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THE CONCEPT OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES
8 THE FIRST QUESTION ASKS FOR AN INTERPRETATION OF THE CONCEPT IN ARTICLE 13 ( 2 ) OF 'CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES' IN RELATION TO DUES SUCH AS THE DUTY LEVIED BY THE ENCC AT THE MARKETING STAGE OF IMPORTED PAPER, CARDBOARD AND PULP, TAKING INTO ACCOUNT BOTH THE MANNER OF COLLECTING THESE DUES AND THE PURPOSE TO WHICH THE REVENUE DERIVED THEREFROM IS APPLIED .
9 IN ORDER TO INTERPRET THIS CONCEPT THE FOLLOWING THREE FACTORS MUST BE REMEMBERED IN CONNEXION WITH THE DUTY IN DISPUTE :
( A ) THE DUTY IS LEVIED BY AN AUTONOMOUS INSTITUTION GOVERNED BY PUBLIC LAW, DEVOID OF ANY COMMERCIAL CHARACTER,
( B ) IT IS APPLIED WITHOUT DISTINCTION TO DOMESTIC PRODUCTS AND TO PRODUCTS FROM OTHER MEMBER STATES,
( C ) THE PROCEEDS ARE ALLOCATED TO CERTAIN DEVELOPMENT AND RESEARCH ACTIVITIES OF INTEREST TO THE CELLULOSE AND PAPER INDUSTRY, THE MAJOR PART HOWEVER BEING RESERVED FOR THE PAYMENT OF SUBSIDIES TO NEWSPRINT, WHICH IS ITSELF EXEMPT FROM THE DUTY .
10 AS WAS RULED IN THE JUDGMENT OF 19 JUNE 1973 TO WHICH THE NATIONAL COURT REFERS, THE PROHIBITION CONTAINED IN ARTICLE 13 ( 2 ) IS AIMED AT ANY TAX DEMANDED AT THE TIME OF OR BY REASON OF IMPORTATION AND WHICH, BEING IMPOSED SPECIFICALLY ON AN IMPORTED PRODUCT TO THE EXCLUSION OF A SIMILAR DOMESTIC PRODUCT, RESULTS IN THE SAME RESTRICTIVE CONSEQUENCES ON THE FREE MOVEMENT OF GOODS AS A CUSTOMS DUTY BY ALTERING THE COST PRICE OF THAT PRODUCT .
11 THE FACT THAT A DUTY IS LEVIED BY AN INDEPENDENT INSTITUTION GOVERNED BY PUBLIC LAW RATHER THAN LEVIED BY THE STATE ITSELF AND IS USED BY THAT INSTITUTION FOR PURPOSES INTENDED BY THE RELEVANT LEGISLATION INVOLVES NO DIFFERENCE WITH REGARD TO THE POSSIBLE DEFINITION OF THAT FISCAL CHARGE AS A CHARGE HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES, SINCE THE PROHIBITION UNDER ARTICLE 13 ( 2 ) ATTACHES SOLELY TO THE EFFECT OF SUCH CHARGES AND NOT TO THE MANNER IN WHICH THEY ARE IMPOSED .
12/13 ON THE OTHER HAND, THE FACT THAT A CHARGE APPLIED WITHOUT DISTINCTION TO DOMESTIC PRODUCTS AS WELL AS TO PRODUCTS FROM OTHER MEMBER STATES GIVES RISE TO THE QUESTION WHETHER THE TAXATION AT ISSUE FALLS WITHIN THE PROHIBITION OF ARTICLE 13 ( 2 ) OR THE RULE AGAINST DISCRIMINATION IN MATTERS OF INTERNAL TAXATION LAID DOWN BY ARTICLE 95 .
ONE AND THE SAME SCHEME OF TAXATION CANNOT, UNDER THE SYSTEM OF THE TREATY, BELONG SIMULTANEOUSLY TO BOTH THE CATEGORIES MENTIONED, HAVING REGARD TO THE FACT THAT THE CHARGES REFERRED TO IN ARTICLE 13 ( 2 ) MUST BE PURELY AND SIMPLY ABOLISHED WHILST, FOR THE PURPOSE OF APPLYING INTERNAL TAXATION, ARTICLE 95 PROVIDES SOLELY FOR THE ELIMINATION OF ANY FORM OF DISCRIMINATION, DIRECT OR INDIRECT, IN THE TREATMENT OF THE DOMESTIC PRODUCTS OF THE MEMBER STATES AND OF PRODUCTS ORIGINATING IN OTHER MEMBER STATES