CELEX: 61992CC0072
Language: en
Date: 1993-05-18
Title: Opinion of Mr Advocate General Tesauro delivered on 18 May 1993. # Firma Herbert Scharbatke GmbH v Federal Republic of Germany. # Reference for a preliminary ruling: Verwaltungsgericht Frankfurt am Main - Germany. # Parafiscal charges - Compulsory contributions to a fund for the marketing of agricultural, forestry and food products. # Case C-72/92.

OPINION OF ADVOCATE GENERAL
      TESAURO
      delivered on 18 May 1993 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               In the present case the Court is once again called upon to rule on a system of parafiscal charges to finance State aid. The disputed German charge is levied inter alia on pork when presented for health inspection at the slaughterhouse. It is applied, at the same rate and on the same conditions, to both domestic meat and meat from other Member States. By law the charge is credited to a Fund, which uses the revenue to finance the promotion of German agricultural, forestry and food products.
               The plaintiff in the main proceedings, Scharbatke, is a company trading in meat. It imported pork to Germany and was therefore required to pay the charge in question. It is apparent from the documents before the Court that the meat had been imported from the Netherlands, where a charge similar to that for which the German legislation provides had been collected.
               Scharbatke objected to payment of the German charge, maintaining that it was contrary to Community law. The national court therefore stayed the proceedings and referred to the Court a number of questions on the interpretation of Articles 9 et seq., 95 and 92 et seq. of the Treaty.
            
         The interpretation of the tax provisions of the Treaty
      
               2.
            
            
               The criteria for applying the tax provisions of the Treaty to systems of parafiscal charges such as that which is the subject of the present dispute have been exhaustively defined by the Court. (
                     1
                  ) Moreover, on this point there is complete unanimity of views among the parties.
               In brief, the principles established by case-law are the following.
               
                        (a)
                     
                     
                        In assessing a charge in the light of the tax provisions of the Treaty (Articles 9 et seq. and 95), it is necessary to take account of the purpose to which the revenue will be put.
                     
                  
                        (b)
                     
                     
                        If the charge is intended to finance activities that specifically benefit the domestic product on which it is levied, the product in question must be deemed to benefit from compensation of the fiscal burden which it bears whereas the imported product, which does not benefit from any advantage or countervailing payment, bears the full burden of the charge.
                     
                  
                        (c)
                     
                     
                        If compensation is total, the charge is levied only on imports and therefore constitutes a charge having an effect equivalent to customs duties within the meaning of Article 9 et seq. of the Treaty.
                     
                  
                        (d)
                     
                     
                        If compensation is partial, the domestic product nevertheless benefits from a reduction in the fiscal burden and the imported product is therefore discriminated against, contrary to Article 95 of the Treaty.
                     
                  As to the method of ascertaining whether compensation is total or partial, I am bound to refer to my Opinion in the Lornoy and Compagnie Commerciale de l'Ouest cases, where I noted that it is necessary to make an overall assessment, in other words to compare, over a significant period of time, the amount of the charge collected on domestic products with the extent to which they receive advantages in the form of public aid. It is then for the national court to ascertain and evaluate these aspects, which should normally be evident from the accounts and other documents concerning the operation of bodies which, like the Fund in the case before the Court, collect the revenue from the charge and use the proceeds to grant aid to the domestic operators liable to the charge.
            
         
               3.
            
            
               As regards the case in point, it should be noted that the German Government emphatically denies that the disputed charge is used to finance aid solely for the benefit of domestic meat producers. It maintains that the activities of the Fund consist in the conduct of advertising campaigns designed exclusively to promote the consumption of finished meat-based food products. Moreover, it argues that the effect of such advertising on imports of the raw material are entirely neutral. In its view, the increase in the demand for finished products leads to an expansion in the overall number of outlets for both domestic and imported meat. In those circumstances, therefore, the case-law mentioned above is entirely inapplicable, in that the aid granted by the Fund does not specifically benefit only domestic products subject to the charge but has a stimulatory effect which benefits both domestic and imported meat alike.
               This point is obviously of crucial importance for the purposes of resolving the dispute. Nevertheless, it is merely a question of fact which it is for the national court to determine by applying the criteria laid down by the case-law mentioned above. In particular, in ascertaining the use to which the disputed charge is put, the national court will verify whether it is actually used — as the German Government maintains — to finance the promotion only of finished (meat-based) products and therefore has a neutral effect on intra-Community trade in meat, or whether it is (also) used to finance aid which specifically benefits German meat producers, in which case the charge must be deemed to constitute an obstacle to imports contravening the tax provisions of the Treaty.
            
         
               4.
            
            
               One further aspect remains to be examined in this regard. The national court asks whether Article 95 has been infringed specifically on account of the fact that the meat imported by Scharbatke, before becoming liable to the disputed German charge, had already been subject to a similar charge in the exporting country, namely the Netherlands. In other words, by referring to the principles laid down by the Court with regard to value added tax (VAT) in the Schul judgment, (
                     2
                  ) the national court wishes to ascertain whether, in applying national tax legislation to imported products, the authorities of the importing country should take account of similar charges already levied on the same products in the exporting country.
               I consider that the reply to that question should be in the negative. The principles explained by the Court in the Schul judgment relate to a charge, VAT, which displays some highly specific characteristics, as it is a tax governed by an organic set of harmonization provisions regulating the underlying rationale, the basis of assessment and the collection of the tax. The requirement laid down by the Court in the abovementioned judgment, whereby the authorities of the importing country must, in certain circumstances, deduct the VAT already paid in the exporting country, would not therefore appear to be applicable to other quite different situations.
               It follows that in regard to charges that have not been harmonized at Community level, the compatibility of each national charge with Article 95 should be assessed separately without taking account of any impediment to imports that may arise from the cumulation of the charge in question with other more or less similar charges levied in other Member States. This is confirmed, moreover, by the fact that Article 96 of the Treaty provides for an appropriate means of remedying such an impediment by allowing Member States to repay internal charges applied to exported products; the aim of that rule, in accordance with the principle of (exclusive) taxation in the country of destination, is precisely to allow Member States to neutralize by means of repayment indirect taxes levied on products up to the time of exportation. (
                     3
                  )
            
         Interpretation of the provisions on State aid
      
               5.
            
            
               On several occasions the Court has stated the criteria for applying Article 92 et seq. to systems of parafiscal charges designed to finance the granting of aid to domestic products liable to the charge.
               In this regard I shall confine myself to recalling that in the Lornoy judgment the Court reaffirmed that:
               ‘a parafiscal charge of the kind at issue in the main proceedings may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty are met, it being understood that such an assessment is a matter for the Commission in accordance with the procedure laid down for that purpose in Article 93 of the Treaty. In that respect, regard must also be had to the jurisdiction of the national courts where, in introducing the charge, the Member State concerned failed to comply with its obligations under Article 93(3) of the Treaty, and where a Commission decision under Article 93(2) of the Treaty has found the levying of the charge as a method of financing State aid to be incompatible with the common market.’
               I consider that an identical reply can be given in the present case, especially in view of the fact that it is common ground that the disputed charge was correctly notified, so that no infringement of Article 93(3) occurred and, moreover, that at the material time the Commission had not adopted a decision finding the charge in question, as a method of financing an aid scheme, to be incompatible with the common market; indeed, as stated at the hearing, the Commission confined itself to assessing the Law on the German Fund from the point of view of the Community system of aid and reached the conclusion that, from that perspective, the Law in question did not at the time appear to be incompatible with the common market. I therefore consider that in the present case it can be stated that the levying of a parafiscal charge in order to finance aid is not contrary to the Community system of State aid if the national authorities have notified the Commission of the aid and of the charge to finance it and if the Commission has not adopted a decision finding the charge, as a method of financing the aid, to be incompatible with the common market.
            
         Conclusion
      
               6.
            
            
               In the light of the foregoing considerations, I consider that the Court should reply as follows to the national court's questions:
               
                        (1)
                     
                     
                        The compatibility of a parafiscal charge of the kind at issue in the main proceedings with the tax provisions of the Treaty must be assessed by the national court, taking account of the use to which the revenue from the charge is put. Where the revenue is intended to finance activities which are specifically for the benefit of the domestic products subject to the charge, so as to offset completely the burden imposed on those products by the collection of the charge, the latter must be classified as a ‘charge having equivalent effect to a customs duty’ within the meaning of Article 9 et seq. of the Treaty. Where such revenue is intended to finance activities which are specifically for the benefit of the domestic products subject to the charge, but which only partially offset the burden imposed on them by the collection of the charge, the latter must be classified as discriminatory internal taxation within the meaning of Article 95 of the Treaty. It is for the national court to ascertain whether the economic advantages accorded to domestic producers subject to the charge offset in full or only in part the fiscal burden which they bear.
                     
                  
                        (2)
                     
                     
                        The mere fact that an imported product is subject, in the importing country, to a charge similar to another charge already levied on the same product in the exporting country does not in itself mean that the charge levied in the importing country is incompatible with Article 95 of the Treaty.
                     
                  
                        (3)
                     
                     
                        The levying of a parafiscal charge in order to finance aid is not contrary to the Community system of State aid if the national authorities have notified the Commission of the aid and of the charge to finance it and if the Commission has not adopted a decision finding the charge, as method of financing the aid, to be incompatible with the common market.
                     
                  
         (
            *1
         )	Original language: Italian.
      (
            1
         )	Sec most recently the judgments in Case C-17/91 Lomoy [1992] ECR I-6523, in Joined Cases C-149 and C-150/91 Sanders [1992] ECR I-3899 and in Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l'Ouest [1992] ECR I-1847.
      (
            2
         )	Case 15/81 Schul v Inspecteur der Invoerrechten en Accijnzen [1982] ECR 1409.
      (
            3
         )	See R. Wägenbaur, in Megrct, Le droit de la Communauté économique européenne. Vol. 5, p. 21.