Kapniki Michaïlidis AE v Idryma Koinonikon Asfaliseon (IKA).
Date: 2000-09-21
14 It follows from the general and absolute nature of the prohibition of all customs duties applicable to goods moving between Member States that customs duties are prohibited regardless of the purpose for which they were introduced and the destination of the revenue from them (see, inter alia, Joined Cases 2/69 and 3/69 Sociaal Fonds voor de Diamantarbeiders v Brachfeld [1969] ECR 211, paragraph 13).
15 As the Court has frequently held, any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning of Articles 9, 12 and 16 of the Treaty, even if it is not imposed for the benefit of the State (see Sociaal Fonds voor de Diamantarbeiders v Brachfeld, paragraph 18; Case 158/82 Commission v Denmark [1983] ECR 3573, paragraph 18; Case C-426/92 Germany v Deutsches Milch-Kontor [1994] ECR I-2757, paragraph 50; and Case C-347/95 Fazenda Pública v Ucal [1997] ECR I-4911, paragraph 18).
16 In addition, although Community law does not detract from the powers of the Member States to organise their social security systems, they must nevertheless comply with Community law when exercising those powers (see, to that effect, Case C-120/95 Decker v Caisse de Maladie des Employés Privés [1998] ECR I-1831, paragraphs 21 and 23).
17 It follows that neither the social purpose for which the disputed charge was introduced nor the fact that its proceeds are paid to the IKA can prevent the charge from being classified as a charge having equivalent effect to a customs duty for the purposes of Articles 9, 12 and 16 of the Treaty.
19 In that regard, it should be observed that, according to the case-law of the Court, a charge such as the disputed charge escapes classification as a charge having equivalent effect to a customs duty if it relates to a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported or exported products alike (see, in particular, Case 132/78 Denkavit v France [1979] ECR 1923, paragraph 7).
22 In that regard, it should be noted, first, that it is settled case-law that the essential feature of a charge having an effect equivalent to a customs duty which distinguishes it from an internal tax is that the former is borne solely by a product which crosses a frontier, as such, whilst the latter is borne by imported, exported and domestic products (see, to that effect, Case 90/79 Commission v France [1981] ECR 283, paragraph 13; and Case C-109/98 CRT France International v Directeur Régional des Impôts de Bourgogne [1999] ECR I-2237, paragraph 11).
23 Secondly, in order to relate to a general system of internal taxation, the charge to which the exported tobacco product is subject must impose the same duty on both domestic products and identical exported products at the same marketing stage and the chargeable event triggering the duty must also be identical in the case of both products. It is therefore not sufficient that the objective of the charge imposed on the exported products is to compensate for a charge imposed on similar domestic products - or which has been imposed on those products or a product from which they are derived - at a production or marketing stage prior to that at which the exported products are taxed. To exempt a charge levied at the frontier from being classified as a charge having equivalent effect when it is not imposed on similar national products or is imposed on them at different marketing stages, because that charge aims to compensate for a domestic fiscal charge applying to the same products, would make the prohibition on charges having an effect equivalent to customs duties empty and meaningless (see, to that effect, Denkavit v France, paragraph 8).
30 As a preliminary point, it is apparent from well-established case-law that the right to a refund of charges levied in a Member State in breach of rules of Community law is the consequence of, and complement to, the rights conferred on individuals by the Community provisions prohibiting charges having an effect equivalent to customs duties. The Member State is therefore obliged in principle to repay charges levied in breach of Community law (Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 12; and, most recently, Case C-343/96 Dilexport v Amministrazione delle Finanze dello Stato [1999] ECR I-579, paragraph 23).
31 As regards the first part of the second question, it is settled case-law that the protection of rights guaranteed in the matter by Community law does not require an order for the recovery of charges improperly levied to be granted in conditions which would involve the unjust enrichment of those entitled (see, in particular, Case 68/79 Just v Danish Ministry for Fiscal Affairs [1980] ECR 501, paragraph 26).
32 It is therefore for the national courts to determine, in the light of the facts of each case, whether the burden of the charge has been transferred in whole or in part by the trader to other persons and, if so, whether reimbursement to the trader would amount to unjust enrichment (see, inter alia, Joined Cases C-192/95 to C-218/95 Comateb and Others v Directeur Général des Douanes et Droits Indirects [1997] ECR I-165, paragraph 23).
33 However, a Member State may resist repayment to the trader of a charge levied in breach of Community law only where it is established that the charge has been borne in its entirety by someone other than the trader and that reimbursement of the latter would constitute unjust enrichment. It follows that if the burden of the charge has been passed on only in part, it is for the national authorities to repay the trader the amount not passed on (Comateb, paragraphs 27 and 28).
34 Furthermore, even where it is established that the burden of the charge has been passed on in whole or in part to third parties, repayment to the trader of the amount thus passed on does not necessarily entail his unjust enrichment (Comateb, paragraph 29).
35 The Court has already observed on several occasions that it would be compatible with the principles of Community law for courts before which claims for repayment were brought to take into consideration the damage which the trader concerned might have suffered because measures such as the disputed charge had the effect of restricting the volume of exports (Just, paragraph 26; and Comateb, paragraph 30).
36 As regards the second part of the second question, it should be borne in mind that any rules of evidence which have the effect of making it virtually impossible or excessively difficult to secure repayment of charges levied in breach of Community law are incompatible with Community law. That is so particularly in the case of presumptions or rules of evidence intended to place upon the taxpayer the burden of establishing that the charges unduly paid have not been passed on to other persons or of special limitations concerning the form of the evidence to be adduced, such as the exclusion of any kind of evidence other than documentary evidence (San Giorgio, cited above, paragraph 14).
37 In that regard, Community law precludes a Member State from making repayment of customs duties and taxes contrary to Community law subject to a condition, such as the requirement that such duties or taxes have not been passed on to third parties, which the plaintiff must show he has satisfied (Dilexport, paragraph 54).
38 Therefore, if under national law it were for Mikhailidis to show, as the IKA and the Greek Government maintain should be the case, that the disputed charge caused an increase in the price of the products and a reduction in the volume of exports, the provisions in question would have to be considered contrary to Community law (see, to that effect, Dilexport, paragraph 52).