C-10/65

JUDGMENT OF THE COURT 8 JULY 1965<apnote>1</apnote>

Waldemar Deutschmann

v Federal Republic of Germany

(Reference for a preliminary ruling by the Verwaltungsgericht, Frankfurt-am-Main)

Case 10/65

Summary

FEDERAL REPUBLIC OF GERMANY, represented by the President of the ‘Außenhandelsstelle für Erzeugnisse der Ernahrung und Landwirtschaft' (Office for Foreign Trade in Foodstuffs and Agricultural Products) of Frank­ furt-am-Main,

defendant,

on the interpretation of Article 95 of the EEC Treaty, 1 — Language of the Case: German. 2 — CMLR.

JUDGMENT OF 8. 7. 1965 — CASE 10/65

THE COURT

composed of: Ch. L. Hammes, President, A. M. Donner (Rapporteur) and R. Lecourt, Presidents of Chambers, A. Trabucchi and W. Strauß, Judges,

I — Facts ences for foodstuffs and agricultural products originating in other Member Ac the request of the plaintiff in the States of the European Economic Com­ main action, in 1962, 1963 and 1964 the munity may not be made the subject ‘Außenhandelsstelle für Erzeugnisse der of any charge under the Law of 17 Ernahrung und Landwirtschaft' issued December 1951 on the imposition of to it import licences for foodstuffs and charges by the Außenhandelsstelle of agricultural products coming from other the Bundesministerium für Ernahrung, Member States of the EEC. On these Landwirtschaft und Forsten (BGB1. I, occasions the plaintiff was required to p. 969)? pay charges amounting to 1 943.19 DM The order of reference is based, inter under the Law of 17 December 1951 alia, upon the following considera­ on the imposition of charges by the tion: Außenhandelsstelle of the Federal Min­ 'The imposition of charges on the issue istry of Food, Agriculture and Forests, of import licences for foodstuffs or agri­ together with the Regulation on Char­ cultural products originating in other ges (Gebiihrenordnung) of 19 December Member States of the European Econ­ 1956, as it existed on 20 January 1958. omic Community appears to be an in­ Alleging that the imposition of the direct charge incompatible with the first charges infringes Articles 9, 12, 30 and paragraph of Article 95 of the EEC 95 of the EEC Treaty, the plaintiff ap­ Treaty in that similar domestic products plied to the Verwaltungsgericht, Frank­ are not subject to such taxation. It is furt-am-Main, for the annulment of true that the charge is imposed on the these requests for payment and an order issue of an import licence, but as these for the defendant to refund the charges products cannot foe imported without paid. such a licence, a charge imposed on its On 3 February 1965, the Third Cham­ issue is an indirect burden on the im­ ber of the Verwaltungsgericht decided ported product itself.' to refer the following question to the Court of Justice of the European Com­ munities : II — Procedure Must the first paragraph of Article 95 of the EEC Treaty be interpreted as The reference for a preliminary ruling meaning that the grant of import lic- made to the Court by the President of

the Third Chamber was received at the similar domestic product, has, by alter Registry on 16 February 1965. ing its price, the same effect on the free On 22 February the reference was noti movement of products as a customs fied to the parties to the main action, duty.' the Member States and the Commission These charges imposed on the issue of of the EEC by the Registrar of the import licences which form the subject Court. of this case correspond to this defini The written observations provided for tion. by Article 20 of the Statute of the 2) Article 95 of the Treaty does not Court were submitted: apply to charges having an effect equiva — on 21 April 1965 by the Commission lent to customs duties.

More mitted by the plaintiff in the main over, the obligation to abolish that taxa action, the Government of the Federal tion cannot be based on a directive of Republic of Germany and the Commis the Commission, and at the same time sion of the EEC. exist directly by virtue of the Treaty. The Advocate-General delivered his Thus, the two Articles are mutually ex opinion at the hearing on 3 June 1965. clusive in their application. Conse quently, Article 95 of the Treaty only applies to taxation which is imposed on III — Observations submit both imported and domestic products, ted under Article 20 although on the latter to a lesser extent. of the Statute of the Not only is this interpretation in accord

Ac customs duties), charges ('Gebühren) cording to the definition given by the and dues (‘Beiträge’). In German case Court in its judgment in Joined Cases law the distinction between a charge 2 and 3/62: and a tax is not clear. In this case, the 'A charge having equivalent effect with plaintiff claims that the charges in ques in the meaning of Articles 9 and 12, tion must be covered by the prohibition whatever it is called and whatever its contained in Article 95 of the EEC mode of application, may be regarded Treaty, since they constitute taxes in as a duty imposed unilaterally either the true sense. at the time of importation or subse As regards Article 95, the plaintiff quently, and which, if imposed speci claims that: fically upon a product imported from 1. This Article is directly applicable, a Member State to the exclusion of a since it lays down a clear and uncon-

percussions which, considered objecti­ Article 98. Administrative charges can­ not constitute taxes. vely, such taxation could have on trade between Member States. Taxation such 2. Confirmation of this interpretation is as the charges imposed by the Außen­ to be found in the sources of Article 95 handelsstelle are in fact taxes ('Steuern') and in the relationship between this Article and Article HI of GATT. capable of influencing trade between Member States. 3. It is impossible for the provisions of Thus, the wording, the spirit and the Articles 95 and 12 of the EEC Treaty purpose of Article 95 of the EEC Treaty to be applied at the same time. 'Cus­ clearly indicate that, as domestic taxa­ toms duties' and 'charges having equiv­ tion, the charges imposed by the alent effect' (Article 12) are not the Außenhandelsstelle must be included in same as 'taxation of any kind' (Article the concept of 'taxation of any kind' 95); it is clear from the judgment in to which this Article refers. Joined Cases 2 and 3/62 that the two 3. The charges imposed by the Außen­ concepts must be distinguished in the handelsstelle constitute indirect taxation. following way: Article 95 only applies 4. Moreover, they constitute discrimin­ where taxation is imposed on products atory taxation within the meaning of without regard to their origin, or where Article 95. it is imposed on products originating in other Member States in order to com­ In its judgment in Joined Cases 2 and 3/62, the Court described the gist of pensate for taxation on similar domestic Article 95 in the following terms: products or, where there are no similar products, in order to protect domestic 'Although the first paragraph of Article production. The concept of 'charges 95 by implication allows "taxation" on having an effect equivalent to customs an imported product, it is only to the duties' cannot include such charges as limited extent to which the same taxa­ those forming the subject of this tion is imposed equally upon similar action. domestic products.' 4. This is the only interpretation which No identical or similar taxation exists does not contravene the sense and spirit for domestic products; comparable of the provisions of the Treaty. charges are therefore not imposed on 5. In the light of the above, it is clear domestic products. that administrative charges imposed on

In order to define the scope of the abovementioned Article 95, it must be considered in relation to those other provisions the aim of which is to eliminate obstacles to the free movement of goods, in particular Articles 13 and 17.

The rules for the abolition, during the transitional period, of charges having an effect equivalent to customs duties are directly provided for in Article 13.

Article 17 provides that these rules shall also apply to customs duties of a fiscal nature.

This being so, Article 95, which lays down a different time-table for the pro­ gressive abolition of the obstacles referred to therein, cannot relate to a charge which is imposed either by reason of, or at the time of, importation and which, being imposed specifically upon a product imported from a

JUDGMENT OF 8. 7. 1965 — CASE 10/65

Member State to the exclusion of a similar domestic product, has, by altering its price, the same effect upon the free movement of goods as a customs duty.

The costs incurred by the Commission of the European Economic Com­ munity and the Government of the Federal Republic of Germany, which both submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Verwaltungsgericht, Frankfurt-am-Main, the decision as to costs is a matter for that court.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge Rapporteur; Upon hearing the parties to the main action and the Commission of the European Economic Community; Upon hearing the opinion of the Advocate-General; Having regard to Articles 13, 17 and 95 of the Treaty establishing the Euro­ pean Economic Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the Euro­ pean Economic Communities;

DEUTSCHMANN v GERMANY

THE COURT

hereby rules:

OPINION OF MR ADVOCATE-GENERAL GAND

DELIVERED ON 3 JUNE 1965 <apnote>1</apnote>

Mr President, its action, it maintained that the im­ Members of the Court, position of charges was contrary to the Law of 1951, in that the Regulation on During 1962, 1963 and 1964 the which calculation of the charges had Waldemar Deutschmann undertaking of been based laid down higher rates than Essen requested and obtained from the were necessary to cover the expenses of Außenhandelsstelle für Erzeugnisse der the Außenhandelsstelle during the finan­ Ernährung und Landwirtschaft import cial years in question. According to the licences for foodstuffs and agricultural information given to you by counsel, products (especially fruit and vegetables) since 1958 two rates have existed, that originating in other Member States of is, the general rate of 0.15 per cent. the Community. Having paid charges and the rate of 0.015 per cent. (one for these amounting to 1 943 DM under tenth of the former), which was im­ the Law of 17 December 1951 on the posed on twelve 'bulk products' (especi­ imposition of charges by the Außen­ ally cereals and raw materials for the handelsstelle and the Regulation on manufacture of margarine), imports of Charges of 19 December 1956, as it which were made in large quantities. As existed on 20 January 1958, it brought you know, the authority concerned con­ an action before the Verwaltungsgericht, siders that these different rates are ex­ Frankfurt-am-Main, for the annulment plained by the difference in the work of the requests for payment and for the performed by the Außenhandelsstelle in refund of the sums paid. In support of issuing the licences.