C-37/96

The Court has already considered this ques- The French courts in Réunion (Case tion in the cases of Legros and Others, 1 C-212/96) and Paris (Joined Cases C-37/96 Lancry and Others, 2 and Cadi Surgelés and and C-38/96) are raising once again the issue Others. 3 I should like to point out that in of dock dues in the form introduced by Law the first of these judgments the Court held N o 92-676 of 16 July 1992 (hereinafter 'the that the dock dues then applying constituted Law'), which in turn implements Decision charges having equivalent effect to a customs 89/688 cited above. That decision required duty. In the Lancry case it ruled in particular the French Republic to convert the dock that Article 4 of Council Decision dues into a tax which would apply to all 89/688/EEC of 22 December 1989 4 (herein- products without distinction, subject to the after 'the Decision'), which authorised the possibility of exemptions for local products temporary maintenance of the dock dues over a particular period. arrangements in force at the time when the Decision was adopted, was invalid. The Court also held that the dues in question constituted a charge having equivalent effect to a customs duty even though they were levied, upon entry into the French overseas departments, on goods originating in and The relevant provisions, the facts and the coming from another region of the French questions referred for a preliminary ruling Republic, hence even in a purely domestic situation.

* Original language: Italian. 1 — Case C-163/90 [1992] ECR 1-4625. 2 — Joined Cases C-363/93, C-407/93, C-408/93, C-409/93, 2. It should be borne in mind, above all, that C-410/93 and C-411/93 [1994] ECR 1-3957. the French overseas departments form an 3 — Case C-126/94 [1996] ECR 1-5647. integral part of the French Republic and of 4 — Decision concerning the dock dues in the French overseas departments (OJ 1989 L 399, p. 46). the Community customs territory. The

— the institutions, 4. Making use of the power thus conferred on it, the Council adopted a series of mea- sures to support the development of the

shall apply as soon as this Treaty enters into force. 5 — Case 148/77 [1978] ECR 1787.

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French overseas departments. 6 In particular, Article 227(2) of the Treaty, partial or total by Council Decision 89/688 cited above, the exemptions from the charge according to Council, taking into consideration the part economic requirements, may be authorised played by the dock dues in supporting the for local production activities for a period of economic and social development of the not more than 10 years from the date of overseas departments but also the need to introduction of the system of changes under reform the dues system in force in order to the conditions laid down in Article 3. These integrate the French overseas departments exemptions must contribute to the promo- fully into the process of completing the tion or maintenance of an economic activity internal market, imposed on the French in the French overseas departments and be in authorities, in Article 1 of the Decision, the line with the economic and social develop- obligation to amend the dock dues arrange- ment strategy of each French overseas ments by 31 December 1992 at the latest so department, taking account of its Commu- that they applied to all goods without dis- nity aid framework, while not being such as tinction, whether imported into or produced to adversely affect the terms of trade to an in the French overseas departments. extent contrary to the common interest.

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OPINION OF MR TESAURO — CASE C-212/96

goods, the supply of goods for payment by I — The validity of Decision 89/688 (Case persons engaged in those regions in produc- C-212/96) tion or in agriculture or in mining activities, and the supply of goods for payment by per- sons buying them in order to export or resell them to third parties liable to pay dock dues.

7. In the proceedings pending before the Tribunal Administratif, Saint-Denis (Réunion), the plaintiff sought the annul- ment of the resolution of 11 December 1992 by which the Regional Council of Réunion adopted rates for the dock dues applying in that department and exempted from the The Regional Councils are authorised to charge all goods produced on the island. exempt from the charge the entry or supply According to the plaintiff, the contested for payment of products and raw materials resolution does not comply with either the intended for certain specific activities. spirit or the letter of Decision 89/688, assuming that the latter is compatible with the Treaty.

Taking the view that the decision in the case 6. The present cases concern the interpreta- necessarily entailed a determination whether tion of Community law with regard to the the Decision was compatible with the Treaty, Decision and the national law implementing the Tribunal Administratif, Saint-Denis it. More specifically, Case C-212/96 raises (Réunion) referred the following two ques- the question of the validity of the Decision, tions to the Court: whilst Joined Cases C-37/96 and C-38/96 raise the issue on to whether the national legislation giving effect to the Decision is compatible with Community law.

