Visserijbedrijf D. J. Koornstra & Zn. vof v Productschap Vis.
Date: 2006-06-08
12. The first point to be noted is that the provisions relating to charges having equivalent effect and those relating to discriminatory taxation cannot be applied together, so that the same charge cannot, under the system established by the Treaty, belong to both those categories at the same time (Case C‑347/95 UCAL  [1997] ECR I-4911, paragraph 17; Case C‑355/00 Freskot  [2003] ECR I-5263, paragraph 39; and Joined Cases  C‑34/01 to C‑38/01 Enirisorse  [2003] ECR I-14243, paragraph 59).
15. It is settled case-law that any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on 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 23 EC and 25 EC, even though such pecuniary charge is not levied for the benefit of the State ( UCAL , paragraph 18; Case C‑72/03 Carbonati Apuani  [2004] ECR I‑8027, paragraph 20; and Case C‑293/02 Jersey Produce Marketing Organisation  [2005] ECR I-9543, paragraph 55).
16. However, such a charge constitutes internal taxation within the meaning of Article 90 EC, rather than a charge having an effect equivalent to a customs duty, if it relates to a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin or destination of the products (Case C‑234/99 Nygård  [2002] ECR I‑3657, paragraph 19, and Carbonati Apuani , paragraph 17).
17. In that connection, it also follows from the Court’s case-law that, for the purposes of the legal characterisation of a charge levied on national products processed or marketed on the national market and on national products exported in an unprocessed state in accordance with identical criteria, it may be necessary to take into account the purpose for which the revenue from the charge is applied ( Nygård , paragraph 21).
18. Thus, if the revenue from such a charge is intended to finance activities for the special advantage of the national products processed or marketed on the national market, it may follow that the charge imposed on the basis of the same criteria nevertheless constitutes discriminatory taxation in so far as the fiscal burden on products processed or marketed on the national market is neutralised by the advantages which the charge is used to finance whilst the charge on the products exported in an unprocessed state constitutes a net burden ( Nygård , paragraph 22).
19. In that regard, if the advantages stemming from the use of the revenue from a charge forming part of a general system of internal charges applying systematically to national products processed and marketed on the national market and to products exported in an unprocessed state fully offset the burden borne by the national product processed and marketed on the national market when it is placed on the market, that charge constitutes a charge having an effect equivalent to a customs duty, contrary to Articles 23 EC and 25 EC. On the other hand, if the advantages accruing to the national products processed and marketed on the national market from the use of the revenue generated by the charge offset only partially the burden borne by those products, such a charge will constitute a breach of the prohibition of discrimination laid down by Article 90 EC ( Nygård , paragraph 23).
20. If those advantages for national production processed or marketed on the national market fully offset the burden borne by that production, the charge levied on the product must, being a charge having an effect equivalent to a customs duty, be regarded as unlawful in its entirety; if on the contrary those advantages only partly offset the burden borne by national products processed or marketed on the national market, the charge levied on exported national products, which is legal in principle, will have to be prohibited to the extent to which it offsets that burden and reduced proportionally (see, to that effect, UCAL , paragraph 23, and Nygård , paragraph 42).
21. The criterion of whether the burden is offset, in order to be usefully and correctly applied, presupposes a check, during a reference period, on the financial equivalence of the total amounts levied on national products processed or marketed on the domestic market in connection with the charge in question and the advantages afforded exclusively to those products  (Case C‑28/96 Fricarnes  [1997] ECR I‑4939, paragraph 27, and Nygård , paragraph 43).
22. Having regard to the principles just referred to, it is therefore for the national court to ascertain that national products processed or marketed on the national market do not in fact derive an exclusive benefit or a proportionally greater benefit than exported national products from the services of the body to which the charge in dispute accrues, which might offset wholly or in part the burden constituted by that charge (see, to that effect, UCAL , paragraph 26, and Fricarnes , paragraph 29).