1BY ORDER OF 2 NOVEMBER 1977 , WHICH REACHED THE COURT ON 18 NOVEMBER 1977 , KOEBENHAVNS BYRET REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS FOR A PRELIMINARY RULING ON THE INTERPRETATION OF THE CONCEPTS OF CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON EXPORTS WITHIN THE MEANING OF ARTICLE 16 AND OF INTERNAL TAXATION WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY IN RELATION TO THE DANISH LEGISLATION ON THE CONTROL OF ARTICLES OF PRECIOUS METAL .
2THESE QUESTIONS WERE RAISED WITHIN THE CONTEXT OF A DISPUTE BETWEEN THE STATENS KONTROL MED AEDLE METALLER ( NATIONAL AUTHORITY FOR THE CONTROL OF PRECIOUS METALS ) AND TWO GOLDSMITHS OVER THE PAYMENT OF THE CHARGE INTRODUCED TO COVER THE EXPENSES OF THE SUPERVISION OF UNDERTAKINGS MANUFACTURING , IMPORTING OR DEALING IN ARTICLES OF PRECIOUS METAL .
3IT RESULTS FROM THE FILE THAT THE DISPUTE BROUGHT BEFORE THE NATIONAL COURT IS ESSENTIALLY CAUSED BY THE UNCERTAINTIES WHICH EXISTED IN THE DANISH LEGISLATION AS TO WHETHER OR NOT PRECIOUS METAL WORKED IN DENMARK AND EXPORTED IN THE FORM OF ARTICLES NOT BEARING A DANISH MARK MUST BE INCLUDED IN THE CHARGEABLE CONSUMPTION ON WHICH THE TAXATION OF THE UNDERTAKINGS IS ASSESSED .
4BY JUDGMENT OF 4 MARCH 1975 KOEBENHAVNS BYRET FOUND IN FAVOUR OF THE GOLDSMITHS IN THESE CASES , ACKNOWLEDGING THAT THERE IS NO NEED , FOR THE PURPOSE OF ESTABLISHING THE BASIS OF THE ASSESSMENT TO THE TAX , TO INCLUDE THE CONSUMPTION OF PRECIOUS METAL USED IN THE MANUFACTURE OF GOODS EXPORTED WITHOUT THE APPLICATION OF THEIR MARK .
5THE STATENS KONTROL MED AEDLE METALLER APPEALED AGAINST THAT JUDGMENT AND THE OESTRE LANDSRET ( COURT OF APPEAL FOR EASTERN DENMARK ), BY JUDGMENT OF 21 OCTOBER 1976 , DISMISSED THE ARGUMENTS PUT FORWARD BY THE GOLDSMITHS AND RULED THAT THE CONSUMPTION OF PRECIOUS METAL EXPORTED WITHOUT APPLICATION OF ITS MARK MUST BE INCLUDED IN THE CHARGEABLE CONSUMPTION OF THE EXPORTING UNDERTAKING .
6AS THE GOLDSMITHS CONCERNED RELIED , IN THE ALTERNATIVE , ON THE ARGUMENT THAT THE LEVYING OF SUCH A CHARGE WAS CONTRARY TO THE EEC TREATY , THE OESTRE LANDSRET REFERRED THE CASE TO KOEBENHAVNS BYRET FOR THE EXAMINATION OF THAT QUESTION .
