JUDGMENT OF 4. 4. 1968 — CASE 27/67 FINK-FRUCHT v HAUPTZOLLAMT MÜNCHEN

In Case 26/67 Reference to the Court under Article 177 of the Treaty establishing the European Economic Community by the Finanzgericht (Finance Court), Munich, for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, A. M. Donner and W. Strauß (Rapporteur), President of Chambers, A. Trabucchi, R. Monaco, J. Mertens de Wilmars and P. Pescatore, Judges, Advocate-General: J. Gand Registrar: A.Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

1. Summary

2. Subject-matter of the reference: opinion of the Finanzgericht

Question 1

Question 1

Question 2

Question 3

Question 4

Question 5

II — Procedure

III — Summary of the observations submitted by the parties

Question 1

Question 2

Question 3

Question 4

Question 5

Grounds of judgment

Applicability of Articles 95 and 30 in the absence of any competition between imported and domestic products (Question 1)

The direct effect of the second paragraph of Article 95 (Question 3)

The concept of similar products in the first paragraph of Article 95, the relationship between the first and second paragraphs and the interpretation of the second paragraph (Questions 2, 4 and 5)

Costs

I —. Facts

1. Summary

2. Subject-matter of the reference: opinion of the Finanzgericht

A —. On 12 July 1967 the Finanzgericht, Munich, decided to request the Court for a preliminary ruling on the following questions:

B —. The observation put forward by the Finanzgericht are as follows:

II —. Procedure

III —. Summary of the observations submitted by the parties

A —. The Fink-Frucht undertaking introduces its observations by pointing out that this question indirectly raises another, more general problem whether there is in fact any provision in the Treaty covering the collection of tax on imported products which do not compete with domestic products.

B —. As regards Question 1(c), Fink-Frucht considers that logically the examination should first be directed to the possibility that, in the cases contemplated here, equalization taxes should be regarded as customs duties or charges having equivalent effect.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Government of the Federal Republic of Germany, the Commission of the European Communities and the plaintiff in the main action; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 30, 95 and 177; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT in answer to the questions referred to it by the Finanzgericht, Munich, by an order of that court of 12 July 1967 hereby rules:

1 Neither Article 95 nor Article 30 of the Treaty establishing the European Economic Community prohibits Member States from imposing internal taxation on products imported from other Member States when there are no similar domestic products or other domestic products capable of being protected;

2 The second paragraph of Article 95 of the Treaty is capable of producing direct effects and creating individual rights which national courts must protect;

3 (a) Similarly between products within the meaning of the first paragraph of Article 95 exists when the products in question are normally to be considered as coming within the same fiscal, customs or statistical classification, as the case may be; (b) The second paragraph of Article 95 is complementary to the first. It prohibits the imposition of any internal taxation which imposes a higher charge on an imported than on a domestic product which competes with the imported product, although it is not similar to it within the meaning of the first paragraph of Article 95. The prohibition also applies in the absence of direct competition where the internal taxation subjects the imported product to a specific fiscal charge in such a way as to protect certain activities distinct from those used in the manufacture of the imported product;

(a) Similarly between products within the meaning of the first paragraph of Article 95 exists when the products in question are normally to be considered as coming within the same fiscal, customs or statistical classification, as the case may be;

(b) The second paragraph of Article 95 is complementary to the first. It prohibits the imposition of any internal taxation which imposes a higher charge on an imported than on a domestic product which competes with the imported product, although it is not similar to it within the meaning of the first paragraph of Article 95. The prohibition also applies in the absence of direct competition where the internal taxation subjects the imported product to a specific fiscal charge in such a way as to protect certain activities distinct from those used in the manufacture of the imported product;