Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft.
Date: 2007-11-08
26. It must first be borne in mind that EC Treaty provisions relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be applied together, so that under the system of the Treaty the same measure cannot belong to both categories at the same time (see, in particular, Case C‑90/94 Haahr Petroleum  [1997] ECR I‑4085, paragraph 19; Case C‑387/01 Weigel  [2004] ECR I‑4981, paragraph 63, and Joined Cases C‑393/04 and C‑41/05 Air Liquide Industries Belgium  [2006] ECR I‑5293, paragraph 50).
27. As regards Articles 23 EC and 25 EC, 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 (see, in particular, Haahr Petroleum , paragraph 20; Case C‑213/96 Outokumpu  [1998] ECR I‑1777, paragraph 20; Weigel , paragraph 64, and Air Liquide Industries Belgium , paragraph 51).
30. As regards Article 90 EC, that provision, within the system of the Treaty, supplements the provisions on the abolition of customs duties and charges having equivalent effect. Its aim is to ensure free movement of goods between the Member States in normal conditions of competition by the elimination of all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States (see, in particular, Air Liquide Industries Belgium , paragraph 55, and Case C‑313/05 Brzeziński  [2007] ECR I‑513, paragraph 27).
31. According to settled case‑law, pecuniary charges resulting from a general system of internal taxation applied systematically, in accordance with the same objective criteria, to categories of products irrespective of their origin or destination fall within Article 90 EC (see Air Liquide Industries Belgium , paragraph 56 and the case-law cited).
36. The Austrian Government’s argument that, since it has no market value, waste for disposal is not covered by the concept of ‘products’ within the meaning of Article 90 EC cannot succeed.
37. First, in Case C‑2/90 Commission v Belgium  [1992] ECR I‑4431, ‘the Walloon waste  judgment’, paragraph 28, the Court held that waste, whether recyclable or not, is to be regarded as ‘goods’ the movement of which, in accordance with Article 30 of the EC Treaty (now, after amendment, Article 28 EC), must in principle not be prevented.
38. Second, the Court stated, at paragraphs 25 and 26 of that judgment, that waste for disposal, even if it has no intrinsic commercial value, may none the less give rise to commercial transactions in relation to the disposal or deposit thereof. Internal taxation imposed on that waste is such as to render more difficult or more burdensome those commercial transactions for an operator who seeks to dispose of that waste and, therefore, is liable to constitute a disguised restriction on the free movement of that waste, a restriction that Article 90 EC is specifically intended to preclude in cases of discriminatory treatment of imported waste.
40. According to settled case‑law, Article 90 EC must be interpreted widely so as to cover all taxation procedures which, directly or indirectly, undermine the equal treatment of domestic products and imported products. The prohibition laid down in that article must therefore apply whenever a fiscal charge is likely to discourage imports of goods originating in other Member States to the benefit of domestic production (Case 20/76 Schöttle [1977] ECR 247, paragraph 13; Case 252/86 Bergandi  [1988] ECR 1343, paragraph 25, and the case‑law cited, and Case C‑45/94 Ayuntamiento de Ceuta  [1995] ECR I‑4385, paragraph 29).
43. Furthermore, as is apparent from Schöttle (paragraphs 12 to 15) and Haahr Petroleum  (paragraphs 38 and 40), a charge which is imposed not on products as such, but on the specific activity of an undertaking in connection with products and which is calculated according, inter alia, to the weight of the products at issue, falls within the scope of Article 90 EC and, in so far as it has an immediate effect on the cost of national and imported products, must be applied in a manner which is not discriminatory to imported products.
49. According to settled case-law, the first paragraph of Article 90 EC is infringed where the tax charged on the imported product and that charged on the similar domestic product are calculated in a different manner on the basis of different criteria which lead, if only in certain cases, to higher taxation being imposed on the imported product (Case C‑152/89 Commission v Luxembourg  [1991] ECR I‑3141, paragraph 20; Weigel , paragraph 67; and Brzeziński , paragraph 29).