7AS A RESULT OF THAT REFERENCE , KOEBENHAVNS BYRET REFERRED TO THE COURT FOUR QUESTIONS FOR A PRELIMINARY RULING WORDED AS FOLLOWS : 1 . DOES A LEVY WHICH IS IMPOSED UPON UNDERTAKINGS MANUFACTURING , IMPORTING OR DEALING IN ARTICLES OF PRECIOUS METAL IN ORDER TO MEET THE COSTS OF THE SUPERVISION OF SUCH UNDERTAKINGS BY THE AUTHORITIES AND WHICH IS CALCULATED ON THE BASIS OF THE UNDERTAKINGS ' CONSUMPTION OF PRECIOUS METALS CONSTITUTE A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON EXPORTS WITHIN THE MEANING OF ARTICLE 16 OF THE EEC TREATY WHEN IT IS IMPOSED UPON ALL UNDERTAKINGS WHICH ARE SUBJECT TO SUCH SUPERVISION IN ACCORDANCE WITH PROVISIONS WHEREBY ONE AND THE SAME ARTICLE IS ONLY SUBJECT TO CHARGE ON ONE OCCASION IN DENMARK IRRESPECTIVE OF WHETHER IT IS AGAIN SUBJECT TO CHARGE ABROAD? 2 . WHERE MANUFACTURE IS EFFECTED FOR OTHER PERSONS BUT THE MANUFACTURER DOES NOT APPLY HIS OWN MARK IS THE ANSWER TO QUESTION 1 AFFECTED BY THE FACT THAT SUCH CONSUMPTION OF PRECIOUS METAL IS NOT INCLUDED IN THE CALCULATION OF THE CHARGEABLE VALUE WHEN SUCH GOODS ARE MANUFACTURED FOR A DANISH OWNER OF A MARK SINCE THE LATTER INCLUDES SUCH PRECIOUS METALS IN THE ACCOUNT OF HIS CHARGEABLE CONSUMPTION WHILST THE CONSUMPTION MUST BE INCLUDED WHEN MANUFACTURE IS FOR A FOREIGN UNDERTAKING WHICH IS NOT SUBJECT TO THE CHARGE IN DENMARK SINCE SUCH CONSUMPTION WOULD NOT OTHERWISE BE INCLUDED IN THE BASIS FOR THE DANISH LEVY , STILL IRRESPECTIVE OF WHETHER IT IS AGAIN SUBJECT TO CHARGE ABROAD? 3 . IN THIS CONNEXION IS IT RELEVANT THAT THE PRECIOUS METAL WHICH IS MADE UP IN DENMARK IS SUPPLIED TO THE DANISH MANUFACTURER BY THE FOREIGN CUSTOMER IN QUESTION TO WHOM THE FINISHED PRODUCT IS RE-EXPORTED? 4 . IF SUCH A LEVY IS NOT REGARDED AS CONSTITUTING A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON EXPORTS IS IT TO BE REGARDED AS INTERNAL TAXATION ( ON THE IMPORTED QUANTITY OF GOLD ) CONTRARY TO THE FIRST PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY? THE FIRST , SECOND AND THIRD QUESTIONS ( INTERPRETATION OF ARTICLE 16 )
8IT FOLLOWS FROM THE INFORMATION SUPPLIED BY KOEBENHAVNS BYRET THAT THE STATENS KONTROL MED AEDLE METALLER GENERALLY SUPERVISES ON THE NATIONAL TERRITORY THE PRODUCTION OF ARTICLES OF PRECIOUS METAL , IN OTHER WORDS GOLD , SILVER AND PLATINUM .
9THE COSTS OF THAT CONTROL ARE COVERED INTER ALIA BY CONTRIBUTIONS PAID BY THE UNDERTAKINGS IN THE FORM OF A CHARGE CALCULATED ON THE BASIS OF THE CONSUMPTION OF PRECIOUS METAL OF EACH UNDERTAKING .
10SO FAR AS ARTICLES MARKETED ON THE NATIONAL TERRITORY ARE CONCERNED , THE METAL USED BY EACH UNDERTAKING AND BEARING THE MARK OF THAT UNDERTAKING FORMS THE BASIS OF ASSESSMENT TO THAT CHARGE .
11ARTICLES NOT MARKED BY THE MANUFACTURER ARE EXEMPTED FROM THE CHARGE WHERE THEY ARE TRANSFERRED TO THE OWNER OF A MARK SINCE IN THAT CASE THE CONSUMPTION OF METAL IN QUESTION IS , ON ACCOUNT OF THE APPLICATION OF THE MARK , INCLUDED IN THE CHARGEABLE CONSUMPTION OF THE UNDERTAKING OWNING THE MARK .
12THE QUANTITIES OF METAL EXPORTED , WHICH ARE EXEMPTED BY THE LAW FROM THE DUTY OF MARKING , MUST BE INCLUDED IN THE CHARGEABLE CONSUMPTION OF THE EXPORTING UNDERTAKING , AS RESULTS FROM THE ABOVE-MENTIONED JUDGMENT OF THE OESTRE LANDSRET .
