C-90/94

HAAHR PETROLEUM v ÅBENRÅ HAVN AND OTHERS

OPINION OF ADVOCATE GENERAL JACOBS delivered on 27 February 1997 *

Table of Contents

Background and national legislation I - 4088

Case C-90/94 Haahr Petroleum I - 4092

Joined Cases C-114/95 and 115/95 Texaco and Olieselskabet I - 4093

Lawfulness of the surcharge vis-à-vis non-member countries with which the Community has no free-trade agreement I - 4118

Competition aspects I - 4120

GT-Link I -4120

Burden of proof I - 4121

Article 86 I - 4123

Article 90(2) I -4127

Conclusion I-4139

* Original language: English.

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OPINION OF MR JACOBS — CASE C-90/94

1. The Østre Landsret (Eastern Regional some familiarity with the general framework Court, Denmark) has referred a series of for the regulation of ports is helpful. questions concerning the compatibility with Community law of a surcharge formerly lev­ ied by Denmark on goods imported from abroad into certain maritime ports and of the system of port duties generally.

Background and national legislation

6. The defendant ports in Haahr Petroleum and Texaco and Olieselskabet are commercial ports, mostly run by local authorities but 4. All cases concern the lawfulness of certain some State-run or private. During the peri­ port duties levied in Denmark. In order to ods at issue in all three cases, commercial understand the operation of the port duties, ports were governed by Law No 239 of

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7. Various duties are required to be paid for the use of public and some private commer­ cial ports in Denmark (including the defen­ dant private port in Haahr Petroleum). Ship­ ping and goods duties must be paid for berthing, as well as for the disembarkation and embarkation of goods, vehicles and per­ sons. Special duties are charged for the use of cranes, warehouses and storage facilities etc. 9. Shipping duty is payable by all ships, ves­ The duties are paid either directly to the port sels and all floating installations for the right authorities or, in the case of public commer­ to berth in the port or in the deep-water cial ports, to an undertaking leasing wharfage approach channels. It is calculated as a fixed space from the port. In the latter case, the amount according to gross (registered) ton­ lessee undertaking guarantees under the stan­ nage either each time the vessel puts in or as dard leasing contract drawn up by the Min­ an amount payable on a monthly basis. Ves­ istry to pay to the port a specified amount in sels of under 100 gross (registered) tonnes annual shipping and goods duties. If its are among those exempt from the duty. In receipts are less than that amount it makes the port of Gedser, the relevant regulations good the deficit. required ferry operators to pay a monthly charge for each vessel, based on gross (regis­ tered) tonnage, which conferred the right to unlimited docking during the month in ques­ 1 — The 1976 Law was replaced with effect from 1 January 1991 by Law No 316 of 16 May 1990. tion.

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for Public Works in 1954. That report made means that it will be necessary to concentrate the following points about an increase in the on the turnover of foreign goods inasmuch duty charged on imported goods: as the greater part of the goods which are imported into or exported from Denmark are most naturally transported by sea and the danger that this business will be diverted from ports merely if the goods duty is increased can therefore to some extent be 'B. Proposal for increases in the rates of discounted. duty

14. The Committee also recommended a ... So far as goods duty is concerned, the minor increase in shipping duty; it is not implementation of the principle referred to clear whether that increase was effected.

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15. It appears that goods duty at the basic of port duties, in the context of which the rate is imposed in the port of Copenhagen, surcharge was abolished with effect from 1 but not the import surcharge. This is not April 1990. In order to ensure that the ports directly relevant to the issues raised in these should continue to receive the same revenue cases, but is mentioned by several parties in despite the abolition of the surcharge, the the context of various arguments. The legis­ basic rate of goods duty applicable to goods lation is apparently applied in such a way irrespective of their provenance was that no surcharge is payable in the port of increased. Since then the legislation on port final destination where goods are technically duties has been liberalized in several stages; imported (but without being disembarked) commercial ports are now free to set their into Copenhagen by sea from another coun­ own rates of duty. try and then transported by sea to another commercial port in Denmark where they are unloaded.

'1 . Is the special 40% import surcharge on the goods duty ordinarily levied to be regarded as coming under the EEC Treaty rules on the Customs Union, including Articles 9 to 13, or under Article 95 of that 5. If it is held that the import surcharge is Treaty? incompatible with Community law, will the fact that a claim for reimbursement may be time-barred under national rules on limita­ tion periods have the full or partial effect that the import surcharge cannot be reim­ bursed?'

2. Are the EEC Treaty rules on the Customs Union, including Articles 9 to 13, or Article 95 of that Treaty to be understood as mean­ ing that it is incompatible with those provi­ sions to impose a special 40% import sur­ charge on the goods duty ordinarily levied if 19. The Østre Landsret subsequently indi­ that import surcharge is imposed exclusively cated that it was proposing to request a pre­ on goods imported from outside Denmark? liminary ruling from the Court in two fur­ ther cases (Texaco and Olieselskabet) raising similar issues and that it would not decide Haahr Petroleum until rulings in all cases had been made.

3. If Question 2 is answered in the affirma­ tive, under what circumstances can such a duty be justified on the ground that it repre­ Joined Cases C-114/95 and 115/95 Texaco sents consideration for a service provided or and Olieselskabet on grounds of transport policy (Article 84(2) 2 of the EEC Treaty)?

2 — Although Question 3 in Haahr Petroleum (in contrast to the equivalent question in Texaco and Olieselskabet) refers to the duty rather than the surcharge, it is clear from its place in the scheme of the questions as a whole that it is the status of the 20. The applicants in these cases import surcharge rather than the goods duty generally that is at issue. refined petroleum products, such as diesel

22. In the proceedings pending before the Østre Landsret in Case C-114/95, Texaco A: — Articles 9 to 13 of the EEC Treaty, if seeks a declaration that the defendant ports necessary in conjunction with are under an obligation to repay all import Articles 18 to 29 and Council Regu­ surcharges levied from 1 May 1988 to 3 lation No 2658/87 adopted pursuant 31 March 1990, totalling approximately thereto, or DKR 3.2 million. In the proceedings in Case C-115/95, Olieselskabet seeks a declaration that the defendant ports are under a joint obligation with the Ministry of Transport to repay the import surcharges levied from 1 January 1988 to 1 April 1990, totalling — Article 95 of the EEC Treaty? approximately DKR 2.5 million, and to acknowledge that they are under a duty to repay the surcharges levied over the period from 1 July 1977 to 31 December 1987. It 3 — Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common had not proved possible at the time of the Customs Tariff, OJ 1987 L 256, p. 1.

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or in so far as it is assumed that the case 3. Will the reply to Question 2 be the same relates to services in respect of which consid­ if the goods are imported by ship into a eration is paid, under Member State from a non-member country with which the European Economic Com­ munity had an agreement containing provi­ sions corresponding to Articles 6 and 18 of the agreement between the Kingdom of Swe­ den and the European Economic Commu­ nity, and the determination is made in the light of such a (free-trade) agreement?

