Commission of the European Communities v Italian Republic.
Date: 1980-05-21
8 THE FIRST OBJECTION OF INADMISSIBILITY MUST BE DISMISSED . COMPARISON BETWEEN ON THE ONE HAND ARTICLES 92 AND 93 OF THE TREATY AND THE FIRST PARAGRAPH OF ARTICLE 95 ON THE OTHER SHOWS THAT THOSE PROVISIONS PURSUE THE SAME OBJECTIVE WHICH IS TO ENSURE THAT THE TWO CATEGORIES OF INTERVENTION ON THE PART OF A MEMBER STATE , NAMELY THE GRANT OF AIDS ON THE ONE HAND AND THE IMPOSITION     OF DISCRIMINATORY TAXATION ON THE OTHER , DO NOT DISTORT THE CONDITIONS OF COMPETITION WITHIN THE COMMON MARKET . HOWEVER , AS THE COURT HAS ALREADY STATED IN A COMPARABLE CASE , IN ITS JUDGMENT OF 13 MARCH 1979 ( CASE 91/78 , HANSEN , ( 1979 ) ECR 935 ), THE APPLICATION OF THOSE PROVISIONS PRESUPPOSES DISTINCT CONDITIONS PECULIAR TO THE TWO KINDS OF STATE MEASURE WHICH THEY ARE INTENDED TO GOVERN AND THEY DIFFER FURTHERMORE AS TO THEIR LEGAL CONSEQUENCES , ABOVE ALL INASMUCH AS IN THE IMPLEMENTATION OF ARTICLES 92 AND 93 , UNLIKE THE FIRST PARAGRAPH OF ARTICLE 95 , THE INTERVENTION OF THE COMMISSION PLAYS A LARGE PART .
9 THESE FINDINGS DO NOT RULE OUT THE POSSIBILITY THAT A MEASURE CARRIED OUT BY MEANS OF DISCRIMINATORY TAXATION , WHICH MAY BE CONSIDERED AT THE SAME TIME AS FORMING PART OF AN AID WITHIN THE MEANING OF ARTICLE 92 , MAY BE GOVERNED BOTH BY THE PROVISIONS OF THE FIRST PARAGRAPH OF ARTICLE 95 AND BY THOSE APPLICABLE TO AIDS GRANTED BY STATES . IT FOLLOWS THAT DISCRIMINATORY TAX PRACTICES ARE NOT EXEMPTED FROM THE APPLICATION OF ARTICLE 95 BY REASON OF THE FACT THAT THEY MAY AT THE SAME TIME BE DESCRIBED AS A MEANS OF FINANCING A STATE AID AND THAT THEY MAY CONSEQUENTLY FORM THE SUBJECT-MATTER OF A DISTINCT PROCEDURE UNDER ARTICLE 169 .
11 IT MUST FURTHER BE OBSERVED THAT WHILST THE PROCEDURE PROVIDED FOR IN ARTICLES 92 AND 93 LEAVES A WIDE DISCRETION TO THE COMMISSION , AND IN CERTAIN CONDITIONS TO THE COUNCIL , TO COME TO A DECISION REGARDING THE COMPATIBILITY OF A SYSTEM OF AIDS GRANTED BY STATES WITH THE REQUIREMENTS OF THE COMMON MARKET IT IS CLEAR FROM THE GENERAL PLAN OF THE TREATY THAT THAT PROCEDURE MUST NEVER PRODUCE A RESULT WHICH IS CONTRARY TO THE SPECIFIC PROVISIONS OF THE TREATY CONCERNING , FOR EXAMPLE , INTERNAL TAXATION . IF THE COURT IS LED TO DECLARE THE IMPOSITION OF THE SURCHARGE TO THE PROVISIONS OF ARTICLE 95 THE PROCEDURE WHICH THE COMMISSION HAS INITIATED UNDER ARTICLES 92 UND 93     CANNOT IN CONSEQUENCE LEAD TO MAINTAINING THAT CHARGE IN ITS PRESENT FORM . CONSEQUENTLY THE PROCEEDINGS INSTITUTED UNDER ARTICLE 169 AGAINST A MEMBER STATE CANNOT BE SUCH AS TO JEOPARDIZE THE INTEREST WHICH THE MEMBER STATE MAY HAVE IN MAINTAINING A SYSTEM OF AIDS HELD COMPATIBLE WITH THE REQUIREMENTS OF THE COMMON MARKET AS A RESULT OF A PROCEDURE INITIATED UNDER ARTICLES 92 AND 93 .
INFRINGEMENT OF ARTICLE 95 OF THE TREATY
15 THE SURCHARGE IS INDEED A CHARGE IMPOSED ON DOMESTIC PRODUCTS AND IMPORTED PRODUCTS ON THE BASIS OF IDENTICAL CRITERIA . HOWEVER , IN AN INTERPRET    ATION OF THE CONCEPT ' ' INTERNAL TAXATION ' '  FOR THE PURPOSES OF ARTICLE 95 IT MAY BE NECESSARY TO TAKE INTO ACCOUNT THE PURPOSE TO WHICH THE REVENUE FROM THE CHARGE IS PUT . IN FACT , 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 .
22 CONSEQUENTLY THE SURCHARGE MUST BE CONSIDERED AS A CHARGE WHICH , ALTHOUGH LEVIED AT THE SAME RATE ON SUGAR PRODUCED IN ITALY AND SUGAR FROM OTHER MEMBER STATES , DOES NOT CONSTITUTE A UNIFORM IMPOSITION ON THOSE PRODUCTS SINCE IT CONSTITUTES AN UNEQUAL BURDEN ON THE DOMESTIC PRODUCTS WHICH BENEFIT FROM ITS IMPOSITION AND ON THE IMPORTED PRODUCTS WHICH ARE LIABLE TO THE CHARGE BUT DO NOT DERIVE THE BENEFIT .