Steinike & Weinlig v Federal Republic of Germany.
Date: 1977-03-22
9 IN JUDGING IN THESE CASES WHETHER STATE AID IS COMPATIBLE WITH THE COMMON MARKET COMPLEX ECONOMIC FACTORS SUBJECT TO RAPID CHANGE MUST BE TAKEN INTO ACCOUNT AND ASSESSED . ARTICLE 93 OF THE TREATY THEREFORE PROVIDES FOR A SPECIAL PROCEDURE WHEREBY THE COMMISSION SHALL KEEP AID UNDER CONSTANT REVIEW . WITH REGARD TO AID EXISTING BEFORE THE TREATY ENTERED INTO FORCE ARTICLE 93 ( 2 ) PROVIDES THAT THE COMMISSION MAY DECIDE THAT THE STATE CONCERNED SHALL ABOLISH OR ALTER THE AID WITHIN A PERIOD OF TIME TO BE DETERMINED BY THE COMMISSION . WITH REGARD TO NEW AID WHICH THE MEMBER STATES INTEND TO INTRODUCE A SPECIAL PROCEDURE IS PROVIDED AND IF IT IS NOT FOLLOWED THE AID IS NOT REGARDED AS BEING REGULARLY INTRODUCED . THE CONCLUSION TO BE DRAWN FROM ALL THESE CONSIDERATIONS IS THAT THE INTENTION OF THE TREATY , IN PROVIDING THROUGH ARTICLE 93 FOR AID TO BE KEPT UNDER CONSTANT REVIEW AND SUPERVISED BY THE COMMISSION , IS THAT THE FINDING THAT AN AID MAY BE INCOMPATIBLE WITH THE COMMON MARKET IS TO BE DETERMINED , SUBJECT TO REVIEW BY THE COURT , BY MEANS OF AN APPROPRIATE PROCEDURE WHICH IT IS THE COMMISSION ' S RESPONSIBLILITY TO SET IN MOTION .
14 THE LIMITATIONS MENTIONED ABOVE ON RELIANCE ON ARTICLE 92 DO NOT HOWEVER MEAN THAT CASES CANNOT COME BEFORE NATIONAL COURTS REQUIRING THEM TO INTERPRET ( MAKING USE IF NECESSARY OF THE PROCEDURE UNDER ARTICLE 177 OF THE TREATY ) AND APPLY THE PROVISIONS CONTAINED IN ARTICLE 92 , BUT NEVERTHELESS THEY CANNOT BE CALLED UPON TO FIND THAT SUCH STATE AID IS INCOMPATIBLE SAVE IN THE CASE OF AID INTRODUCED CONTRARY TO ARTICLE 93 ( 3 ). THUS A NATIONAL COURT MAY HAVE CAUSE TO INTERPRET AND APPLY THE CONCEPT OF AID CONTAINED IN ARTICLE 92 IN ORDER TO DETERMINE WHETHER STATE AID INTRODUCED WITHOUT OBSERVANCE OF THE PRELIMINARY EXAMINATION PROCEDURE PROVIDED FOR IN ARTICLE 93 ( 3 ) OUGHT TO HAVE BEEN SUBJECT TO THIS PROCEDURE . IN ANY CASE UNDER ARTICLE 177 OF THE TREATY THE NATIONAL COURTS WHICH MAKE A REFERENCE FOR A PRELIMINARY RULING MUST THEMSELVES DECIDE WHETHER THE QUESTIONS REFERRED ARE NECESSARY TO ENABLE JUDGMENT TO BE GIVEN .
18 FROM THIS IT FOLLOWS THAT SAVE FOR THE RESERVATION IN ARTICLE 90 ( 2 ) OF THE TREATY , ARTICLE 92 COVERS ALL PRIVATE AND PUBLIC UNDERTAKINGS AND ALL THEIR PRODUCTION .

THE THIRD AND FOURTH QUESTIONS
21 THE PROHIBITION CONTAINED IN ARTICLE 92 ( 1 ) COVERS ALL AID GRANTED BY A MEMBER STATE OR THROUGH STATE RESOURCES WITHOUT ITS BEING NECESSARY TO MAKE A DISTINCTION WHETHER THE AID IS GRANTED DIRECTLY BY THE STATE OR BY PUBLIC OR PRIVATE BODIES ESTABLISHED OR APPOINTED BY IT TO ADMINISTER THE AID . IN APPLYING ARTICLE 92 REGARD MUST PRIMARILY BE HAD TO THE EFFECTS OF THE AID ON THE UNDERTAKINGS OR PRODUCERS FAVOURED AND NOT THE STATUS OF THE INSTITUTIONS ENTRUSTED WITH THE DISTRIBUTION AND ADMINISTRATION OF THE AID .
