CJEU, 4th chamber, June 14, 2018, No C-39/17

THE COURT (Fourth Chamber),

1 This request for a preliminary ruling concerns the interpretation of Articles 28 and 30 TFEU.

2 The request has been made in proceedings between Lubrizol France SAS ('Lubrizol') and the Caisse nationale du Régime social des indépendants (RSI) participations extérieures (National Fund coordinating the Social Security Scheme for Self-Employed Workers (RSI), External Interests, 'the CNRSI') concerning the calculation of the basis of assessment for the corporate social solidarity contribution ('the C3S') and the additional contribution to the C3S (together, 'the contributions at issue') owed by Lubrizol for the year 2008.

Legal context

EU law

3 Under Article 14(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1), as amended by Council Directive 2008/8/EC of 12 February 2008 (OJ 2008 L 44, p. 11) ('the VAT Directive'), '"supply of goods" shall mean the transfer of the right to dispose of tangible property as owner'.

4 Article 17 of that directive provides:

'1. The transfer by a taxable person of goods forming part of his business assets to another Member State shall be treated as a supply of goods for consideration.

"Transfer to another Member State" shall mean the dispatch or transport of movable tangible property by or on behalf of the taxable person, for the purposes of his business, to a destination outside the territory of the Member State in which the property is located, but within the Community.

...'

French law

5 Article L. 245-13 of the Code de la sécurité sociale (Social Security Code), in the version applicable at the due date for payment of the contributions at issue ('the Social Security Code'), provides that the additional contribution to the CS3, provided for in Articles L. 651-1 et seq. of that code, which is determined, collected, payable and audited subject to the same conditions as those applicable to the C3S and the rate of which is 0.03%, is established for the benefit of the Caisse Nationale de l'assurance maladie des travailleurs salariés (National Sickness Insurance Fund for Employees).

6 Article L. 651-1 of the Social Security Code provides that a social solidarity contribution levied on, inter alia, public limited companies and simplified joint stock companies is established for the benefit of the Fonds de solidarité vieillesse (Old-Age Solidarity Fund) and the Fonds de réserve pour les retraites (Pensions Reserve Fund).

7 Article L. 651-3 of that code provides:

'The social solidarity contribution shall be payable annually. Its rate shall be determined by decree, at a maximum rate of 0.13% of the turnover defined in Article L. 651-5. It shall not be imposed if the company turnover is less than EUR 760 000.

...'

8 Article L. 651-5 of the Social Security Code states:

'Companies and undertakings subject to the social solidarity contribution shall notify annually the body responsible for collecting that contribution of the amount of their overall turnover declared to the tax authorities, calculated excluding taxes on turnover and similar charges ...'

9 Article 256(III) of the code général des impôts (General Tax Code), in the version in force at the material time ('the GTC'), provides:

'The transfer by a taxable person of goods forming part of his business assets to another EU Member State shall be treated as a supply of goods.

"Transfer", within the meaning of the preceding provisions, shall mean the dispatch or transport of movable tangible property by or on behalf of a taxable person for the purposes of his business, with the exception of the dispatch or transport of goods which, in the Member State in which the dispatch or transport ends, are intended:

(a) to be used temporarily for the purposes of the supply of services by the taxable person or in circumstances which would render him eligible, if the goods have been imported, for temporary importation with full exemption from import duties;

(b) to be worked upon, provided that the goods are returned or transported to France and to that taxable person;

(c) for installation or assembly;

(d) to be supplied by the taxable person on board modes of transport in accordance with the conditions referred to in Article 37 of [the VAT Directive].

...'

10 Article 262b of the GTC states:

'I. The following shall be exempt from value added tax:

1° Supplies of goods dispatched or transported within the territory of another Member State of the European Union to another taxable person or non-taxable legal person.

...

2° Transfers treated as supplies, referred to in Article 256(III), which would be eligible for the exemption laid down in 1° above if those supplies had been made to a taxable third party.

...'

The facts in the main proceedings and the question referred for a preliminary ruling

11 Lubrizol, a company in the chemicals sector, manufactures and sells additives for lubricants. As a simplified joint stock company established in France, it is subject to the contributions at issue.

