CJEC, February 17, 1976, No 45-75

1 By order of 10 April 1975, received at the Court registry on 12 may 1975, the finanzgericht rheinland-pfalz has submitted under article 177 of the EEC treaty certain questions concerning the interpretation of article 37 (1) and the first paragraph of article 95 of the EEC treaty.

These questions are referred to the Court within the context of an action between an importer of Italian vermouth and the customs authorities of the Federal Republic of Germany and concern the compatibility with those provisions of the excise duty known as the 'monopolausgleich' (monopoly equalization duty) levied in the Federal Republic of germany on imported alcohol.

2 According to the gesetz uber das branntweinmonopol (brmong - the Federal law on the spirits monopoly), ethyl alcohol of agricultural or nonagricultural origin must be sold to the monopoly administration at a price which is fixed by the authorities; after treatment, it is resold by the monopoly at prices which vary according to the purpose for which it is resold but which are also fixed by the public authorities.

The price at which such alcohol is resold includes the intrinsic value of the alcohol, a sum intended to cover the costs of the monopoly, including processing, storage and administrative costs, and the tax known as the 'branntweinsteuer' (spirits tax).

As regards alcohol intended for human consumption, the so-called monopoly costs also include a price component intended to cover the losses incurred by the monopoly administration through the sale at less than cost price of certain spirits intended for other purposes.

3 Under article 76 of the abovementioned law certain nationally-produced spirits, in particular those produced from cereals and various fruits, are not obliged to sell to the monopoly.

Thus the situation which gave rise to the action is characterized by the existence of a state monopoly covering the purchase and marketing of a product, but extending to only part of the domestic production of that product, another part being purchased and marketed by the private sector.

4 Alcohol which is exempt from the requirement to sell to the monopoly is subject to a charge known as the 'branntweinaufschlag' (spirits surcharge) which is equal to the difference between the basic price of the monopoly alcohol and its normal sale price and which for this reason includes, in addition to the spirits tax ('branntweinsteuer'), a contribution to the monopoly costs of an amount equal to that imposed on monopoly alcohol.

This contribution, which is known as the 'branntweinaufschlagspitze' (spirits surcharge margin) and is equal to the ' monopoly costs ' included in the sale price of monopoly alcohol intended for human consumption, is, however, reduced by a flat rate sum (dm 21 at the time of the events which gave rise to the main action) which represents the average amount of the costs saved by the monopoly administration by not taking such alcohol over.

The amount thus obtained is subsequently reduced by amounts varying from 5 % to more than 100 % of the basic price ('branntweingrundpreis') in the case of alcohol from distilleries with a small production, or increased on a rising scale in proportion to annual production in the case of distillers producing large quantities.

The imposition of a part of the administrative costs of the monopoly on spirits which are exempt from the requirement to sell to the monopoly reflects the desire of the national legislature that the monopoly costs should be borne by consumers of nationally-produced spirits, both these exempt from the requirement to sell to the monopoly and those marketed by the administration.

This branntweinaufschlagspitze is therefore allocated to the monopoly administration, for which it represents a source of income.

5 Imported spirits and spirituous beverages - the latter in proportion to their alcohol content - are subject to a charge known as the 'monopolausgleich' (monopoly equalization duty) which includes, apart from the tax on monopoly alcohol ('branntweinsteuer'), a surcharge which is deemed to correspond to the amount included in the sale price of monopoly alcohol to cover the ' monopoly costs ' referred to above.

As this surcharge, which is known as the 'monopolausgleichspitze', contributes not to the financing of the monopoly but, like the monopolausgleich of which it is a component, to the general budget of the state, it is levied, according to the statements made by the government of the Federal Republic of Germany, in order to re-establish equality of conditions of competition between imported spirits and spirituous beverages and nationally-produce between imported spirits and spirituous beverages and nationally-produced spirits and spirituous beverages produced from alcohol which is exempt from the requirement to sell to the monopoly.

Moreover, during the oral procedure the Federal Republic of Germany stated that ' indirectly, this protection enables the monopoly to be financed, since, if this margin ('spitze') were not levied, it would be impossible to lay the burden of the monopoly ' s operating costs on nationally-produced alcohol '.

However, unlike the practice applying to exempt nationally-produced alcohol, this amount is neither reduced by a flat rate figure nor subsequently proportionately reduced or increased but is determined once and for all, and the amount thus fixed also constitutes the upper limit of the proportionate increase in the branntweinaufschlag.

