Discriminatory Taxation Flashcards
Where do you find the Treaty base for the prohibition of measures of internal taxation?
Art 110 TFEU
Which case established that Art 110 TFEU is directly effective?
Lütticke [1996]
How do you assess whether a tax breaches Art 110 TFEU?
(1) is there discrimination between an imported product and a similar domestic one?
(2) if not, is there protection of a domestic product vis-a-vis a competing imported one?
Apply Art 110(1) and then (2)
What does Art 110(1) TFEU prohibit?
Measures of internal taxation that discriminate against similar imported products
Which case determined that bananas were not similar to other table fruits by an assessment of their organoleptic characteristics, water content and whether they satisfied the same consumer needs?
Commission v Italy (Bananas) [1987]
Bananas were not similar.
In which case did the court examine the alcohol content, methods of production and consumer perceptions to conclude that whisky and liqueur fruit wines were not similar products under Art 110(1)?
John Walker v Ministeriat for Skatter [1986]
When do you see direct discrimination under Art 110(1)?
- only imported products subject to tax
- imported products are taxed on a different, higher rate
- no tax exemptions for imported ones
- stricter tax conditions for imported ones
Which case shows that a tax on powdered baby milk imported from Luxembourg but not payable on one produced in Germany was direct discrimination of similar products under Art 110(1)?
Lütticke [1966]
Which case demonstrates direct discrimination under Art 110(1) regarding the excise duty payment dates?
Commission v Ireland (Excise Payments) where excise duty on Irish products could be paid beyond the due date, whilst imported ones could not.
Are there any justifications for direct discrimination under Art 110(1)?
NO.
What must be done if a directly discriminatory tax is found to exist?
Must be removed by equalizing the taxes or extending the tax benefit of domestic product to the imported one.
What is indirect discrimination under Art 110(1)?
Where taxation rules are neutral in formulation but bear more heavily on imported goods.
Which case showed indirect discrimination under Art 110(1) where dark tobacco was taxed more favourably than white tobacco, which was almost exclusively imported from other MSs?
Commission v France C-302/00
Which case showed indirect discrimination, where there was a special tax levied on all cars with an engine capacity over 16hp and none were produced in France (home MS)?
Humbolt
What conditions can justify indirect discrimination?
(1) it pursues a legitimate aim under EU law
(2) the national interest is unconcerned with the origin of the products
(3) measures are proportionate
In which case were tax measures discouraging the purchase of large engine vehicles (indirectly discriminatory) justified on environmental protection grounds?
Commission v Greece C-132/88
In which case were Italian taxation of two interchangeable products taxed at different rates according to production method justified indirect discrimination due to agricultural policy?
Chemical Farmaceutici
What does Art 110(2) TFEU prohibit?
Measures of internal taxation which have a protective effect in favour of domestic products in competition with imported ones
Which case established that for Art 110(2) it suffices to say that goods are in competition only partially, indirectly or potentially?
Commission v Denmark 365/85
What factors can you consider to assess whether goods are in competition?
- substitutability of goods from consumer perspective
- cross elasticity of demand
- other qualitative factors e.g. their function and distribution, their possibilities for use, substantial price differences between them
In which case was it held that wine and beer were goods in competition and so the discriminatory taxation towards wine, which was largely imported was illegal?
Commission v UK (Excise Duties on Wine)
In which case was grain-based alcohol held to be in competition with fruit-based or wine products?
Commission v France 168/72
If a protective tax measure exists under Art 110(2) then what must be done?
Must change measure of taxation to remove protective effect.
Which case is authority for the ability to make restitutionary claims and claims for loss of sale based on illegal taxation subject to the principles of unjust enrichment and national procedural autonomy?
Hans Just