12 Following determination of the basis of assessment for the contributions at issue owed by Lubrizol for the year 2008, the CNRSI noted a discrepancy between the turnover for the year 2007 declared to the CNRSI and that notified by the tax authorities, corresponding to a deduction made by Lubrizol from the basis of assessment for the contributions in the amount of the intra-Community transfers.

13 Consequently, on 13 March 2012, the CNRSI notified Lubrizol of a revised assessment, followed by a letter of formal notice. Lubrizol contested the claim that it owed the amounts sought, submitting that the value of the goods that it had transferred to other EU Member States did not come within the basis of assessment for the contributions at issue which it had to pay for the year 2008. According to it, at the date of those transfers, it was still the owner of those goods and had not yet transferred them to its customers, with the result that those transfers did not constitute a sale and thus part of its turnover.

14 Having been unsuccessful at first instance and on appeal, Lubrizol brought an appeal before the Cour de cassation (Court of Cassation) (France), claiming that, contrary to the finding of the appeal court, the contributions at issue had to be regarded as charges having equivalent effect, since transfers of goods to another Member State are included in the basis of assessment for those contributions, unlike transfers of goods within the national territory or to a third country.

15 The referring court states that the C3S was introduced for the benefit of the régime d'assurance maladie et maternité des travailleurs non-salariés des professions non agricoles (sickness and maternity insurance scheme for self-employed persons in non-agricultural occupations) and the régimes d'assurance vieillesse des professions artisanales, industrielles et commerciales, et libérales (old-age insurance schemes for the craft trades, industrial or commercial occupations or the liberal professions). That court also notes that, during 2008, the proceeds of the C3S were earmarked primarily for the CNRSI, which is responsible for its collection.

16 The Cour de cassation observes, furthermore, that the additional contribution to the C3S was introduced by Law No 2004-810 of 13 August 2004 and that its proceeds were essentially allocated, during 2008, to the National Sickness Insurance Fund for employees, and then to the Old-Age Solidarity Fund.

17 According to the referring court, the basis of assessment for those two contributions, which are, as defined by national law, charges of any kind, consists of the overall turnover before tax declared to the tax authorities. The supply of goods, within the meaning of Article 14(1) of the VAT Directive, comes within the basis of assessment for the contributions at issue.

18 Again according to that court, subject to certain exceptions which are not relevant in the present case, and in accordance with Article 17(1) of the VAT Directive, Article 256(III) of the GTC treats as a supply of goods the transfer of business assets made by or on behalf of a taxable person, for the purposes of his business, to a destination in another EU Member State. Such a transfer must be included in the taxable person's declaration to the tax authorities, whilst being exempt from VAT under Article 262b of the GTC.

19 In that context, the referring court has previously held that the representative value of stock transferred by an undertaking from France to another EU Member State is included in the basis of assessment for the contributions at issue, even if that transfer does not in itself generate any turnover. By contrast, transfers within the national territory and those made to a third country are not to be treated as a supply of goods, with the result that their representative value is not included in the basis of assessment for the contributions at issue.

20 In those circumstances, the Cour de cassation decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

'Is it contrary to Articles 28 [TFEU] and 30 [TFEU] for the value of goods transferred from France to another Member State of the European Union by or on behalf of an entity subject to [the contributions at issue], for the purposes of its business, to be taken into account in determining the overall turnover that constitutes the basis of assessment for those contributions?'

Consideration of the question referred

21 By its question, the referring court asks, in essence, whether Articles 28 and 30 TFEU must be interpreted as precluding legislation of a Member State which provides that the basis of assessment for contributions levied on the annual turnover of companies, to the extent to which that turnover reaches or exceeds a certain amount, is calculated by taking into account the representative value of the goods transferred by or on behalf of a taxable person, for the purposes of his business, from that Member State to another EU Member State, that value being taken into account from the time of that transfer, whereas, in the case where the same goods are transferred by or on behalf of the taxable person, for the purposes of his business, within the territory of the Member State concerned, their value is not taken into account in the basis of assessment until their subsequent sale.