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down in national legislation, and that the Case C-242/95 GT-Link Court of Justice held at paragraph 12 of its judgment in Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595 that entitlement to the repayment of charges levied by a Member State contrary to the rules of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting charges having an effect equivalent to customs duties 24. The applicant, GT-Link A/S, has oper­ or, as the case may be, the discriminatory ated a ferry route between Gedser (in Den­ application of internal taxes, the following mark) and Travemunde (in former West Ger­ question arises: many) since 1987 and a ferry route between Gedser and Rostock (in former East Ger­ many) since 1990. The ferries appear to be used principally by heavy goods vehicles. The defendant, Danske Statsbaner (DSB), the Danish State railway company, is a State- owned undertaking. Its principal activities revolve around the operation of railways and must the case-law of the Court of Justice be ferry routes; it also owns, inter alia, the port understood as meaning that Community law in Gedser, from where it operates ferry contains an unconditional obligation to routes in competition with GT-Link. repay duties which, according to the replies to Questions 1 to 4, may be contrary to Community law, but that this obligation is such that the detailed conditions for the actual processing of the claim for repayment are subject, within certain limits laid down in the case-law of the Court of Justice, to rel­ evant national legislation?

26. GT-Link's right to use the port of Ged­ ser was conferred by agreement between it 2. Are the EEC Treaty rules on the Customs and DSB. That agreement required GT-Link Union, including Articles 9 to 13, or Article to pay shipping and goods duties (on goods 95 to be understood as meaning that it is conveyed by registered motor vehicles on its incompatible with those provisions to vessels) to the port in accordance with the impose a special surcharge of 40% of the regulations, which it duly did from February goods duty ordinarily levied if that surcharge 1987 when it took over the Gedser- is imposed exclusively on goods imported Travemünde route. In September 1989 from outside Denmark? GT-Link brought an action before the Østre Landsret seeking an order that DSB repay DKR 30 396 000 in respect of port duties levied by DSB from February 1987 to December 1989 or in the alternative that DSB be ordered to reimburse the goods duty import surcharge paid by the applicant over 3. If Question 2 is answered in the affirma­ the same period, totalling DKR 6 016 000. tive: under what circumstances can such a duty be justified on the ground that it repre­ sents consideration for a service provided or on grounds of transport policy pursuant to the Title in the EEC Treaty dealing with 6 transport?

27. The Østre Landsret stayed the proceed­ ings and referred the following questions to the Court:

4. If the special surcharge is held to be incompatible with the EEC Treaty, does that finding apply to the whole of that surcharge levied since the Member State's accession to the EEC Treaty or does it apply only to the '1 . Is a special surcharge of 40% of a goods increase in the surcharge which came into duty which, as described in this order for effect after that date? reference, is ordinarily levied for the use of ports authorized by the Danish Minister for Transport to operate as commercial ports to be regarded as coming under the EEC Treaty 6 — See note 2.

6. If it is assumed that a public undertaking that owns and operates a commercial port occupies a dominant position, can it consti­ tute an abuse of that position, contrary to Article 86 of the Treaty, that the commercial port levied the duties described above and 28. Written observations in Haahr Petro- laid down by the Minister for Transport for leum were submitted by Haahr Petroleum, the use of public and private commercial the defendant ports, the Ministry of Trans­ ports? port, intervener, the United Kingdom and the Commission. Written observations in Texaco and Olieselskabet were submitted by Texaco, Olieselskabet, the Ministry of Trans­ port jointly with the defendant State ports, the defendant local authority ports and the Commission. Written observations in GT-Link were submitted by GT-Link, DSB 7. If Question 6 is answered in the affirma­ and the Commission. tive: do the persons or undertakings on whom the duty was imposed have any right under Community law to seek reimburse­ ment or compensation?

8. If it is assumed that a public undertaking 29. At the common hearing for all the cases that owns and operates a commercial port Haahr Petroleum, Texaco, Olieselskabet, occupies a dominant position, can an abuse GT-Link, the local authority ports, the Min­ of that position, contrary to Article 86 of the istry of Transport jointly with the defendant Treaty, lie in the fact that the commercial State ports and the Commission were repre­ port does not impose the port duties sented. DSB notified the Court before the described in this order for reference on its hearing that, having in the interim sold the own ferry route or on that of its cooperation port of Gedser to the parent company of partner? GT-Link, it would not be represented.

31. First I will consider whether the goods duty import surcharge is a customs duty or a charge having an effect equivalent to a cus­ toms duty within the meaning of Articles 9 to 13 of the Treaty or internal taxation within the scope of Article 95 of the Treaty (Question 1 in Haahr Petroleum and GT-Link; Question 1(A) in Texaco and Olie- selskabet). That analysis will encompass (i) the questions whether the surcharge is justi­ fied as consideration for services provided or on grounds of transport policy (Question 3 in Haahr Petroleum and GT-Link', Question 1(B) in Texaco and Olieselskabet); (ii) the questions whether any finding of incompat­ ibility with EC law applies to the whole of 33. Finally, I will consider the following the surcharge levied since Denmark's acces­ issues relating to repayment of the surcharge sion or only to the increase since accession and the port duties: (i) the effect of (a) in to the Community (Question 4 in Haahr general, national procedural conditions Petroleum and GT-Link); and (iii) the law­ (Question 6 in Olieselskabet), (b) more spe­ fulness of the surcharge both vis-à-vis other cifically, a national limitation period for Member States (Question 2 in all cases) and claims for reimbursement (Question 5 in vis-à-vis non-member countries with which Haahr Petroleum) and (c) more specifically the Community has or does not have a free- still, the lawfulness of the fact that that limi­ trade agreement (Questions 3 and 4 in tation period started to run before the Mem­ Texaco and Olieselskabet). ber State in question discontinued the sur­ charge (Question 7 in Olieselskabet); (ii) the effect on liability to repay of the fact that the proceeds of the duty have been allocated to independent operators subject to local auth­ ority control (Question 5 in Olieselskabet) and (iii) the right to reimbursement of per­ sons or undertakings which have paid the levy if it is found to have been levied con­ 32. Secondly, I will consider whether either trary to Article 86 of the Treaty (Question 7 the surcharge in particular (Question 1(B) in in GT-Link).

36. The national court in Texaco and Olie- selskabet also refers to Articles 18 to 29 of the Treaty, which concern the setting up of the Common Customs Tariff, and Council 1. The Community shall be based upon a Regulation (EEC) No 2658/87 of 23 July customs union which shall cover all trade in 1987 on the tariff and statistical nomencla­ 7 goods and which shall involve the prohibi­ ture and on the Common Customs Tariff. tion between Member States of customs duties on imports and exports and of all charges having equivalent effect ...

37. Article 95 of the Treaty provides as fol­ lows:

Article 12

'No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in Member States shall refrain from introducing between themselves any new customs duties on imports or exports or any charges having 7 — Cited in note 3.

