CJEC, March 11, 1992, No C-78/90

THE COURT,

1. By judgments of 14 January 1990, received at the Court on 22 March 1990, the Cour d'appel, Poitiers, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a number of questions on the interpretation of Articles 3, 5, 6, 12, 13, 30, the first paragraph of Article 31, the first paragraph of Article 32, the second paragraph of Article 37, and Articles 92 and 95 of the EEC Treaty.

2. Those questions were raised in proceedings between a number of undertakings trading in petroleum products and the French customs administration concerning the legality of a parafiscal charge levied in France on certain petroleum products.

3. It appears from the documents before the Court that the ex-refinery prices for petroleum products in France were fixed by the administrative authorities on the basis of various factors, including the parity of the United States dollar, the currency of settlement for crude oil transactions on the international markets. The retail prices of those products were also fixed by the administrative authorities on the basis of various factors, including the ex-refinery prices. The latter were reduced in 1978 following a drop in the parity of the dollar.

4. To ensure that the fall in prices did not give rise to an increase in the consumption of petroleum products, the authorities decided not to pass on to the retail prices the fall in ex-refinery prices. To that end, in order to offset the fall in ex-refinery prices, a parafiscal charge was introduced for the period ending on 31 December 1978 on ordinary and high-octane petrol and domestic fuel, by two decrees of 30 August and 2 November 1978. The rate of the charge was fixed, by ministerial orders, at FF 6.85 per hectolitre for high-octane and ordinary petrol and at FF 2.06 per hectolitre for domestic fuel.

5. According to those two decrees, the chargeable event for the parafiscal charge was the release for consumption of the products concerned, whether they were imported or obtained from French refineries from crude oil of domestic or foreign origin.

6. The abovementioned decrees provided that the charge was to be collected for the benefit of the Agence pour les Economies d'Energie (Energy Saving Agency), a public body operating in the industrial and commercial sector, which was to use the funds raised for measures to encourage energy savings and the rational use of inadequately exploited energy resources.

7. Contending that the levy of the charge in question was unlawful, four undertakings engaged in the business of purchasing, importing and distributing petroleum products, commenced proceedings against the Customs Administration before the Tribunal d' Instance (District Court), La Rochelle, for an order that the sums collected under the two abovementioned decrees should be repaid to them.

8. The Tribunal d' Instance considered that the plaintiffs had not adduced the evidence required by Article 13-5 of the Loi de Finances (Finance Law) of 30 December 1980 - which later became Article 352bis of the Code des Douanes (Customs Code) - that the charges paid had not been passed on to the consumer. It therefore dismissed their actions.

9. The Cour d' Appel, Poitiers, before which the case came on appeal, decided to stay the proceedings pending a preliminary ruling from the Court of Justice of the European Communities on a question submitted to the latter by the French Cour de Cassation following similar actions brought by other companies.

10. By judgment of 25 February 1988 in Joined Cases 331-85. 376-85 and 378-85 Bianco and Girard [1988] ECR 1099, the Court replied as follows to that question: "1. The Treaty establishing the European Economic Community must be interpreted as meaning that a Member State may not adopt provisions which make the repayment of charges levied contrary to Community law conditional upon the production of proof that those charges have not been passed on to the purchasers of the products that were subject to the charges and place the burden of adducing such negative proof entirely upon the natural or legal persons claiming repayment. 2. The answer does not depend on whether the national provision has retroactive effect, the nature of the charge at issue or whether the market is free, regulated or monopolistic, either wholly or in part."

11. Considering that that judgment of the Court of Justice concerned only the law of evidence in proceedings for "the repayment of charges levied contrary to Community law", the Cour d'appel, Poitiers, concluded that it was still necessary to determine whether the charges at issue had been introduced and collected in breach of Community law.

12. By six judgments in the same terms, delivered on 14 February 1990, the cour d'appel therefore stayed the proceedings and referred the following questions to the Court for a preliminary ruling: "1. Is a parafiscal charge imposed by a Member State for the benefit of a national public body on a product when it is put into circulation compatible with Articles 3, 5, 6, 12 and 13 of the EEC Treaty introducing the free movement of goods between Member States (a) when the charge applies to imported products? (b) when, under the same conditions as to its introduction and levying, it applies to imported and domestic products alike? 2. Is a parafiscal charge imposed by a Member State on an industrial product such as petrol, high-octane petrol or domestic fuel oil at the time when it is put into circulation on the domestic market a measure having equivalent effect to a quantitative restriction on imports and is it compatible with Articles 30, 31 (first paragraph) and 32 (first paragraph) of the EEC Treaty (a) When it applies to imported products? (b) When, under the same conditions as to its levying, it applies to imported and domestic petroleum products alike, even if the latter represent only a modest part of national consumption? 3. Is a parafiscal charge of the kind provided for in the decrees in question compatible with Article 37(2) of the Treaty? 4. If the parafiscal charge may not be regarded as a charge having equivalent effect, may it be regarded as internal taxation within the meaning of Article 95 of the Treaty? 5. Is a parafiscal charge whose proceeds are intended to be used to subsidize solely national undertakings - in the present case, the Energy Saving Agency in respect of which Article 5 of the decree of 30 August 1978 provides that it is to use the funds in order to finance measures to encourage energy savings and the rational utilization of energy resources which are under-utilized - compatible with the provisions of the EEC Treaty and in particular Article 92 thereof?"

13. Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. The questions

14. The Commission maintains that, in order to answer the questions from the national court, it is inappropriate to consider the charge in isolation since it forms part of a regulated price system which is incompatible with Article 30 of the EEC Treaty, as held in the judgments of the Court in Case 231-83 Leclerc [1985] ECR 305 and Joined Cases 16 to 20-79 Openbaar Ministerie v Danis and Others [1979] ECR 3327. According to the Commission, the parafiscal charges referred to in the questions submitted form an integral part of a system of controlled prices, all the components of which were determined by the administrative authorities. They are thus caught by the prohibition contained in Article 30 of the Treaty, since that system had the effect of keeping the competitive position of domestic products unchanged, with the burden of the charge being offset by reduction of the price; on the other hand, the position of products imported from other Member States was made more unfavourable by the fact that they bore the burden of the charge without enjoying the benefit of the price reduction.

15. It must be observed, in that connection, that the preliminary questions do not refer to the French system of controlled prices but only to the parafiscal charge as such. Consequently, the Court will confine itself to considering the question as formulated and will examine the parafiscal charge at issue without investigating the relationship between it and the reduction of the price of petroleum products.

16. Consequently, the questions submitted must be understood in the following terms: Do Articles 3, 5, 6, 12, 13, 30, the first paragraph of Article 31, the first paragraph of Article 32, the second paragraph of Article 37, and Articles 92 and 95 of the EEC Treaty preclude the introduction of a parafiscal charge levied upon the release for consumption of certain petroleum products, which applies without distinction to domestic and imported products and was introduced for the benefit of a public body which uses its funds to finance measures to encourage energy savings or the rational use of inadequately exploited energy resources? Articles 3, 5 and 6 of the Treaty

17. Article 3 of the Treaty refers in general terms to the areas with which the activities of the Community are concerned "in accordance with the timetable set out therein".

18. As the Court held in is judgment in Case 231-83 Cullet v Leclerc [1985] ECR 305, paragraph 10, the provisions of Article 3 form part of the general principles of the common market, which are applied in conjunction with the relevant chapters of the Treaty devoted to their implementation, the general objectives set out therein being enlarged upon by the specific rules contained in other provisions. It follows that the article in question cannot be applied independently from the specific provisions of the Treaty which govern the matter at issue.

19. Similarly, the wording of Articles 5 and 6 of the Treaty is so general that there can be no question of applying them independently when the situation concerned is governed by a specific provision of the Treaty, as in the present case. Consequently, the question concerning Articles 3, 5 and 6 of the Treaty does not need to be answered. Articles 12 and 13, 30 et seq. and 95 of the Treaty

20. The Court has consistently held (see, in particular, the judgment in Case 74-76 Ianelli and Volpi [1977] ECR 557) that the scope of Article 30 does not extend to the obstacles covered by other, specific provisions of the Treaty and that the obstacles which are of a fiscal nature or have an effect equivalent to customs duties and are covered by Articles 9 to 16 and 95 of the Treaty do not fall within the prohibition laid down in Article 30.

21. In view of that case-law, the Court must consider, first, whether a measure such as that described in the questions submitted by the national court is covered by Articles 12 and 13 or Article 95 of the Treaty, and only if it finds that it is not will it have to decide whether the measure in question comes within the scope of Article 30 of the Treaty.

22. The provisions on charges having equivalent effect and those on discriminatory internal taxation cannot be applied together (see the judgment in Case 94-74 IGAV v ENCC [1975] ECR 699). The scope of each of those provisions must therefore be defined.

23. Articles 12 and 13 of the Treaty prohibit customs duties on imports and exports in trade between the Member States and charges having equivalent effect. With regard to customs duties and charges having equivalent effect on imports, the Court stated, in its judgment in Case 77-72 Capolongo [1973] ECR 611, that in principle that prohibition covers all charges levied at the time of, or by reason of, importation, which are imposed specifically on an imported product but not on a similar domestic product, and that even pecuniary charges intended to finance the activities of an agency governed by public law can constitute charges having equivalent effect.

24. The Court made it clear in that judgment that, in interpreting the term "charge having an effect equivalent to customs duties on imports", it may be necessary to take account of the use to which the pecuniary charges levied are put. When such a pecuniary charge or duty is intended exclusively to support activities which specifically benefit taxed domestic products, the result may be that the general duty levied, according to the same criteria, on the imported product and the domestic product nevertheless constitutes for one of them a net additional financial burden whilst for the other it constitutes in reality a set-off against benefits or aid previously received. Consequently, a duty imposed under a general system of internal taxation applying systematically to domestic products and imported products according to the same criteria can nevertheless constitute a charge having an effect equivalent to customs duties on imports when that contribution is intended exclusively to support activities which specifically benefit the taxed domestic products.