13THIS CHARGE IS EXPLAINED BY THE FACT THAT THOSE QUANTITIES OF METAL , WHICH ARE SUBJECT TO THE CONTROL ON THE SAME CONDITIONS AS METAL MARKETED ON THE NATIONAL TERRITORY , WOULD OTHERWISE ESCAPE ALL TAXATION IN THE ABSENCE OF THE APPLICATION OF A DANISH MARK .
14IT THEREFORE APPEARS THAT THE SYSTEM OF TAXATION IN QUESTION IS INTENDED TO MAKE SUBJECT TO TAX ALL PRECIOUS METAL USED BY DANISH UNDERTAKINGS AND THAT FOR THAT REASON ALL QUANTITIES OF METAL IMPORTED , DEALT IN ON THE ACTUAL TERRITORY OF DENMARK OR EXPORTED ARE INCLUDED IN THE CHARGEABLE CONSUMPTION OF THOSE UNDERTAKINGS ACCORDING TO THE SAME CRITERIA AND WITHOUT ANY DISTINCTION AS TO ORIGIN OR DESTINATION .
15IT IS THEREFORE A SYSTEM OF INTERNAL TAXATION IN THE SENSE IN WHICH THAT EXPRESSION IS USED IN ARTICLE 95 ET SEQ . OF THE TREATY .
16WHERE PRODUCTS INTENDED FOR EXPORT ARE INCLUDED IN THE CHARGEABLE CONSUMPTION OF THE EXPORTER , THE CHARGES LEVIED ON THAT ACCOUNT CANNOT BE DESCRIBED AS CHARGES HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY ON EXPORTS , SINCE THE CHARACTERISTIC OF THOSE DUTIES IS THAT THEY ARE IMPOSED SPECIFICALLY ON EXPORTED PRODUCTS AND NOT ON THE SAME PRODUCTS MARKETED ON THE NATIONAL TERRITORY ; THIS DOES NOT APPLY IN THE PRESENT CASE .
17IT FOLLOWS FROM THE FOREGOING THAT THE FIRST QUESTION MUST BE ANSWERED IN THE NEGATIVE AND THAT THE SECOND AND THIRD QUESTIONS ARE THEREFORE PURPOSELESS .
18THE SUBJECT-MATTER OF THE DISPUTE MUST THEREFORE BE EXAMINED EXCLUSIVELY FROM THE POINT OF VIEW OF THE SYSTEM OF THE TREATY AS REGARDS THE APPLICATION , IN INTRA-COMMUNITY TRADE , OF THE PROVISIONS ON INTERNAL TAXATION TO WHICH THE FOURTH QUESTION REFERS .
19WITHIN THIS CONTEXT , IT IS HOWEVER APPROPRIATE TO TAKE INTO ACCOUNT BOTH THE THIRD QUESTION ON CONTRACT WORK CARRIED OUT FOR A FOREIGN CUSTOMER AND AN ASPECT OF THE FIRST AND SECOND QUESTIONS ON THE POSSIBLE EFFECTS OF DOUBLE TAXATION WHEN PRECIOUS METALS ARE EXPORTED TO OTHER STATES . THE FOURTH QUESTION ( SCOPE OF ARTICLE 95 )
20THE FOURTH QUESTION CALLS FOR EXAMINATION OF THE PROBLEM WHETHER THE RULE AGAINST DISCRIMINATION LAID DOWN BY ARTICLE 95 OF THE TREATY IS ALSO APPLICABLE WHEN A DOMESTIC CHARGE IS IMPOSED ON A PRODUCT INTENDED FOR EXPORT AND , IF THE ANSWER IS IN THE AFFIRMATIVE , WHETHER A SYSTEM OF TAXATION SUCH AS THAT APPLIED IN DENMARK WITH REGARD TO THE CONTROL OF ARTICLES OF PRECIOUS METAL IS COMPATIBLE WITH THAT RULE AGAINST DISCRIMINATION .
21THE WORDING OF ARTICLE 95 REFERS ONLY TO THE DISCRIMINATORY APPLICATION OF SYSTEMS OF INTERNAL TAXATION TO PRODUCTS IMPORTED FROM OTHER MEMBER STATES .
