Lubrizol France SAS v Caisse nationale du Régime social des indépendants (RSI) participations extérieures.
Date: 2018-06-14
24


According to settled case-law of the Court, 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 to a customs duty. By contrast, 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 110 TFEU, which prohibits discriminatory internal taxation (judgment of 1 March 2018, Petrotel-Lukoil and Georgescu, C‑76/17, EU:C:2018:139, paragraph 21 and the case-law cited).
25


In that regard, it must be borne in mind that the FEU Treaty provisions relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be applied together, with the result that under the system of the Treaty the same measure cannot belong to both categories at the same time (see, to that effect, judgment of 2 October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph 20 and the case-law cited).
26


A pecuniary charge also escapes classification as a ‘charge having equivalent effect’ if it is levied, in certain circumstances, on account of inspections carried out in order to comply with obligations imposed by EU law, or if it represents payment for a service actually provided to an operator which he is required to pay in an amount in proportion to that service (see, to that effect, judgments of 11 June 1992, Sanders Adour and Guyomarc’h Orthez Nutrition animale, C‑149/91 and C‑150/91, paragraph 17, and of 9 September 2004, Carbonati Apuani, C‑72/03, EU:C:2004:506, paragraph 31).
28


In that regard, it must be observed, first, that the contributions at issue constitute pecuniary charges unilaterally imposed by a Member State. As the purpose for which those charges are imposed is irrelevant, it does not matter that they relate to charges intended to fund a social security scheme (see, to that effect, judgment of 21 September 2000, Michaïlidis, C‑441/98 and C‑442/98, EU:C:2000:479, paragraph 17).
30


In that regard, it should be recalled that, in the context of the interpretation of Article 110 TFEU, the Court has held that a charge which is not imposed on goods as such must nevertheless be regarded as being imposed on a product when it has an immediate effect on the cost of the product in question (judgments of 16 February 1977, Schöttle, 20/76, EU:C:1977:26, paragraph 15, and of 8 November 2007, Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten, C‑221/06, EU:C:2007:657, paragraph 43). It is appropriate to apply that case-law also in the context of the interpretation of Articles 28 and 30 TFEU.
37


In that regard, the Court has already held that the essential feature of a charge having equivalent effect to a customs duty which distinguishes it from an internal tax is that the former is borne solely by a product which crosses a frontier, as such, whereas the latter is borne by imported, exported and domestic goods (judgment of 2 October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph 28).
39


However, first, in order to relate to a general system of ‘internal taxation’, within the meaning of Article 110 TFEU, the tax charge in question must impose the same duty on both domestic goods and identical exported goods at the same marketing stage and the chargeable event triggering the duty must also be identical in the case of both types of goods (judgment of 2 October 2014, Orgacom, C‑254/13, EU:C:2014:2251, paragraph 29 and the case-law cited).
42


First, the sale of those goods on the national territory and, secondly, the transfer to another Member State of the goods with a view to their sale, can be regarded as coming, in real economic terms, under the same marketing stage for the purpose of the application of Article 110 TFEU (see, by analogy, judgments of 11 June 1992, Sanders Adour and Guyomarc’h Orthez Nutrition animale, C‑149/91 and C‑150/91, EU:C:1992:261, paragraph 18; of 2 April 1998, Outokumpu, C‑213/96, EU:C:1998:155, paragraph 25, and of 23 April 2002, Nygård, C‑234/99, EU:C:2002:244, paragraph 30).
45


In addition, if the value of the goods transferred to another Member State was included in the basis of assessment for the contributions at issue for a second time when they were sold in that Member State, exported goods would bear the tax charge at issue twice, unlike goods destined for the domestic market. In such a situation, those contributions, in so far as they are calculated taking into account the sale price of those goods, should also be regarded as charges having equivalent effect (see, to that effect, judgment of 17 September 1997, Fricarnes, C‑28/96, EU:C:1997:412, point 28).
46


Secondly, it should be observed that 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 goods marketed on the national market and to goods exported offset in full the burden borne by the national product marketed on the national market when it is placed on the market, that charge will also constitute a charge having an effect equivalent to a customs duty, contrary to Articles 28 and 30 TFEU (judgment of 1 March 2018, Petrotel-Lukoil and Georgescu, C‑76/17, EU:C:2018:139, paragraph 24).