Celulose Beira Industrial SA v Fazenda Pública.
Date: 1993-08-02
9 The Court has consistently held (see, in particular, Joined Cases C-149/91 and C-150/91 Sanders Adour and Guyomarc' h Orthez Nutrition Animale v Directeur des Services Fiscaux des Pyrénées-Atlantiques [1992] ECR I-3899, paragraph 14) that 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 imposition cannot belong to both categories at the same time.
10 So far as charges having equivalent effect are concerned, it is also settled case-law that their prohibition covers all charges levied at the time of, or by reason of, importation, which are imposed specifically on an imported product but not on a similar domestic product, and that even pecuniary charges intended to finance the activities of an agency governed by public law can constitute charges having equivalent effect (see, in particular, Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l' Ouest and Others v Receveur Principal des Douanes de La Pallice-Port [1992] ECR I-1847, paragraph 23).
11 In the case of a general system of internal charges applying systematically to domestic and imported products according to the same criteria, the provisions of Article 95 of the Treaty must apply. That article prohibits Member States 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. The applicability of the provision in question therefore depends on whether or not the internal taxation measure is discriminatory or protective (see, in particular, Case C-17/91 Lornoy and Others v Belgium [1992] ECR I-6523, paragraph 19).
14 However, even if it is applicable without distinction, that charge will none the less constitute a breach of the prohibition of discrimination set out in Article 95 of the Treaty if the advantages resulting from the use to which the revenue from it is put are specifically of benefit to the domestic products on which it was levied, by offsetting part of the burden on them and thereby placing imported products at a disadvantage.
18 In those circumstances, 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 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 on which to determine whether a domestic fiscal measure is compatible with the provisions of the Treaty; furthermore, it would not be sufficiently precise to allow the Member State concerned to re-establish, with certainty, a situation of legality in the event of a breach of either Article 12 or Article 95 of the Treaty.
23 It is, however, incumbent on the national courts to safeguard the rights of individuals when faced with any disregard by national authorities of the prohibition on the implementation of aid, which is set out in the final sentence of Article 93(3) of the Treaty and is directly effective. Such disregard, if relied on by individuals and confirmed by the national courts, must lead those courts to draw from it all the consequences in accordance with their national law with regard both to the validity of acts implementing aid measures and to the recovery of the financial support granted. Their decisions do not, however, imply an assessment of the compatibility of the aid with Community law, which, as already pointed out, is a matter within the exclusive competence of the Commission, subject to review by the Court (see Case C-354/90 Fédération Nationale du Commerce Extérieur des Produits Alimentaires and Syndicat National des Négociants et Transformateurs de Saumon v French State [1991] ECR I-5505).