CJEC, 5th chamber, November 7, 1996, No C-126/94

THE COURT (Fifth Chamber),

1 By judgment of 27 January 1994, received at the Court on 3 May 1994, the Tribunal d' Instance (District Court), Paris XII, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty four questions on the interpretation of Articles 9, 12, 113 and 227(2) of the EEC Treaty, now the EC Treaty.

2 Those questions were raised in proceedings between, on the one hand, Cadi Surgélés, Sofrigu, Sofroi and Sofriber (companies incorporated under French law, having their registered offices in the French overseas départements; hereinafter "the plaintiffs") and, on the other, the Minister for Economic Affairs, Finance and Budget and the Director-General of Customs.

3 For several years the plaintiffs have imported into the French overseas départements goods from other regions of France, other Member States of the Community and non-member countries. On the entry of those goods into the overseas départements, the plaintiffs have been required by the customs authorities to pay two charges, the "octroi de mer" (dock dues) and a "droit additionnel" (additional duty).

4 When the Common Customs Tariff was introduced on 1 July 1968, a charge termed "octroi de mer" was being levied in the overseas départements, under Law No 46-451 of 19 March 1946, on all imports.

5 At the time of the events material to this case, a charge ° also termed "octroi de mer" ° was levied as a "consumption tax" under Law No 84-747 of 2 August 1984 (hereinafter "the 1984 Law") on all imports into the overseas départements. The basis of assessment of that tax was the customs value of the goods at the point of entry into the département concerned. The 1984 Law also conferred on the overseas départements the option of introducing a 1% "droit additionnel" to be levied on the same basis.

6 On the view that neither the "octroi de mer" nor the "droit additionnel" was compatible with the Treaty, the plaintiffs instituted proceedings on 11 December 1991 before the Tribunal d' Instance, Paris XII, for reimbursement of sums levied but not due.

7 In its judgment of 16 July 1992 in Case C-163-90 Administration des Douanes et Droits Indirects v Legros and Others [1992] ECR I-4625, which concerned the levying of the "octroi de mer" under the 1984 Law, the Court ruled that a charge, proportional to the customs value of goods, levied by a Member State on goods imported from another Member State by reason of their entry into a region of the territory of the former Member State constitutes a charge having an effect equivalent to a customs duty on imports, notwithstanding the fact that the charge is also imposed on goods entering that region from another part of the same State.

8 By judgment of 27 January 1994, the Tribunal d' Instance, having regard to the ruling in Legros and Others, ordered the customs authorities to refund the sums paid by the plaintiffs by way of "octroi de mer" and "droit additionnel", in so far as those charges had been levied on goods imported from other Member States. The plaintiffs maintained their claims for reimbursement of the sums levied on goods imported from other regions of France and from non-member countries. The Tribunal d' Instance accordingly stayed proceedings and referred four questions to the Court for a preliminary ruling.

9 By decision of 4 May 1994, the President of the Court, acting in accordance with Article 82a(1)(a) of the Rules of Procedure, stayed proceedings until 9 August 1994 when judgment was delivered in Joined Cases C-363-93, C-407-93, C-408-93, C-409-93, C-410-93 and C-411-93 Lancry and Others v Direction Générale des Douanes and Others [1994] ECR I-3957.

10 In that judgment, the Court held that a charge such as the "octroi de mer", which is levied by a Member State on all goods entering a region within that State, constitutes a charge having equivalent effect to a customs duty on imports not only in so far as it is levied on goods entering that region from other Member States, but also in so far as it is levied on goods entering that region from another part of the same State.

11 In view of that ruling, the Tribunal d' Instance ° by judgment of 5 January 1995, received at the Court on 27 January 1995 ° withdrew the first three questions which it had referred for a preliminary ruling, but maintained the last question worded as follows:

"Can the principle of non-discrimination, as laid down by the EEC Treaty, be interpreted as prohibiting a Member State from levying an internal charge, which has been held to have an effect equivalent to a customs duty, on goods from non-member countries not connected to the Community by a special agreement, even though goods imported by other Member States from the same non-member countries are not subject to that charge?

If not, does the levying of such a charge by the Member State not constitute disparate treatment liable to compromise the equality between traders in the Member States and to give rise to distortions in or undermine the common market?"