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38. The aim of those provisions is to achieve neutrality between imported and domestic goods of Member States in order to facilitate 40. However fine the line between the two the free movement of goods and the estab­ concepts may be in a particular case, it is lishment of the single market. Articles 9 to clear that a given levy cannot be both a 13 impose an absolute prohibition on cus­ charge having an equivalent effect under toms duties and charges having equivalent Articles 9 to 13 and internal taxation under effect; since that prohibition would be nuga­ 9 Article 95. The proposition that the two tory if it could be circumvented by the provisions are mutually exclusive, now hal­ imposition of a heavier internal tax burden lowed by constant repetition, is based not on imported goods, it is complemented by only on conceptual differences — for Article 95, which prohibits discriminatory example, that charges having an equivalent indirect taxation. As might be expected given effect and internal taxation are governed by the identity of objective and the complemen­ tary nature of Article 95, the line between the parallel concepts of customs duties and charges having an equivalent effect, on the 8 — See paragraphs 103 to 111. 9 — Case 57/65 Lütticke v Hauptzollamt Saarlouis [1966] ECR one hand, and internal taxation contrary to 205, p. 211.

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... it follows from Articles 95 et seq. that the concept of a charge having equivalent effect 10 — Lütticke, cited in note 9. does not include taxation which is imposed 11 — Case 27/74 Demag v Finanzamt Duisburg-Süd [1974] ECR in the same way within a State on similar or 1037, paragraph 7 of the judgment. 12 — Case 94/74 IGAV v ENCC [1975] ECR 699, paragraph 13 comparable domestic products, or at least of the judgment. falls, in the absence of such products, within 13 — Case 10/65 Deutschmann v Germany [1965] ECR 469, p. 473. the framework of general internal taxation ...' 14 — Case 24/68 Commission v Italy [1969] ECR 193 (the 'statis- tical levy' case), paragraphs 9 and 11 of the judgment; Joined Cases 2/69 and 3/69 Diamantarbeiders v Brachfeld [1969] ECR 211, paragraphs 18 and 20. 15 — In particular Joined Cases 2/62 and 3/62 Commission v 16 — Sec, for example, Joined Cases C-485/93 and C-486/93 Luxembourg and Kingdom of Belgium [1962] ECR 425, Simitzi v Municipality of Kos [1995] ECR I-2655, paragraph p. 432 (the 'gingerbread' case); Deutschmann v Germany, 15 of the judgment, and Case C-45/94 Cámara de Corner- cited in note 13; and Case 7/68 Commission v Italy [1968] do, Industria y Navegación, Ceuta v Municipality of Ceuta ECR 423 (the 'art treasures' case). [1995] ECR I-4385, paragraph 28.

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43. That essential feature is invoked in sup­ port of arguments both for and against regarding the goods duty import surcharge as a charge having equivalent effect. It goes to what I perceive to be the central issue in these cases, namely whether the surcharge is severable: if it is regarded as a separate 44. It may be noted that the fact that a tax or levy is collected by a body governed by pub­ lic law other than the State or is collected for its benefit and is a charge which is special or 17 — See, for example, Case 29/72 Marimex v Amministrazione appropriated for a specific purpose cannot Finanziaria Italiana [1972] ECR 1309, paragraph 6 of the judgment; Case 77/72 Capolongo v Maya [1973] ECR 611, prevent its falling within the field of applica­ paragraph 12; IGAV v ENCC, cited in note 12, para- 19 graph 10. tion of Article 95. 18 — Case 78/76 [1977] ECR 595, paragraph 28 of the judgment; see also Case 15/81 Schul v Inspecteur der Invoerrechten en Accijnzen [1982] ECR 1409, paragraph 19; Case 193/85 Co-Frutta v Amministrazione delle Finanze dello Stato [1987] ECR 2085, paragraph 9; and most recently the Opin- 19 — Case 74/76 lannelli v Meroni [1977] ECR 557, paragraph ion of Advocate General Tesauro in Ceuta, cited in note 16. 19 of the judgment.

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48. In that case, the Court ruled that a duty within the general system of internal taxation applying systematically to domestic and imported products according to the same cri­ 46. The arrangements for the collection of teria can nevertheless constitute a charge the surcharge further support the argument having an effect equivalent to customs duty that it is an integral part of the general goods on imports when such contribution is duty. There are no specific administrative intended exclusively to support activities formalities linked to levying the surcharge. which specifically benefit the taxed domestic Both the basic rate and the surcharge are lev­ ied at the same time by the same authorities and calculated by reference to the weight of the goods and, for the purpose of determin­ 20 — Cited in note 17.

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52. The Court has accepted, albeit reluc­ tantly, that 'it is not impossible that in cer­ tain circumstances a specific service actually rendered may form the consideration for a possible proportional payment for the ser­ 23 vice in question'. In that event, the pay­ 50. In my view therefore the goods duty ment at issue will not be classified as a import surcharge falls within the framework charge having equivalent effect and may be of general internal taxation and as such its lawful. Strict criteria must be met, however, compatibility with Community law falls to for a charge to fall within this definition: be assessed under Article 95 of the Treaty. the service provided must represent a specific and identifiable benefit actually and

21 — Paragraph 14 of the judgment. 22 — See also IGAV v ENCC, cited in note 12, paragraph 17 of the judgment and Case 77/76 Cucchi v Avez [1977] ECR 23 — Case 63/74 Cadsky v Istituto Nazionale per il Comercio 987, paragraph 17. Estero [1975] ECR 281.

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individually conferred and there must be a the same services cannot also represent con­ direct link between the amount paid and that sideration for the surcharge. In any event, 25 benefit. the fact that the rate of goods and shipping duty is set centrally and is therefore the same for all ports, notwithstanding assumed differ­ ences in the range of services provided, and that the surcharge is levied at 40 % in all ports, militates against that argument. Finally, as Haahr Petroleum (and, mutatis 53. To my mind, the argument that in these mutandis, GT-Link) points out, a given boat cases the surcharge is simply a fee for ser­ with a cargo of imported goods in fact vices benefiting the importer is not convinc­ receives the same services as an equivalent ing for the following reasons. boat with a cargo of domestic goods.

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57. First, as Haahr Petroleum, Olieselskabet an equivalent surcharge. The obverse point is and the Commission point out, ship size is made by GT-Link, namely that imported already reflected in the level of shipping duty goods benefit from no specific service over which it pays, that duty being determined by and above that provided for exported goods. reference to a ship's gross registered tonnage. Indeed, the displacement and hence size of a given ship importing goods may be regarded as indirectly reflected in the basic rate of goods duty, since that is calculated by refer­ ence to the weight of the goods. It may be noted that the Ministry of Transport and DSB make this point, stating that goods duty is based on weight precisely because the 60. Finally, a ship which imports foreign expenses of unloading, quay space etc. goods via Copenhagen where no surcharge is depend on the weight of the goods con­ payable, and then continues to one of the cerned. other commercial ports where it unloads the goods is making identical demands on the port facilities as it would have done had it imported the goods directly into that com­ mercial port, but it appears that no surcharge 26 is payable in those circumstances; it is even stated by the Ministry of Transport and the defendant State ports in Texaco and Olie- 58. Secondly, as Olieselskabet and GT-Link selskabet that the same applies where a ship point out, if the intention of the import sur­ passes via another Danish port without charge was to pay for the extra port facilities unloading there. That too appears to me to needed by bigger ships, a fairer method of undermine any argument that the surcharge achieving that end would have been to struc­ is payment for services by way of the use of ture the surcharge accordingly, for example special port facilities. by exempting smaller ships (although if the surcharge was still expressed to be payable by reference to imports only, it would' none the less be prima facie contrary to Commu­ nity law to the same extent as the surcharge at issue).