22THE APPLICATION OF THE SAME SYSTEMS OF TAXATION TO EXPORTS IS REFERRED TO IN ARTICLES 96 TO 98 FROM THE POINT OF VIEW OF THE REPAYMENT OF EXCESSIVE TAXATION WHICH MAY DISTORT CONDITIONS OF TRADE WITHIN THE COMMON MARKET .
23IT FOLLOWS FROM A COMPARISON OF THOSE PROVISIONS THAT THE AIM OF THE TREATY IN THIS FIELD IS TO GUARANTEE GENERALLY THE NEUTRALITY OF SYSTEMS OF INTERNAL TAXATION WITH REGARD TO INTRA-COMMUNITY TRADE WHENEVER AN ECONOMIC TRANSACTION GOING BEYOND THE FRONTIERS OF A MEMBER STATE AT THE SAME TIME CONSTITUTES THE CHARGEABLE EVENT GIVING RISE TO A FISCAL CHARGE WITHIN THE CONTEXT OF SUCH A SYSTEM .
24IT THEREFORE SEEMS NECESSARY TO INTERPRET ARTICLE 95 AS MEANING THAT THE RULE AGAINST DISCRIMINATION WHICH FORMS THE BASIS OF THAT PROVISION ALSO APPLIES WHEN THE EXPORT OF A PRODUCT CONSTITUTES , WITHIN THE CONTEXT OF A SYSTEM OF INTERNAL TAXATION , THE CHARGEABLE EVENT GIVING RISE TO A FISCAL CHARGE .
25IT WOULD IN FACT BE INCOMPATIBLE WITH THE SYSTEM OF THE TAX PROVISIONS LAID DOWN IN THE TREATY TO ACKNOWLEDGE THAT MEMBER STATES , IN THE ABSENCE OF AN EXPRESS PROHIBITION LAID DOWN IN THE TREATY , ARE FREE TO APPLY IN A DISCRIMINATORY MANNER A SYSTEM OF INTERNAL TAXATION TO PRODUCTS INTENDED FOR EXPORT TO OTHER MEMBER STATES .
26ALTHOUGH IT IS TRUE THAT AS A GENERAL RULE THE STATES HAVE NO INTEREST IN CURBING THEIR EXPORTS BY MEASURES OF THAT KIND , IT IS HOWEVER IMPOSSIBLE TO RULE OUT THE POSSIBILITY OF SUCH DISCRIMINATION IN CASES SUCH AS THE EXPORT OF RARE PRODUCTS WHICH ARE PARTICULARLY VALUABLE OR ESPECIALLY SOUGHT AFTER .
27IT IS THEREFORE APPROPRIATE TO HOLD , AS THE COURT OF JUSTICE HAS ALREADY INDICATED IN ITS JUDGMENT OF 23 JANUARY 1975 ( P . J . VAN DER HULST ' S ZONEN V PRODUKTSCHAP VOOR SIERGEWASSEN , CASE 51/74 ( 1975 ) ECR 79 , PARAGRAPH 34 OF THE DECISION ), THAT ARTICLE 95 , CONSIDERED IN CONJUNCTION WITH THE OTHER TAX PROVISIONS LAID DOWN IN THE TREATY , MUST BE INTERPRETED AS ALSO PROHIBITING ANY TAX DISCRIMINATION AGAINST PRODUCTS INTENDED FOR EXPORT TO OTHER MEMBER STATES .
28IT IS APPROPRIATE TO APPRAISE , IN THE LIGHT OF THE FOREGOING , THE QUESTION WHETHER A SYSTEM OF INTERNAL TAXATION SUCH AS THE ONE AT ISSUE IN THE DISPUTE BROUGHT BEFORE KOEBENHAVNS BYRET IS COMPATIBLE WITH THE REQUIREMENTS OF THE TREATY .
29IN VIEW OF THE INFORMATION SUPPLIED BY THE NATIONAL COURT , IT IS IMPOSSIBLE TO CONSIDER AS DISCRIMINATORY A SYSTEM OF LEVIES SO ARRANGED THAT ALL UNDERTAKINGS USING PRECIOUS METAL ARE OBLIGED TO PAY THEIR SHARE OF TAX SO THAT PURELY NATIONAL TRANSACTIONS AND TRANSACTIONS RELATING TO THE IMPORT OR EXPORT OF THOSE METALS ARE MADE SUBJECT TO TAX ON THE SAME ACCOUNT .
