CJEC, 4th chamber, January 15, 1985, No 253-83

The court (fourth chamber)

1 By order of 6 october 1983, received at the court registry on 11 november 1983, the finanzgericht rheinland-pfalz (finance court, rhineland-palatinate) referred to the court of justice for a preliminary ruling under article 177 of the eec treaty a question on the interpretation of articles 37 and 95 of the eec treaty, article 3 of the agreement of 29 june 1970 between the eec and spain (official journal l 182, p. 1) and the first paragraph of article 21 of the agreement of 22 july 1972 between the eec and the portuguese republic (official journal l 301, p. 164).

2 The question was raised in proceedings calling in question the compatibility with the aforementioned provisions of the amount of monopoly equalization duty (monopolausgleich) imposed by the hauptzollamt (principal customs office), mainz, on spirits imported by the kupferberg company, the plaintiff in the main proceedings, from great britain (whisky), the netherlands (geneva and liqueurs), france (armagnac and pruneaux), spain (sherry) and portugal (port) and put into free circulation in the federal republic of germany between 1 and 17 march 1976.

3 As the court has already noted in several judgments, the german law on the monopoly in spirits (branntweingesetz) of 8 april 1922, before it was recast by the law of 2 may 1976, applied to spirits a tax on consumption which was levied in three different ways depending whether the spirits were:

(a) Spirits marketed by the federal monopoly administration (bundesmonopolverwaltung), which under paragraph 85 (1) of the law were liable to the tax on spirits (branntweinsteuer);

(b) Spirits exempted from the requirement to be sold to the federal monopoly administration (some grain and fruit spirits) or spirits which, in breach of that requirement, were not so sold; according to paragraph 78 of the law such spirits were liable to a spirits surcharge (branntweinaufschlag). That surcharge corresponded to the difference between the normal selling price for spirits sold by the federal monopoly administration and the basic price for spirits, less a flat-rate deduction of the average costs which the federal monopoly administration saved by not taking delivery of the spirits. By virtue of paragraph 79 (2) to (8) and paragraph 79a, the spirits surcharge was, in certain circumstances, reduced or increased on the basis inter alia of criteria relating to the type of distillery, the quantities produced and the type of raw material used. In principle, the spirits surcharge always exceeded the amount of the tax on spirits, the difference between the two amounts being known as the marginal element of the spirits surcharge (aufschlagspitze);

(c) Imported spirits, which under paragraph 151 (1) of the law were liable to monopoly equalization duty (monopolausgleich). Monopoly equalization duty was calculated in the same way as the spirits surcharge except that no flat-rate deduction was made to take account of expenditure saved by the federal monopoly administration since, under paragraph 152 (1) of the law, which determined the amount of the said duty, ' monopoly equalization duty constitutes the difference between the normal selling price and the basic price for spirits '. The excess of monopoly equalization duty over the tax on spirits was known as the monopoly equalization margin (monopolausgleichspitze).

4 For the period from 23 february to 17 march 1976 the amount of monopoly equalization duty payable on the products imported by kupferberg was fixed (in accordance with a circular of 23 march 1976 of the federal minister for finance) at dm 1 500 per hectolitre of spirit, that is to say at a rate corresponding to the tax on spirits in force at the time when kupferberg brought an action before the finanzgericht rheinland-pfalz in which it contended that, in accordance with paragraph 152 (1) of the law on the monopoly in spirits and in view of the fact that the normal selling price actually charged by the federal monopoly administration between 1 march and 17 march 1976 had been reduced from dm 1 833 to dm 1 683 per hectolitre of spirit, the amount of monopoly equalization duty should have been fixed at dm 1 430 per hectolitre of spirit, corresponding to the difference between the actual selling price and the basic price for spirits which at that time was dm 253 per hectolitre of spirit.

5 By a judgment of 13 february 1978 the finanzgericht allowed kupferberg ' s application. On appeal on a point of law by the hauptzollamt, the bundesfinanzhof (federal finance court), by a decision of 5 august 1980, quashed that judgment on the ground that the actual selling price of dm 1 683 per hectolitre of spirit which had been applied as from 23 february 1976 was not the ' normal selling price for spirits ' within the meaning of paragraph 152 of the law. The normal selling price had remained the price that had been properly fixed and published in bundesanzeiger no 174 of 19 september 1975, namely dm 1 833 per hectolitre of spirit. If the calculation method stipulated in the first sentence of paragraph 152 (1) of the law was used the monopoly equalization duty on imported spirits came to dm 1 580 per hectolitre of spirit. The bundesfinanzhof stressed that the hauptzollamt in its decision fixing the duty had applied the german rules to a limited degree only, since by fixing the amount of equalization duty at dm 1 500 per hectolitre of spirit it had not claimed payment of that part of the equalization duty known as the monopoly equalization margin (monopolausgleichspitze). The bundesfinanzhof concluded therefore that, in view of the aim of the proceedings, the levying of equalization duty of dm 1 500 per hectolitre of spirit, as set out by the contested decisions, was at all events proper from the point of view of german law.