22 According to the applicable national law, in the case in the main proceedings, the contributions at issue are levied on the annual turnover of companies, on condition that, for the tax year concerned, that turnover amounts to at least EUR 760 000. It also follows from that national law that a transfer of goods made by a taxable person subject to those contributions, or on his behalf, for the purposes of his business, from France to another EU Member State, is to be considered, for the purposes of the levying of those contributions, to be a supply of goods and incorporated in the turnover of the company concerned.

23 The referring court observes, in particular, that the representative value of goods which are merely transferred, without loss of ownership, to another EU Member State is incorporated in the basis of assessment for the contributions at issue, whereas that is not the case when such a transfer takes place within French territory. In the case of transfers made within French territory, it is only at the date of the sale of the goods concerned that their value is included in the turnover of the company in question and incorporated in the basis of assessment for the contributions at issue. The referring court is therefore uncertain, having regard to the manner in which the basis of assessment for those contributions is calculated, whether those contributions constitute charges having equivalent effect to customs duties on exports, contrary to Articles 28 and 30 TFEU.

24 According to settled case-law of the Court, any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect to a customs duty. By contrast, pecuniary charges resulting from a general system of internal taxation applied systematically, in accordance with the same objective criteria, to categories of products irrespective of their origin or destination fall within Article 110 TFEU, which prohibits discriminatory internal taxation (judgment of 1 March 2018, Petrotel-Lukoil and Georgescu, C-76/17, EU:C:2018:139, paragraph 21 and the case-law cited).

25 In that regard, it must be borne in mind that the FEU Treaty provisions relating to charges having equivalent effect and those relating to discriminatory internal taxation cannot be applied together, with the result that under the system of the Treaty the same measure cannot belong to both categories at the same time (see, to that effect, judgment of 2 October 2014, Orgacom, C-254/13, EU:C:2014:2251, paragraph 20 and the case-law cited).

26 A pecuniary charge also escapes classification as a 'charge having equivalent effect' if it is levied, in certain circumstances, on account of inspections carried out in order to comply with obligations imposed by EU law, or if it represents payment for a service actually provided to an operator which he is required to pay in an amount in proportion to that service (see, to that effect, judgments of 11 June 1992, Sanders Adour and Guyomarc'h Orthez Nutrition animale, C-149/91 and C-150/91, paragraph 17, and of 9 September 2004, Carbonati Apuani, C-72/03, EU:C:2004:506, paragraph 31).

27 It is necessary, therefore, to determine whether the contributions at issue meet the definition of a charge having equivalent effect to a customs duty, as follows from the factors set out in paragraphs 24 to 26 of the present judgment.

28 In that regard, it must be observed, first, that the contributions at issue constitute pecuniary charges unilaterally imposed by a Member State. As the purpose for which those charges are imposed is irrelevant, it does not matter that they relate to charges intended to fund a social security scheme (see, to that effect, judgment of 21 September 2000, Michaïlidis, C-441/98 and C-442/98, EU:C:2000:479, paragraph 17).

29 It is appropriate, secondly, to examine whether the contributions at issue are levied on goods.

30 In that regard, it should be recalled that, in the context of the interpretation of Article 110 TFEU, the Court has held that a charge which is not imposed on goods as such must nevertheless be regarded as being imposed on a product when it has an immediate effect on the cost of the product in question (judgments of 16 February 1977, Schöttle, 20/76, EU:C:1977:26, paragraph 15, and of 8 November 2007, Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten, C-221/06, EU:C:2007:657, paragraph 43). It is appropriate to apply that case-law also in the context of the interpretation of Articles 28 and 30 TFEU.

31 In the case in the main proceedings, the contributions at issue are calculated on the basis of the annual turnover of companies which are subject to those contributions and not directly on the basis of the representative value or sale price of the goods marketed by those companies.

32 However, where the annual turnover of those companies reaches an amount of at least EUR 760 000, the whole of that turnover constitutes the basis of assessment for the levies at issue, the rate of which is set at 0.13% and 0.03%, respectively, of that turnover. In so far as that turnover is generated by the sale of goods in France and the transfer of goods to another Member State, the contributions at issue are imposed on those goods themselves, although they are levied not on the date of their sale or transfer to another Member State, but overall and yearly.

