TAX PROVISIONS - INTERNAL TAXES - PROVISIONS OF THE TREATY - AIM

( EEC TREATY , ART . 95 )

2 . TAX PROVISIONS - INTERNAL TAXES - PROHIBITION OF DISCRIMINATION BETWEEN IMPORTED PRODUCTS AND SIMILAR NATIONAL PRODUCTS - SIMILAR PRODUCTS - CONCEPT - INTERPRETATION - CRITERIA

( EEC TREATY , ART . 95 , FIRST PARAGRAPH )

3 . TAX PROVISIONS - INTERNAL TAXES - TAXES OF SUCH A NATURE AS TO AFFORD INDIRECT PROTECTION TO OTHER PRODUCTS - COMPETING PRODUCTS - CRITERIA

( EEC TREATY , ART . 95 , SECOND PARAGRAPH )

4 . TAX PROVISIONS - INTERNAL TAXES - GRANT OF TAX BENEFITS TO NATIONAL PRODUCTS - PERMISSIBILITY - CONDITIONS - EXTENSION TO PRODUCTS IMPORTED FROM OTHER MEMBER STATES

( EEC TREATY , ART . 95 )

5 . TAX PROVISIONS - INTERNAL TAXES - HARMONIZATION OF LAWS - PRELIMINARY CONDITION TO APPLICATION OF ARTICLE 95 OF THE TREATY - IMPOSSIBILITY - PROHIBITION OF DISCRIMINATORY OR PROTECTIVE TAXES - FISCAL HARMONIZATION - RESPECTIVE OBJECTIVES

( EEC TREATY , ARTS . 95 AND 99 )

Summary

1 . WITHIN THE SYSTEM OF THE EEC TREATY , THE PROVISIONS OF THE FIRST AND SECOND PARAGRAPHS OF ARTICLE 95 SUPPLEMENT THE PROVISIONS ON THE ABOLITION OF CUSTOMS DUTIES AND CHARGES HAVING EQUIVALENT EFFECT . THEIR AIM IS TO ENSURE FREE MOVEMENT OF GOODS BETWEEN THE MEMBER STATES IN NORMAL CONDITIONS OF COMPETITION BY THE ELIMINATION OF ALL FORMS OF PROTECTION WHICH MAY RESULT FROM THE APPLICATION OF INTERNAL TAXATION WHICH DISCRIMINATES AGAINST PRODUCTS FROM OTHER MEMBER STATES . ARTICLE 95 MUST GUARANTEE THE COMPLETE NEUTRALITY OF INTERNAL TAXATION AS REGARDS COMPETITION BETWEEN DOMESTIC PRODUCTS AND IMPORTED PRODUCTS .

2 . THE FIRST PARAGRAPH OF ARTICLE 95 MUST BE INTERPRETED WIDELY SO AS TO COVER ALL TAXATION PROCEDURES WHICH CONFLICT WITH THE PRINCIPLE OF THE EQUALITY OF TREATMENT OF DOMESTIC PRODUCTS AND IMPORTED PRODUCTS ; IT IS THEREFORE NECESSARY TO INTERPRET THE CONCEPT OF ' ' SIMILAR PRODUCTS ' ' WITH SUFFICIENT FLEXIBILITY . IT IS NECESSARY TO CONSIDER AS SIMILAR PRODUCTS WHICH HAVE SIMILAR CHARACTERISTICS AND MEET THE SAME NEEDS FROM THE POINT OF VIEW OF CONSUMERS . IT IS THEREFORE NECESSARY TO DETERMINE THE SCOPE OF THE FIRST PARAGRAPH OF ARTICLE 95 ON THE BASIS NOT OF THE CRITERION OF THE STRICTLY IDENTICAL NATURE OF THE PRODUCTS BUT ON THAT OF THEIR SIMILAR AND COMPARABLE USE .

