Haahr Petroleum Ltd v Åbenrå Havn, Ålborg Havn, Horsens Havn, Kastrup Havn NKE A/S, Næstved Havn, Odense Havn, Struer Havn and Vejle Havn, and Trafikministeriet.
Date: 1997-07-17
19 The Court has consistently held (see, inter alia, Case C-266/91 CELBI [1993] ECR I-4337, paragraph 9) 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.
20 The Court has also consistently held (see, in particular, Case C-45/94 Cámara de Comercio, Industria y Navegación, Ceuta [1995] ECR I-4385, paragraph 28) that any pecuniary charge, 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 within the meaning of Articles 9, 12, 13 and 16 of the EEC Treaty.  However, such a charge may not be so characterized if it forms part of a general system of internal dues applying systematically to categories of products according to objective criteria applied without regard to the origin of the products, in which case it falls within the scope of Article 95 of the Treaty.
21 In the first place, a duty such as the general goods duty at issue in the main proceedings, forms part, together with shipping duty in particular, of a general system of internal taxes payable for the use of commercial ports and their facilities.
22 Second, it should be noted that with the exception of certain classes of exempt goods that tax is payable on all goods loaded, unloaded, or otherwise taken on board or landed within commercial ports, whether those goods arrive in port from another Member State or from another commercial port in the same Member State.
23 Third, it should be observed that that duty is imposed on goods, both domestic and imported, at the same time and in accordance with the same objective criteria, namely when they are taken on board or put ashore and according to the type of goods and their weight.
24 Fourth, an import surcharge such as that in issue in the main proceedings, which increases the general goods duty levied on imported goods, is an integral part of the duty itself and is not a separate duty, since the amount of the surcharge is expressed as a percentage of the duty and the surcharge and the duty are levied on the same legal basis, at the same time, in accordance with the same criteria and through the same authorities and the revenue raised thereby is paid to the same recipients.
25 That being so, the fact that the import surcharge is payable ex hypothesi solely on imported goods and that the origin of the goods determines the amount of the duty to be levied cannot remove the tax in general or the surcharge in particular from the scope of Article 95 of the Treaty; accordingly, their compatibility with Community law must be assessed in the light of that provision and not Articles 9 to 13 of the Treaty.
26 Here, it should first be stated that the Court has consistently held that Article 95 of the Treaty applies only to products from the Member States and, where appropriate, to goods originating in non-member countries which are in free circulation in the Member States.  It follows that that provision is not applicable to products imported directly from non-member countries (Case C-130/92 OTO [1994] ECR I-3281, paragraph 18).
29 It is true that, as the Court has consistently held (Case 196/85 Commission v France [1987] ECR 1597, paragraph 6), at its present stage of development Community law does not restrict the freedom of each Member State to lay down tax arrangements which differentiate between certain products, even products which are similar within the meaning of the first paragraph of Article 95 of the Treaty, on the basis of objective criteria, such as the nature of the raw materials used or the production processes employed.  Such differentiation is compatible with Community law, however, only if it pursues objectives of economic policy which are themselves compatible with the requirements of the Treaty and its secondary legislation, and if the detailed rules are such as to avoid any form of discrimination, direct or indirect, in regard to imports from other Member States or any form of protection of competing domestic products.
30 The Court has earlier held that a criterion for the charging of higher taxation which by definition can never be fulfilled by similar domestic products cannot be considered to be compatible with the prohibition of discrimination laid down in Article 95 of the Treaty.  Such a system has the effect of excluding domestic products in advance from the heaviest taxation (Case 319/81 Commission v Italy [1983] ECR 601, paragraph 17).  Likewise, the Court has held that such differential taxation is incompatible with Community law if the products most heavily taxed are, by their very nature, imported products (Case 106/84 Commission v Denmark [1986] ECR 833, paragraph 21).
34 It is clear from the Court's case-law (in particular, Case C-152/89 Commission v Luxembourg [1991] ECR I-3141, paragraphs 20 to 25) that a system of taxation can be considered compatible with Article 95 of the Treaty only if it is proved to be so arranged as to exclude any possibility of imported products being taxed more heavily than domestic products, so that it cannot in any event have discriminatory effect.
35 As for the question of whether a discriminatory duty, such as that in issue in the main proceedings, may escape the prohibition laid down in Article 95 on the ground that it represents consideration for a service, it suffices to recall that, in accordance with the case-law relied on by the defendant ports and the Ministry of Transport (in particular Case 46/76 Bauhuis [1977] ECR 5, paragraph 11, and Case C-209/89 Commission v Italy [1991] ECR I-1575, paragraph 9), the fact that a pecuniary charge constitutes consideration for a service actually supplied to traders and is of an amount commensurate with that service merely enables it to escape classification as a charge having equivalent effect within the meaning of Article 9 et seq. of the Treaty, and does not mean that it escapes the prohibition of all discriminatory internal taxation laid down in Article 95.
36 The defendant ports and the Ministry of Transport claim also that a duty such as that in issue in the main proceedings falls outside the scope of Article 95 of the Treaty and the prohibition which it lays down since that duty pursues legitimate transport policy objectives, namely the financing of commercial ports and charging long-distance sea transport proportionately more than short-distance traffic.  They add that it is clear from Case C-49/89 Corsica Ferries France [1989] ECR 4441 that charges pursuing a transport policy objective must be assessed in the light of the Treaty rules on transport, in particular Article 84(2), and of Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport between Member States and between Member States and third countries (OJ 1986 L 378, p. 1).
37 It is to be noted that the fact that a tax or levy is a special charge or is appropriated for a specific purpose cannot prevent its falling within the field of application of Article 95 of the Treaty (see Case 74/76 Iannelli v Meroni [1977] ECR 557, paragraph 19) nor, where appropriate, the prohibition laid down by that provision.
38 Next, it should be pointed out that a charge such as that in issue in the main proceedings is imposed on products and is borne by the recipient or sender of goods, even where it has been levied on the transport of goods or the use of commercial ports and has first to be paid by the vessel or its local agent.
40 Furthermore, the Court has already ruled that a charge imposed on the transport of goods according, inter alia, to the weight of the goods falls within the scope of Article 95 of the Treaty and, in so far as it has an immediate effect on the cost of national and imported products, must be applied in a manner which is not discriminatory to imported products (Case 20/76 Schöttle v Finanzamt Freudenstadt [1977] ECR 247, paragraphs 15 and 16).
42 The Court has consistently held that if a charge is incompatible with Article 95 of the Treaty, it is prohibited to the extent to which it discriminates against imported products (see, to this effect, Case 68/79 Just [1980] ECR 501, paragraph 14, and Case C-72/92 Scharbatke [1993] ECR I-5509, paragraph 10).
46 It should first be recalled that it is settled case-law that in the absence of Community rules governing a matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for recovery of sums unduly paid, provided, however, that such rules may not be less favourable than those governing similar domestic actions and may in no circumstances be so framed as to render virtually impossible or excessively difficult in practice the exercise of rights conferred by Community law (see, in particular, Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12, and Case C-212/94 FMC [1996] ECR I-389, paragraph 71).
47 That case-law is also applicable to national time-limits which, if unobserved, bar proceedings (see in particular, in addition to FMC and Emmott, cited above, Case C-33/76 Rewe [1976] ECR 1989 and Case 45/76 Comet [1976] ECR 2043).
48 It is apparent from the case-law, in particular from the Rewe and Comet judgments, that the laying down of reasonable limitation periods, which is an application of the fundamental principle of legal certainty, satisfies the two conditions referred to above and, in particular, cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought.
49 Finally, a limitation period of five years, such as that in issue in the main proceedings, must be considered to be reasonable.
52 In paragraph 17 of that judgment, the Court expressly recounted the principle that the fixing of reasonable time-limits which, if unobserved, bar proceedings, satisfies the conditions laid down in the decisions referred to.  It was only because of the particular nature of directives and having regard to the specific circumstances of that case that the Court held, in paragraph 23, that until such time as a directive has been properly transposed into domestic law, a Member State may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.
53 Since the claim for reimbursement referred to in Question 5 is not based on the direct effect of a directive incorrectly transposed into domestic law, but rather on the effect of a provision of the Treaty, the answer to this question must be that application to a claim for repayment based on breach of Article 95 of a rule of national law under which proceedings for recovery of charges unduly paid are time-barred after a period of five years is not contrary to Community law, even if the effect of that rule is to prevent, in whole or in part, the repayment of those charges.