Customs Duties Flashcards
Diamond Workers
Definition of customs duties:
“Any pecuniary charge imposed on goods by reason of the fact that they cross a frontier”
Art 110 TFEU
Discriminatory internal taxation:
Discriminatory taxation is prohibited
For a charge to escape Art 30, the service must be of 1) direct benefit to the importer (or exporter) AND
2) the charge must be proportionate to the value of the service
Commission v Belgium (Customs Warehouses)
Commission v Belgium (Customs Warehouses)
For a charge to escape Art 30, the service must be of 1) direct benefit to the importer (or exporter) AND
2) the charge must be proportionate to the value of the service
Direct and indirect discrimination concerning taxation
Direct: openly tax imported and domestic goods at different rates
Indirect: has a discriminatory EFFECT(Humblot)
Humblot
Example of indirectly discriminatory taxation:
French system of annual vehicle taxation subjected lower power-rated cars to a lower tax than higher power-rated cars
HELD: such a system of domestic taxation is compatible with Art 110 only so far as it is free from any discriminatory effect
Example of indirectly discriminatory taxation:
French system of annual vehicle taxation subjected lower power-rated cars to a lower tax than higher power-rated cars
Humblot
HELD: such a system of domestic taxation is compatible with Art 110 only so far as it is free from any discriminatory effect
Example of indirectly discriminatory taxation
Humblot:
French system of annual vehicle taxation subjected lower power-rated cars to a lower tax than higher power-rated cars
HELD: such a system of domestic taxation is compatible with Art 110 only so far as it is free from any discriminatory effect
Breach of article 110(2) if
- a degree of substitution between the products
- the two products are in competition
1) where one product is an acceptable substitute, it must not be subject to discriminatory tax treatment
2) just because 2 products aren’t presently in competition with another doesn’t mean they will never be
Commission v UK (Excise Duties on Wine)
Commission v UK (Excise Duties on Wine)
Breach of article 110(2) if
- a degree of substitution between the products
- the two products are in competition
1) where one product is an acceptable substitute, it must not be subject to discriminatory tax treatment
2) just because 2 products aren’t presently in competition with another doesn’t mean they will never be
Consequences of breaching 110(1) and 110(2)
110(1): equalising taxation
110(2): removal of protective element
Definition of ‘goods’
Commission v Italy (Italian Art):
Anything that is capable of monetary valuation, and can be used for commercial transactions
Article that prohibits custom duties on imports
Art 30 TFEU
Art 30 TFEU
Prohibits custom duties on imports
Chemial Farmateutici
Indirectly discriminatory taxation can be objectively justified
Indirectly discriminatory taxation can be objectively justified
Chemial Farmateutici
Commission v Italy (Italian Art)
Italy imposed tax on exports of artistic, historical and archeological items.
1) definition of ‘goods’: valued in money, commercial transactions
2) purpose of the restriction is irrelevant
NOTE DIFFERENCE WITH ART 34/36 - protection of culture a valid defence under Cinéthèque
Definition of CEEs
Diamond Workers:
Any pecuniary charge imposed on goods by reason of the fact that they cross a frontier and which is not a customs duty in a strict sense
Commission v Italy (Statistical Levy)
Definition of CEE:
a) any pecuniary charge, however small
b) whatever its designation and mode of application
c) imposed unilaterally on domestic or foreign goods
d) by reason of the fact that they crossed a frontier
e) NOT a customs duty in the strict sense
= CHARGE HAVING EQUIVALENT EFFECT
EVEN IF…
1) it is not imposed for the benefit of the State
2) it is not discriminatory in effect
3) it is not protective in effect
4) the product on which the charge is imposed is not in competition with any domestic product
Bresciani
Italian inspection charge on imports of raw cowhides
HELD: even if the inspections were in general interest, treatment of imports must be equal
-> fee was invalid
Italian inspection charge on imports of raw cowhides
HELD: even if the inspections were in general interest, treatment of imports must be equal
-> fee was invalid
Bresciani
Bauhuis v Netherlands (1977)
A fee for health inspections is acceptable if EU law requires so, provided it covers the actual cost incurred only
A fee for health inspections is acceptable if EU law requires so, provided it covers the actual cost incurred only
Bauhuis v Netherlands (1977)
A charge on imports will not be a CEE if it is :
1) part of a general system of non-discriminatory internal charges = TAX UNDER ARTICLE 110
2) a payment for service
OR
3) designed to fulfil EU law obligations
Commission v Germany (Live Animal Vet Charge)
Commission v Germany (Live Animal Vet Charge)
Firstly,
A charge will not be a CEE if it is
1) a part of general system of non-discriminatory internal charges
2) a payment for service OR
3) designed to fulfill EU obligations
Secondly,
Where inspections are made pursuant to EU measure, they are not CEEs if
- they do not exceed actual costs of inspection
- the inspections are obligatory and uniform
- they’ve been prescribed by EU law in the general interests of the community
- they promote the free movement of goods
Where inspections are made pursuant to EU measure, they are not CEEs if
- they do not exceed actual costs of inspection
- the inspections are obligatory and uniform
- they’ve been prescribed by EU law in the general interests of the community
- they promote the free movement of goods
Commission v Germany (Live Animal Vet Charge)
If inspections are prescribed by EU law, what are the conditions for the fee not to be a CEE?