12 The Tribunal d' Instance is essentially asking whether the Treaty precludes a Member State from levying charges, such as the "octroi de mer" and "droit additionnel" at issue, which have effects equivalent to customs duties, on imports of goods from non-member countries which are not linked to the Community by a special agreement.

13 Under Article 9(1) of the Treaty, the Community is based on a customs union which covers all trade in goods. That union involves the prohibition between Member States of all customs duties on imports and exports and of all charges having equivalent effect, and also the adoption of a common customs tariff with regard to trade between Member States and non-member countries.

14 According to established case-law, the Common Customs Tariff is intended to achieve an equalization of customs charges levied at the frontiers of the Community on products imported from non-member countries, in order to avoid any distortion of free internal circulation or of competitive conditions (Joined Cases 37-73 and 38-73 Diamantarbeiders v Indiamex [1973] ECR 1609, paragraph 9).

15 In Diamantarbeiders, the Court emphasized that although, unlike the section of the Treaty on the elimination of customs duties between Member States (Articles 12 to 17), the section on the setting-up of the Common Customs Tariff (Articles 18 to 29) makes no mention of "charges having an effect equivalent to customs duties", that omission does not mean that such charges may be maintained, still less introduced (paragraph 10).

16 As regards the introduction of the Common Customs Tariff, the Court went on to point out that Council Regulation No 950-68 of 28 June 1968 on the Common Customs Tariff (OJ, English Special Edition 1968 (I), p. 275) did not expressly allow for the elimination or equalization of charges other than customs duties as such. It was nevertheless clear from the objective of the regulation that under it Member States are prohibited from amending, by means of charges supplementing such duties, the level of protection as defined by the Common Customs Tariff (paragraph 13).

17 In the same judgment, the Court also pointed out that definition of the uniform principles on which the common commercial policy is based (Article 113(1) of the Treaty) involves, as does the Common Customs Tariff itself, the elimination of national disparities, whether in the field of taxation or of commerce, affecting trade with non-member countries (paragraph 16).

18 The Court accordingly held that Member States may not, after 1 July 1968, unilaterally introduce new charges on goods imported directly from non-member countries or raise the level of those in existence at that time (paragraph 22).

19 It follows that Member States have no right unilaterally to add national charges to the duties payable under the Community rules, otherwise such rules might be deprived of the requisite uniformity (Case C-125-94 Aprile v Amministrazione delle Finanze dello Stato [1995] ECR I-2919, paragraph 35).

20 The position is different, however, in the case of charges which have an effect equivalent to customs duties and which already existed when the Common Customs Tariff came into force on 1 July 1968 ("existing charges"). Although the Court stated in Diamantarbeiders that introduction of the common commercial policy must involve the elimination of all national disparities, whether in the field of taxation or of commerce, which affect trade with non-member countries (paragraph 23), it ruled that the reduction or elimination of existing charges presupposes action by the Community and is therefore a matter for the Community institutions (paragraphs 24 and 25).

21 The option thus conferred on Member States to retain, in their relations with non-member countries, charges which have an effect equivalent to customs duties and which were in existence on 1 July 1968 constitutes an exception to the principles of uniformity underlying the Common Customs Tariff and the common commercial policy. It must therefore be narrowly construed.

22 Accordingly, only a charge which, having regard to all its essential characteristics, is the same as a charge already in force on 1 July 1968 may be regarded as an existing charge.

23 It is for the national court, in order to determine whether the contested charge is to be categorized as an existing charge, to compare the rules applicable to it with those which would have been applicable on 1 July 1968. That comparison must take into account all the characteristic elements of a charge, and, in particular, its designation, the chargeable event, the basis of assessment, the criteria for its application, the taxable persons and the way in which the revenue raised is applied.

24 On this point, it should be noted that a mere change, as part of an administrative reorganization, in the authority responsible for collecting a charge does not per se prevent it from being regarded as an existing charge.

25 On the other hand, the mere fact that a charge such as the "octroi de mer" is still designated by the same name as a charge existing in 1968 is not enough to categorize it as an existing charge.

26 In the present case, it is for the national court to assess, inter alia, the significance of the various amendments made to the relevant legislation, in particular by the 1984 Law, under which the charge in question appears to have been classified for the first time as a "consumption tax" payable by the person who releases the goods for consumption, whereas it was previously in the nature of a charge originally levied in the overseas départements on the basis of legislation "concerning the introduction of the general customs tariff" (Law of 11 January 1892).

