Article 110 Case Law Flashcards
Lutticke
Article 110 was recognised by the ECJ as having direct effect
Dansk Denkavit v Danish Ministry of Agriculture
The court concluded that a charge levied to fund the checking of imported samples of foodstuff for quality, which was likewise imposed using the same criteria on domestic products, was not a CEE but part of an internal system of dues covered by article 110.
Reprographic Machinery
A charge will be governed by Article 110 even where domestic production of the goods is negligible or non-existenct
1% of a product produced in France, 99% produced outside France. Commission argued that this levy essentially is borne by importers alone so constitute as CEE. ECJ: no it is an internal tax falling under Article 110.
Rewe Zentrale
Test for article 110(1): whether at the same stage of production or marketing, the products had similar characteristics and meet the needs from the perspective of the consumers
Commission v France (Spirits)
Principle: Article 110(2) applies to goods that are not similar, but are nonetheless in competition, even partial, indirect or potential, with certain products of the importing country
Facts: France had imposed an additional tax on spirits obtained from cereal s (such as Whisky), which was not imposed on spirits made from fruit and wine. Nearly all cereal based spirits were imported
Held: they were in competition with each other (partial or potential competition
Similarity of products will be determined not on the basis whether they are strictly identical nature but on the basis of their similar and comparable use - determined on an objective basis
John Walker & Sons
Serving similar purposes from the customer was by itself is not sufficient in itself to render them similar as a result
Facts: Concerned a higher rate of tax imposed by Denmark on Whisky, which was not produced in Denmark, than was imposed on fruit liquer wine produced in Denmark.
Held: that they were not similar as their characteristics was manifestly differently (e.g. production process, alcohol content);
Commission v Denmark
Wine made from grapes was taxed at a higher rate than wine made from fruit. All wines made from grapes was exclusively imported into Denmark. In contrast, Fruit wine was almost exclusively produced in Denmark.
ECJ: fruit wines and grape wines are manufactured from the same kind of basic product and similar process. Similar properties, and similar use by consumers.
Article 110 TFEU does not provide a basis for censuring the excessiveness of the level of taxation which the member state might adopt for particular products, in the absence of any discriminatory or protective effect
Commission v Italy (regenerated oil)
Example of direct discrimination - The Italian government has a lower tax rate for regenerated oil producers only in Italy.
ECJ: held this policy breached article 110(1)
Humblot
Example of indirect discrimination (where on its face in law makes no overt distinction between domestic and imported goods)
Held that the French system of car tax made imported cars subject to special tax (not intentionally because France did not produce cars of the specifications which are subjected to the special tax) whilst all domestic cars were liable to the distinctly more advantageous tax
Chemial Farmaceutici
Principle – discrimination is acceptable compatible if it pursues economic policy objectives which themselves are compatible with the treaty an its secondary law
Facts: the difference in the level of taxation between them pursued a legitimate industrial policy of promoting the distillation of agricultural products as against the manufacture of alcohol from petroleum derivatives.
Commission v Greece
Facts similar to Humblot, but no discrimination here because
1) tax rise in greece was 50% (whereas in Humblot it was 450%) - ECJ: less likely to cancel out competitive advantage for foreign cars
2) There were still foreign cars which belonged to the lower tax rate (which are enjoyed by domestic cars)
Commission v UK (Wine and Beer)
The commission brought infringement proceedings against the UK for imposing a higher rate of tax on wine than on beer. It contended they were in competition with each other.
Initial judgement: they were not similar products because they were different from the perspective of the consumer (drank at different occasions)
Follow up judgement- cheap varieties of wine and beer were in competition
Commission v Belgium
Principle of deterring whether there is a breach of article 30 – the essential question is whether or not the tax is of such a kind as to have the effect, on the market in question of reducing potential consumption of imported products to the advantage of competing domestic products