existing shipping and goods duties was to by a public undertaking enjoying a avoid diverting national traffic to rail and monopoly or quasi-monopoly. Those defen­ road, rather than any ground relating to dant ports seek to meet this point with the compensation for increased use of port facili­ assertion that, given that there is apparently ties by ships transporting imported goods. no import surcharge on the flat-rate goods As Olieselskabet points out, there is more­ duty levied in the port of Copenhagen, the over no mention in the Report of the Com­ applicant could have avoided payment by mittee for rates of duty for ports and bridges shipping its goods to that port and trans­ of ship size as a factor relevant to the recom­ porting them on from there by rail, road or mendation to impose an import surcharge. smaller boat. That argument however surely suggests if anything that the surcharge is not simply a fee for the use of the port facilities since otherwise it would be perverse not to impose it equally in Copenhagen, which is by far the largest port. There can in any event be no satisfactory comparison with the situation in Copenhagen without further details of the duties imposed in that port — the documents before the Court indicate 62. The defendant ports in Haahr Petroleum little more than that it has its own system of and the local authority ports in Texaco and duties. Olieselskabet argue that, since use of the ports is not obligatory, the surcharge is a fee. There is an obvious fallacy in that argument: although the Court has ruled that a charge for a compulsory service, for example a health inspection, will normally be regarded as a charge having an effect equivalent to a 28 customs duty, it does not follow that a charge for any non-obligatory service falls outside the definition of charges having equivalent effect. 64. Finally in relation to the argument that the surcharge is a fee for services, the defen­ dant ports and the Ministry of Transport in Haahr Petroleum, the local authority ports in Texaco and Olieselskabet and DSB refer to 29 SIOT v Ministero delle Finanze, in which the Court stated that, for the purposes of determining whether charges or fees repre­ sent the costs of transportation or other ser­ 63. Moreover, that argument cannot in any vices connected with transit, it is necessary event be regarded as tenable unless the ser­ to take account not only of direct or specific vice in question is genuinely optional, which services connected with the movement of will rarely be the case of services performed goods but also of the more general benefits

67. The Danish Ministry of Transport, the 'Whereas users must not only be charged for defendant State ports and DSB argue that the airport facilities and services they use, neither the goods duty itself nor the import irrespective of the origin of the traffic in the surcharge falls within the scope of either Community, but they must also bear their Articles 9 to 13 or Article 95 of the Treaty; they are instead covered by the Treaty rules

30 — Paragraphs 20 and 21 of the judgment. 31 — Proposal for a Council Regulation (EEC) on consultation between airports and airport users and on airport charging 32 — Tenth recital. principles (COM(90) 100 final), OJ 1990 C 147, p. 6. 33 — Paragraph 15. C(d).

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by Texaco and Olieselskabet, the disputed 74. That is not to say of course that the sur­ charge in that case was a tax payable by the charge may not in addition, as the Commis­ shipowner on passengers embarked, disem­ sion suggests, have a restrictive effect on the barked or transferred in certain maritime freedom to provide maritime transport ser­ ports, and as such was obviously liable to vices and thus be contrary at least to Regu­ affect the freedom to provide maritime trans­ lation No 4055/86 from the date when that port services, the subject-matter of Regu­ regulation entered into force. Although Cor- lation No 4055/86. A tax on the importation sica Ferries France establishes that the mari­ of goods, on the other hand, borne by the time transport sector was not liberalized recipient or the sender of the goods, may until that point, so that measures which more naturally be seen as liable to affect the restrict the freedom to provide services may free movement of goods, and, being fiscal, none the less have been permissible before will be dealt with under Article 95. In any that date, it does not necessarily follow from event, as is argued by Olieselskabet, it is that case that an explicitly discriminatory 37 clear from Corsica Ferries Italia that Regu­ measure was permissible. However in my lation No 4055/86 will not exonerate dis­ view it is not necessary to decide this point criminatory conduct which falls within its for the purposes of these cases; it has more­ scope: in that case, the regulation was held to over not been fully addressed by the parties. prohibit a Member State from applying dif­ ferent tariffs for identical piloting services where the tariffs indirectly discriminated against economic operators according to their nationality.

Compatibility of the surcharge with Article 95

77. The structure and history of the goods duty generally and the surcharge specifically weigh heavily against such an interpretation. In particular it may be noted, as pointed out by the Commission, that the duty is calcu­ 79. I therefore remain of the view that the lated by reference to the weight of the goods goods duty import surcharge, being levied and ultimately borne by the recipient of the within the framework of general internal goods. Even if it were the case, however, that taxation, falls within Article 95 of the Treaty. the surcharge was imposed on a mode of Since it is clearly discriminatory, the sur­ transport rather than the goods transported, charge is unlawful. that would not of itself be sufficient to take it outside the scope of Article 95: as Olie­ 40 selskabet points out, the Court in Schüttle ruled that, in view of the general scheme and objectives of Article 95, the concept of tax on a product must be interpreted in a wide sense and that a charge imposed on interna­ tional transport of goods by road according to the distance covered on the national terri­ 80. The defendants in Haahr Petroleum tory and the weight of the goods in question 41 argue that differential taxation may none the fell within that concept. less be compatible with Article 95 since the Court has permitted internal taxation which differentiates on the basis of objective crite­ 40 — Cited in note 38. ria. The local authority ports in Texaco and 41 — Paragraphs 13 and 16 of the judgment. See also my Opinion Olieselskabet and DSB further argue that the in Case C-195/90 Commission v Germany [1992] ECR I-3141, paragraphs 41 to 48. size of the importing boat is an objective

82. Thus in, for example, Chemial Farma- 43 ceutici v DAF, a case referred to by the 81. It is true that the Court ruled at a rela­ defendants in Haahr Petroleum apparently tively early stage that pecuniary charges in support of their argument, the Court was relating to a general system of internal dues considering the lawfulness under Article 95 applied systematically in accordance with the of the application of differential rates of taxa­ same criteria to domestic and imported tion to alcohol produced by fermentation products alike fall within the scope of Article and to synthetic alcohol. It stated that differ­ 95 rather than Articles 9 to 13. The reference entiation on the basis of objective criteria, to the same criteria, repeated in numerous such as the nature of the raw materials used subsequent cases, arose because in Marimex, or the production processes employed, was the first case in which the proposition was compatible with Community law provided, formulated, 42 the national court had specifi­ inter alia, that the detailed rules were such as cally asked whether it was relevant to the to avoid any form of discrimination, direct categorization of the disputed charge (for the or indirect, in regard to imports from other 44 sanitary inspection of live cattle and beef and Member States. veal on crossing the frontier) that corre­ sponding animals and meat produced domes­ tically were subject to a charge 'calculated in accordance with criteria which are not com­ parable to the criteria employed to determine the amount of the pecuniary charge imposed on imported live cattle and beef and veal'. Given that background, it is clear that the 83. There are numerous cases in which the Court formulated the proposition for the Court has considered whether differential purposes of categorization of the charge: the rates of taxation based on objective criteria charge at issue in Marimex, where the alleg­ none the less have the effect of discriminat­ edly corresponding domestic charge was cal­ 45 ing against imports contrary to Article 95. culated on the basis of criteria which were I do not however consider that they are rel­ not comparable, was a charge having an evant to these cases, where tax is levied at an effect equivalent to a customs duty; in con­ explicitly higher rate on imports of goods trast, a charge applied to both domestic and from other Member States. imported products in accordance with the same criteria falls to be assessed under Article 95 rather than Articles 9 to 13: to the 43 — Case 140/79 [1981] ECR 1. 44 — Paragraph 14 of the judgment. 45 — See also my Opinion in Case C-113/94 Jacquier v Directeur Général des Impôts [1995] ECR I-4203, in particular para- 42 — Cited in note 17. graphs 21 to 27.