2. If so, may Decision 89/688/EEC be are transitional and are subject to conditions regarded, in the light of the second which will prevent the system of trade from paragraph of Article 95 of the Treaty of being adversely affected to an extent con- Rome, as permitting fiscal differentia- trary to the common interest. Moreover, tion with a view to achieving economic although it introduces a difference in treat- objectives which are consistent with the ment between local and imported products, requirements of the Treaty and of sec- the authorisation of such exemptions can ondary legislation, where such differen- none the less be regarded as compatible with tiation is justified by the particular the Treaty. According to the judgment in economic conditions in the overseas Hansen, 8it is permissible to derogate from departments?' Article 95 since that provision is not one of those referred to in the first subparagraph of Article 227(2) which have been directly applicable to the French overseas depart- ments since the entry into force of the Treaty. 8. In my view, in order to reply to the ques- tions referred by the Réunion court, the Court of Justice must first and foremost ascertain whether, by authorising exemptions from the payment of dock dues in favour of local undertakings, the Decision authorised the maintenance of a charge having equiva- 10. For its part, the Council maintains, as its lent effect to a customs duty or tax discrimi- primary submission, that the Decision nation which falls for consideration in the requires the French Republic to alter the light of Article 95, and, in the latter case, dock dues arrangements radically by con- whether such authorisation is compatible verting them into internal taxation which is with the Treaty and, in particular, Article levied on all products without distinction. In 227(2) thereof. that form, the arrangements fall within the scope of Article 95 of the Treaty, a provision for the application of which to the French overseas departments the Council is entitled under Article 227(2) to lay down the condi- tions. As regards Article 2(3), the Council stresses, as do the Commission and the 9. The French Government and the Com- French Government, the non-systematic mission point out that Article 1 of the nature of the exemptions authorised under Decision lays down the principle that all that provision and concludes that those products, whether local or imported, are exemptions are not likely to distort the liable to dock dues and that Article 2(2) pro- nature of the tax system introduced under vides that, pursuant to Article 95 of the the Law. Lastly, the Council stresses that the Treaty, the amount of the charge should be question of the validity of the Decision is set so as not to create discrimination against not to be confused with the question of imported products. In their view, the power whether the national implementing measures conferred on local authorities under Article are unlawful and that, should this be found 2(3) of the Decision to grant total or partial exemptions in favour of local products does not alter the fact that the charge constitutes internal taxation. The exemptions in question 8 — Cited in footnote 5.

11. I shall begin by pointing out that, as the Court has consistently held, 9 under the sys- tem established by the Treaty a particular tax cannot simultaneously be a charge having equivalent effect to a customs duty, within 13. In my view the Decision made it pos- the meaning of Articles 9 and 12, and inter- sible, in disregard of the Court's ruling in nal taxation within the meaning of Article Legros, to reintroduce a measure which is 95. Articles 9 and 12 prohibit the imposition incompatible with the Treaty. 12 Although as between Member States of customs duties Article 1 of the Decision requires the French on imports and exports and of charges hav- authorities to amend the dock dues arrange- ing equivalent effect, whereas Article 95 ments in order to convert them into a system merely confines itself to prohibiting internal of non-discriminatory internal taxation, taxation which discriminates against prod- Article 2(3) of the Decision — which is the ucts from other Member States, and only subject of the question referred for a prelimi- prohibits it to that extent. More specifically, nary ruling — allows partial or total exemp- the essential feature of a charge having tions to be granted for the benefit solely of equivalent effect to a customs duty which local products, and thus on the basis not of distinguishes it from internal taxation, is the an objective criterion but of the origin of the fact that the former applies exclusively to an products. This amounts therefore to autho- imported product as such, whereas the latter rising the maintenance of a discriminatory applies both to imported products and to tax system, since the exemptions are granted domestic products, in accordance with objec- to local products and withheld from tive criteria applied irrespective of the origin imported products, which are the only prod- of the products. 10 ucts de facto and de jure on -which the charge is levied.

