Art 110 - discriminatory tax

Question 1

Humblot

Answer 1

A discrimintatory tax doesn’t need to directly target imported product, it is the effect that is important. Here, there was a significant tax hike once cars reached beyond a certain horsepower, and it so happened that almost all of the cars beyond that artificial limit were imported, whereas the cars below the horsepower line were domestic. This was an Art 110 breach.

Question 2

Commission v France

Answer 2

Regarding an Art 110(1) breach and ‘similar domestic products’, what is similar is widely defined and looks at factual, rather than legal, similarity

Question 3

John Walker case

Answer 3

Art110(1) breach, factual similarity test. Looked at fruit wine and whisky, examined alcohol content (different), production method (different) and consumer use (mixed and not) therefore not an Art 110(1) breach as weren’t similar

Question 4

Cooperative Cofrutta

Answer 4

Art110(2) breach, bananas not similar to other fruits however they are still in a competitive relationship. Italy charged a tax on bananas (which they import) but not table fruit (which they grow) therefore it breached Art 110(2) by charging a discriminatory tax

Question 5

Commission v UK

Answer 5

To decide whether products are in a competitive relationship, the EU can look at FUTURE spending habits as well as current ones, otherwise taxes risk crystallising current spending habits and preventing a natural market

Question 6

Lutticke

Answer 6

Gives Art 110(1) direct effect

Question 7

Fink-Fruct

Answer 7

Gives Art 110(2) direct effect

Question 8

Comateb

Answer 8

A trader can claim for Art 110 loss of sales due to a price rise, but if he passes on the price rise he cannot claim for the difference too (however, the consumer can claim the difference)