However, the government of the Federal Republic of Germany observes that, at least as regards the distilleries ' under seal ' producing fruitbased spirits, the effect of the proportionate increase in the amount of the branntweinaufschlag is that this charge and the monopolausgleich reach the same level in the case of alcohol from distilleries producing more than 330 hectolitres per year, that is, in the case of 95 % of production.

6 As the case concerns a tax which is imposed on both imported products and similar domestic products within the context of the adjustment of a monopoly of a commercial character, it is the compatibility of this tax with articles 95 and 37 which is at issue and which, moreover, forms the subject-matter of the action before the national Court.

These factors must be taken into account in deciding upon the reply to be given to the questions put by the national Court.

7 It is necessary to consider first the questions concerning the interpretation of the first paragraph of article 95 of the treaty and, secondly, those concerning article 37.

As regards the first paragraph of article 95

8 The first question asks whether the first paragraph of article 95 gives nationals of the member states from the end of the transitional period individual rights which national Courts must protect.

9 As the Court ruled in its judgment of 16 June 1966 in case 57-65 (alfons lutticke gmbh v hauptzollamt saarlouis, (1966) ecr 205) that provision produces direct effects and creates individual rights which national Courts must protect.

10 The second question asks whether the levying of the part of the monopoly equalization duty called the ' monopolausgleichspitze ' on imports of Italian vermouth infringes the first paragraph of article 95 in so far as it is intended not to compensate by way of a duty for the tax borne by comparable domestic products but rather to cover the state monopoly's own administrative costs.

11 Although, in the context of proceedings under article 177 of the treaty, it is not for the Court to rule on the compatibility of the provisions of a national law with the treaty, it does, on the other hand, have jurisdiction to provide the national Court with all the criteria of interpretation relating to community law which may enable it to judge such compatibility.

12 According to the first paragraph of article 95 of the treaty: ' No member state shall impose, directly or indirectly, on the products of other member states any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products '.

The implementation of this provision implies the application of criteria by which the existence or absence of such similarity may be judged.

In this respect, the fact that the same raw material - for example, alcohol - is to be found in the two products is not sufficient reason to apply the prohibition contained in the first paragraph of article 95, even if the charge is wholly or partially imposed with reference to that raw material ; a comparison must however be made between the taxation imposed on products which, at the same stage of production or marketing, have similar characteristics and meet the same needs from the point of view of consumers.

The fact that the domestic product and the imported product are or are not classified under the same heading in the common customs tariff constitutes an important factor in this assessment.

13 It follows that, where in a member state ethyl alcohol is covered by special regulations which have particular consequences as regards taxation, the similar product for the purposes of article 95 is imported ethyl alcohol.

On the other hand, if the imported product, although based on ethyl alcohol, is a spirituous beverage, the taxation imposed upon it must be compared with the taxation on similar domestic products.

In the absence of any domestic product which is specifically similar, the prohibition on discrimination contained in article 95 is satisfied if the charge imposed on the imported product corresponds to an internal charge of the same nature and the same level.

14 The equality between the level of taxation imposed on the domestic product and on the imported product, required by article 95, is valid independently of the effect of factors other than taxation on the respective production costs of the products to be compared.

In particular, the scope of that article could not be so extended as to allow any kind of compensation between a tax created so as to apply to imported products and a charge of a different nature imposed, for example, for economic purposes, on the similar domestic product.

However, this is not the case where the imported product and the similar domestic product are both equally subject to a government tax which is introduced and quantified by the public administration, even if a part of the charge imposed on the domestic product is, incidentally, allocated for the purposes of financing a state monopoly, whilst the charge levied on the imported product is imposed for the benefit of the general budget of the state.

15 On the other hand, the first paragraph of article 95 is infringed where the taxation on the imported product and that on the similar domestic product are calculated in a different manner on the basis of different criteria which lead, if only in certain cases, to higher taxation being imposed on the imported product.

This finding cannot be refuted by the claim that although the imported product is taxed at a flat rate whilst the domestic product is taxed according to a sliding scale this is because the investigations which would be necessary in the former case could not be carried out.

