OTO SpA v Ministero delle Finanze.
Date: 1994-07-13
11 Before that question is answered, it is important to note that the Court has already held that a tax such as the national consumption tax at issue in the main proceedings must be regarded as being an integral part of a general system of internal taxation within the meaning of Article 95 of the Treaty and that its compatibility with Community law must be assessed on the basis of that article rather than Articles 9 and 12 of the Treaty (see, most recently, the judgment in Joined Cases C-228/90 to C-234/90, C-339/90 and C-353/90 Simba and Others [1992] ECR I-3713, paragraph 7).
12 The Court has recognized that taxes such as the national consumption taxes in force in Italy were governed by common tax rules and were charged on categories of products irrespective of their origin in accordance with an objective criterion, namely the fact that the product fell into a specific category of goods. It has also pointed out that whether those goods were produced at home or abroad did not seem to have a bearing on the rate, the basis of assessment or the manner in which the tax was levied. Finally, it has stated that the revenue from those taxes was not earmarked for a specific purpose and that it constituted tax revenue identical to other tax revenue and, like it, helped to finance State expenditure generally in all sectors (see the judgment in Simba and Others, cited above, paragraph 8).
14 However, in the context of the judicial cooperation established by Article 177 of the Treaty, the Court has the duty, inter alia, to interpret all provisions of Community law which national courts need in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (see the judgment in Case C-280/91 Viessmann [1993] ECR I-971, paragraph 17).
16 According to a consistent line of cases, the aim of Article 95 of the Treaty 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 result from the application of internal taxation which discriminates against products from other Member States. The Court has made it clear, as regards the free movement of goods within the Community, that products which are in free circulation are definitively and wholly assimilated to products originating in Member States. It follows that Article 95 covers all products from Member States, including products originating in non-member countries which are in free circulation in the Member States (see the judgment in Case 193/85 Co-Frutta v Amministrazione delle Finanze dello Stato [1987] ECR 2085, paragraphs 25, 26 and 29).
18 The Court has also consistently held that Article 95 applies only to products from the Member States and, where appropriate, to goods originating in non-member countries which are in free circulation in the Member States. It follows that that provision is not applicable to products imported directly from non-member countries (see the judgment in Simba and Others, paragraph 14).
20 So far as concerns the possibility of applying Article 113 of the Treaty, it is important to note that the Treaty does not contain any provision similar to Article 95 regarding domestic taxation in respect of trade with non-member countries, subject, however, to any treaty provisions which may be in force between the Community and the country of origin of a given product (see the judgment in Case 148/77 Hansen v Hauptzollamt Flensburg [1978] ECR 1787, paragraph 24) and that although Article 113 confers upon the Community powers which enable it to take any appropriate measure concerning the common commercial policy, it nevertheless does not in itself contain any legal criterion which is sufficiently precise to enable an assessment of the contested national rules to be made (see the judgment in Case 266/81 SIOT v Ministero delle Finanze [1983] ECR 731, paragraph 29).