14. In my view, three ways of resolving the 16. The second solution would be to regard problem which has just been illustrated can the system of exemptions which concerns us be envisaged. here as being in substance, owing to its con- . tent and effects, a charge having equivalent effect to a customs duty. The granting of exemptions means that local products escape payment of the charge, although it is imposed in full on imported products by reason of their importation into the territory of the French overseas departments; the 15. The first is to consider that the advan- exemptions mean that only non-local prod- tages which the contested provision confers ucts are liable to the charge and that there- on local products do not in any way detract fore these products are in fact subjected to a from the character of the 'new' dock dues as financial burden which is identical in nature internal taxation within the meaning of and effect to an import duty. Article 95, because they are advantages linked to rules which provide for, and actu- ally impose, a general, abstract system of taxation which applies to all goods without distinction. This is manifestly so in the case of full exemptions: since they result in the total exclusion of local products from the applica- tion of the charge, they cannot in any way conceal the fact that what is concerned is in substance a charge having equivalent effect to a customs duty, as the Court has already This is a hypothesis which, as regards the observed in the Legros judgment 14 and reaf- interpretation of the relevant rules, favours firmed in the Ayuntamiento de Ceuta judg- the formal aspect of the system of taxation at ment. 15 issue as opposed to its substantive effects. From this perspective the system concerned comes under Article 95 and is prohibited in so far as it discriminates against imported products. One could even cite in support of this solution a passage from the case-law of the Court in which, although the Court does 17. Moreover, a similar conclusion would not deal with the substance of the question, have to be reached as regards partial exemp- it states in general terms that, where a tax tions: these too are authorised according to system is so structured that it reserves the criteria applicable to total exemptions, exemptions or reduced rates of tax exclus- that is to say exclusively on the basis of the ively to domestic products, this constitutes origin of the products. As a result, even in discrimination prohibited under Article 95 of this case, the benefit accorded to local goods the Treaty. 13 constitutes, just as in the case previously

First and foremost, what the parties under- stand by ‘non-systematic' is not clear, since 18. I cannot hide my preference for the sec- none of them has provided any further par- ond solution which I have envisaged, since it ticulars of this. Moreover, one cannot ignore is a more faithful reflection of the substance the fact that the provision in question merely and effects of the system of dues which con- cerns us here and thus of the need to have, over and above the formal aspect, a realistic 16 — Advocate General Trabucci expressed himself similarly in vision of the phenomena of economic life in Case 94/74 IGAV [1975] ECR 699; Opinion p. 715 and in particular p. 718. Although it related to a situation which order to ensure a more harmonious concor- was different from that in the present case and which con- dance between law and fact and thus to ren- cerned a parafiscal charge intended to fund the activities of a public body, the Opinion delivered in that case seems to der the pursuit of the objectives of the Treaty me to establish a general principle. more effective. In the present case it is only 17 — See most recently Joined Cases C-197/94 and C-252/94 Bautiaa and Société Française Maritime [1996] ECR I-505, on the basis of a strictly formal approach paragraph 39.

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20. If it were thought desirable to take into offsetting, the Court considers that the account a requirement for systematic consis- charge affects imports only and therefore tency in the case-law of the Court, which constitutes a charge having equivalent effect calls for the adoption of like solutions for to a customs duty within the meaning of kindred problems, it seems to me possible Articles 9 and 12 of the Treaty; if offsetting is also to envisage a third solution. This would involve applying to the case which concerns us here the criteria which have been elabo- 18 — In Case 77/72 Capolongo [1973] ECR 611, paragraphs 13 rated in the case-law of the Court, in par- and 14, the Court had already stated in this connection that ticular in the area of parafiscal taxes. 'financial charges within a general system of internal taxa- tion applying systematically to domestic and imported products according to the same criteria are not to be con- sidered as charges having equivalent effect .

The same approach was repeated as regards spe- cifically the application of Article 95. In Case 73/79 Com- mission v Italy [1980] ECR 1533, paragraph 15, the Court I should like to point out that, for the pur- held that 'in an interpretation of the concept "internal taxa- tion'' for the purposes of Article 95 it may be necessary to pose of classifying charges of this kind in take into account the purpose to which the revenue from the charge is p u t In fact, if the revenue from such a charge relation to the Treaty, the Court has consid- is intended to finance activities for the special advantage of ered it necessary to take into account the the taxed domestic products it may follow that the charge imposed on the basis of the same criteria nevertheless con- intended purpose of the charge concerned, in stitutes discriminatory taxation in so far as the fiscal burden on domestic products is neutralised by the advantages order to bring within the concept of charges which the charge is used to finance whilst the charge on the having equivalent effect to a customs duty imported products constitutes a net burden.'