3 . THE FUNCTION OF THE SECOND PARAGRAPH OF ARTICLE 95 IS TO COVER ALL FORMS OF INDIRECT TAX PROTECTION IN THE CASE OF PRODUCTS WHICH , WITHOUT BEING SIMILAR WITHIN THE MEANING OF THE FIRST PARAGRAPH , ARE NEVERTHELESS IN COMPETITION , EVEN PARTIAL , INDIRECT OR POTENTIAL , WITH CERTAIN PRODUCTS OF THE IMPORTING COUNTRY . FOR THE PURPOSES OF THE APPLICATION OF THAT PROVISION IT IS SUFFICIENT FOR THE IMPORTED PRODUCT TO BE IN COMPETITION WITH THE PROTECTED DOMESTIC PRODUCTION BY REASON OF ONE OR SEVERAL ECONOMIC USES TO WHICH IT MAY BE PUT , EVEN THOUGH THE CONDITION OF SIMILARITY FOR THE PURPOSES OF THE FIRST PARAGRAPH OF ARTICLE 95 IS NOT FULFILLED .

WHILST THE CRITERION INDICATED IN THE FIRST PARAGRAPH OF ARTICLE 95 CONSISTS IN THE COMPARISON OF TAX BURDENS , WHETHER IN TERMS OF THE RATE , THE MODE OF ASSESSMENT OR OTHER DETAILED RULES FOR THE APPLICATION THEREOF , IN VIEW OF THE DIFFICULTY OF MAKING SUFFICIENTLY PRECISE COMPARISONS BETWEEN THE PRODUCTS IN QUESTION , THE SECOND PARAGRAPH OF THAT ARTICLE IS BASED UPON A MORE GENERAL CRITERION , IN OTHER WORDS THE PROTECTIVE NATURE OF THE SYSTEM OF INTERNAL TAXATION .

4 . WHILST COMMUNITY LAW , AS IT STANDS AT PRESENT , DOES NOT PROHIBIT CERTAIN TAX EXEMPTIONS OR TAX CONCESSIONS , IN PARTICULAR SO AS TO ENABLE PRODUCTIONS OR UNDERTAKINGS TO CONTINUE WHICH WOULD NO LONGER BE PROFITABLE WITHOUT THESE SPECIAL TAX BENEFITS BECAUSE OF THE RISE IN PRODUCTION COSTS , THE LAWFULNESS OF SUCH PRACTICES IS SUBJECT TO THE CONDITION THAT THE MEMBER STATES USING THOSE POWERS EXTEND THE BENEFIT THEREOF IN A NON-DISCRIMINATORY AND NON-PROTECTIVE MANNER TO IMPORTED PRODUCTS IN THE SAME SITUATION .

5 . THE IMPLEMENTATION OF THE PROGRAMME OF HARMONIZATION LAID DOWN BY ARTICLE 99 OF THE EEC TREATY CANNOT CONSTITUTE A PRELIMINARY TO THE APPLICATION OF ARTICLE 95 . WHATEVER THE DISPARITIES BETWEEN THE NATIONAL TAX SYSTEMS , ARTICLE 95 LAYS DOWN A BASIC REQUIREMENT WHICH IS DIRECTLY LINKED TO THE PROHIBITION ON CUSTOMS DUTIES AND CHARGES HAVING AN EQUIVALENT EFFECT BETWEEN THE MEMBER STATES IN THAT IT INTENDS TO ELIMINATE BEFORE ANY HARMONIZATION ALL NATIONAL TAX PRACTICES WHICH ARE LIKELY TO CREATE DISCRIMINATION AGAINST IMPORTED PRODUCTS OR TO AFFORD PROTECTION TO CERTAIN DOMESTIC PRODUCTS . ARTICLES 95 AND 99 PURSUE DIFFERENT OBJECTIVES , SINCE ARTICLE 95 AIMS TO ELIMINATE IN THE IMMEDIATE FUTURE DISCRIMINATORY OR PROTECTIVE TAX PRACTICES , WHILST ARTICLE 99 AIMS TO REDUCE TRADE BARRIERS ARISING FROM THE DIFFERENCES BETWEEN THE NATIONAL TAX SYSTEMS , EVEN WHERE THOSE ARE APPLIED WITHOUT DISCRIMINATION .