84. Moreover the notion of differential rates 87. The difficulty with the contrary view is of taxation based on objective criteria particularly clear in the case of a general tax assumes a direct link between the differentia­ such as that in issue in the present cases. It tion and the criteria. It is clear that in these would be impracticable to suggest that the cases the size of the importing boat cannot extent of the illegality of the general import be so regarded, since it is not tied in to the surcharge varied from day to day according application of the surcharge. to the existence of domestic production of particular types of goods and that an importer of a consignment of goods could recover the surcharge only in respect of that part of the consignment for which he could establish that there happened to be domestic production at the moment when the tax was levied. 85. Finally, I will consider the relevance to the lawfulness of the charge of national pro­ duction of the products at issue. Although this question has not been argued in any depth in the written observations, it was raised at the hearing. 88. It would moreover lead to a lacuna in the Treaty if a surcharge imposed exclusively on imports were held to fall within the scope of Article 95 rather than Articles 9 to 13 because it formed part of a system of internal taxation but were found not to infringe Article 95 on account of the absence of domestic production at the material time. 86. It seems to me that Article 95 would be The present cases are entirely different from applicable in the present cases even if there those cases, which have come more fre­ were no domestic production of the relevant quently before the Court, raising the issue of products. The mere fact that at a given the similarity or interchangeability of moment there happens to be no domestic imported products with domestic products production of a particular product does not subject to different taxes or rates of tax. In mean that a Member State may lay down tax those cases a comparison between the rules which expressly provide for heavier domestic product and the imported product taxation of imports than would be applicable is of course necessary. to the same domestic product if it existed. The first paragraph of Article 95 applies to rules which by their very terms tax imported products more heavily, actually or poten­ tially, than similar domestic products. It is true that where there are no domestic prod­ ucts the tax does not directly protect existing 89. It is true that in Commission v Den- 46 production. However, by taxing imports of mark the Court held that 'Article 95 the same product more heavily a Member State favours potential domestic production and induces manufacturers to transfer pro­ 46 — Case C-47/88 [1990] ECR I-4509, paragraph 10 of the duction to its territory. judgment.

cannot be invoked against internal taxation rules of the Treaty, and would refer to the imposed on imported products where there views I express in that context, which apply is no similar or competing domestic produc­ mutatis mutandis in this context also. tion'. However, in that case the tax in ques­ tion, a registration duty levied on new motor vehicles, applied without distinction to imported and domestic products. The tax provided no inducement to manufacturers to switch production to Denmark. The issue in the case was whether the tax was none the 91. The final issue raised by the national less contrary to Article 95 because, in the court in relation to the lawfulness of the sur­ absence of domestic production, it applied in charge under Articles 9 to 13 or Article 95 is practice only to imports and was imposed at whether, if the surcharge is held to be incom­ an unusually high rate. The Court could patible with the Treaty, that finding applies have found discrimination to exist only on to the whole of the surcharge levied since the assumption that Denmark would have Denmark's accession to the Community or imposed a lower rate of tax had there been only to the increase in the surcharge which significant domestic production. The out­ came into effect after that date. come of the case would, I think, have been different if — by analogy with the present cases — the Danish rules had by their very terms imposed a surcharge specifically on imported cars over and above the normal rate of tax applicable internally and to imports. 92. It is unclear from the wording of the question precisely what the national court is asking. At first sight, it appears to suggest that the rate of the surcharge has increased since Denmark's accession to the Commu­ nity and to ask whether the whole of the sur­ charge levied since 1973 is unlawful or merely the amount by which it subsequently increased. The rate of the surcharge has how­ ever remained static since it was introduced in 1954, so that the question cannot have the 90. The national court in GT-Link asks meaning suggested. whether, in the event that the Court consid­ ers that the import surcharge is prima facie contrary to Articles 9 to 13 or 95, it may none the less be lawful by virtue of Article 90(2) of the Treaty. I consider this provision 47 in some depth below in the context of a possible defence to a finding that levying the 93. There is however an alternative interpre­ port duties is contrary to the competition tation of the question. Although the rate of the surcharge as a percentage of the underly­ ing goods duty has not changed since 47 — See paragraphs 136 to 140. Denmark's accession, the rate of the goods

94. If it is as I believe correct to analyse the surcharge as falling within the scope of 96. Article 95 prohibits discriminatory taxa­ Article 95, the question has no relevance: it is tion on the products of other Member States. unlawful in toto. If however the Court were The national court has also asked in Texaco to rule instead that the surcharge was a and Olieselskabet whether the import sur­ charge having an effect equivalent to a cus­ charge is lawful in so far as it is levied on toms duty the question would similarly have imports of goods from a non-member coun­ no relevance in so far as concerns imports try with which the European Economic from other Member States: although such Community had an agreement containing increases may have been contrary to the provisions corresponding to Articles 6 and 'standstill obligation' set out in Article 36 of 18 of the free-trade agreement which applied 48 the Act of Accession which required the at the material times between the Commu­ 49 progressive abolition of such charges, the nity and Sweden. That question arises charges should all have been abolished in because part of the surcharge whose reim­ accordance with the timetable laid down by bursement is sought by Texaco and Olie­ that provision before any of the periods at selskabet was levied on imports of petroleum issue in these cases. products and solid fuel from Norway and

48 — Act concerning the Conditions of Accession and the 49 — Regulation (EEC) No 2838/72 of the Council of 19 Decem- Adjustments to the Treaties — Accession to the European ber 1972 concluding an Agreement between the European Communities of the Kingdom of Denmark, Ireland ana the Economic Community and the Kingdom of Sweden and United Kingdom of Great Britain and Northern Ireland, adopting provisions for its implementation, OJ, English OJ, English Special Edition, 27 March 1972, p. 14. Special Edition 1972 (I), p. 98.

