IN ORDER TO REDUCE THE SURPLUS IN THE BALANCE OF PAYMENTS AND TO PREVENT INTERNAL DISEQUILIBRIUM, EXPORTS EFFECTED BETWEEN 29 NOVEMBER 1968 AND 31 MARCH 1970 WERE LIABLE TO A SPECIAL TURNOVER TAX, AT THE RATE OF 4 PER CENT IN GENERAL AND 2 PER CENT AS REGARDS CERTAIN GOODS LISTED IN ANNEX I TO THE LAW ON TURNOVER TAX .
3 THE PLAINTIFF IN THE MAIN ACTION, HAVING BEEN REQUIRED TO PAY THIS SPECIAL TURNOVER TAX, BROUGHT AN ACTION BEFORE THE NATIONAL COURT CLAIMING THAT THE COLLECTION OF THIS TAX INFRINGED ARTICLE 12 OF THE TREATY .
ACCORDING TO THE FINANZAMT, THE DEFENDANT IN THE MAIN ACTION, THE SPECIAL TURNOVER TAX WAS PART OF THE NATIONAL SYSTEM OF TURNOVER TAX AND AS SUCH CAME NOT UNDER ARTICLE 12 BUT UNDER ARTICLE 95 ET SEQ . OF THE TREATY .
FIRST QUESTION
4 IT IS FIRST ASKED WHETHER THE PROHIBITION AGAINST THE INTRODUCTION OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES UNDER ARTICLE 12 OF THE EEC TREATY INCLUDE THE INTRODUCTION OF A CHARGE WHICH
( A ) SUBJECTS INDUSTRIAL EXPORTS TO OTHER MEMBER STATES OF THE COMMUNITY TO A FINANCIAL CHARGE OF 4 PER CENT, ALTERNATIVELY 2 PER CENT;
( B ) WHICH IS DISGUISED BY THE NATIONAL LEGISLATOR AS A 'SONDERUMSATZSTEUER' ( SPECIAL TURNOVER TAX );
( C ) WHICH REFERS BACK TO THE CONCEPTS OF NATIONAL LAW ON TURNOVER TAX;
( D ) WHICH HAS THE PURPOSE OF SUBJECTING EXPORTS TO A SPECIAL CHARGE NOT OTHERWISE EXISTING IN THIS FORM WITHIN THE TERRITORY OF THE EEC IN ORDER TO PREJUDICE THEIR ABILITY TO COMPETE WITH THE PRODUCTS OF THE OTHER MEMBER STATES, AND
( E ) WHICH HAS AS A CONSEQUENCE THAT THE PRODUCTS EXPORTED ARE SUBJECT TO TAXATION BY BOTH THE COUNTRY OF ORIGIN AND THAT OF DESTINATION .
5 IT APPEARS FROM THE FILE THAT THE QUESTION SEEKS TO KNOW WHETHER A TAX SUCH AS IS MENTIONED COMES WITHIN THE CATEGORY OF CHARGES HAVING EQUIVALENT EFFECT REFERRED TO IN ARTICLE 12 OF THE TREATY OR WHETHER IT MAY BE REGARDED AS COMING UNDER INTERNAL TAXATION REFERRED TO IN ARTICLE 95 FROM THE FACT THAT IT IS INTEGRATED INTO THE NATIONAL SYSTEM OF TURNOVER TAX .
6 ARTICLES 12 AND 13 ON THE ONE HAND AND 95 ON THE OTHER CANNOT BE APPLIED JOINTLY IN THE SAME CASE, SINCE CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES ON THE ONE HAND AND INTERNAL TAXATION ON THE OTHER ARE SUBJECT TO DIFFERENT SYSTEMS AND PROVISIONS .
FURTHER IT IS NOT ONLY TURNOVER TAX AND CHARGES OF A SIMILAR NATURE WHICH ARE TO BE REGARDED AS INTERNAL TAXATION BUT ALSO THE CHARGES AND OTHER MEASURES INTENDED TO COMPENSATE THE EFFECTS OF THESE CHARGES WITH REGARD TO IMPORT AND EXPORT OF GOODS .
7 WHEREAS ARTICLE 12 PROHIBITS MEMBER STATES FROM INTRODUCING BETWEEN THEMSELVES ANY NEW CUSTOMS DUTIES ON IMPORTS OR EXPORTS OR ANY CHARGES HAVING EQUIVALENT EFFECT, ARTICLE 95 IS LIMITED TO PROHIBITING DISCRIMINATION AGAINST THE PRODUCTS