24 ANY BREACH BY A MEMBER STATE OF AN OBLIGATION UNDER THE TREATY IN CONNEXION WITH THE PROHIBITION LAID DOWN IN ARTICLE 92 CANNOT BE JUSTIFIED BY THE FACT THAT OTHER MEMBER STATES ARE ALSO FAILING TO FULFIL THIS OBLIGATION . THE EFFECTS OF MORE THAN ONE DISTORTION OF COMPETITION ON TRADE BETWEEN MEMBER STATES DO NOT CANCEL ONE ANOTHER OUT BUT ACCUMULATE AND THE DAMAGING CONSEQUENCES TO THE COMMON MARKET ARE INCREASED .

THE SIXTH AND SEVENTH QUESTIONS
28 AS WAS RULED IN THE JUDGMENT OF 18 JUNE 1975 ( CASE 94/74 IGAV ( 1975 ) ECR 710 ) TO WHICH THE NATIONAL COURT REFERS , THE PROHIBITION CONTAINED IN ARTICLE 13 ( 2 ) IS AIMED AT ANY TAX DEMANDED AT THE TIME OF OR BY REASON OF IMPORTATION AND WHICH , BEING IMPOSED SPECIFICALLY ON AN IMPORTED PRODUCT TO THE EXCLUSION OF A SIMILAR DOMESTIC PRODUCT , RESULTS IN THE SAME RESTRICTIVE CONSEQUENCES ON THE FREE MOVEMENT OF GOODS AS A CUSTOMS DUTY BY ALTERING THE COST PRICE OF THAT PRODUCT . THE ESSENTIAL CHARACTERISTIC OF A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY , WHICH DISTINGUISHES IT FROM INTERNAL TAXATION , IS THAT THE FIRST IS IMPOSED EXCLUSIVELY ON THE IMPORTED PRODUCT WHILST THE SECOND IS IMPOSED ON BOTH IMPORTED AND DOMESTIC PRODUCTS . A CHARGE AFFECTING BOTH IMPORTED PRODUCTS AND SIMILAR PRODUCTS COULD HOWEVER CONSTITUTE A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY IF SUCH A DUTY , WHICH IS LIMITED TO PARTICULAR PRODUCTS , HAD THE SOLE PURPOSE OF FINANCING ACTIVITIES FOR THE SPECIFIC ADVANTAGE OF THE TAXED DOMESTIC PRODUCTS , SO AS TO MAKE GOOD , WHOLLY OR IN PART , THE FISCAL CHARGE IMPOSED UPON THEM .
30 FINANCIAL CHARGES WITHIN A GENERAL SYSTEM OF INTERNAL TAXATION APPLYING SYSTEMATICALLY TO DOMESTIC AND IMPORTED PRODUCTS ACCORDING TO THE SAME CRITERIA ARE NOT TO BE CONSIDERED AS CHARGES HAVING EQUIVALENT EFFECT . THIS COULD BE THE CASE EVEN WHERE THERE IS NO DOMESTIC PRODUCT SIMILAR TO THE IMPORTED PRODUCT PROVIDING THAT THE CHARGE APPLIES TO WHOLE CLASSES OF DOMESTIC OR FOREIGN PRODUCTS WHICH ARE ALL IN THE SAME POSITION NO MATTER WHAT THEIR ORIGIN . THE OBJECTIVE OF ARTICLE 95 IS TO ABOLISH DIRECT OR INDIRECT DISCRIMINATION AGAINST IMPORTED PRODUCTS BUT NOT TO PLACE THEM IN A PRIVILEGED TAX POSITION IN RELATION TO DOMESTIC PRODUCTS . THERE IS GENERALLY NO DISCRIMINATION SUCH AS IS PROHIBITED BY ARTICLE 95 WHERE INTERNAL TAXATION APPLIES TO DOMESTIC PRODUCTS AND TO PREVIOUSLY IMPORTED PRODUCTS ON THEIR BEING PROCESSED INTO MORE ELABORATE PRODUCTS WITHOUT ANY DISTINCTIONS OF RATE , BASIS OF ASSESSMENT OR DETAILED RULES FOR THE LEVYING THEREOF BEING MADE BETWEEN THEM BY REASON OF THEIR ORIGIN .