WRITTEN QUESTION E-3040/00

by Joachim Wuermeling (PPE-DE) to the Commission

(28 September 2000)

Subject: Discrimination against PVC products in Denmark

New legislation has been introduced in Denmark to prohibit and impede the trade in PVC products, inter alia by imposing higher tax duties and introducing a new criminal offence. The effect of this legislative measure is to hinder the trade in PVC products in Denmark or to ban their sale completely.

1. Does the Commission regard this Danish legislation as compatible with EU law?

2. If not, does the Commission propose to initiate proceedings for breach of Treaty obligations?

Supplementary answer given by Mr Bolkestein on behalf of the Commission

(11 June 2001)

On the basis of the research carried out concerning Danish law 439 of 26 July 1998, the Commission can advise the Honourable Member of the following.

The main characteristics of the Danish tax can be enumerated as follows:

- the tax is levied on foodstuff packaging folios made of soft polyvinyl chloride (PVC) and is based on the weight of the folio;

- the tax covers goods in headings 3919, 3920, 3921 and 3926 of the Combined-Nomenclature;

- it is part of a general system of taxes on consumption and levied irrespective of their origin;

- soft PVC is apparently not produced in Denmark; however, substitutes for soft PVC in packaging exist and are not taxed. Some of these folios are produced in Denmark.

These different aspects of the legislation have been analysed in the light of the non-discrimination principle of Article 90 (former Article 95) of the EC Treaty, prohibiting any unfavourable tax treatment of goods coming from other Member States compared to the treatment of similar or competitive goods being produced nationally.

Nevertheless, this basic principle does not exclude the possibility for Member States to apply a tax differentiation, that is to say, the possibility for them to give fiscal advantages to certain groups of products in comparison to other product groups, on the basis of objective criteria such as environmental considerations and irrespective of the origin of the goods.

The Danish tax aims to discourage all use of soft PVC, regardless of its origin, in Denmark.

Thus, the Commission is inclined to believe that the fact that there is no production of soft PVC in Denmark is not sufficient to establish a breach of Article 90 alone.

The issue of whether the measures are justified on the basis of environmental considerations will have to be evaluated in the light of the future Community strategy on PVC, which the Commission intends to adopt in the course of the coming months. This strategy will be based on the evaluations and assessments contained in the Green Paper on the environmental issues of PVC(1), the results of the comprehensive risk assessments carried out in the framework of Council Regulation (EEC) No 793/93 of 23 March 1993 on the evaluation and control of the risks of existing substances(2), and the numerous reactions received during the public consultation process launched by this Green Paper. The Parliament has adopted a resolution on the Green Paper on 3 April 2001.

(1) COM(2000) 469 final.

(2) OJ L 84, 5.4.1993.