Fazenda Pública v Fricarnes SA.
Date: 1997-09-17
19 It must first be borne in mind that provisions relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be applied concurrently, so that under the system of the Treaty the same taxation cannot belong to both categories at the same time (Case 10/65 Deutschmann v Germany [1965] ECR 469, at 473 to 474; Case 57/65 Lütticke v Hauptzollamt Saarlouis [1966] ECR 205, at 211; and Case C-266/91 Celbi v Fazenda Pública [1993] ECR I-4337, paragraph 9).
20 It is settled case-law that any pecuniary charge, whatever its designation or 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 an effect equivalent to a customs duty within the meaning of Articles 9, 12, 13 and 16 of the Treaty, even if it is not imposed on behalf of the State (see in particular Case 158/82 Commission v Denmark [1983] ECR 3573, paragraph 18).
21 Pecuniary charges under a general system of internal charges applying systematically to domestic and imported products according to the same criteria, on the other hand, are covered by Article 95 et seq. of the Treaty (Celbi, cited above, paragraph 11).  Those provisions prohibit a Member State from directly or indirectly imposing on the products of other Member States any internal taxation in excess of that imposed on similar domestic products or of such a nature as to afford protection to other domestic products, and therefore the criterion for the application of Article 95 is whether or not those charges are discriminatory or protective (see in particular Case C-17/91 Lornoy and Others v Belgium [1992] ECR I-6523, paragraph 19).
23 Thus, if the revenue from such a charge is intended to finance activities for the special advantage of the taxed domestic products, it may follow that the charge imposed on the basis of the same criteria nevertheless constitutes discriminatory taxation in so far as the fiscal burden on domestic products is neutralized by the advantages which the charge is used to finance whilst the charge on the imported products constitutes a net burden (Case 73/79 Commission v Italy [1980] ECR 1533, paragraph 15; Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l'Ouest and Others [1992] ECR I-1847, paragraph 26).
24 It is settled case-law (see in particular Compagnie Commerciale de l'Ouest and Others, cited above, paragraph 27; Lornoy and Others, cited above, paragraph 21, and Case C-72/92 Scharbatke v Germany [1993] ECR I-5509, paragraph 10) 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 domestic and imported products fully offset the burden borne by the domestic product when it is placed on the market, that charge constitutes a charge having an effect equivalent to a customs duty, contrary to Articles 9 and 12 of the Treaty.  On the other hand, if the advantages accruing to the taxed domestic products from the use of the revenue from the charge only partly offset the burden borne by those products, such a charge would constitute a breach of the prohibition of discrimination laid down by Article 95 of the Treaty.
25 If the advantages for domestic production fully offset the burden borne by it, the charge levied on the product must, being a charge having an effect equivalent to a customs duty, be regarded as unlawful in its entirety; if on the contrary those advantages only partly offset the burden borne by domestic production, the charge levied on the imported product, which is legal in principle, will simply have to be reduced proportionally (Case 94/74 IGAV v ENCC [1975] ECR 699, paragraph 13, and Compagnie Commerciale de l'Ouest and Others, cited above, paragraph 27).
26 It is also clear from the case-law of the Court that for the principle concerning the offsetting of the burden to apply, the taxed product and the domestic product benefiting from it must be the same (Case 77/76 Cucchi v Avez [1977] ECR 987, paragraph 19, and Case 105/76 Interzuccheri v Rezzano e Cavassa [1977] ECR 1029, paragraph 12).
27 What is more, the criterion of whether the burden is offset, in order to be usefully and correctly applied, presupposes a check, during a reference period, on the financial equivalence of the total amounts levied on domestic products in connection with the charge in question and the advantages afforded exclusively to those products. Any other parameter, such as the nature, scope or indispensable character of those advantages, would not provide a sufficiently objective basis for determining whether a domestic fiscal measure is compatible with the Treaty (Celbi, cited above, paragraph 18).
28 It will therefore be for the national court first to satisfy itself that the charges at issue in this case are borne by domestic and imported products alike as far as the chargeable event is concerned.  Should it be found, confirming the impression given by certain statements made at the hearing, that imported products are subject to the contributions in question on crossing the frontier and then attract further charges upon being marketed, those contributions would be caught by Articles 9 and 12 of the Treaty.
29 If that is not the case, it will be for the national court, applying the principles just referred to, to verify whether or not domestic production in fact derives an exclusive benefit or a proportionally greater benefit than imported products from the services of the bodies to which the charges accrue, which might offset wholly or in part the burden constituted by those charges.
36 It is clear from the wording of that provision that it prohibits the Member States from introducing or maintaining taxes, duties or charges in the nature of turnover taxes (Case 252/86 Bergandi v Directeur Général des Impôts [1988] ECR 1343, paragraphs 10 and 11; Joined Cases 93/88 and 94/88 Wisselink and Others v Staatssecretaris van Financiën [1989] ECR 2671, paragraphs 13 and 14; and Case C-200/90 Dansk Denkavit and Poulsen Trading v Skatteministeriet [1992] ECR I-2217, paragraph 10).
37 As the Court held in the judgments cited above and in Case 295/84 Rousseau Wilmot v Organic [1985] ECR 3759, paragraph 16), the aim pursued by Article 33 of the Sixth Directive is to preclude the introduction of taxes, duties and charges which, because they are levied on the movement of goods and services in a way comparable to value added tax, would compromise the functioning of the common system of value added tax.  Taxes, duties and charges must be regarded as being imposed on the movement of goods and services in a way comparable to VAT if they exhibit the essential characteristics of VAT (Dansk Denkavit and Poulsen Trading, cited above, paragraph 11).