6 The bundesfinanzhof found, however, that the judgment of the finanzgericht had failed to examine the question of the possible incompatibility with articles 37 and 95 of the eec treaty of fixing the monopoly equalization duty higher than dm 1 430. In its view, the decision fixing the duty was liable to infringe article 95 of the eec treaty together with article 3 of the agreement between the eec and spain and the first paragraph of article 21 of the agreement between the eec and the portuguese republic only in so far as the finanzgericht on re-examining the facts should hold that domestic spirits, exempted from the requirement to be sold to the federal monopoly administration and comparable with the imported products, had been accorded the advantages conferred by paragraphs 79 (2) and 79a of the law on the monopoly in spirits.

7 When the case was once again remitted to it, the finanzgericht considered that the bundesfinanzhof had not ruled on whether the reduction of dm 150 per hectolitre of spirit, which the federal monopoly administration had made in the actual selling price of spirits owing to price competition from imported spirits, together with the retention of the former selling price for the purpose of determining the amount of monopoly equalization duty payable on imported spirits was or was not compatible with articles 37 and 95 of the eec treaty and with the corresponding provisions of the agreements concluded with spain and portugal.

8 With a view to resolving this matter the finanzgericht referred the following question to the court:

' Should articles 37 and 95 of the eec treaty, together with article 3 of the agreement of 29 june 1970 between the european economic community and spain and the first paragraph of article 21 of the agreement of 22 july 1972 between the european economic community and the portuguese republic, be interpreted to mean that an importer of spirits from other member states and from spain and portugal may invoke the aforesaid provisions before a national court, on the ground that the federal monopoly administration for spirits (bundesmonopolverwaltung fur branntwein) lowered its selling price for spirits between 23 february and 17 march 1976 by dm 150 per hectolitre of spirit, namely from dm 1 833 to dm 1 683 per hectolitre of spirit, whereas it retained the selling price of dm 1 833 per hectolitre of spirit during the same period for the purposes of calculating the monopoly equalization duty (monopolausgleich) on imported spirits?

'

9 That question falls into two parts: the first concerns the compatibility with articles 37 and 95 of the eec treaty of the de facto reduction in the selling price of spirits sold by the federal monopoly administration together with the concurrent retention of the former selling price for such spirits for the purpose of calculating the monopoly equalization duty payable on imported products; the second concerns the compatibility of the practice described above with the provisions corresponding to article 95 of the eec treaty which are contained in the agreements concluded with spain and portugal.

The first part of the question

10 According to the plaintiff in the main proceedings, between 23 february and 17 march 1976 imported spirits suffered discrimination within the meaning of articles 37 and 95 of the treaty in so far as during that period paragraph 152 (1) of the law on the monopoly in spirits, which prescribed the method for calculating the monopoly equalization duty payable on imported spirits, was interpreted and applied contrary to its wording. The effect of that interpretation was that imported spirits were taxed - on the basis of the normal price for monopoly spirits - at a rate of dm 1 580 per hectolitre of spirit, whereas had the actual selling price been employed the rate of taxation arrived at would have been dm 1 430 per hectolitre of spirit. Kupferberg maintains that the federal monopoly administration would have had to sell its spirits at a loss if the taxation levied thereof had been the same as that levied on imported spirits. It argues therefore that spirits sold by the federal monopoly administration were subject to a lower rate of taxation than imported spirits.

Article 95 of the treaty

11 As the commission observes, the fact that imported spirits might have been subject to lower taxation during the period in question had the reduced selling price charged by the federal monopoly administration been deemed to be the normal selling price is irrelevant as far as article 95 of the eec treaty is concerned given that the rate of tax actually levied on imported products during that period was neither directly nor indirectly greater than the taxation actually levied on similar or competing domestic products.

12 It should be observed in that regard that, as the court has already stated in its judgment of 7 may 1981 (case 153-80, rumhaus hansen v hauptzollamt flensburg, (1981) ecr 1165), although article 95 requires imported products actually to be treated in the same way as comparable domestic products community law does not require member states to treat imported products more favourably than domestic products.

