Firma Herbert Scharbatke GmbH v Federal Republic of Germany.
Date: 1993-10-27
10 As the Court has consistently held (see, in particular, the judgments in Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l' Ouest [1992] ECR I-1847, paragraph 27, and in Case C-17/91 Lornoy [1992] ECR I-6523, paragraph 21), if the advantages stemming from the use of the revenue from a contribution which constitutes a parafiscal charge fully offset the burden borne by the domestic product when it is placed on the market, that contribution constitutes a charge having an effect equivalent to customs duties, contrary to Articles 9 and 12 of the Treaty. If those advantages only partly offset the burden borne by domestic products, the charge in question is subject to Article 95 of the Treaty. In the latter case, the charge would be incompatible with Article 95 of the Treaty and is therefore prohibited to the extent to which it discriminates against imported products, that is to say to the extent to which it partially offsets the burden borne by the taxed domestic product.
11 It is also well-established case-law that it is for the national court to determine whether the burden borne by the domestic product is wholly or partly offset by the use of the revenue from the charge in question (Joined Cases C-149/91 and C-150/91 Sanders [1992] ECR I-3899 and in Compagnie Commerciale de l' Ouest and Lornoy, cited above). It is also for the national court to establish, in conjunction with the other national authorities concerned, the extent of any discrimination against imported products.
14 In its second question, the national court also asks whether a parafiscal charge of that kind at issue in the main proceedings constitutes internal taxation prohibited by Article 95 of the Treaty when a similar charge which has already been levied on the same products in the exporting State has not been taken into account.
15 It must be observed in that regard that although under the system of value added tax (VAT) and on the basis of the harmonization rules in this field the VAT paid in the exporting Member State must be taken into account, as stated in the judgment in Case 15/81 Schul v Inspecteur der Invoerrechten en Accijnzen [1982] ECR 1409, that solution cannot be applied to charges regulated by independent national legislation, such as those at issue in the main proceedings.
18 As the Court has stated on several occasions, although a parafiscal charge may fall within the scope of Article 12 or Article 95 of the Treaty, the use to which the revenue from that charge is put, for the benefit of domestic products, may nevertheless constitute State aid incompatible with the common market, if the conditions for the application of Article 92 of the Treaty, as interpreted by the Court in previous decisions, are met (Compagnie Commerciale de l' Ouest, Sanders and Lornoy, cited above).
20 The answer to the national court' s questions must therefore be that the collection of a contribution constituting a parafiscal charge of the kind at issue in the main proceedings may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty are met, that being a matter which the Commission alone is competent to determine in accordance with the procedure laid down for that purpose in Article 93 of the Treaty and subject to review by the Court.