European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

According to the Court of Justice , where a pecuniary charge imposed unilaterally by a Member State is related to a general system of internal dues applied systematically in accordance with the same criteria and at the same marketing stage to domestic products and imported products alike, it comes under the scope of application of Article 110 TFEU. Provisions relating to taxes having equivalent ef …

Distinction between internal taxation and charges having equivalent effect

According to the Court of Justice , where a pecuniary charge imposed unilaterally by a Member State is related to a general system of internal dues applied systematically in accordance with the same criteria and at the same marketing stage to domestic products and imported products alike, it comes under the scope of application of Article 110 TFEU. Provisions relating to taxes having equivalent effect and those relating to discriminatory internal taxation do not apply cumulatively: under the Treaty, the same taxation cannot belong to those two categories simultaneously. A tax having equivalent effect to a customs duty is different from internal taxation since it covers the imported product exclusively while taxation is imposed both on imported and domestic products.

Where a tax affects domestic and imported products indifferently and is systematically collected according to identical and objective criteria applied irrespective of their origin and at the same stage of production , it is regarded as internal taxation . The chargeable event giving rise to the tax must be identical in the case of both products , but an identical or similar domestic product is not required ; the product should only be comparable.

However, internal tax constitutes a tax having an effect equivalent to a customs duty where the detailed rules governing the levying of the charge or its use are such that in fact it is imposed solely on imported products to the exclusion of domestic products . This is the case where a charge affecting both imported products and similar products is limited to particular products and has the sole purpose of financing activities for the specific advantage of the taxed domestic products . The courts require that the charge imposed be fully offset . A charge which applies in an identical way to domestic and imported products therefore characterizes an internal taxation where its use only partly offsets the burden borne by the domestic product .

As well as concerning only imported products, the essential feature of a tax having equivalent effect is that it is levied when products cross a frontier , while the taxation covers imported, domestic or exported products, irrespective of a frontier being crossed . Therefore, a charge which is levied at the frontier when the export operation takes place is deemed to be a charge tax having equivalent effect, unless the allegedly comparable charge levied on national products is applied at the same rate, at the same marketing stage and on the basis of an identical chargeable event .

The classification has an influence on the penalty insofar as the charge having equivalent effect, which makes it possible to fully offset the fiscal burden, is unlawful in its entirety, whereas internal taxation, which is only partially offset, remains lawful but must be reduced proportionally to that advantage .

Case 46/76 Bauhuis [1977] ECR 5, LawLex200900001994JBJ.

Case C-39/17 Lubrizol France, Judgment of 14 June 2016, LawLex201800000917JBJ: the disputed contributions levied, at the same rate, on both goods transferred to another Member State and those sold within the national territory, at the same marketing stage, with the chargeable event triggering the duty being identical in the case of both types of goods, constitute discriminatory internal taxation within the meaning of Article 110 TFEU, even if the price of the goods is included in the basis of assessment for the contributions at issue only at the time of the sale of those goods when they remain within the national territory, whereas the representative value of those goods, when the latter are transferred to another Member State, is included in that same basis of assessment from the time of such transfer.

Case C-290/05 Nádasdi [2006] ECR I-10115, LawLex200900000371JBJ; Case C-313/05 Brzezinski [2007] ECR I-513, LawLex200900002223JBJ.

Case C-441/98 Michailidis [2000] ECR I-7145, LawLex200900002190JBJ.

Case C-234/99 Nygård [2002] ECR I-3657, LawLex200900000821JBJ.

Case 87/75 Bresciani v Amministrazione delle finanze dello Stato [1976] ECR 129, LawLex200900001977JBJ.

Case 132/78 Denkavit Loire [1979] ECR 1923, LawLex200900001535JBJ; Case C-441/98 Michailidis [2000] ECR I-7145, LawLex200900002190JBJ.

Case 90/79 Commission v France [1981] ECR 283, LawLex200900002043JBJ.

Case 32/80 Kortmann [1981] ECR 251, LawLex200900002042JBJ.

Case 78/76 Steinike & Weinlig [1977] ECR 595, LawLex200400002811JBJ.

Case 77/72 Capolongo v Azienda Agricola Maya [1973] ECR 611, LawLex200500005416JBJ; Case C-149/91 Sanders Adour and Guyomarc'h Orthez v Directeur des services fiscaux des Pyrénées-Atlantiques [1992] ECR I-3899, LawLex200500005297JBJ.

Case C-78/90 Compagnie commerciale de l'Ouest v Receveur principal des douanes de La Pallice-Port [1992] ECR I-1847, LawLex200500004873JBJ; Case C-234/99 Nygård [2002] ECR I-3657, LawLex200900000821JBJ; Case C-72/92 Scharbatke v Germany [1993] ECR I-5509, LawLex200900001161JBJ; Case C-347/95 Fazenda Pública v UCAL [1997] ECR I-4911, LawLex200500006480JBJ; Case C-206/06 Essent Netwerk Noord and others [2008] ECR I-5497, LawLex200900001314JBJ; Case C-517/04 Koornstra [2006] ECR I-5015, LawLex200900001023JBJ; Case C-28/96 Fazenda Pública v Fricarnes [1997] ECR I-4939, LawLex200900001375JBJ; Case 78/76 Steinike & Weinlig [1977] ECR 595, LawLex200400002811JBJ.

European Business Law

63. Distinction between internal taxation and charges having equivalent effect

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63. Distinction between internal taxation and charges having equivalent effect

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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