13 Lastly, it should be emphasized that it is not for the court of justice but for the national court to establish the facts underlying the dispute and to verify whether the imported spirits and the corresponding domestic spirits were in fact generally subject, during the period in question, to the same rates of taxation pursuant inter alia to the circular of 23 march 1976 of the federal minister for finance or whether in fact they were taxed at different rates. Moreover, in reply to a question put by the court, the government of the federal republic of germany stated that throughout the period in question the federal monopoly administration paid tax at the same rate as that imposed on spirits imported from the other member states.

Article 37 of the treaty

14 The purpose of the question relating to article 37 of the eec treaty is to enable the national court to determine whether the reduction in the selling price actually charged by the federal monopoly administration from dm 1 833 to dm 1 683 per hectolitre of spirit is compatible with article 37.

15 As the court has already observed in the judgment of 13 march 1979 (case 91-78, hansen gmbh v hauptzollamt flensburg (1979) ecr 935), where such a measure is dictated by reasons connected with the monopoly ' s marketing practices, it is not automatically open to criticism unless the application of that measure is injurious to the equality of opportunity which must be accorded to imported products in so far as domestic spirits are marketed with the aid of public funds at an abnormally low resale price compared with the price, before tax, of spirits of comparable quality imported from another member state.

16 In that regard the sole determining factor is that the object of the price reduction was to make the spirit sold by the monopoly competitive vis-a-vis imported products. As the commission acknowledges, the reduction does not constitute a measure peculiar to the state monopoly but a commercial measure dictated by competition. Although the reduction in price was achieved with the aid of public funds, it should be observed that that aid, which fell to be considered in the light of article 92 of the treaty, was duly notified to the commission, which considered that it constituted a transitional, short-term measure, and hence raised no objection in principle.

The second part of the question

Article 21 of the agreement between the eec and the portuguese republic

17 As the court has already held in its judgment of 26 october 1982 (case 104-81, hauptzollamt mainz v kupferberg & cie, (1982) ecr 3641) the first paragraph of article 21 of the agreement between the eec and the portuguese republic - like article 95 of the eec treaty - aims at the elimination of tax discrimination. A fortiori it may not be inferred from the wording of article 21 that the contracting parties are under an obligation to treat imported products more favourably than domestic products.

18 Since the first paragraph of article 21 of the agreement merely requires the contracting parties not to practise discrimination in the fiscal field where the products concerned are of a similar nature, the fact that if in a given period a reduction in the selling price charged by the federal monopoly administration had been taken into account in the method of calculating the monopoly equalization duty that would have enabled imported spirits to be less heavily taxed is of no consequence from the point of view of that provision, provided that the rate of taxation that was actually applied to imported spirits during that period did not exceed the taxation actually applied to similar domestic products.

19 The concept of similarity contained in the first paragraph of article 21 of the agreement, as interpreted by the court, implies that the products concerned are similar both as regards their method of manufacture and as regards their characteristics. Accordingly, it is for the national court to judge whether during the period at issue imported spirits were in fact taxed at a rate identical to the rate at which similar products of community origin were taxed.

Article 3 of the agreement between the eec and spain

20 The considerations set out above also apply to article 3 of the agreement between the eec and spain since the wording of that article is identical to that of the first paragraph of article 21 of the agreement with the portuguese republic and the subject-matter and the scope of the two agreements are comparable.

21 The answer to both parts of the question referred to the court for a preliminary ruling should therefore be that articles 95 and 37 of the eec treaty, article 21 of the agreement between the eec and the portuguese republic and article 3 of the agreement between the eec and spain must be interpreted as not precluding the de facto reduction made in the selling price of spirit sold by the federal monopoly administration in a given period provided that the rate of taxation actually applied to imported products during that period did not exceed the rate of taxation actually levied on corresponding domestic products.

Costs

22 The costs incurred by the commission of the european communities, which has submitted observations to the court, are not recoverable.

23 As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings before the national court, costs are a matter for that court.

On those grounds,

The court (fourth chamber),

In answer to the question referred to it by the finanzgericht rheinland-pfalz by order of 6 october 1983, hereby rules:

Articles 95 and 37 of the eec treaty, article 21 of the agreement between the eec and the portuguese republic and article 3 of the agreement between the eec and spain must be interpreted as not precluding the de facto reduction made in the selling price of spirits sold by the federal monopoly administration during a given period provided that the rate of taxation actually applied to imported products in that period did not exceed the rate of taxation actually levied on corresponding domestic products.