Which case?
Commission v Germany (Live Animal Vet Charge): Where inspections are made pursuant to EU measure, they are not CEEs if
- they do not exceed actual costs of inspection
- the inspections are obligatory and uniform
- they’ve been prescribed by EU law in the general interests of the community
- they promote the free movement of goods
Commission v Italy (Regenerated Oil)
EXAMPLE OF DIRECT TAX DISCRIMINATION
Italian government had a policy of charging lower taxes on regenerated oil than on normal oil. This was only available to DOMESTIC oil producers.
-> Italian government argued that it wouldn’t be able to find out if imported oil was regenerated or not
-> defence failed.
The tax was held to be directly discriminatory against foreign regenerated oil, and was therefore a breach of Article 110 (1)
Example of direct tax discrimination
Commission v Italy (Regenerated Oil)
Italian government had a policy of charging lower taxes on regenerated oil than on normal oil. This was only available to DOMESTIC oil producers.
- > Italian government argued that it wouldn’t be able to find out if imported oil was regenerated or not
- > defence failed.
The tax was held to be directly discriminatory against foreign regenerated oil, and was therefore a breach of Article 110 (1)
Commission v Ireland (Excise Duty on Spirits)
Domestic producers allowed to defer payment until sale whereas importers had to pay upon import
Ireland argued:
- rate was the same
- Ireland already at competitive disadvantage owing to the pegging of Irish Pound to GBP
HELD: such deferral was prohibited
Article 110 prohibits not only discriminatory tax rates but also favourable terms on how payment is made
Article 110 prohibits not only discriminatory tax rates but also favourable terms on how payment is made
Commission v Ireland (Excise Duty on Spirits)
Commission v France (Higher Duty on Grain Spirits)
Higher tax on Grain Spirits than those based on wine or fruit (France produces very little of grain spirits but lots of wine and fruit based)
HELD: discriminating in favour of French products
1) similarity test: do the products have similar characteristics and meet the same needs from a customer’s point of view?
- if yes, discrimination is prohibited
2) competition test: even if the goods are not similar within the meaning of Art 110(1), if they are in competition with each other, even “partial, indirect or potential” with domestic products, discriminatory taxation is prohibited where it has a protective effect
Competition test
Commission v France (Higher Duty on Grain Spirits):
Even if the goods are not similar within the meaning of Art 110(1), if they are in competition with each other, even “partial, indirect or potential” with domestic products, discriminatory taxation is prohibited where it has a protective effect
Similarity test
Commission v France (Higher Duty on Grain Spirits):
do the products have similar characteristics and meet the same needs from a customer’s point of view?
- if yes, discrimination is prohibited
Commission v Greece (Car Tax)
Greek car tax bands: A) below 1200cc B) 1201cc-1800cc C) 1801cc+ -> Commission argues that it is discriminatory as no Greek cars breach 1800cc.
HELD: the Commission didn’t show how the regime favoured domestic cars
DISTINCT FROM HUMBLOT on the basis of objective criteria!
Somewhat comparable to mandatory requirements
Commission v Denmark (Car Registration Duty)
Where a used car is imported, value is deemed to be:
- 100% of the new value if less than 6m old
- 90% of the new value if greater than 6m old
HELD
Discriminatory as there was no infringement for new cars and because the duty was calculated on the basis of artificially high valuations for used cars