25. That, clearly, is necessarily the result one would arrive at if one were to classify the 22. The application of this test to the matter charge in question, which applies only to which concerns us would be bound to lead imported products and from which local to the conclusion that the system falls under products are exempt, as a charge having the prohibition contained in Articles 9 and equivalent effect to a customs duty. As the 12 in the case of total exemption; but in the Court reaffirmed in the Lancry judgment, 20 case of partial exemption the system comes Article 227(2) excludes the possibility of under Article 95 and is prohibited because it derogating from the application in the is discriminatory, since it imposes on French overseas departments of the provi- sions mentioned in the first subparagraph of imported products a burden which is heavier that paragraph, including those relating to than that borne by local products. the free movement of goods. The Council could not, therefore, by its decision legiti- mately authorise the French Republic to introduce a system of tax exemptions reserved for local products that would trans- form the charge concerned into a charge hav- ing equivalent effect to a customs duty, which is unquestionably prohibited, as such, 23. The last solution envisaged, although it by the provisions of the Treaty relating to does not in my opinion meet in full the need, the free movement of goods. which I have already mentioned, to ascertain the real nature of a tax system in order to classify it in relation to the Treaty, would at least have the merit of being partially in har- mony with the case-law relating to the intended use of the revenue from the tax. 26. Moreover, even if the Court were not to hold that the authorisation of exemptions distorts the system as a whole, or at least 19 — See in this connection, Case C-72/92 Scharbatke [1993] with respect to partial exemptions (so that ECR I-5509, paragraphs 10 to 16; Case C-266/91 Celbi [1993] ECR I-4337, paragraphs 13 to 19; Case C-17/91 Lor- there would remain de facto a discriminatory noy and Others [1992] ECR I-6523, paragraphs 17 to 22; Case C-114/91 Claeys [1992] ECR I-6559, paragraphs 14 to tax system for the purposes of Article 95), no 19; Joined Cases C-144/91 and C-145/91 Demoor and Oth- different conclusion should, in my view, be ers [1992] ECR I-6613, paragraphs 18 to 21; Joined Cases C-149/91 and C-150/91 Sanders Adour and Guyomarc'h Orthez [1992] ECR I-3899, paragraphs 20 to 22; and Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l'Ouest and Others [1992] ECR I-1847, paragraphs 26 to 28. 20 — Judgment cited in footnote 2, paragraphs 37 and 38.

reached as regards the invalidity of the pro- latter prohibition from being circumvented vision at issue. and evaded by means of a different fiscal instrument. N o r should it be forgotten that in both cases it is taxes that are concerned, customs duties and charges having equivalent effect being of a fiscal nature just as is the taxation referred to in Article 95, and this is so irrespective of any economic aim pursued, O n this point the French Government and which may still be the same in both cases, for the Commission have maintained that the instance a protectionist aim. Decision could perfectly well permit deroga- tions from Article 95 and hence authorise discriminatory tax measures, since Article 95 is not one of the provisions listed in the first subparagraph of Article 227(2) from which the Council is not permitted to derogate. This, they add, was confirmed by the Court 28. The Court has repeatedly had occasion itself in the Hansen judgment. to spell out this relationship of complemen- tarity, stating that Article 95 'is intended ... to fill in any breaches which a fiscal measure might open up in the prohibitions laid down in Articles 9 and 12'. 21 This statement has been repeated and better elucidated subse- quently: 27. This argument cannot, it seems to me, be accepted. It is certainly true that, from the point of view of its formal position in the structure of the Treaty, Article 95 ranks among what are referred to as the 'tax' pro- visions, which are not expressly included among those, referred to in Article 227(2), which are not open to derogation. However, 'The abovementioned provisions (Article 95) the distinction between the particular and supplement, within the system of the Treaty, specific scope of Article 95 (prohibition of the provisions on the abolition of customs discriminatory internal taxation) and that of duties and charges having equivalent effect. Articles 9 and 12 (prohibition of charges Their aim is to ensure free movement of having equivalent effect to a customs duty) goods between the Member States in normal by no means excludes the complementarity conditions of competition by the elimination of the function performed by the former of all forms of protection which result from provision in relation to the rules which gov- the application of internal taxation which ern the free movement of goods within the discriminates against products from other common market and which therefore come Member States. As the Commission has cor- within the category of provisions from rectly stated, Article 95 must guarantee the which it is not permitted to derogate. The complete neutrality of internal taxation as prohibition laid down in Article 95 in fact plays no more than an ancillary role in rela- tion to the prohibition laid down in Articles 21 — Case 24/68 Commission v Italy [1969] ECR 193, paragraph 9 and 12, in that it is intended to prevent the 5; emphasis added.