100. In the present cases the surcharge is contrary both to the express wording and to 98. For the reasons which I have set out the objectives of the free-trade agreement in above in relation to its imposition on question, which are expressed to include the imports from other Member States, I do not provision of fair conditions of competition consider that the surcharge has the attributes for trade between the Contracting Parties of a charge having an effect equivalent to a 54 and the removal of barriers to trade. It is customs duty. It is in my view however accordingly in my view contrary to clearly a 'measure ... of an internal fiscal Article 18 of the free-trade agreement nature establishing ... discrimination between between the Community and Sweden to the [imports and domestic products]' within the extent that it is levied on goods originating meaning of Article 18 of the free-trade agree­ in Sweden, and contrary, mutatis mutandis, ment with Sweden.

51 — Case 104/81 Hauptzollamt Mainz v Kupferberg [1982] 50 — Regulation (EEC) No 1691/73 of the Council of 25 June ECR 3641. 1973 concluding an Agreement between the European Economic Community and the Kingdom of Norway and 52 — Paragraph 27 of the judgment. adopting provisions for its implementation, OJ 1973 L 171, 53 — Case C-312/91 [1993] ECR I-3751. p.1. 54 — Article 1(b) and (c).

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101. In my view also, for the reasons set out 103. The national court in Texaco and Olie- 56 above, Article 18 is applicable in the selskabet has also asked whether the import present cases even if there were no domestic surcharge is lawful in so far as it is levied on production of the products at issue. imports of goods from a non-member coun­ try with which the European Economic Community had no free-trade agreement at the material time. This question arises because part of the surcharge reclaimed by Texaco and Olieselskabet was levied on imports of petroleum products and solid fuel from Poland and the former East Germany. It may be noted that Texaco's arguments that 102. It may be noted that, as the Ministry of that part of the surcharge is unlawful is Transport and the State ports in Texaco and based on the assumption that the surcharge Olieselskabet point out, the Court in Leg- is a charge having an effect equivalent to a 57 ros ruled that the term 'charge having customs duty, although its principal argu­ equivalent effect' in Article 6 of the free- ment as to the lawfulness of the surcharge is trade agreement between the Community that the surcharge is not such a charge but rather falls to be assessed in accordance with Article 95 of the Treaty. 55 — Cited in note 38. 56 — At paragraphs 85 to 89. 57 — Case C-163/90 Administration des Douanes et Droits Indi- reas v Legros and Others [1992] ECR I-4625. 58 — Paragraph 26 of the judgment.

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104. The Court has held that a tax which and at the hearing. The matter is of more falls within the scope of Article 95 in so far than academic significance, since in all cases as it is imposed on products coming from the applicants imported a proportion of the other Member States does not come within products at issue from non-member coun­ the scope of that article in so far as concerns tries with which the Community had at the products imported directly from third coun­ relevant time no free-trade agreement. 60 tries.

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The reduction or elimination of existing my view, that that surcharge was a charge charges on goods imported directly from having an effect equivalent to a customs third countries is a matter for the institutions duty. 65 of the Community.'

Competition aspects

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113. Article 86, which prohibits abuse by measure contrary to the rules contained in one or more undertakings of a dominant this Treaty, in particular to those rules pro­ position within the common market or a vided for in Article 6 and Articles 85 to 94. substantial part of it in so far as such abuse may affect trade between Member States, provides that abuse may consist in, inter alia:

2. Undertakings entrusted with the opera­ '(a) directly or indirectly imposing unfair tion of services of general economic interest purchase or selling prices or other unfair or having the character of a revenue- trading conditions; producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the par­ ticular tasks assigned to them. ...'

(c) applying dissimilar conditions to equiva­ lent transactions with other trading par­ ties, thereby placing them at a competi­ 115. DSB, the State-owned railway com­ tive disadvantage; pany, is clearly an undertaking for the pur­ poses of Article 86 and a public undertaking for the purposes of Article 90(1); this is in any event assumed by the relevant questions.

...'

118. The question arises because GT-Link, in support of its principal claim in the main 120. The same principle applies, mutatis proceedings that the port duties are contrary mutandis, to a national rule concerning evi­ to Article 86 of the Treaty, requested DSB to dence or procedure and applying to actions produce accounts for the port of Gedser for at law intended to ensure the protection of 1988 and 1989, specifically with a view to the rights which individuals derive from the establishing the level of profit. DSB allegedly direct effect of Community law, including failed to produce such accounts. GT-Link national rules on the burden of proving that accordingly instructed accountants to pre­ the conditions for application of Article 86 pare estimated accounts for Gedser on the have been satisfied. In this context it may be basis of 1991 operating budget figures pro­ noted that Article 86 creates direct rights in duced by DSB in conjunction with account­ respect of the individuals concerned which ing guidelines applicable to Danish State the national court must safeguard. 70

undertakings; GT-Link wishes to rely on those constructed accounts unless DSB proves that they are incorrect.

121. I will now turn to the substantive com­ petition questions raised by the national court in GT-Link. 119. To my mind, there is nothing to suggest that the national rule is objectionable as it stands. It is clear that 'any requirement of 68 — Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, paragraph 14 of the judg- ment. 69 — San Giorgio, paragraph 12 of the judgment. 70 — Case 127/73 BRT v SABAM and NV Fonior [1974] ECR 67 — Article 344(2) of the Danish Code of Procedure. 313, paragraph 22 of the judgment.

126. As the Court has pointed out, the con­ 71 cept of abuse is an objective concept: abuse may therefore, for example, exist indepen­ dently of any element of fault on the part of 72 the dominant undertaking. Volition is 124. On Question 6, GT-Link submits that similarly an unnecessary ingredient: the it is an abuse for an undertaking in a domi­ Court has ruled that the fact that abusive nant position to charge unreasonably high conduct is encouraged by a national law does prices for the use of its facilities, and pro­ duces various figures in support of its con­ tention that the duties are unreasonably high. DSB's arguments focus on the fact that the 71 — Case 85/76 Hoffmann-La Roche v Commission [1979] ECR levels of duty were set centrally with a view 461, p. 541. 72 — See my Opinion in Case C-41/90 Höfner and Eher [1991] to the ports as a whole being self-financing; ECR 1979, p. 1-2006.

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not take it outside the scope of Article 86; context an analogy may be drawn with the similarly, the fact that national law purports Court's approach to Article 85 of the Treaty, to require an undertaking to act in an abu­ which prohibits certain anti-competitive sive manner cannot prevent the conduct agreements, decisions and concerted prac­ from being unlawful and unenforceable, tices: the Court has ruled that it would be although it might be relevant if in proceed­ contrary to a Member State's obligation not ings before the Commission there were a to adopt or maintain in force any measure question of imposing a fine. which would deprive Article 85 of its effec­ tiveness if it were to require or favour the adoption of agreements, decisions or con­ certed practices contrary to Article 85 or to 75 reinforce the effects thereof.

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since been transferred to the Deutsche is solely attributable to the fact that DSB Bahn's subsidiary Deutsche Fähregesellschaft itself is also exempted from port duties for Ostsee GmbH ; the German ports in issue the use of the corresponding German ports. appear to belong to the Deutsche Bahn. Again, it is argued that to require reciprocal According to GT-Link, the exemption payment of duties would be a mere formal­ applies to vessels owned by the Deutsche ity. Bundesbahn and the (presumably former) Deutsche Reichsbahn.

