Customs duties Flashcards
Statistical Levy
Italy were charging a fee on all importers claiming that this has nothing to do with the fact that they are foreign products, fee is charged for Italians to gather statistics to pay for statistical analyses and this is good to get an idea about trade patterns. Is this a charge having equivalent effect to custom duty? Held: any pecuniary charge, however small. Customs duties are in their nature protectionists, here Italy said we are not prot4ecting any products, this levy has nothing to do with any protection measures we are simply doing this to gather statistical information, so when we talk about charges having equivalent effect do we need to prove protectionist outcome? Court gave some qualification about charges have equivalent effect:
1) ‘Any pecuniary charge, however small’
• Any PECUNIARY CHARGE = ANYTHING financial can be charged as having equivalent effect. “However small” does not matter as long as you include any additional cost to importer it will be important
2) ‘whatever its designation and mode of application’
• Can call the charge in any way you want, it does not matter. As long as it is a financial charge.
1) charged upon crossing a border
i. any fee imposed on goods when crossing the boarder should trigger the question is this a charge having equivalent effect to customs duty.
2) irrespective of being non-discriminatory or non-protectionist
Bresciani
The CJEU has also outlawed charges imposed on imports that are meant to be for an inspection ‘service’ provided by the State:
Commission v Germany (live animal imports)
The only exception is a mandatory inspection cost required by Union law:
Johnney Walker
Art 101.
Denmark charged higher taxes on whiskey in comparison with fruit liqueur. Held: not similar because:
1) What is the raw material
2) How are they produced
3) Organoleptic qualities: taste, smell etc
4) Does consumer perceive them to be similar?
Therefore, these are not similar.
Difference between art 30 and art 110.
Art 30 TFEU is concerned with outlawing fiscal measures on goods when they cross the frontiers of the Member States whereas Arts 110-113 TFEU are intended to prevent Member States from imposing taxes on imports once they are inside their territory – both are necessary for the customs union.
Lütticke
Held direct discrimination due to origin, do not tax national product but tax foreign. Caught by art 101
Hansen
Art 110 TFEU does not apply to products imported from non-EU MS
Commission v France
▪ France taxes tobacco products with light tobacco at a much higher rate than dark tobacco. France produced mainly dark tobacco more than light. Therefore, light tobacco (foreign) was taxed much higher than dark (national tobacco) this was not a rule which discriminated upon the origin, but the effect was that foreign tobacco was taxed much higher, court held that it does not matter that France produced a bit of the light tobacco, what matters is that the foreign tobacco is being discriminated against.
Humblot
France adopted an internal tax system on cars based on their engine capacities. For cars over a certain engine capacity, a high flat rate tax was imposed. France did not manufacture any car with an engine capacity high enough to fit into the flat rate tax band. Was this within art 110 TFEU? Held: yes it was a prohibited tax because Although the system did not directly discriminate against foreign products, as the flat rate only applied to foreign products, it indirectly discriminated against them.differential tax imposed by France on the CV or power rating of cars had the effect of penalising imports – was indirectly discriminatory – see also: buys a German car in france, all cars above 16b horse powers are charged at a much higher rate than anything below 16. French cars were below 16 so they were indirectly discrimination against foreign products.
Can you justify indirect discrimination?
There is no scope for justification of directly discriminatory internal taxation of similar products but if the tax differentiation between such products is indirectly discriminatory it may be found to be objectively justified if the national rule pursues objectives which are themselves compatible with the Treaties and are a legitimate choice of national economic policy:
Commission v Greece (car tax)
higher car tax introduced by Greece based on the cylinder capacity of cars. Greece said that it was an environmental protection measure. Despite evidence that the highest tax-rate would fall exclusively on importers the CJEU found that the tax was neither discriminatory nor protectionist and therefore Greece was free to impose it to attain environmental objectives.
Commission v France (tax on spirits)
• assessment on the basis not of their identical nature but their similar or comparable use - perspective of consumers – focus on the protective nature of the system of internal taxation. Not similar products even though their use was similar! France imposed a tax on the manufacturing of certain spirits, namely those distilled from cereals (e.g. whisky).This tax did not apply to spirits distilled from fruit (e.g. brandy). Held: violated art 110 TFEU because As long as the two different types of spirits could be regarded as being in competition with each other (a consumer may decide between buying whisky or brandy based on factors such as price), taxing one but not the other would violate Art 110(2) TFEU, which is concerned with taxes on different (but competing) products. The tax would make brandy more attractive to consumers than whisky, as whisky would be more expensive.
Commission v UK (wine and beer)
UK taxed wine 5 times higher than beer, commission brought infringement proceedings against UK saying due to this tax rate, UK is protecting beer (UK is beer producing place). UK said beer and wine are not in competition. First thing you need to establish, they are not similar (johney walker), second are they in competition. How do we know if they are in competition?:
1) Are they easily interchangeable (substitutable)
UK says products not in competition because beer drunk in social occasions. No one drinks beer at home. Wine is used for special occasions. Court did not accept the agreement because consumer habits are not a fits institution, the prices you put on products is one factor which affect their choices (maybe people do not buy wine because of the high tax). UK tried to say the alcohol content is different. Italian government argued that beer can compare. EU said due to high taxation it created presumption of luxury product.