Even though it might indeed be impossible to introduce the same sliding scale for the increase or reduction of taxation on both domestic and imported products, it is nevertheless possible to impose a single flat rate or fixed charge on both products in order to observe the prohibition on discrimination laid down in article 95.

Moreover, in its recommendation addressed to the German government on 22 December 1969 - on which, however, No action was taken - the Commission suggested that conditions of taxation should be aligned in this way.

16 Furthermore, in the context of article 95 it is the taxation imposed on the two categories of product which must be equal and it is inappropriate to consider the effect of this taxation on the final price of the nationally-produced and imported products.

17 The answer to the second, third and fourth questions, to the extent to which they concern the interpretation of the first paragraph of article 95, must therefore be that that provision must be interpreted as prohibiting the imposition of taxation on an imported product according to a method of calculation or manner of imposition which differs from those applying to the tax imposed on the similar domestic product and leads to higher taxation on the imported product, such as the imposition of a uniform amount in one case and a graduated amount in the other, even if such disparity only occurs in a minority of cases, and that it is inappropriate to take into consideration the possibly different effects of such taxation on the price levels of the two products.

On the other hand, the first paragraph of article 95 does not prohibit the imposition of the same taxation on an imported product and a similar domestic product, even if a part of the tax levied on the domestic product is allocated for the purposes of financing a state monopoly, whilst that levied on the imported product is imposed for the benefit of the general budget of the state.

As regards article 37 (1)

18 The essential point of the questions concerning article 37 is whether, to the extent to which it includes the spitze (margin) calculated as outlined above, the monopolausgleich infringes article 37 of the treaty.

19 In view of the finding that article 95 of the treaty does not prohibit taxation such as that in question, provided that it is imposed equally on the domestic product and the similar imported product, it might appear unnecessary to reply to the questions concerning the interpretation of article 37, as they seem to have been put in order to discover whether, as a lex specialis, article 37 allows an exception to be made in the case of a monopoly to the prohibition contained in article 95.

20 However, these questions may also be intended to discover whether, even if it is brought into line with the branntweinaufschlag, the monopolausgleich infringes article 37 of the treaty on the ground that, as it is intended to cover the monopoly costs, at least in part and even if only indirectly, it constitutes discrimination regarding the conditions under which the goods are procured and marketed.

21 The fact that a national measure complies with the requirements of article 95 does not imply that it is valid in relation to other provisions of the treaty, such as article 37.

A reply must therefore be given to the questions concerning the interpretation of article 37.

22 The first question asks whether article 37 (1) of the treaty is to be interpreted as conferring on those concerned, from the end of the transitional period, individual rights which national Courts must protect.

23 After providing that, during the transitional period, the member states are progressively to adjust any state monopolies of a commercial character, article 37 (1) sets out the guiding principle in the matter by providing that it is to be ensured that at the end of this period ' No discrimination... Exists between nationals of member states ' regarding the conditions under which goods which in certain member states are subject to a monopoly are procured and marketed.

24 In the field of application of the treaty the prohibition on all discrimination regarding the conditions under which goods produced or put into circulation by nationals of the various member states are procured and marketed constitutes a basic principle which, by its very nature, directly concerns the economic and legal position of those nationals.

As a reference to a set of provisions which are actually applied to nationals, this rule is, by its very nature, capable of being directly invoked by those to whom it applies.

The prohibition on all discrimination in this field after the expiry of the transitional period constitutes an obligation to attain a precise result, the fulfilment of which had to be made easier by, but not made dependent on, the progressive nature of the adjustment provided for.

In this respect, it must be pointed out that under paragraph (3) of the same article 37 the time-table for the adjustment measures was to be harmonized with the abolition of quantitative restrictions on the same products.

The provisions of the treaty requiring member states to abolish all discrimination within a specific period become directly applicable even where the duty has not been discharged before the expiry of that period.

Thus, when the period has expired, the duty in question is No longer subject to any condition, nor can its performance or effects be subject to the adoption of any measure either by the community or the member states, and, by its very nature, it is capable of conferring on those concerned individual rights which national Courts must protect.

The period which the member states were allowed for the progressive adjustment of state monopolies in order to ensure that at the end of the transitional period No discrimination exists is intended to facilitate the creation of new circumstances which are compatible with the rule and, after its expiry, cannot form an obstacle to the application of that rule.