30MORE PARTICULARLY , IF THE APPLICATION OF A MARK CONSTITUTES THE CONDITION FOR THE PLACING OF PRECIOUS METAL INTO CIRCULATION ON THE NATIONAL TERRITORY WITH THE RESULT THAT THE DUTY TO PAY TAX IS LINKED TO THE APPLICATION OF THE MARK BY THE UNDERTAKING IN QUESTION THERE IS NO DISCRIMINATION IN INCLUDING IN THE CHARGEABLE CONSUMPTION OF AN UNDERTAKING THE QUANTITIES OF METAL EXPORTED BY THE LATTER WITHOUT THE APPLICATION OF A MARK .
31THE SAME CONSIDERATION APPLIES TO THE CASE REFERRED TO IN THE THIRD QUESTION IN WHICH THE PRECIOUS METAL MADE UP ON THE NATIONAL TERRITORY WAS SUPPLIED TO THE MANUFACTURER BY A FOREIGN CUSTOMER TO WHOM THE FINISHED PRODUCT IS RE-EXPORTED , AS LONG AS SUCH A TRANSACTION FULFILS THE CONDITIONS TO WHICH THE NATIONAL LEGISLATION ATTACHES A DUTY TO PAY TAX IN THE CASE OF SIMILAR OPERATIONS CARRIED OUT ON THE NATIONAL TERRITORY EVEN IF , IN THE ABSENCE OF THE APPLICATION OF A MARK ON EXPORTS , THE PROCEDURE FOR TAXATION IS DIFFERENT .
32IT FOLLOWS FROM THE FIRST TWO QUESTIONS WHICH HAVE BEEN SUBMITTED THAT THE NATIONAL COURT ASKS WHETHER AN EXEMPTION FOR QUANTITIES OF PRECIOUS METAL EXPORTED WITHOUT THE APPLICATION OF A MARK WOULD BE JUSTIFIED IF THE PRODUCTS IN QUESTION WERE INTENDED TO UNDERGO A FRESH CONTROL , WITH THE LEVYING OF CHARGES IN RESPECT THEREOF , IN THE COUNTRY OF DESTINATION .
33IT IS NECESSARY TO OBSERVE IN THIS CONNEXION THAT THE EEC TREATY CONTAINS NO PROVISION PROHIBITING EFFECTS OF DOUBLE TAXATION OF THIS TYPE .
34ALTHOUGH THE ABOLITION OF SUCH EFFECTS IS DOUBTLESS DESIRABLE IN THE INTERESTS OF THE FREEDOM OF MOVEMENT OF GOODS , IT CAN HOWEVER ONLY RESULT FROM THE HARMONIZATION OF THE NATIONAL SYSTEMS UNDER ARTICLE 99 OR POSSIBLY ARTICLE 100 OF THE TREATY .
35AT PRESENT , COMMUNITY LAW DOES NOT HOWEVER CONTAIN ANY RULES WHICH PREVENT A MEMBER STATE FROM ALSO INCLUDING , IN THE APPLICATION OF A SYSTEM OF TAXATION INTENDED TO FINANCE THE CONTROL OF PRECIOUS METAL , PRODUCTS INTENDED FOR EXPORT .
36FOR THE SAME REASON , THE FACT THAT A SYSTEM OF TAXATION IS ARRANGED SO THAT THE SAME QUANTITY OF METAL MARKETED ON THE NATIONAL TERRITORY CAN BE INCLUDED ONLY ONCE FOR THE PURPOSE OF ESTABLISHING THE BASIS OF ASSESSMENT TO THE LEVY INTENDED TO FINANCE THE CONTROL OF PRECIOUS METAL IS NOT SUCH AS TO MAKE THE APPLICATION OF THE SAME TAX TO EXPORTED PRODUCTS APPEAR DISCRIMINATORY WHEN THE PROCEDURES FOR THE CONTROL AND FOR THE TAXATION OF IMPORTS IN OTHER STATES ARE NOT WITHIN THE INFLUENCE OF THE EXPORTING STATE .
37IT IS THEREFORE NECESSARY TO REPLY AS STATED ABOVE TO THE QUESTIONS SUBMITTED TO THIS COURT BY KOEBENHAVNS BYRET .