CJEC, June 16, 1966, No 57-65

P.209

1. The first and second questions

In its first question, the finanzgericht des saarlandes requests the Court to rule whether the first paragraph of article 95 of the treaty produces direct effects and creates individual rights of which national Courts must take account. If a negative answer is given to this question, the finanzgericht asks whether, as from 1 January 1962, the third paragraph of the same article, together with the first paragraph, produces the effects and creates the rights mentioned above.

P.210

It is necessary to consider the two questions together and first of all to clarify the relationship between the said paragraphs of article 95.

The first paragraph of article 95 sets forth, as a general and permanent rule of community law that member states shall not impose on the products of other member states any internal taxation in excess of that imposed on similar domestic products. Such a system, often adopted by the treaty to ensure the equal treatment of nationals within the community under national legal systems, constitutes in fiscal matters the indispensable foundation of the common market. In order to facilitate the adaptation of national legal systems to this rule, the third paragraph of article 95 allows member states a period of grace lasting until the beginning of the second stage of the transitional period, that is to say, until 1 January 1962, to repeal or amend any ' provisions existing when this treaty enters into force which conflict with the preceding rules '. Article 95 thus contains a general rule provided with a simple suspensory clause with regard to provisions existing when it entered into force. From this it must be concluded that on the expiry of the said period the general rule emerges unconditionally into full force.

The questions raised by the finanzgericht must be considered in the light of the foregoing considerations.

The first paragraph of article 95 contains a prohibition against discrimination, constituting a clear and unconditional obligation. With the exception of the third paragraph this obligation is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the institutions of the community or by the member states. This prohibition is therefore complete, legally perfect and consequently capable of producing direct effects on the legal relationships between the member states and persons within their jurisdiction. The fact that this article describes the member states as being subject to the obligation of non - discrimination does not imply that individuals cannot benefit from it.

With regard to the third paragraph of article 95, it indeed imposes an obligation on the member states to ' repeal ' or ' amend ' any provisions which conflict with the rules set out in the preceding paragraphs. The said obligation however leaves no discretion to the member states with regard to the date by which these operations must have been carried out, that is to say, before 1 January 1962. After this date it is sufficient for the national Court to find, should the case arise, that the measures implementing the contested national rules of law were adopted after 1 January 1962 in order to be able to apply the first paragraph directly in any event. Thus the provisions of the third paragraph prevent the application of the general rule only with regard to implementing measures adoped before 1 January 1962, and founded upon provisions existing when the treaty entered into force.

P.211

In the oral and written observations which have been submitted in the course of the proceedings, three governments have relied on article 97 in order to support a different interpretation of article 95.

In empowering member states which levy a turnover tax calculated on a cumulative multi-stage tax system to establish average rates for products or groups of products, the said article thus constitutes a special rule for adapting article 95 and this rule is, by its nature, incapable of creating direct effects on the relationships between the member states and persons subject to their jurisdiction. This situation is peculiar to article 97, and can in no circumstances influence the interpretation of article 95.

It follows from the foregoing that, notwithstanding the exception in the third paragraph for provisions existing when the treaty entered into force until 1 January 1962, the prohibition contained in article 95 produced direct effects and creates individual rights of which national Courts must take account.

2. The third question

In its third question, the finanzgericht requests the Court to rule whether ' the first and third paragraphs of article 95 of the eec treaty in conjunction with articles 12 and 13 thereof have direct effect creating individual rights of which the national Courts must take account '.

Since this question was only raised in the event of the Court's answering the first two questions in the negative, it is unnecessary to give a reply to it. It should however be made clear that articles 12 and 13 on the one hand and article 95 on the other cannot be applied jointly to one and the same case. Charges having an effect equivalent to customs duties on the one hand and internal taxation on the other hand are governed by different systems. In this respect it should be noted that a charge intended to offset the effect of internal taxation thereby takes on the internal character of the taxation whose effect it is intended to offset.

The costs incurred by the government of the kingdom of the netherlands, by the Commission of the european economic community and by the governments of the federal republic of germany and of the kingdom of belgium, which have submitted observations to the Court are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the finanzgericht des saarlandes, the decision on costs is a matter for that Court.

The Court

Hereby rules:

1. The first paragraph of article 95 produces direct effects and creates individual rights which national Courts must protect;

2. As a result of the third paragraph of article 95, the first paragraph of that article applies to provisions in existence at the time of the entry into force of the treaty only form the beginning of the second stage of the transitional period;

And declares that the decision on costs in the present proceedings is a matter for the finanzgericht des saarlandes.