F. G. Roders BV and others v Inspecteur der Invoerrechten en Accijnzen.
Date: 1995-08-11
13 It must first be observed that, although in proceedings under Article 177 of the Treaty the Court may not rule on the compatibility of national provisions with Community law, it is nevertheless competent to provide the national court with all the elements of interpretation under Community law to enable it to assess such compatibility for the purpose of deciding the case before it (see, in particular, Case C-143/91 Van der Tas [1992] ECR I-5045, paragraph 12).
15 As the Court has consistently held, the aim of Article 95 as a whole is to ensure free movement of goods between the Member States in normal conditions of competition by the elimination of all forms of protection which may result from the application of internal taxation that discriminates against products from other Member States. Thus Article 95 must guarantee the complete neutrality of internal taxation as regards competition between domestic products and imported products (see Case C-47/88 Commission v Denmark [1990] ECR I-4509, paragraph 9).
18 On that point, the Netherlands Government submits that, in the present case, that definition depends on the relationship between Article 95 and the Benelux rules mentioned above. Under Article 233 of the Treaty, the provisions of Community law are not to preclude the existence or completion of the union between Belgium, Luxembourg and the Netherlands, to the extent that the objectives of that union are not attained by application of the Treaty. The Court has interpreted that provision as having the aim of preventing the application of Community law from bringing about the disintegration of the regional union or from hindering its development. Article 233 therefore enables the three Member States concerned to apply, in derogation from the Community rules, the rules in force within their union in so far as it is further advanced than the common market (Case 105/83 Pakvries v Minister for Agriculture and Fisheries [1984] ECR 2101, paragraph 11).
25 Such tax discrimination against imported products cannot be regarded as necessary for the functioning of the Benelux system and, therefore, as justified on the basis of Article 233 of the Treaty.
Similarity of the products in question
27 According to the settled case-law of the Court, which has interpreted the concept of similarity widely, in order to determine whether products are similar it is necessary to consider whether they have similar characteristics and meet the same needs from the point of view of consumers, the test being not whether they are strictly identical but whether their use is similar and comparable. As regards, more particularly, the question whether fruit wines are similar to grape wines, the Court has stated that it is necessary to consider objective characteristics of both categories of beverage, such as their origin, their method of manufacture and their organoleptic properties, in particular taste and alcohol content, and, secondly, to consider whether or not both categories of beverage are capable of meeting the same needs from the point of view of consumers (see the judgment in Case 106/84 Commission v Denmark [1986] ECR 833, paragraph 12).
30 In paragraphs 14 and 15 of its judgment in Case 106/84, the Court found that table wines, whether fruit wines or grape wines, are made from the same kind of basic products, namely agricultural products, and by the same process, namely natural fermentation. It further observed that the two categories of wine possess similar organoleptic properties ° in particular taste and alcohol strength ° and meet the same needs of consumers, inasmuch as they can be consumed for the same purposes, namely both to quench thirst and to refresh, and to accompany meals.
38 In that connection the Court has already observed that the second paragraph of Article 95 of the Treaty is intended to prevent any form of indirect fiscal protectionism affecting imported products which, although not similar, within the meaning of the first paragraph of Article 95, to domestic products, are nevertheless in a competitive relationship with some of them, even if only partially, indirectly or potentially (see the judgment in Case 356/85 Commission v Belgium [1987] ECR 3299, paragraph 7).
39 The Court has also consistently held that the assessment of the compatibility of a fiscal charge with the second paragraph of Article 95 must take account of the impact of that charge on the competitive relationships between the products concerned. The essential question is therefore whether or not the charge is of such a kind as to have the effect, on the market in question, of reducing potential consumption of the imported products to the advantage of competing domestic products (see the judgment in Case 356/85, paragraph 15). In that connection, the national court must have regard to the difference between the selling prices of the products in question and the impact of that difference on the consumer' s choice, as well as to changes in the consumption of those products.
42 It is settled case-law that the interpretation which, in the exercise of the jurisdiction conferred upon it by Article 177 of the Treaty, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. It follows that the rule so interpreted may, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction are satisfied (see the judgment in Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana [1980] ECR 1205, paragraph 16).
43 In view of those principles, limiting the effects of a judgment giving a preliminary ruling on a matter of interpretation appears to be quite exceptional (see, in particular, the judgment in Case 61/79 Denkavit Italiana, paragraph 17). The Court has taken such a step only in certain specific circumstances, where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force, and where it appeared that both individuals and national authorities had been led into adopting practices which did not comply with Community law by reason of objective, significant uncertainty regarding the implications of Community provisions, to which the conduct of other Member States or the Commission may even have contributed (see, in particular, the judgment in Case C-163/90 Administration des Douanes et Droits Indirects v Legros and Others [1992] ECR I-4625).
45 Both the interpretation of Article 95 and the question of its direct applicability have been dealt with in a long-standing, copious and varied body of case-law which has dispelled all doubts regarding the scope of that provision (see, in particular, Joined Cases 142/80 and 143/80 Amministrazione delle Finanze dello Stato v Essevi and Salengo [1981] ECR 1413, paragraph 33). It should also be noted that on 17 October 1990 the Commission commenced infringement proceedings against the Kingdom of the Netherlands precisely on the ground that the legislation in question in the main proceedings was incompatible with Article 95 of the Treaty. Those proceedings were subsequently abandoned after the Netherlands adopted new legislation regulating the matter, which entered into force on 1 January 1993.
48 Firstly, the financial consequences which might ensue for a government owing to the unlawfulness of a tax have never justified in themselves limiting the effects of a judgment of the Court (see Case C-200/90 Dansk Denkavit and Poulsen v Skatteministeriet [1992] ECR I-2217). After all, if it were otherwise, the most serious infringements would receive more lenient treatment in so far as it is those infringements that are likely to have the most significant financial implications for Member States. Furthermore, to limit the effects of a judgment solely on the basis of such considerations would considerably diminish the judicial protection of the rights which taxpayers have under Community fiscal legislation.
49 Secondly, the Court has consistently held that, although Community law does not preclude account from being taken of the fact that the burden of the charges unlawfully levied may have been passed on to other traders or to consumers, it is for the Member States to ensure repayment of charges levied contrary to Article 95 in accordance with the provisions of their domestic law, on conditions which must not be less favourable than those relating to similar domestic actions and which must not in any case make it impossible in practice to exercise the rights conferred by Community law (see the judgment in Case 68/79 Just v Ministry for Fiscal Affairs [1980] ECR 501, paragraph 27).