regards competition between domestic prod- territories. It is true that in that judgment the ucts and imported products.’ 22 Court expressly referred to the ‘chapters and articles of the Treaty’ immediately applicable to the French overseas departments; how- ever, I do not think it is possible to draw from that reference any unequivocal and definitive inference that the Court meant to In short, it may be inferred from this that the exclude the possibility of Article 95 affecting Court has already amply acknowledged that the rules relating to the free movement of Article 95 belongs to the body of rules relat- goods and, hence, of being covered by the ing to the movement of goods, and has first subparagraph of Article 227(2). accorded priority, in interpreting and charac- terizing that provision, to the functional and substantive aspect as opposed to the aspect of title or definition which is linked to the formal position of the provision in the struc- ture of the Treaty. 30. The idea of such exclusion does not seem to me to be tenable, for the reasons of complementarity to which I have referred earlier; moreover, exclusion would not appear to be justified even from the point of 29. O n the other hand, it does not seem to view of the wording of the provision. It me possible to derive from the Hansen judg- should be remembered that the list contained ment anything of significance pointing to the in the first subparagraph of Article 227(2) is contrary, even if one were inclined not to call preceded by the phrase ‘the general and par- into question in any way the approach dem- ticular provisions of this Treaty relating to onstrated in that judgment, as regards a par- …’. I think therefore that the Community ticular set of facts. In reality, in that judg- legislature did not intend to draw up an ment the Court confirmed the fundamental exhaustive list composed exclusively of the distinction drawn in Article 227 between the provisions set out under the titles expressly rules set out in the first subparagraph, which indicated, but rather a list of rules which, by are immediately applicable from the entry virtue of their content and function, fall into force of the Treaty, and the others, within the framework of the rules governing whose application to the French overseas a particular matter. departments was to take place gradually and which in any case left open the possibility of adopting as far as they were concerned rules suited to the special requirements of those

However, if one were to adopt the opposite Let us take an example. Assuming a charge solution, excluding Article 95 from the pro- in the amount of 100, total exemption would visions indicated in the first subparagraph of give rise to payment of 0 on a local product Article 227(2), the result, as paradoxical as it and 100 on an imported product. The differ- is unacceptable, would be to nullify the ence is clearly 100 between the charge borne effectiveness of the rule, in particular of the by the second and that 'imposed' on the first. immunity from derogation of the provisions N o w it would be perfectly possible to arrive relating to the free movement of goods and, at the same result by resorting to partial hence, of the prohibition on the introduction exemption. For this purpose it would be suf- of charges having equivalent effect. In short, ficient to raise the amount of the charge to this would amount to letting back in through 150 and to make provision for an exemption the window what had been chased out equivalent to 100 in favour of the local prod- through the door, in disregard of the logic of uct. This way the local product would bear a the system and notwithstanding the thirty- charge of 50 and the imported product a year-old case-law of the Court, cited above, charge of 150: again the difference would be which allocates to Article 95 the function of equivalent to 100, exactly the same as in the 'filling in any breaches which a fiscal meas- case of total exemption described previously. ure might open up in the prohibitions laid down in Articles 9 and 12'. 23

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favourable financial situation than other tax- II — The national rules relating to the ‘new’ payers, constitutes State aid within the mean- dock dues (Joined Cases C-37/96 and ing of Article 92(1) of the Treaty. 24 C-38/96)

