JUDGMENT OF 8. 7. 1965 — CASE 10/65 DEUTSCHMANN v GERMANY

In Case 10/65 Reference to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht, Frankfurt-am-Main, for a preliminary ruling in the action pending before that court between

THE COURT composed of: Ch. L. Hammes, President, A. M. Donner (Rapporteur) and R. Lecourt, Presidents of Chambers, A. Trabucchi and W. Strauß, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Procedure

III — Observations submitted under Article 20 of the Statute of the Court

Grounds of judgment

Costs

I —. Facts

II —. Procedure

III —. Observations submitted under Article 20 of the Statute of the Court

1). A charge imposed on the issue of import licences is a charge having an effect equivalent to customs duties. According to the definition given by the Court in its judgment in Joined Cases 2 and 3/62:

2). Article 95 of the Treaty does not apply to charges having an effect equivalent to customs duties. Article 13 (2) and the first and third paragraphs of Article 95 cannot be applied at the same time, since the same taxation cannot be abolished progressively during the transitional period and at the same time not later than the beginning of the second stage of that period. Moreover, the obligation to abolish that taxation cannot be based on a directive of the Commission, and at the same time exist directly by virtue of the Treaty. Thus, the two Articles are mutually exclusive in their application. Consequently, Article 95 of the Treaty only applies to taxation which is imposed on both imported and domestic products, although on the latter to a lesser extent. Not only is this interpretation in accordance with the ratio legis but it is impossible to infer from the Treaty any other criterion with which to define the respective scopes of Articles 13 and 95.

1. This Article is directly applicable, since it lays down a clear and unconditional prohibition which comes into force from the beginning of the second stage (1 January 1962).

2. It does not refer to Steuern (taxes), as the (German) heading of the Chapter leads one to believe, but to taxation of any kind (Abgaben gleich welcher Art). Moreover, the French heading of this Chapter (Dispositions Fiscales) does not refer solely to taxes (Steuern). Article 95 must be interpreted in close conjunction with Article 9 of the EEC Treaty, since these two Articles must ensure complete protection against any discrimination in taxation in trade between Member States.

3. The charges imposed by the Außenhandelsstelle constitute indirect taxation.

4. Moreover, they constitute discriminatory taxation within the meaning of Article 95.

1. Article 95 occurs in the Chapter relating to Steuerliche Vorschriften (Tax Provisions), and in all four languages the wording of this Article indicates that it refers only to taxes (Steuern) in the strict sense. This is also clear from Article 98. Administrative charges cannot constitute taxes.

2. Confirmation of this interpretation is to be found in the sources of Article 95 and in the relationship between this Article and Article HI of GATT.

3. It is impossible for the provisions of Articles 95 and 12 of the EEC Treaty to be applied at the same time. Customs duties and charges having equivalent effect (Article 12) are not the same as taxation of any kind (Article 95); it is clear from the judgment in Joined Cases 2 and 3/62 that the two concepts must be distinguished in the following way: Article 95 only applies where taxation is imposed on products without regard to their origin, or where it is imposed on products originating in other Member States in order to compensate for taxation on similar domestic products or, where there are no similar products, in order to protect domestic production. The concept of charges having an effect equivalent to customs duties cannot include such charges as those forming the subject of this action.

4. This is the only interpretation which does not contravene the sense and spirit of the provisions of the Treaty.

5. In the light of the above, it is clear that administrative charges imposed on import licences cannot constitute taxation within the meaning of Article 95. This Article applies the general principle prohibiting discrimination between different products within the Common Market.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge Rapporteur; Upon hearing the parties to the main action and the Commission of the European Economic Community; Upon hearing the opinion of the Advocate-General; Having regard to Articles 13, 17 and 95 of the Treaty establishing the European Economic Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Economic Communities; THE COURT hereby rules:

1 A charge imposed on the issue of an import licence without which importation would not be possible is not governed by Article 95 of the EEC Treaty;

2 The decision as to costs is a matter for the Verwaltungsgericht, Frankfurt-am-Main.