1 BY AN ORDER OF 26 NOVEMBER 1975 WHICH WAS RECEIVED AT THE COURT ON 19 DECEMBER 1975 THE FINANZGERICHT , DUSSELDORF , REFERRED THREE QUESTIONS TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY RELATING TO THE INTERPRETATION OF THE FIRST PARAGRAPH OF ARTICLE 95 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY . THESE QUESTIONS WERE RAISED DURING AN ACTION BROUGHT BEFORE THAT COURT IN CONNEXION WITH THE TAXATION IN THE FEDERAL REPUBLIC OF GERMANY OF IMPORTS OF ORDINARY BEER FROM BELGIUM IN 1968 AND 1969 . IT IS APPARENT FROM THE FILE THAT A FLAT-RATE TAX OF DM 14.40 PER HECTOLITRE AS PROVIDED FOR IN PARAGRAPH 6 OF THE BIERSTEUERGESETZ WAS LEVIED IN THE FEDERAL REPUBLIC OF GERMANY IN 1968 AND 1969 ON IMPORTS OF ORDINARY BEER , WHEREAS HOME-PRODUCED BEER IS SUBJECT UNDER PARAGRAPH 3 OF THIS LAW TO A GRADUATED TAX INCREASING FROM DM 12 PER HECTOLITRE ON THE FIRST 2 000 HECTOLITRES PER YEAR UP TO DM 15 PER HECTOLITRE ON QUANTITIES EXCEEDINGS 120 000 HECTOLITRES PER YEAR . THE FIRST QUESTION
2 THE FIRST QUESTION IS WHETHER IT IS COMPATIBLE WITH THE FIRST PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY FOR A FLAT-RATE TAX OF DM 14.40 PER HECTOLITRE TO BE APPLIED UNDER GERMAN LEGISLATION TO ORDINARY BEER IMPORTED INTO THE FEDERAL REPUBLIC FROM OTHER MEMBER STATES WHILST THE AVERAGE RATE OF THE TAX ON THE SIMILAR DOMESTIC PRODUCT IS APPROXIMATELY DM 13.90 PER HECTOLITRE AND PART OF THE LATTER PRODUCT IS IN ANY EVENT SUBJECT TO A LOWER RATE OF TAX THAN THAT APPLIED TO IMPORTED BEER BECAUSE OF THE GRADUATED TAXATION LAID DOWN IN THE ABOVEMENTIONED LEGISLATION .
3 AS PROVIDED FOR IN THE FIRST PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY ' NO MEMBER STATE SHALL IMPOSE , DIRECTLY OR INDIRECTLY , ON THE PRODUCTS OF OTHER MEMBER STATES ANY INTERNAL TAXATION OF ANY KIND IN EXCESS OF THAT IMPOSED DIRECTLY OR INDIRECTLY ON SIMILAR DOMESTIC PRODUCTS ' . THIS PROVISION SEEKS TO ENSURE , BY MEANS OF THE PROHIBITION WHICH IT LAYS DOWN , THAT AN IMPORTING MEMBER STATE DOES NOT , BY MEANS OF INTERNAL TAXATION OF IMPORTED PRODUCTS AND SIMILAR DOMESTIC PRODUCTS , GIVE DOMESTIC TRADERS PREFERENTIAL TREATMENT AS COMPARED WITH THEIR COMPETITORS FROM OTHER MEMBER STATES WHO SELL SIMILAR PRODUCTS ON THE MARKET OF THAT STATE . ALTHOUGH UNDER THIS PROVISION A MEMBER STATE MAY APPLY TO THE IMPORTED PRODUCT A SYSTEM OF TAXATION DIFFERENT FROM THE ONE TO WHICH THE SIMILAR DOMESTIC PRODUCT IS SUBJECT , IT MAY ONLY DO SO IF THE CHARGE TO TAX ON THE IMPORTED PRODUCT REMAINS AT ALL TIMES THE SAME AS OR LOWER THAN THE CHARGE APPLICABLE TO THE SIMILAR DOMESTIC PRODUCT . CONSEQUENTLY THE FIRST PARAGRAPH OF ARTICLE 95 WOULD BE INFRINGED IF THE TAX ON THE IMPORTED PRODUCT AND THAT APPLIED TO THE SIMILAR DOMESTIC PRODUCT WERE CALCULATED IN A DIFFERENT WAY AND IN ACCORDANCE WITH DIFFERENT RULES , LEADING , EVEN IF ONLY IN CERTAIN CASES , TO LOWER TAXATION OF THE DOMESTIC PRODUCT .
4 THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE THAT THE LEVYING BY A MEMBER STATE OF A TAX ON A PRODUCT IMPORTED FROM ANOTHER MEMBER STATE IN ACCORDANCE WITH A METHOD OF CALCULATION OR RULES WHICH DIFFER FROM THOSE USED FOR THE TAXATION OF THE SIMILAR DOMESTIC PRODUCT , FOR EXAMPLE A FLAT-RATE AMOUNT IN ONE CASE AND A GRADUATED AMOUNT IN THE OTHER , WOULD BE INCOMPATIBLE WITH THE FIRST PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY IF THE LATTER PRODUCT WERE SUBJECT , EVEN IF ONLY IN CERTAIN CASES , BY REASON OF GRADUATED TAXATION , TO A CHARGE TO TAX LOWER THAN THAT ON THE IMPORTED PRODUCT . THE SECOND QUESTION
5 THE NEXT QUESTION IS WHETHER THE FIRST PARAGRAPH OF ARTICLE 95 OF THE TREATY PRECLUDES THE TAXATION OF BEER IMPORTS INTO THE FEDERAL REPUBLIC OF GERMANY AT THE RATES LAID DOWN IN PARAGRAPH 3 OF THE ' BIERSTEUERGESETZ ' , APPLIED TO THE QUANTITIES OF BEER IMPORTED YEARLY FROM OTHER MEMBER STATES BY EACH IMPORTER AND NOT TO THE QUANTITIES OF BEER PRODUCED EVERY YEAR BY EACH BREWERY .