35. As I pointed out at the beginning, the French legislature implemented the Decision In such a case, since the rules relating to aid by Law N o 92-676 of 16 July 1992, the same are 'expressly' included among those not date as that of the Legros judgment. That law open to derogation under Article 227(2), the introduced the ‘new’ dock dues on the entry derogation from Article 95 effected by the of goods into the French overseas depart- grant of exemptions would also result in ments and set out in detail the procedures avoidance of the provisions relating to aid governing liability to the charge and the and, hence, in infringing Article 227(2) also exemptions from it; it also authorised the in this respect. This does not, of course, local authorities to make provision for spe- mean that a system of aid to the French cial exemption cases. overseas departments would be unlawful in any event; however, I think that, in order to grant such aid lawfully it is necessary to comply with the procedures laid down by the Treaty.

Lastly, under Article 10, identical or similar imported goods and to goods produced products belonging to the same category are locally since they are levied on the basis of subject to the same charge, irrespective of the same objective criterion: turnover. It where they come from. This provision how- therefore considers that it is not possible to ever authorises the Regional Councils to classify the new dock dues as a charge having exempt from the charge, in whole or in part, equivalent effect, as the plaintiffs are claim- depending on economic needs, deliveries ing. effected in return for payment by persons engaged in production in the French over- seas departments. Such exemptions must apply to all products belonging to a particu- lar category. However, taking into account the provisions of the Law which authorise, as we have seen, total or partial exemptions from the charge, and certain other forms of advantage for local products, which are likely to affect 37. In the cases pending before the Tribunal equality of treatment between local and for- d'Instance, Paris, the plaintiffs, companies in eign undertakings, the national court referred Martinique which market products imported the following question to the Court of Jus- from other Member States, have claimed tice: reimbursement of the dock dues which they have paid on all the products which they have imported since the Law entered into force.

of Article 2(3) of the Decision, what conse- 41. According to the plaintiffs in the main quences should be drawn from this as proceedings, the new arrangements conceal, regards the question raised by the Paris under the guise of a tax system applicable court? without distinction to all goods, the charac- teristics and discriminatory effects of the 'old' dock dues; according to them, this is plain from the system governing liability to the charge, the criteria for calculating the charge and the procedure for collecting it. Since, in particular, it reserves for local prod- ucts the advantages referred to above, according to the plaintiffs the Law ultimately brings about a manifest difference in treat- Let me say at once that, if the provisions of ment to the detriment of imported products. the Decision which authorise the introduc- tion of total and/or partial exemptions into the internal taxation system are declared invalid, the national measures which are linked to that authorisation are, in principle, incompatible with the Treaty. It is necessary, however, to examine more closely the legisla- The plaintiffs in the main proceedings add tion which was adopted specifically to that, by creating discrimination to the detri- implement the Decision, and in particular in ment of imported products, the tax system what way and to what extent the authorisa- introduced by the Law ultimately produces tion provided for in Article 2(3) of the the same effects as a charge having equivalent Decision has in fact been exploited. effect to a customs duty. In those circum- stances, if Article 95 were held to be open to derogation as not ranking among those men- tioned in the first subparagraph of Article 227(2), the Law would still be incompatible with Articles 9 and 12 of the Treaty, which are immediately applicable to the French overseas departments by virtue of Article 227(2). In fact, since the new dock dues arrangements constitute an autonomous 40. Admittedly, the Law formally trans- regional tax system and make the granting of formed the new dock dues into internal taxa- the advantages for which they provide sub- tion applying without distinction to all ject to a procedure for checking the origin of goods, both local and imported. It did, how- the products qualifying for those advantages, ever, provide for certain forms of advantage. they have an adverse effect both on the unity These are, in particular, the tax exemption of the customs territory and on the free granted to undertakings whose turnover did movement of goods. not exceed FF 3.5 million (under the first subparagraph of Article 3-1), the total or partial exemption granted to certain local products (under the second subparagraph of Article 2-2 and Article 10-2) and the 15% reduction in the basis of assessment to the 42. The French Government and the Com- charge on local products [under Article 4(b)]. mission develop lines of argument which are

