Keywords
Summary

Keywords

1 . TAX PROVISIONS - INTERNAL TAXES - PROVISIONS OF THE TREATY - AIM - PROHIBITION OF DISCRIMINATION BETWEEN IMPORTED PRODUCTS AND SIMILAR NATIONAL PRODUCTS - PROHIBITION OF TAXES OF SUCH A NATURE AS TO AFFORD INDIRECT PROTECTION TO OTHER PRODUCTS

( EEC TREATY , ART . 95 )

2 . TAX PROVISIONS - INTERNAL TAXES - TAXES OF SUCH A NATURE AS TO AFFORD INDIRECT PROTECTION TO OTHER PRODUCTS - COMPETING PRODUCTS - CRITERIA - PRESENT STATE OF MARKET AND POSSIBILITIES FOR DEVELOPMENT - HOW THE PROTECTIVE EFFECT IS TO BE SHOWN

( EEC TREATY , ART . 95 , SECOND PARAGRAPH )

3 . TAX PROVISIONS - INTERNAL TAXES - TAXES OF SUCH A NATURE AS TO AFFORD INDIRECT PROTECTION TO OTHER PRODUCTS - COMPETING PRODUCTS - DEGREE OF SUBSTITUTION POSSIBLE - CRITERIA - CONSUMER BENEFITS - INADEQUATE CRITERION

( EEC TREATY , ART . 95 , SECOND PARAGRAPH )

Summary

1 . THE AIM OF ARTICLE 95 OF THE EEC TREATY , AS A WHOLE , IS TO ELIMINATE THE ADVERSE EFFECTS ON THE FREE MOVEMENT OF GOODS AND ON NORMAL CONDITIONS OF COMPETITION BETWEEN MEMBER STATES OF THE DISCRIMINATORY OR PROTECTIVE APPLICATION OF INTERNAL TAXATION .

TO THIS END , THE FIRST PARAGRAPH , WHICH RELATES TO ' ' SIMILAR ' ' PRODUCTS , WHICH ARE THUS BY DEFINITION LARGELY COMPARABLE , PROHIBITS ANY TAX PROVISION WHOSE EFFECT IS TO IMPOSE , BY WHATEVER TAX MECHANISM , HIGHER TAXATION ON IMPORTED GOODS THAN ON SIMILAR DOMESTIC PRODUCTS .

THE SECOND PARAGRAPH , FOR ITS PART , APPLIES TO THE TREATMENT FOR TAX PURPOSES OF PRODUCTS WHICH , WITHOUT FULFILLING THE CRITERION OF SIMILARITY , ARE NEVERTHELESS IN COMPETITION , EITHER PARTIALLY OR POTENTIALLY , WITH CERTAIN PRODUCTS OF THE IMPORTING COUNTRY . THAT PROVISION , PRECISELY IN VIEW OF THE DIFFICULTY OF MAKING A SUFFICIENTLY PRECISE COMPARISON BETWEEN THE PRODUCTS IN QUESTION , EMPLOYS A MORE GENERAL CRITERION , IN OTHER WORDS THE INDIRECT PROTECTION AFFORDED BY A DOMESTIC TAX SYSTEM .

2 . IN ORDER TO DETERMINE THE EXISTENCE OF A COMPETITIVE RELATIONSHIP UNDER THE SECOND PARAGRAPH OF ARTICLE 95 , IT IS NECESSARY TO CONSIDER NOT ONLY THE PRESENT STATE OF THE MARKET BUT ALSO THE POSSIBILITIES FOR DEVELOPMENT WITHIN THE CONTEXT OF FREE MOVEMENT OF GOODS AT THE COMMUNITY LEVEL AND THE FURTHER POTENTIAL FOR THE SUBSTITUTION OF PRODUCTS FOR ONE ANOTHER WHICH MAY BE REVEALED BY INTENSIFICATION OF TRADE , SO AS FULLY TO DEVELOP THE COMPLEMENTARY FEATURES OF THE ECONOMIES OF THE MEMBER STATES IN ACCORDANCE WITH THE OBJECTIVES LAID DOWN BY ARTICLE 2 OF THE TREATY .

WHERE THERE IS SUCH A COMPETITIVE RELATIONSHIP BETWEEN AN IMPORTED PRODUCT AND NATIONAL PRODUCTION , THE SECOND PARAGRAPH OF ARTICLE 95 PROHIBITS TAX PRACTICES ' ' OF SUCH A NATURE AS TO AFFORD INDIRECT PROTECTION ' ' TO THE PRODUCTION OF THE IMPORTING MEMBER STATE .

FOR THE APPLICATION OF THAT PROVISION IT IS IMPOSSIBLE TO REQUIRE IN EACH CASE THAT THE PROTECTIVE EFFECT SHOULD BE SHOWN STATISTICALLY . IT IS SUFFICIENT FOR IT TO BE SHOWN THAT A GIVEN TAX MECHANISM IS LIKELY , IN VIEW OF ITS INHERENT CHARACTERISTICS , TO BRING ABOUT THE PROTECTIVE EFFECT REFERRED TO BY THE TREATY . WITHOUT DISREGARDING THE IMPORTANCE OF THE CRITERIA WHICH MAY BE DEDUCED FROM STATISTICS FROM WHICH THE EFFECTS OF A GIVEN TAX SYSTEM MAY BE MEASURED , IT IS IMPOSSIBLE TO REQUIRE THE COMMISSION , IN PROCEEDINGS WHICH IT HAS BROUGHT UNDER ARTICLE 169 OF THE TREATY , TO SUPPLY STATISTICAL DATA ON THE ACTUAL FOUNDATION OF THE PROTECTIVE EFFECT OF THE TAX SYSTEM COMPLAINED OF .

3 . FOR THE PURPOSE OF MEASURING THE POSSIBLE DEGREE OF SUBSTITUTION BETWEEN TWO PRODUCTS FOR THE APPLICATION OF THE SECOND PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY , IT IS IMPOSSIBLE TO RESTRICT ONESELF TO CONSUMER HABITS IN A MEMBER STATE OR IN A GIVEN REGION . SUCH HABITS , WHICH ARE ESSENTIALLY VARIABLE IN TIME AND SPACE , CANNOT BE CONSIDERED TO BE A FIXED RULE ; THE TAX POLICY OF A MEMBER STATE MUST NOT THEREFORE CRYSTALLIZE GIVEN CONSUMER HABITS SO AS TO CONSOLIDATE AN ADVANTAGE ACQUIRED BY NATIONAL INDUSTRIES CONCERNED TO COMPLY WITH THEM .