C-184/85

4. In its application, the Commission asks 2. The Commission considers that the the Court for a declaration that the Italian charging of that tax is incompatible with the Republic has failed to fulfil its obligations first paragraph of Article 95 of the EEC under Article 95 of the EEC Treaty by Treaty in so far as it affects products from imposing and maintaining in force a French overseas departments (to which, consumer tax on fresh and dried bananas according to the judgment in Case 148/77, 1 and on banana meal. the first paragraph of Article 95 is applicable). It considers that at least the second paragraph of Article 95 has been B — My comments are as follows infringed in so far as fruit of domestic origin is not specifically taxed. The application of the second paragraph of Article 95 does not depend on whether the 1. 5. The fundamental question raised by domestic products which benefit by the tax the request for a preliminary ruling in Case are similar to the imported products: it is 193/85, to which I referred earlier, is sufficient that they compete with them, even whether the Italian tax on bananas is to be partially, indirectly or potentially. In a letter assessed in the light of Article 95 of the sent to the Italian Minister for Foreign Treaty or is to be regarded as a charge Affairs in October 1983 the Commission having an effect equivalent to a customs stated that this was its assessment of the duty. In the light of all the material facts situation, and asked for observations. and the relevant case-law I came to the conclusion that the tax was to be regarded as a charge having an effect equivalent to a customs duty.. No reason to doubt that 3. The defendant did not contest the conclusion has emerged from this case, in Commission's allegations but, by a telex which the oral proceedings took place on message sent by the Italian Permanent the same day as those in Case 193/85. Representation in December 1983, announced an amendment of the Italian tax 6. The consequence, in my view, is that the * Translated from the German. Commission cannot be granted the 1 — Judgment of 10 October 1978 in Case 148/77 H. Hansen jun. & O. C. Balle GmbH & Co. v Hauptzollamt Flensburgdeclaration which it is seeking. However, [1978] ECR 1787. since it is not possible simply to declare that

the provisions on charges having an effect into account and, in addition, other equivalent to customs duties — whose scope amendments have recently been proposed. is different — have been infringed (sinceApart from that, the Italian Government reference was made in the precontentious merely stated, with regard to the first stage invariably and exclusively to a failure paragraph of Article 95, that the to fulfil obligations under Article 95, and requirements laid down in the Court's the concept of 'charges having an effect case-law with regard to its application had equivalent to customs duties' was not even not been satisfied. It argues that it is not in implicitly raised during the proceedings), I fact possible to regard bananas and local can only recommend that the Commission's Italian fruit as similar, since their charac action be dismissed on the ground that it teristics are very different and it must be misclassified the contested Italian tax. acknowledged that bananas and other fruit do not fulfil comparable needs.

is relevant in a case of this kind. 10. (b) It is appropriate first to consider the 8. (a) In two documents the Commission first paragraph ofArticle 95, which is worded has once again set before the Court its as follows: grounds for considering that Article 95 is infringed where a tax is charged virtually exclusively on imported fruit (bananas) 'No Member State shall impose, directly or whilst fruit which is primarily of domestic indirectly, on the products of other Member origin remains untaxed. It considers that the States any internal taxation of any kind in first paragraph of Article 95 is applicable excess of that imposed directly or indirectly because bananas and other domestic fruit on similar domestic products.' are to be regarded as 'similar' products on the basis of the definitions given in the Court's case-law. The Commission According to the case-law of the Court, that considers, however, that in any event the provision covers products which 'have second paragraph of Article 95, which similar characteristics and meet the same supplements the first paragraph of that needs from the point of view of consumers', provision, is applicable on the ground that an important indication in that regard being the tax obviously tends to protect fruit of classification under the same heading of the

soon be adopted. The law could not be zollamt Landau (Pfalz) [1976] ECR 181, paragraph 12 at p. amended more rapidly because the views of 194.

the judgment in Case 216/81 4)that that actually applicable, it is no more necessary provision must be interpreted widely and to form a definitive view than it was in that the concept of 'similar products' must other cases (for instance, Case 168/78 6) in be interpreted with sufficient flexibility on which that question also arose, for in this the basis of their comparable use. case, too, the complementary provision set out in the second paragraph of Article 95 is available for the purposes of assessment. That provision is considerably wider in 11. If one attempts on the basis of those scope and it should be possible to reach a criteria to answer the question whether the decision on that basis without special diffi­ Italian consumer tax on bananas is caught culties. The second paragraph of Article 95 by the first paragraph of Article 95, it is reads as follows: very difficult to make anything of the fact that bananas fall within heading No 08.01 B of the Common Customs Tariff whereas other kinds of fruit, which the Commission considers to be 'similar', fall 'Furthermore, no Member State shall under customs headings of their own impose on the products of other Member (08.02: citrus fruit; 08.03: figs; 08.04: States any internal taxation of such a nature grapes; 08.06: apples, pears and quinces; as to afford indirect protection to other 08.07: stone fruit, such as apricots, peaches products.' and plums; 08.08: berries, such as straw­ berries). Indeed, since then the Court has made it clear that customs classification cannot provide conclusive evidence of simi­ larity for the purposes of the first paragraph 14. (aa) It is clear from the case-law that of Article 95 of the EEC Treaty (judgment that provision applies where different tax is in Case 169/78 5). charged on products which have sufficient characteristics in common to constitute at least in certain circumstances an alternative choice for consumers (Commission v French 12. In any event, it must be admitted that it Republic [1980] ECR 347, paragraph 40 at is not possible to accept without reservation pp. 369-370); it is sufficient for the that bananas and other fruit are broadly imported product to be in competition with comparable products. As the Italian the protected domestic product in one or Government has shown, they do not have several economic uses, whereas flavour and exactly the same characteristics and do not consumer habits are not appropriate fulfil the same needs; on the contrary, some differentiating criteria (Commission v French characteristics (flavour, water content) are Republic, cited above, paragraphs 6 and 37, markedly different. which concerned spirits).

circumstances capable of meeting identical least a number of them (which is sufficient needs, so that it must be acknowledged that affording to the case-law) are the same or they are to some extent substitutable similar and accordingly those products are 7 products (in the judgment in Case 171/78 largely comparable as regards their use, and it is stated that there must be at least partial in certain cases are substitutes for each or potential competition). Furthermore, in other as far as the consumer is concerned. the judgment in Case 216/81 Cogis v Amministrazione delle Finanze dello Stato, cited above, paragraph 9 at p. 2713, it is stated that the second paragraph of Article 95 is designed to cover 'all forms of indirect protection through taxation in the case of 18. It must also be borne in mind that products which, without being similar according to the judgment in Case 168/78 Commission v French Republic, cited above, within the meaning of the first paragraph, are nevertheless in competition, even paragraph 41, a further material criterion is partially, indirectly or potentially". the protective nature of the contested tax

The from cereals and sugar cane were taxed plaintiff in the main proceedings in Case differently from spirits obtained by distilling 193/85 gave a significant quotation from a wine and from marc, and wine was taxed note dated 11 April 1972 from the Italian differently from beer. Permanent Representation concerning the banana monopoly to the effect that that monopoly was a market organization designed to benefit domestic fruit production which was in competition with 17. (bb) To my mind there is no doubt (as I bananas (and which must be protected); the have already indicated) that that system which took its place (that is to say, provision — provided that the tax on the consumer tax on bananas) was stated to bananas is not regarded as a charge having have the same purpose. an equivalent effect to a customs duty—also applies in the present case, which is characterized by the fact that a large tax is charged on bananas, which are mainly imported, whilst domestic fruit remains untaxed (during the oral procedure, 19. It is also very significant that the the Commission clearly illustrated the defendant government asserted early in the impact on prices by reference to two types proceedings that it wished to abolish the tax of Italian fruit). In fact it would be hard to on bananas from the French overseas deny — even a layman could confidently departments and the ACP States (at the make this judgment — that if not all the hearing it provided particulars of the stage characteristics of bananas and other fruit at reached in those proceedings). To my mind, this can be seen as nothing other than tacit 7 — Judgment of 27 February 1980 in Case 171/78 Commiiiion v Kingdom of Denmark [1980] ECR 447, paragraph 12 at p. recognition of the justification of the 465. applicant's view.