44. The legality of the system of taxation at issue must be considered in the light of 43. More particularly, the possibility of Article 95, or else in the light of Articles 9 totally or partially exempting certain local and 12. 25 products from the charge, accorded by the Law to the Regional Councils of the French overseas departments, is, it is submitted, 25 — The plaintiffs in the main proceedings have also invoked, entirely legitimate since it accords perfectly incidentally, the prohibition on quantitative restrictions on imports laid down in Article 30 of the Treaty. In this con- with what is provided in Article 2(3) of the nection, it should be noted that Anicie 30, which is a fun- Decision. damental provision of the rules governing the free move- ment of goods, is a provision of a general nature, as compared with the special provisions relating to charges having equivalent effect to customs duties and to discrimi- natory taxation. As such, Article 30 applies in a very sub- sidiary, one might say residual, manner as compared with Articles 9 to 12 on the one hand and Article 95 on the other; in other words, if the prerequisites laid down by the Treaty are met, it is the special rules which must apply and not the general provision relating to measures having While it gives rise to discrimination, albeit equivalent effect. See Case 74/76 Iannelli and Volpi [1977] ECR 557, paragraph 9, and, more recently, the judgment in justified by the specific needs of local under- Compagnie Commerciale de l'Ouest and Others, cited in takings, the 15% reduction in the basis of footnote 19, paragraphs 20 and 21.

48. Similarly, it follows from the case-law of 46. As regards in particular the power the Court that the first paragraph of Article accorded by the Law to the Regional Coun- 95 prohibits the taxation of imported goods cils of the French overseas departments to on the basis of a method of calculation, dif- grant total or partial tax exemptions solely in ferent from that used for the taxation of favour of local products, it is clear that the similar domestic products, which results in a observations I have made and the criteria I heavier burden for the imported goods, irre- have adopted in Case C-212/96 for the pur- spective of any difference in the impact on pose of characterising the exemptions autho- the prices of the domestically produced and rised by the Decision also apply here. 26 the imported products, 28 or of the minor or incidental nature of the obstacle created by the national tax. 29 In particular, as the Court has made clear on many occasions, the first paragraph of Article 95 is infringed where the two taxes are calculated in a different manner on the basis of different criteria, 47. As regards the reduction in the basis of leading to a heavier burden being imposed assessment for calculating the charge levied on the imported product. 30 on local products, I would point out that the Court has repeatedly made it clear that, for the purposes of the application of Article 95 of the Treaty, account must be taken not 27 — See in particular Case C-327/90 Commission v Greece [1992] ECR I-3033, paragraph 11 and Case C-47/88 Com- only of the rate of the internal taxation mssion v Denmark [1990] ECR 1-4509, paragraph 18. 28 — Case 45/75 Rewe-Zentrale [1976] ECR 181, paragraph 16. 29 — Case 20/76 Schüttle [1977] ECR 247, paragraph 22. 30 — Commission v Greece, cited in footnote 27, paragraph 12, and Case C-152/89 Commission v Luxembourg [1991] ECR 26 — See above, points 13 to 24. I-3141, paragraph 20.

53. It has therefore to be recorded that there is a clear conflict between the figures pro- vided by the plaintiffs and those produced by the Commission. The latter are incom- plete, as the institution itself admits, in that 51. Of the three forms of tax advantage they do not cover all local production and, in envisaged by the Law, the one which remains particular, family businesses. The result is, to be examined is the exemption granted to therefore, that it does not appear possible to undertakings whose turnover is less than FF infer anything of significance from the vari- 3.5 million. ous data provided by the parties.

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55. In the light of t h e foregoing considerations, I p r o p o s e that the C o u r t s h o u l d reply t o t h e national c o u r t as follows:

— in C a s e C - 2 1 2 / 9 6 :

Article 2(3) of C o u n c i l D e c i s i o n 8 9 / 6 8 8 / E E C of 22 D e c e m b e r 1989 o n t h e d o c k dues arrangements in t h e F r e n c h overseas d e p a r t m e n t s is invalid in t h a t it a u t h o - rises t h e i n t r o d u c t i o n of a system of tax exemptions w h i c h is i n c o m p a t i b l e either w i t h Articles 9 and 12 of t h e Treaty o r w i t h Article 95, and is n o t permissible in t h e light of Article 227(2).

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— in Joined Cases C-37/96 and C-38/96: