CELEX: C1997/331/09
Language: en
Date: 1997-11-01 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 17 September 1997 in Case C-347/95 (reference for a preliminary ruling from the Supremo Tribunal Administrativo): Fazenda Pública v. União das Cooperativas Abastecedoras de Leite de Lisboa, UCRL (UCAL) (National charge on the marketing of dairy products - Charge having equivalent effect - Internal taxation - Turnover tax)

1.11.97                 I EN                     Official Journal of the European Communities                                       C 331/5
Articles 48 to 51 of the EC Treaty, Article 9a of                           Administrativo (Portugal ) for a preliminary ruling in the
Regulation (EEC) No 1408/71 of the Council of 14 June                       proceedings pending before that court between Fazenda
1971 on the application of social security schemes to                       Publica and Uniao das Cooperativas Abastecedoras de
employed persons, to self-employed persons and to                           Leite de Lisboa, UCRL (UCAL) on the interpretation of
members of their families moving within the Community,                      Articles 9, 12 and 95 of the EC Treaty and Article 33 of
as amended and updated by Council Regulation (EEC)                          the Sixth Council Directive ( 77/388/EEC ) of 17 May 1977
No 2001 /83 of 2 June 1983 and subsequently amended by                      on the harmonization of the laws of the Member States
Council Regulation (EEC) No 2332/89 of 18 July 1989,                        relating to turnover taxes — Common system of value
and Article 15 (1 ) (f) (ii) of Regulation (EEC) No 574/72                  added tax: uniform basis of assessment (2 ) — the Court
of the Council of 21 March 1972 laying down the                             ( Fifth Chamber) composed of: J. C. Moitinho de Almeida,
procedure for implementing Regulation (EEC) No 1408/                        President of the Chamber, L. Sevon, D. A. O. Edward, P.
71 , as amended and updated by Regulation (EEC)                             Jann and M. Wathelet ( Rapporteur), Judges; Advocate
No 2001 /83 must be interpreted as not requiring a                          General; G. Tesauro, Registrar: R. Grass, gave a judgment
Member State to extend the reference period laid down by                    on 17 December 1997, the operative part of which is as
its legislation for determining the minimum insurance                       follows :
requirement for the grant of an invalidity benefit by a
period equivalent to the periods of unemployment spent
by the person concerned under the legislation of another                    1 . ( a ) A charge levied without distinction on domestic
Member State which, unlike that of the first Member
State, allows such an extension where the periods of
                                                                                        and imported products constitutes a charge having
                                                                                        an effect equivalent to a customs duty, prohibited
unemployment are spent on national territory. Moreover,
                                                                                        by Articles 9 and 12 of the Treaty, if the revenue
Articles 48 to 51 of the Treaty do not preclude the
                                                                                        from it is intended to finance activities benefiting
legislation of a Member State from refusing to take into                                only the taxed domestic products and if the
account, for the purposes of calculating whether the
                                                                                        resultant advantages fully offset the burden which
minimum insurance requirement attaching to the grant of
                                                                                        the latter products bear; if those advantages only
an invalidity benefit is satisfied, periods of insurance
                                                                                        partly offset the burden borne by the domestic
against unemployment completed during a given period
                                                                                        products, the charge constitutes discriminatory
preceding the contingency insured against under the                                     internal taxation prohibited by Article 95 of the
legislation of another Member State, over and above those
                                                                                        Treaty and must be reduced proportionally.
which are taken into account by the legislation of the first
Member State during that same period.
                                                                                  ( b ) If the activities financed by the charge benefit
0    OJ C 351 , 30. 12 . 1995 .                                                         domestic products and taxed imported products
(2)  OJ English Special Edition 1971 ( II ), p. 416 .                                   but the former obtain a proportionally greater
(3)  OJ L 230, 22 . 8 . 1983 , p . 6 .                                                  advantage from them, the charge constitutes, to
(4 ) OJ L 224, 2 . 8 . 1989, p. 1 .
( 5) OJ English Special Edition 1972 (I), p. 159.                                       that extent, a charge having an effect equivalent to
                                                                                        a customs duty or discriminatory internal taxation,
                                                                                        depending on whether the advantage accruing to
                                                                                        the taxed domestic products fully or only partly
                                                                                        offsets the burden which they bear.
                JUDGMENT OF THE COURT                                       2. It is for the national court to undertake the
                            (Fifth Chamber)                                      verifications necessary for determining how the
                         of 17 September 1997                                    contribution in question is to be characterized in law.
                                                                                 In so doing, it will consider:
in Case C-347/95 (reference for a preliminary ruling from
the Supremo Tribunal Administrativo): Fazenda Pública v.