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with the issue of exemption from duties, operator are sufficient to cover an appropri­ although as will be seen the two issues are ate proportion of its costs as port operator, linked. together with a reasonable profit margin. In the absence of separate accounts the national court might find it relevant to consider whether the prices charged by DSB for its ferry operations are abnormally low and, if so, whether that may be explained by other factors. If the national court finds that DSB is charging excessive prices for its port operations that may provide greater scope 134. As the Commission states, the exemp­ for cross subsidies to its other operations. tion of DSB in its capacity as operator of certain ferry routes from the port duties which are imposed on GT-Link, its competi­ tor on those routes, appears at first sight to be a clear case of applying dissimilar condi­ tions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, contrary to Article 86(c). First appearances may, however, be deceptive, and closer scrutiny may reveal that the apparently dissimilar conditions are in fact comparable.

137. Finally, the national court asks whether Article 90(2) may in effect afford a defence to DSB if its conduct in imposing the duties 140. It is the duty of the national court to on GT-Link but not on itself or its partner investigate whether an undertaking which is found to be prima facie contrary to Arti­ invokes the provisions of Article 90(2) for cle 86. the purpose of claiming a derogation from the rules of the Treaty has in fact been entrusted by a Member State with the opera­ tion of a service of general economic inter­ 77 est and, if so, whether its conduct is neces­ sary in order to enable it to perform its 78 task. It must be borne in mind that, since 138. It will be recalled that the effect of Article 90(2) provides for a derogation from Article 90(2) is to derogate from, inter alia, the rules of the Treaty, there must be a strict the competition rules of the Treaty for definition of those undertakings which can undertakings entrusted with the operation of take advantage of it. 79 It should also be services of general economic interest, in so noted that the Danish Government has far as the application of such rules would stated in its written observations in Haahr obstruct the performance, in law or in fact, Petroleum, in connection with its argument of the particular tasks assigned to them, pro­ that the port facilities and services are pro­ vided that the development of trade is not vided by way of consideration for the goods affected to such an extent as would be con­ duty import surcharge, that those are not trary to the interests of the Community. provided in the public interest, being instead specific benefits to the importer.

Texaco and Olieselskabet

144. The national court has raised questions 81 in three of the four cases before the Court as to the compatibility with Community law of national procedural conditions, in particu­ lar time-limits on claims for repayment of 142. The applicants in these cases raise a fur­ overpaid tax, and as to the extent of the ther argument that the imposition of the State's liability to repay an unlawful tax import surcharge by the defendant ports and where it was paid by the taxpayer to inde­ the Minister of Transport is contrary to pendent operators subject to local authority Articles 90(1) and 86 of the Treaty. control.

143. In these cases, although both Texaco The effect of national procedural conditions and Olieselskabet provide convincing argu­ ments to the effect that the defendant ports are 'public undertakings [or] undertakings to which Member States grant special or exclu­ sive rights', the national court has not pro­ vided sufficient information for the Court to reach any view as to the relevant market for a finding of (individual or collective) domi­ nant position. This may be contrasted with 145. The national court's fifth question in the order for reference and questions in Haahr Petroleum asks whether, if the import GT-Link, where the Court is asked to rule on certain competition aspects of the port duties in general on the basis of clearly 81 — Haahr Petroleum, Oliesebkabet and GT-Link.

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148. That principle applies — and indeed was first applied — to limitation periods laid down by national law for the recovery of duties levied in contravention of Community law. The imposition by a Member State of a 146. The limitation period for actions is in reasonable time-limit for taking legal pro­ general 20 years in Denmark. By way of 83 ceedings to recover such duties cannot be exception, a 1908 statute contains a list of considered to make reliance on Community certain actions for which the period is five law virtually impossible or excessively diffi­ years. That list includes actions by way of 85 cult. The laying down of such time-limits condictio indebiti, or claims for the recovery with regard to actions of a fiscal nature is an of money paid by mistake. It appears that that provision applies to actions for the recovery of overpaid tax. The five-year period appears to run from when the credi­ 84 — Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989 and Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043; see also most recently Case C-212/94 FMC and Others v Intervention Board for Agricultural Produce and Another [1996] ECR I-389, para- graph 71 of the judgment. 82 — Case C-208/90 [1991] ECR I-4269. 85 — Sec Rewe, paragraph 5 of the judgment; Comet, para- 83 — Law No 274 of 22 December 1908. graph 17.

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application of the fundamental principle of time, in some cases for the limitation period legal certainty protecting both the taxpayer laid down by the general law. 86 and the administration concerned.

ings brought with regard to such claims: it which is relied upon by Haahr Petroleum was with a view to the operation of such and Olieselskabet. In Emmott, a case con­ remedies that the Court held in Rewe and cerning the Equal Treatment Directive, 91 the Comet that it was compatible with Commu­ applicant was not granted equal benefits pur­ nity law to lay down reasonable limitation suant to the directive until 28 January 1988, periods. In other cases such claims must be brought before the ordinary courts: such actions are available for varying lengths of 88 — Paragraphs 22 and 23 of the judgment. 89 — Paragraphs 24 and 25 of the judgment. 90 — Cited in note 82. 91 — Council Directive 79/7 of 19 December 1978 on the pro- 86 — Rewe, paragraph 5 of the judgment. gressive implementation of the provisions of equal treat- 87 — Case 68/79 Just v Ministry for Fiscal Affairs [1980] ECR ment for men and women in matters of social security, OJ 501. 1979 L 6, p. 24.

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even though the directive took effect on 23 in order to protect rights conferred upon December 1984. Mrs Emmott's claim for him by the provisions of the directive and equal benefits from 23 December 1984 was that a period laid down by national law resisted by the Irish authorities on the within which proceedings must be initiated 92 ground that she had failed to make her appli­ cannot begin to run before that time.' cation within the three-month period from the date when the grounds arose as required by Irish law. The Court held:

It follows that, until such time as a directive 92 — Paragraphs 21 to 23 of the judgment. has been properly transposed, a defaulting 93 — Case C-410/92 [1994] ECR 1-5483. Member State may not rely on an individu­ 94 — Case C-338/91 Steenhorst-Neerings v Bestuur van de Bed- rijfsvereniging voor Detailhandel, Ambachten en Huisvrou- al's delay in initiating proceedings against it wen [1993] ECR I-5475.

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interpretation of Emmott. The United King­ judgments by some of those who have dom, which submitted observations in submitted observations. In my view, there Haahr Petroleum, similarly refers to are other reasons why the judgment in Steenborst-Neerings, arguing that the Court Emmott, whatever its precise scope and in that case recognized that the principle in import, is not in any event applicable to Emmott was of narrow application. The these cases. Commission refers to the principle devel­ oped by the Court in Rewe and Comet and submits that the national limitation period for claims for the recovery of overpaid tax complies with the conditions laid down in those cases for the recovery of tax levied in breach of Community law.

156. The Court in Emmott started by reiter­ ating the principle which it had laid down in Rewe and Comet. It then stated: 'Whilst the laying down of reasonable time-limits which, if unobserved, bar proceedings, in principle satisfies the two conditions mentioned [in those cases], account must nevertheless be taken of the particular nature of direc­ 96 tives.'