25 It is further asked whether the levying of the part of the monopolausgleich known as the ' monopolausgleichspitze ' on imports of Italian vermouth violates the principle contained in article 37 (1) of the treaty because it is intended not to compensate by way of a duty for the tax borne by comparable domestic products but rather to cover the state monopoly's own administrative costs.

26 Article 37 (1) is not concerned exclusively with quantitative restrictions but prohibits any discrimination, when the transitional period has ended, regarding the conditions under which goods are procured and marketed, between nationals of member states.

It follows that its application is not limited to imports or exports which are directly subject to the monopoly but covers all measures which are connected with its existence and affect trade between member states in certain products, whether or not subject to the monopoly, and thus covers charges which would result in discrimination against imported products as compared with national products coming under the monopoly.

Furthermore, this interpretation corresponds to the prohibition laid down in the second paragraph of article 95, according to which No member state shall impose on the products of other member states any internal taxation of such a nature as to afford indirect protection to other products.

It follows from the foregoing considerations that to extract a contribution to the monopoly costs from the imported product alone, even in the form of a duty, is in principle incompatible with the prohibition contained in article 37 (1)

27 However, this is not the case where the imported product and the similar domestic product are both equally subject to a government tax which is introduced and quantified by the public administration, even if a part of the charge imposed on the domestic product is, incidentally, allocated for the purposes of financing a state monopoly, whilst the charge levied on the imported product is imposed for the benefit of the general budget of the state.

There is, in fact, No discrimination within the meaning of article 37 where the imported product is subject to the same conditions as the similar domestic product subject to the monopoly.

On the other hand, both article 95 and article 37 of the treaty are infringed if the charge imposed on the imported product is different from that imposed on the similar domestic product which is directly or indirectly covered by the monopoly.

The answer must therefore be that article 37 (1) must be interpreted as meaning that the discrimination regarding the conditions under which goods are procured and marketed which is referred to therein includes the extraction of a contribution to the monopoly costs from an imported product, even in the form of a duty, but that that provision does not prohibit the imposition of identical taxation on an imported product and a similar domestic product, even if the charge imposed on the latter is, in part, allocated for the purposes of financing the monopoly, whilst the charge levied on the imported product is imposed for the benefit of the general budget of the state.

28 The applicant in the main action sought the re-opening of the oral procedure on the ground that the replies given by the government of the Federal Republic of Germany and the Commission to a question raised in case 91-75 (Hauptzollamt Gottingen and Bundesfinanzminister v Wolfgang Miritz GmbH & co.) Might influence the Court's decision.

29 However, those replies, which concerned the existence of a so-called ' price equalization ' system within the German alcohol monopoly, are in No way decisive as regards the interpretation of community law in reply to the questions raised by the national Court in the present case.

The Court does not therefore consider it necessary to re-open the oral procedure.

Costs

30 The costs incurred by the Federal Republic of Germany and the Commission of the European Communities which have submitted observations to the Court are not recoverable.

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 national Court, the decision as to costs is a matter for that Court.

On those grounds,

The Court

In answer to the questions referred to it by the finanzgericht rheinland-pfalz by order dated 10 April 1975, hereby rules:

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

2. The first paragraph of article 95 must be interpreted as prohibiting the imposition of taxation on an imported product according to a method of calculation or manner of imposition which differs from those applying to the tax imposed on the similar domestic product and leads to higher taxation on the imported product, such as the imposition of a uniform amount in one case and a graduated amount in the other, even if such disparity only occurs in a minority of cases, and that it is inappropriate to take into consideration the possibly different effects of such taxation on the price levels of the two products;

3. The first paragraph of article 95 does not prohibit the imposition of the same taxation on an imported product and a similar domestic product, even if a part of the tax levied on the domestic product is allocated for the purposes of financing a state monopoly, whilst that levied on the imported product is imposed for the benefit of the general budget of the state;

4. Article 37 (1) is capable of conferring on those concerned individual rights which national Courts must protect;

5. Article 37 (1) must be interpreted as meaning that the discrimination regarding the conditions under which goods are procured and marketed which is referred to therein includes the extraction of a contribution to the monopoly costs from an imported product, even in the form of a duty, but that that provision does not prohibit the imposition of identical taxation on an imported product and a similar domestic product, even if the charge imposed on the latter is, in part, allocated for the purposes of financing the monopoly, whilst the charge levied on the imported product is imposed for the benefit of the general budget of the state.