União das Cooperativas Abastecedoras de Leite de Lisboa,                          ( a ) whether the revenue from the charge is used for
                           UCRL ( UCAL) H                                               stabilization only of trade with the other Member
                                                                                        States in the products on which the charge is
(National charge on the marketing of dairy products —                                   imposed;
Charge having equivalent effect — Internal taxation —
                             Turnover tax)
                             ( 97/C 331/09 )                                      ( b ) whether the institutional integration of the
                                                                                        organizations representing the economic agents
                                                                                        concerned and the implementation of the national
               (Language of the case: Portuguese)                                       and Community aid schemes and financial and
                                                                                        fiscal incentives in favour of the agri-foodstuffs
   (Provisional translation; the definitive translation will be                         industry and the distribution of agri-foodstuffs, to
          published in the European Court Reports)                                      which part of the revenue from the charges in
                                                                                        question is appropriated, benefit only domestic
                                                                                        production or whether they benefit such
In    Case   C-347/95 — reference to the                Court under                     production proportionally more than imported
Article 177 of the Treaty by the Supremo Tribunal                                       products.
 ---pagebreak--- C 331 /6                   EN                  Official Journal of the European Communities                                   1 . 11 . 97
3 . A tax levied only on certain products, which is not                            domestic and imported products according to the
      proportional to the price of those products, is not                          same criteria are covered in principle by Article 95
      charged at each stage of the production and                                  et seq. of the EC Treaty.
      distribution process and is not imposed on the added
       value of the products, is not in the nature of a
       turnover tax within the meaning of Article 33 of the
      Sixth Council Directive (77/388/EEC) of 17 May 1977                          A charge levied without distinction on domestic
       on the harmonization of the laws of the Member                              and imported products constitutes a charge having
      States relating to turnover taxes — Common system of                         an effect equivalent to a customs duty, prohibited
       value added tax: uniform basis of assessment.                               by Articles 9 and 12 of the Treaty, if the revenue
                                                                                   from it is intended to finance activities benefiting
                                                                                   only the taxed domestic products and if the
(') OJ C 351 , 30 . 12 . 1995 .                                                    resultant advantages fully offset the burden which
( 2 ) OJ L 145 , 13 . 6 . 1977, p . 1 .                                            the latter products bear; if those advantages only
                                                                                   partly offset the burden borne by the domestic
                                                                                   products, the charge constitutes discriminatory
                                                                                   internal taxation prohibited by Articles 95 of the
                                                                                   Treaty and must be reduced proportionally.
                 JUDGMENT OF THE COURT                                       ( b ) If the activities financed by the charge benefit
                             (Fifth Chamber)                                       domestic products and taxed imported products
                                                                                   but the former obtain a proportionally greater
                          of 17 September 1997                                     advantage from them, the charge constitutes, to
                                                                                   that extent, a charge having an effect equivalent to
in Case C-28/96 (reference for a preliminary ruling from                           a customs duty or discriminatory internal taxation,
the Supremo Tribunal Administrativo ): Fazenda Publica v.                          depending on whether the advantage accruing to
                             Fricarnes SA (')                                      the taxed domestic products fully or only partly
(National charges on the marketing of meat — Charge                                offsets the burden which they bear.
having equivalent effects — Internal taxation — Turnover
                                      tax)
                              ( 97/C 331/10                               2. It is for the national court to undertake the
                                                                             verifications necessary for determining how the
                                                                             contributions in question are to be characterized in
                (Language of the case: Portuguese)                           law. In so doing it will consider:
    (Provisional translation; the definitive translation will be
                                                                             ( a ) whether the revenue from the charge at issue,
                                                                                   which is specifically intended to be used to combat
            published in the European Court Reports)
                                                                                   diseases of livestock reared on national territory,
                                                                                   benefits exclusively animals of national origin or,
                                                                                   at least, benefits them proportionally more than
In      Case  C-28/96 — reference           to  the   Court under                  imported animals;
Article 177 of the EC Treaty by the Supremo Tribunal
Administrativo ( Portugal ) for a preliminary ruling in the
proceedings pending before that court between Fazenda
Publica and Fricarnes SA on the interpretation of                             ( b) whether the revenue from all the charges at issue is
Articles 9, 12 and 95 of the EC Treaty and Article 33 of                           used for stabilization only of trade with the other
the Sixth Council Directive ( 77/388/EEC ) of 17 May 1977                          Member States in the products which bear the
on the harmonization of the laws of the Member States                              charges;
relating to turnover taxes — Common system of value
added tax: uniform basis of assessment ( 2 ) — the Court
 ( Fifth Chamber) composed of: J. C. Moitinho de Almeida,                     (c ) whether the institutional integration of the
President of the Chamber, L. Sevon, C. Gulmann, J. P.
                                                                                   organizations representing the economic agents
Puissochet and M. Wathelet ( Rapporteur), Judges;                                  concerned and the implementation of the national
Advocate General: G. Tesauro, H. von Holstein, Deputy                              and Community aid schemes and financial and
Registrar, for the Registrar, gave a judgment on                                   fiscal incentives in favour of the agri-foodstuffs
 17 December 1997, the operative part of which is as                               industry and the distribution of agri-foodstuffs, to
 follows :
                                                                                   which part of the revenue from the charges in
                                                                                   question is appropriated, benefit only domestic
                                                                                   production or whether they benefit such
 1 . ( a ) Pecuniary charges under a general system of                             production proportionally more than imported
           internal charges applying systematically to                             products.