33 As the Advocate General observed in point 89 of his Opinion, those contributions directly influence the cost price of the goods concerned, since each sale or transfer to another Member State of one of those goods necessarily leads to the increase of the basis of assessment for those contributions which are levied on the turnover thus generated, when that turnover is at least EUR 760 000 per year.

34 In those circumstances, the contributions at issue must be regarded as being levied on goods.

35 That conclusion is not called into question by the judgment of 27 November 1985, Rousseau Wilmot (295/84, EU:C:1985:473), in paragraph 16 of which the Court held that a contribution such as the C3S comes within the concept of 'taxes and duties which cannot be characterised as turnover taxes', referred to in Article 33 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), in so far as, inter alia, that contribution is calculated on the basis of annual turnover without directly affecting the price of goods and services. That ruling specifically concerned the common system of VAT and, in particular, the abovementioned Article 33, the purpose of which is to prevent the functioning of that system from being jeopardised by a Member State's fiscal measures affecting the movement of goods and services and being imposed on transactions in a manner comparable to VAT.

36 It is necessary to ascertain, thirdly, whether the contributions at issue are levied on those goods because of the crossing of a border or whether, on the contrary, they result from a general system of internal taxation applied systematically, in accordance with the same objective criteria, to categories of goods irrespective of their origin or destination.

37 In that regard, the Court has already held that the essential feature of a charge having equivalent effect to a customs duty which distinguishes it from an internal tax is that the former is borne solely by a product which crosses a frontier, as such, whereas the latter is borne by imported, exported and domestic goods (judgment of 2 October 2014, Orgacom, C-254/13, EU:C:2014:2251, paragraph 28).

38 In the present case, it is common ground that the contested contributions are levied, at the same rate, on both goods transferred to another Member State and those sold within the national territory.

39 However, first, in order to relate to a general system of 'internal taxation', within the meaning of Article 110 TFEU, the tax charge in question must impose the same duty on both domestic goods and identical exported goods at the same marketing stage and the chargeable event triggering the duty must also be identical in the case of both types of goods (judgment of 2 October 2014, Orgacom, C-254/13, EU:C:2014:2251, paragraph 29 and the case-law cited).

40 As it is, the price of the goods is included in the basis of assessment for the contributions at issue only at the time of the sale of those goods when they remain within the national territory, whereas the representative value of those goods, when the latter are transferred to another Member State, is included in that same basis of assessment from the time of such transfer.

41 However, that circumstance is not such as to call into question the finding that the pecuniary charge resulting from the contributions at issue applies at the same marketing stage since, as the French Government argued in its observations submitted to the Court, essentially it covers goods sold on the domestic market and goods transferred to another Member State with a view to being sold there.

42 First, the sale of those goods on the national territory and, secondly, the transfer to another Member State of the goods with a view to their sale, can be regarded as coming, in real economic terms, under the same marketing stage for the purpose of the application of Article 110 TFEU (see, by analogy, judgments of 11 June 1992, Sanders Adour and Guyomarc'h Orthez Nutrition animale, C-149/91 and C-150/91, EU:C:1992:261, paragraph 18; of 2 April 1998, Outokumpu, C-213/96, EU:C:1998:155, paragraph 25, and of 23 April 2002, Nygård, C-234/99, EU:C:2002:244, paragraph 30).

43 However, the position would be different if, as maintained by Lubrizol in its observations submitted to the Court, the transfer of the goods concerned in the main proceedings to another Member State were to be taken into account for the calculation of the basis of assessment for the contributions at issue, even though such a transfer does not result in a subsequent sale of those goods in that other Member State. Such a transfer would not come under the same marketing stage as the sale on the domestic market.

44 As the European Commission observes, the pecuniary charge resulting from the contributions at issue should be regarded as being levied on those goods at different marketing stages if the value of the goods transferred to another Member State could not be deducted from the basis of assessment for the contributions at issue when those goods are not intended to be sold or have been transferred back to France without being sold in another Member State. In such a case, the contributions at issue, in so far as they are calculated by taking into account the representative value of such goods, should be regarded as charges having equivalent effect.

