61965J0010

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POLICY OF THE EEC - COMMON RULES - TAX PROVISIONS - IMPORT LICENCES - CHARGES IMPOSED ON THE ISSUE OF SUCH LICENCES DO NOT CONSTITUTE TAXATION WITHIN THE MEANING OF ARTICLE 95 OF THE EEC TREATY

A CHARGE IMPOSED ON THE ISSUE OF AN IMPORT LICENCE WITHOUT WHICH IMPORTATION WOULD NOT BE POSSIBLE IS NOT GOVERNED BY ARTICLE 95 OF THE EEC TREATY, SINCE SUCH A CHARGE HAS THE SAME EFFECT UPON THE FREE MOVEMENT OF GOODS AS A CUSTOMS DUTY .

CF . SUMMARY, PARA . 5, JOINED CASES 2 AND 3/62, ( 1962 ) ECR 818 .

IN CASE 10/65

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE VERWALTUNGSGERICHT, FRANKFURT - AM-MAIN, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

WALDEMAR DEUTSCHMANN UNDERTAKING OF ESSEN/RUHR, ASSISTED BY MESSRS . DITGES AND EHLE, 7 VON GROOTESTRASSE, COLOGNE-MARIENBURG,

PLAINTIFF,

V

FEDERAL REPUBLIC OF GERMANY, REPRESENTED BY THE PRESIDENT OF THE ' AUSSENHANDELSSTELLE FUER ERZEUGNISSE DER ERNAEHRUNG UND LANDWIRTSCHAFT ' ( OFFICE FOR FOREIGN TRADE IN FOODSTUFFS AND AGRICULTURAL PRODUCTS ) OF FRANKFURT-AM-MAIN,

DEFENDANT,

ON THE INTERPRETATION OF ARTICLE 95 OF THE EEC TREATY,

P.473

THE VERWALTUNGSGERICHT, FRANKFURT-AM-MAIN, REQUESTS THE INTERPRETATION OF THE FIRST PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY, SO AS TO DECIDE WHETHER THE GRANT OF IMPORT LICENCES FOR AGRICULTURAL PRODUCTS ORIGINATING IN OTHER MEMBER STATES MAY GIVE RISE TO THE IMPOSITION OF A CHARGE, AS PROVIDED FOR IN THE GERMAN LAW OF 17 DECEMBER 1951 .

BY VIRTUE OF ARTICLE 177 OF THE TREATY THIS QUESTION FALLS WITHIN THE JURISDICTION OF THE COURT OF JUSTICE TO THE EXTENT THAT IT REQUESTS AN INTERPRETATION OF THE TREATY - IN THIS CASE ARTICLE 95 .

IN REPLYING TO THIS QUESTION THE COURT CAN NEITHER INTERPRET THE ABOVEMENTIONED GERMAN LAW NOR ASSESS THE NATURE OF THE CHARGE WHICH IT INTRODUCES .

IN ORDER TO DEFINE THE SCOPE OF THE ABOVE - MENTIONED ARTICLE 95, IT MUST BE CONSIDERED IN RELATION TO THOSE OTHER PROVISIONS, THE AIM OF WHICH IS TO ELIMINATE OBSTACLES TO THE FREE MOVEMENT OF GOODS, IN PARTICULAR ARTICLES 13 AND 17 .

THE RULES FOR THE ABOLITION, DURING THE TRANSITIONAL PERIOD, OF CHARGES HAVING AN EFFECT EQUIVALENT TO CUSTOMS DUTIES ARE DIRECTLY PROVIDED FOR IN ARTICLE 13 .

ARTICLE 17 PROVIDES THAT THESE RULES SHALL ALSO APPLY TO CUSTOMS DUTIES OF A FISCAL NATURE .

THIS BEING SO, ARTICLE 95, WHICH LAYS DOWN A DIFFERENT TIME-TABLE FOR THE PROGRESSIVE ABOLITION OF THE OBSTACLES REFERRED TO THEREIN, CANNOT RELATE TO A CHARGE WHICH IS IMPOSED EITHER BY REASON OF, OR AT THE TIME OF, IMPORTATION AND WHICH, BEING IMPOSED SPECIFICALLY UPON A PRODUCT IMPORTED FROM A MEMBER STATE TO THE EXCLUSION OF A SIMILAR DOMESTIC PRODUCT, HAS, BY ALTERING ITS PRICE, THE SAME EFFECT UPON THE FREE MOVEMENT OF GOODS AS A CUSTOMS DUTY .

THE VERWALTUNGSGERICHT CONSIDERS THE CHARGE IN QUESTION TO BE AN ' INDIRECT CHARGE IMPOSED ON THE ISSUE OF AN IMPORT LICENCE ', NOT AFFECTING DOMESTIC PRODUCTS BUT INDIRECTLY BURDENING FOREIGN GOODS WHICH COULD NOT BE IMPORTED WITHOUT SUCH A LICENCE .

IT FOLLOWS FROM THE WORDING OF THE QUESTION PUT THAT IT CONCERNS CHARGES IMPOSED ON THE ISSUE OF IMPORT LICENCES, THAT IS, ON THE OCCASION OF IMPORTATION, THE SIMILAR NATIONAL PRODUCT BEING NATURALLY EXEMPT FROM THE LICENCE .

THE CHARGES REFERRED TO ARE THUS IMPOSED SOLELY ON IMPORTED PRODUCTS .

IT FOLLOWS FROM THE FOREGOING THAT ARTICLE 95 OF THE TREATY DOES NOT APPLY TO THE SAID CHARGES .

THE REPLY TO THE PRELIMINARY QUESTION RAISED BY THE VERWALTUNGSGERICHT, FRANKFURT-AM-MAIN, MUST THEREFORE BE IN THE NEGATIVE .

THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY AND THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY, WHICH BOTH 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 VERWALTUNGSGERICHT, FRANKFURT - AM-MAIN, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

THE COURT

HEREBY RULES :

1 . A CHARGE IMPOSED ON THE ISSUE OF AN IMPORT LICENCE WITHOUT WHICH IMPORTATION WOULD NOT BE POSSIBLE IS NOT GOVERNED BY ARTICLE 95 OF THE EEC TREATY;

2 . THE DECISION AS TO COSTS IS A MATTER FOR THE VERWALTUNGSGERICHT, FRANKFURT-AM-MAIN .