25. Article 95 prohibits Member States from directly or indirectly imposing on the products of other Member States any internal taxation in excess of that imposed directly or indirectly on similar domestic products or of such a nature as to afford protection to other domestic products. The applicability of the provision in question therefore depends on whether or not the internal taxation measure is discriminatory or protective.

26. Where a charge is imposed on domestic and imported products according to the same criteria, the Court has nevertheless stated that it may be necessary to take into account the purpose to which the revenue from the charge is put. Thus, if the revenue from such a charge is intended to finance activities for the special advantage of the taxed domestic product, it may follow that the charge imposed on the basis of the same criteria nevertheless constitutes discriminatory taxation in so far as the fiscal burden on the domestic products is neutralized by the advantages which the charge is used to finance whilst the charge on the imported product constitutes a net burden (judgment in Case 73-79 Commission v Italy [1980] ECR 1533, paragraph 15).

27. It follows from the foregoing considerations that if the advantages stemming from the use of the proceeds of the charge in question fully offset the burden borne by the domestic product when it is placed on the market, that charge constitutes a charge having an effect equivalent to customs duties, contrary to Article 12 et seq. of the Treaty. If, on the other hand, those advantages only partly offset the burden borne by domestic products, the charge in question is subject to Article 95 of the Treaty. In the latter case, the charge would be incompatible with Article 95 of the Treaty and is therefore prohibited to the extent to which it discriminates against imported products, that is to say to the extent to which it partially offsets the burden borne by the taxed domestic product.

28. It is for the national court to determine whether the charge imposed on the domestic product is wholly or partly offset by the use of the revenue from the charge in question for the benefit of domestic products.

29. In view of the foregoing considerations, by virtue of which the parafiscal charge at issue is governed either by Article 12 et seq. or by Article 95 of the Treaty, depending on matters of fact to be examined by the national court, Article 30 cannot apply to the present case.

30. It must therefore be stated in reply to the national court that a parafiscal charge of the kind at issue in this case, being governed by Article 12 et seq. or Article 95 of the Treaty, is not governed by Article 30 thereof.

Article 92 et seq. of the Treaty

31. The national court asks whether a parafiscal charge like the one at issue is compatible with the provisions of the Treaty concerning State aids.

32. It must be observed that, as already indicated, the parafiscal charge at issue is governed either by Articles 12 and 13 or by Article 95 of the Treaty. The use to which the revenue from it is put may, nevertheless, constitute a State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty, as interpreted by the Court in previous decisions, are met in the present case.

33. However, the Court has held that the incompatibility of State aids with the common market is neither absolute nor unconditional. The intention of the Treaty, in providing through Article 93 for aid to be kept under constant review and supervised by the Commission, is that the finding that an aid may be incompatible with the common market is to be determined, subject to review by the Court, by means of an appropriate procedure which it is the Commission's responsibility to set in motion. Individuals cannot therefore simply, on the basis of Article 92 alone, challenge the compatibility of an aid with Community law before the national courts or ask them to decide as to any incompatibility which may be the main issue in actions before them or may arise as a subsidiary issue (judgments in Case 74-76 Ianelli and Volpi, cited above, and Case 78-76 Steinike und Weinlig [1977] ECR 595).

34. Regard must be had, on the other hand, to the jurisdiction of the national court in the case of failure by the Member State concerned to comply with Article 93(3) of the Treaty, that jurisdiction having been defined by the Court of Justice in its judgment in Case C-354-90 Fédération Nationale du Commerce Extérieure des Produits Alimentaires and Another v French State [1991] ECR I-5505.

35. Accordingly, a parafiscal charge like the one at issue in this case may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of Article 92 are met, it being understood that a finding that those conditions are met must be made in accordance with the procedure laid down for that purpose in Article 93 of the Treaty.

Article 37 of the Treaty

36. It must be observed that, in the circumstances referred to by the national court, the parafiscal charge at issue was introduced independently of the rules governing the import and marketing of oil in France and was unconnected with the exercise of the exclusive rights provided for by those rules.

37. It must therefore be stated in reply to the national court that Article 37 of the Treaty does not preclude the introduction of a parafiscal charge which is created independently of the rules governing the importation and marketing of petroleum in force in a Member State and is unconnected with the exercise of the exclusive rights provided for by those rules.

Costs

38. The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

In answer to the questions referred to it by the Cour d'appel, Poitiers, by judgment of 14 February 1990, hereby rules:

1. A parafiscal charge applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it fully offsets the charge borne by those products, constitutes a charge having an effect equivalent to customs duties prohibited by Article 12 of the EEC Treaty. If, on the other hand, those advantages only partly offset the charge borne by domestic products, the charge in question constitutes discriminatory taxation prohibited by Article 95 of the Treaty.

2. Such a parafiscal charge may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty are met, it being understood that a finding that those conditions are met must be made in accordance with the procedure laid down for that purpose in Article 93 of the Treaty.

3. Such a parafiscal charge, being governed by Article 12 et seq. or Article 95 of the Treaty, is not governed by Article 30 thereof.

4. Article 37 of the Treaty does not prohibit the introduction of a parafiscal charge which is created independently of the rules governing the importation and marketing of petroleum in force in a Member State and is unconnected with the exercise of the exclusive rights provided for by those rules.