6 A SYSTEM OF TAXATION SUCH AS THE ONE PRESENTLY IN FORCE IN GERMANY AS REGARDS HOME-PRODUCED BEER AND BASED ON THE APPLICATION OF A GRADUATED RATE OF TAX VARYING ACCORDING TO THE QUANTITIES PRODUCED BY A SINGLE BREWERY , IS CLEARLY DIFFERENT FROM A SYSTEM OF TAXATION BASED ON THE APPLICATION OF THE SAME GRADUATED RATE OF TAX ACCORDING TO THE QUANTITIES WHICH ARE IMPORTED BY A SINGLE IMPORTER BUT WHICH MAY COME FROM SEVERAL BREWERIES OF OTHER MEMBER STATES . THIS DIFFERENCE MAY RESULT IN BEER IMPORTED FROM A SPECIFIC COUNTRY BEING AT A DISADVANTAGE AS COMPARED WITH THE SIMILAR DOMESTIC PRODUCT , IF THE FOREIGN BEER IS SUBJECT TO A TAX CALCULATED ON THE TOTAL QUANTITY IMPORTED BY A SINGLE IMPORTER IN ONE YEAR WHICH MAY INCLUDE BEER FROM SEVERAL BREWERIES OF OTHER MEMBER STATES , WHEREAS HOME-PRODUCED BEER IS SUBJECT TO A TAX CALCULATED ON THE TOTAL QUANTITY PRODUCED BY EACH BREWERY .
7 CONSEQUENTLY THE ANSWER TO THE SECOND QUESTION REFERRED BY THE NATIONAL COURT MUST BE THAT TO EXTEND THE GRADUATED RATES OF TAX LAID DOWN FOR HOME-PRODUCED BEER TO BEER IMPORTED INTO A MEMBER STATE BY APPLYING THOSE RATES TO THE QUANTITY OF BEER IMPORTED YEARLY BY A SINGLE IMPORTER , WHILE AT THE SAME TIME TAXING HOME-PRODUCED BEER WITH REFERENCE TO THE QUANTITY OF BEER PRODUCED DURING ONE YEAR BY EACH BREWERY , IS INCOMPATIBLE WITH THE FIRST PARAGRAPH OF ARTICLE 95 IN SO FAR AS BEER COMING FROM A BREWERY IN ANOTHER MEMBER STATE DURING ONE YEAR BEARS A HIGHER TAX THAN THAT LEVIED ON AN EQUIVALENT QUANTITY OF BEER PRODUCED BY A DOMESTIC BREWERY DURING THE SAME PERIOD . THE THIRD QUESTION
8 THE THIRD QUESTION ASKS , SHOULD THE ANSWER TO THE SECOND QUESTION BE IN THE NEGATIVE , WHAT ARE THE CRITERIA FOR CALCULATING THE TAX RATES TO BE APPLIED TO IMPORTED BEER AND WITHIN WHAT LIMITS MUST THE SAID RATES BE CONFINED IN ORDER TO COMPLY WITH THE REQUIREMENTS OF THE FIRST PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY .
9 ALTHOUGH THIS PROVISION PREVENTS TAXES BEING LEVIED ON THE PRODUCTS OF OTHER MEMBER STATES WHICH ARE HIGHER THAN THE TAXES APPLICABLE TO SIMILAR DOMESTIC PRODUCTS , IT DOES NOT HOWEVER RESTRICT THE FREEDOM OF EACH MEMBER STATE TO ESTABLISH THE SYSTEM OF TAXATION WHICH IT CONSIDERS THE MOST SUITABLE IN RELATION TO EACH PRODUCT . CONSEQUENTLY THE APPLICATION TO HOME-PRODUCED BEER OF A GRADUATED TAX CALCULATED ON THE BASIS OF THE YEARLY PRODUCTION OF EACH BREWERY IS A MATTER WHICH FALLS WITHIN THE DISCRETION OF EACH STATE . HOWEVER , IT IS THE SYSTEM OF TAXATION CHOSEN BY EACH MEMBER STATE IN RELATION TO A SPECIFIC DOMESTIC PRODUCT WHICH CONSTITUTES THE POINT OF REFERENCE FOR THE PURPOSES OF DETERMINING WHETHER THE TAX APPLIED TO THE SIMILAR PRODUCT OF ANOTHER MEMBER STATE COMPLIES WITH THE REQUIREMENTS OF THE FIRST PARAGRAPH OF ARTICLE 95 OR NOT .
10 IF THEREFORE A MEMBER STATE HAS ELECTED TO APPLY TO HOME-PRODUCED BEER A GRADUATED TAX CALCULATED ON THE BASIS OF THE QUANTITY WHICH EACH BREWERY PRODUCES IN ONE YEAR , THE FIRST PARAGRAPH OF ARTICLE 95 IS ONLY FULLY COMPLIED WITH IF THE FOREIGN BEER IS ALSO TAXED AT A RATE , THE SAME OR LOWER , APPLIED TO THE QUANTITIES OF BEER PRODUCED BY EACH BREWERY DURING THE PERIOD OF ONE YEAR .