45 In addition, if the value of the goods transferred to another Member State was included in the basis of assessment for the contributions at issue for a second time when they were sold in that Member State, exported goods would bear the tax charge at issue twice, unlike goods destined for the domestic market. In such a situation, those contributions, in so far as they are calculated taking into account the sale price of those goods, should also be regarded as charges having equivalent effect (see, to that effect, judgment of 17 September 1997, Fricarnes, C-28/96, EU:C:1997:412, point 28).

46 Secondly, it should be observed that if the advantages stemming from the use of the revenue from a charge forming part of a general system of internal charges applying systematically to national goods marketed on the national market and to goods exported offset in full the burden borne by the national product marketed on the national market when it is placed on the market, that charge will also constitute a charge having an effect equivalent to a customs duty, contrary to Articles 28 and 30 TFEU (judgment of 1 March 2018, Petrotel-Lukoil and Georgescu, C-76/17, EU:C:2018:139, paragraph 24).

47 In the present case, however, there is nothing to indicate what would be the effect of the contributions at issue. As observed, in essence, by the Advocate General in point 94 of his Opinion, the revenue from those contributions is intended to finance the budget of social-security bodies whose services are not intended, and do not appear, to lead to offsetting in full the charge incurred, in respect of domestic goods marketed within national territory, from the levying of such contributions.

48 It should be noted, fourthly, that, as the Advocate General has, in essence, noted in point 71 of his Opinion, there is nothing in the file submitted to the Court to suggest that the contributions at issue are levied on account of inspections carried out in order to comply with obligations imposed by EU law or that they constitute consideration for a service actually provided to the trader, in an amount proportionate to that service.

49 It follows that the contributions at issue, subject to what is stated in paragraphs 43 to 47 of the present judgment, appear to be internal taxation within the meaning of Article 110 TFEU, this, however, being a matter for the referring court to ascertain.

50 As Lubrizol stated at the hearing before the Court that it does not rely upon infringement of Article 110 TFEU and as no questions were referred to the Court on that point, there is no need to examine whether contributions such as the contributions at issue are discriminatory within the meaning of Article 110 TFEU.

51 It follows from the foregoing that Articles 28 and 30 TFEU must be interpreted as not precluding legislation of a Member State which provides that the basis of assessment for contributions levied on the annual turnover of companies, provided that the latter reaches or exceeds a certain amount, is calculated by taking into account the representative value of the goods transferred by or on behalf of a taxable person, for the purposes of his business, from that Member State to another EU Member State, that value being taken into account from the time of that transfer, whereas, in the case where the same goods are transferred by or on behalf of the taxable person, for the purposes of his business, within the territory of the Member State concerned, their value is taken into account in that basis of assessment only at the time of their subsequent sale, on condition that:

- first, the value of those goods is not taken into account in that basis of assessment for a second time at the time of their subsequent sale in that Member State;

- secondly, their value is deducted from that basis of assessment when those goods are not intended to be sold in the other Member State or have been transferred back to the Member State of origin without having been sold, and

- thirdly, the advantages stemming from the use of those contributions do not offset in full the burden borne by the national product marketed on the national market when it is placed on the market, this being a matter for the referring court to ascertain.

Costs

52 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Articles 28 and 30 TFEU must be interpreted as not precluding legislation of a Member State which provides that the basis of assessment for contributions levied on the annual turnover of companies, provided that the latter reaches or exceeds a certain amount, is calculated by taking into account the representative value of the goods transferred by or on behalf of a taxable person, for the purposes of his business, from that Member State to another EU Member State, that value being taken into account from the time of that transfer, whereas, in the case where the same goods are transferred by or on behalf of the taxable person, for the purposes of his business, within the territory of the Member State concerned, their value is taken into account in that basis of assessment only at the time of their subsequent sale, on condition that:

- first, the value of those goods is not taken into account in that basis of assessment for a second time at the time of their subsequent sale in that Member State;

- secondly, their value is deducted from that basis of assessment when those goods are not intended to be sold in the other Member State or have been transferred back to the Member State of origin without having been sold, and

- thirdly, the advantages stemming from the use of those contributions do not offset in full the burden borne by the national product marketed on the national market when it is placed on the market, this being a matter for the referring court to ascertain.