Keywords
Summary

Keywords

1 Tax provisions - Internal taxation - Import surcharge on port duty - Discrimination between domestic products and products imported from another Member State - Prohibition - Scope

(EEC Treaty, Art. 95)

2 Competition - Dominant position - Abuse - Prohibition - Direct effect - Individual rights - Safeguarded by national courts - Actions - National rules of procedure - Conditions for their application - Burden of proof

(EEC Treaty, Art. 86)

3 Competition - Public undertakings and undertakings to which Member States grant special or exclusive rights - Legislation concerning port duties to be paid for the use of ports belonging to a public undertaking - Levying of an unreasonable amount of duty - Discrimination between the rates charged to users of the public undertaking's own services and the rates applicable, reciprocally, to some of its trading partners - Abuse of a dominant position - Assessment by the national courts - Criteria

(EEC Treaty, Arts 86 and 90(1))

4 Competition - Undertakings entrusted with the operation of services of general economic interest - Identification on the basis of the specific nature of the activity carried on - Subject to the rules of the Treaty - Derogation - Conditions

(EEC Treaty, Art. 90(2))

5 Community law - Direct effect - National duties incompatible with Community law - Repayment

Summary

6 It is contrary to Article 95 of the Treaty for a Member State to impose a 40% import surcharge on a general duty levied on goods loaded, unloaded, or otherwise taken on board or landed within its ports or in the deep-water approach channels to its ports where goods are imported by ship from another Member State.

7 It is for the domestic legal order of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules, including those relating to the burden of proof, governing actions for safeguarding rights which individuals derive from the direct effect of Article 86 of the Treaty, provided that such rules are not less favourable than those governing similar domestic actions and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.

8 Where a public undertaking which owns and operates a commercial port occupies a dominant position in a substantial part of the common market, it is contrary to Article 90(1) in conjunction with Article 86 of the EEC Treaty for that undertaking to levy port duties of an unreasonable amount pursuant to regulations adopted by the Member State to which it is answerable or for it to exempt from payment of those duties its own ferry services and, reciprocally, some of its trading partners' ferry services, in so far as such exemptions entail the application of dissimilar conditions to equivalent services. It is for the national court to determine whether, having regard to the level of the duties and the economic value of the services supplied, the amount of duty is actually unfair. It is also for the national court to determine whether exempting its own ferry services, and reciprocally those of some of its trading partners, from payment of duties in fact amounts to the application of dissimilar conditions to equivalent services.

9 Dock work consisting of loading, unloading, transhipment, storage and general movement of goods or material of any kind is not necessarily of general economic interest exhibiting special characteristics compared with that of other economic activities. In any event, Article 90(2) of the Treaty does not permit a public undertaking which owns and operates a commercial port to levy for the use of port facilities duties which are contrary to Community law and which are not necessary to the performance of the particular task assigned to it.

10 Persons or undertakings on whom duties incompatible with Article 90(1) in conjunction with Article 86 of the Treaty have been imposed by a public undertaking which is responsible to a national ministry and whose budget is governed by the Budget Law are in principle entitled to repayment of the duty unduly paid.

The only exception is where it is established that the person required to pay those charges has actually passed them on to other persons. However, traders may not be prevented from applying to the courts having jurisdiction, in accordance with the appropriate procedures of national law, for reparation of loss caused by the levying of charges not due, irrespective of whether those charges have been passed on.