27 Should the national court decide that the charge at issue is to be categorized as an existing charge, it must then verify whether the level of that charge has been raised since 1 July 1968. It is clear from the judgment in Diamantarbeiders that any increase introduced after 1 July 1968, however small, is incompatible with Community law.

28 As regards the "octroi de mer", the national legislation placed before the Court by the French Government shows that, in every overseas département, the level of the charge has been raised since 1968 for several categories of product, including meat, beer, alcoholic drinks and motor-cars. A comparison should therefore be made, for each of the products taxed in the present case, between the amount currently payable by way of "octroi de mer" and the amount which would have been payable on goods of equal value under the rules in force on 1 July 1968 for an identical product. The amount, if any, by which the former exceeds the latter must be regarded as incompatible with the Treaty.

29 On the other hand, a tax such as the "droit additionnel" ° whether categorized as a mere increase in the "octroi de mer" or as a new charge ° is incompatible with the Treaty.

30 In the light of all the foregoing considerations, the answer to the question referred for a preliminary ruling must be that it is incompatible with the Treaty to levy a customs duty or a charge having equivalent effect which has been unilaterally introduced by a Member State after the introduction of the Common Customs Tariff on 1 July 1968 on goods imported directly from non-member countries which are not linked to the Community by a special agreement. However, the Treaty does not preclude the levying of a charge having equivalent effect to a customs duty on imports which, having regard to all its essential characteristics, must be regarded as a charge already in existence on 1 July 1968, provided that the level at which it is levied has not been raised. Where the level has been raised, only the amount by which it has been raised must be regarded as incompatible with the Treaty.

The effects in time of the present judgment

31 The French Government has requested the Court ° in the event of a finding that the Treaty precludes the levying of charges such as those at issue in the main proceedings ° to limit the effects of the present judgment in time.

32 On this point, the Court ruled in Legros and Others that, owing to overriding considerations of legal certainty, the Treaty provisions relating to charges having equivalent effect to customs duties on imports could not be relied upon in support of claims for the reimbursement of charges such as dock dues paid before the date of judgment in that case (16 July 1992), except by claimants who had initiated legal proceedings or raised an equivalent claim before that date.

33 For the same reasons, it must be held that the Treaty provisions relating to customs duties and charges having equivalent effect cannot be relied upon in support of claims for the reimbursement of sums levied before 16 July 1992 by way of "droit additionnel" on goods from non-member countries which are not linked to the Community by a special agreement, except by claimants who have initiated legal proceedings or raised an equivalent claim before that date. This also applies to sums levied on such goods before that date by way of "octroi de mer" to the extent that the levying of such sums is declared unlawful in application of this judgment.

34 However, as regards the period subsequent to 16 July 1992, the French Government could not reasonably continue to believe, in the light of the judgments in Diamantarbeiders and Legros and Others, that it was consistent with Community law to levy, in respect of goods from non-member countries which are not linked to the Community by a special agreement, either the "droit additionnel" or the "octroi de mer", the latter in its entirety if categorized as a new charge, or, if categorized as an existing charge, in so far as it had subsequently been increased.

Costs

35 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 (Fifth Chamber)

in answer to the question referred to it by the Tribunal d' Instance, Paris XII, by judgment of 27 January 1994, hereby rules:

1. It is incompatible with the EEC Treaty, now the EC Treaty, to levy a customs duty or a charge having equivalent effect which has been unilaterally introduced by a Member State after the introduction of the Common Customs Tariff on 1 July 1968 on goods imported directly from non-member countries which are not linked to the Community by a special agreement. However, the Treaty does not preclude the levying of a charge having equivalent effect to a customs duty on imports which, having regard to all its essential characteristics, must be regarded as a charge already in existence on 1 July 1968, provided that the level at which it is levied has not been raised. Where the level has been raised, only the amount by which it has been raised must be regarded as incompatible with the Treaty.

2. The Treaty provisions relating to customs duties and charges having equivalent effect cannot be relied upon in support of claims for the reimbursement of sums levied before 16 July 1992 by way of "droit additionnel" on goods from non-member countries which are not linked to the Community by a special agreement, except by claimants who have initiated legal proceedings or raised an equivalent claim before that date. This also applies to sums levied on such goods before that date by way of "octroi de mer" to the extent that the levying of such sums is declared unlawful in application of this judgment.