Court concluded that, until such time as a 159. All those factors may be relevant in directive had been properly transposed, a determining whether, in particular circum­ defaulting Member State could not rely on stances, failure properly to transpose a direc­ an individual's delay in initiating proceedings tive may render the exercise of Community against it in order to protect rights conferred rights 'excessively difficult' or — to use the upon him by the directive and that a period formulation which I suggested in my Opin­ laid down by national law within which pro­ ion in Wan Schijndel" — 'unduly difficult'. ceedings must be initiated could not begin to None of them can have any relevance in the 97 run before that time. context of claims for the reimbursement of tax levied in contravention of Article 95.

99 — Joined Cases C-430/93 and C-431/93 Van Schijndel and van Veen v SPF [1995] ECR I-4705. 100 — The English text reads 'produced' but it is apparent from 97 — Paragraphs 18 to 23 of the judgment. the French that the present tense is correct. 98 — Paragraphs 25 to 29 of the Opinion. 101 — Lütticke, cited in note 9.

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162. As explained above, the Court in the words of Advocate General Reischl in Emmott was concerned to ensure that an his Opinion in Just 3therefore: individual seeking to exercise rights deriving from Community law could not be defeated by national time-limits applicable before he was able to ascertain the full extent of those rights.

'from the moment of Denmark's accession ... those subject to the law may rely before the national courts on ... Article 95, which in this connection takes precedence over national rules to the contrary. If individuals rely upon this provision the levying of charges which are contrary to Article 95 must be declared inadmissible.'

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it would be 'shocking' if national time-limits judgment in Emmott can properly be could override Community law. regarded as establishing any general principle about the inapplicability of national time- limits where directives have not been cor­ rectly transposed — there are no grounds for extrapolating that principle to actions based on directly effective Treaty provisions or on duly published free-trade agreements.

166. The effect of that argument would be that no limitation period at all was applicable to the applicants' right of action. As stated 106 by Advocate General Warner in Rewę:

The effect of allocation of the proceeds of the duty 'This would be inconsistent with the com­ mon tradition of the legal systems of the Member States, which is to give effect to the maxim 'Interest reipuhlicae ut sit finis litium' by, among other things, prescribing limita­ tion periods for rights of action (albeit, as the Commission has pointed out, widely diver­ gent ones), and also with the general approach of Community law, as exemplified in Article 173 of the EEC Treaty, Article 43 of the Statute of the Court and many other provisions.'

168. The national court's fifth question in Olieselskabet asks whether it follows from Community law that a Member State which has imposed or approved a duty contrary to Community law is liable to repay the duty, 167. I am accordingly of the view that — even though the proceeds of the duty have even if, which as I have explained in my been allocated to independent operators sub­ Opinion in Denkavit I do not accept, the ject to local authority control. This question arises because in the main proceedings Olieselskabet submitted that the Ministry 106 — Cited in note 84, p. 2004. of Transport was jointly liable with the

169. Olieselskabet refers to the Court's rul­ 107 ing in Francovich to the effect that Mem­ ber States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible. In my view however the prin­ ciples of Member State liability for repara­ tion of loss and damage laid down in Fran- covich and subsequently developed in Brasserie du Pêcheur and Factortame 108 are 171. It is of course the case that, in the not strictly relevant to the question who absence of Community rules on the subject, must repay a tax levied in contravention of it is for the domestic legal system of each Community law. Member State to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which individuals derive from the direct effect of Community law, provided that such condi­ tions are not less favourable than those relat­ ing to similar actions of a domestic nature nor framed so as to render virtually impos­ sible or excessively difficult the exercise of 170. The concept of reimbursement is inher- 11 rights conferred by Community law. 1That endy simpler than that of compensation for principle applies to procedural conditions damage. The Court has ruled that entitle­

109 — San Giorgio, cited in note 68, paragraph 12 of the judg- 107 — Joined Cases C-6/90 and C-9/90 Francovich and Others ment. [1991] ECR I-5357. 110 — Joined Cases C-192/95 to C-218/95 Société Comateb and 108 — Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur Others, judgment of 14 January 1997, paragraph 20. and Factortame [1996] ECR I-1029. 111 — See cases cited in note 84.

173. Thus a national rule which required, in a case such as the present, that the taxpayer 174. It may finally be noted in the context of repayment of an unlawful tax that, by way of 112 — In for example Rewe, cited in note 84, Johnson, cited in exception to the general principle that a note 93, Case C-312/93 Peterbroeck v Belgian State [1995] Member State is required to repay charges ECR I-4599, Van Schijndel, cited in note 99, and FMC, cited in note 84. levied in breach of Community law, there is 113 — See for example San Giorgio, cited in note 68, Just, cited in no such requirement where it is established note 87, Francovich, cited in note 107, and Emmott, cited in note 82. that the person required to pay such charges

I-4137

OPINION OF MR JACOBS — CASE C-90/94

114 — See most recently Comateb, cited in note 110, paragraph 21 of the judgment. 115 — Comateb, paragraph 35 and operative part of the judg- 116 — BRT v SABAM, cited in note 70, paragraph 16 of the judg- ment. ment.

I-4138

HAAHR PETROLEUM v ÅBENRÅ HAVN AND OTHERS

Conclusion

177. Accordingly I am of the opinion that the questions referred to the Court in the present cases should be answered as follows:

In Case C-90/94 Haahr Petroleum:

OPINION OF MR JACOBS — CASE C-90/94

(3) It is not contrary to Community law for a Member State to impose a 40% surcharge on imports of goods by ship from non-member countries with which the Community has no free-trade agreement.

(4) A Member State which has imposed or approved a duty contrary to Commu­ nity law is liable to repay the duty, even though the proceeds of the duty have been allocated to independent operators subject to local authority control, if the taxpayer would otherwise be unable in practice to recover the unlawful duty.

(5) Claims for the repayment of duties levied contrary to Community law are subject to the procedural conditions, including rules on limitation periods, laid down by the domestic legal system of the Member State concerned provided that such conditions are not less favourable than those relating to similar actions of a domestic nature nor framed so as to render impossible in practice or excessively dif­ ficult the exercise of rights conferred by Community law.

(6) It is not contrary to Community law for a national limitation period for claims for the repayment of duties levied contrary to Community law to run from an ear­ lier point in time than that from which the Member State in question discontinued the duty in question.

In Case C-242/95 GT-Link:

(5) Where a public undertaking that owns and operates a commercial port occupies a dominant position, an abuse of that position contrary to Article 86 of the EEC Treaty may lie in the fact that the commercial port does not impose the port duties on its own ferry route or on that of its cooperation partner. Whether that is so may be ascertained in the first case from the level of its prices and in the second case from both the level of its charges to third parties and the value of the services provided by the undertaking and its cooperation partner respectively.

(6) Neither excessive or discriminatory prices imposed by an undertaking in a dominant position nor an import surcharge imposed contrary to Community law can be regarded as necessary for the performance of the task assigned to the under­ taking for the purposes of Article 90(2) of the EEC Treaty.

I-4141