JUDGMENT OF 4. 4. 1968 — CASE 31/67 STIER v HAUPTZOLLAMT HAMBURG

In Case 31/67 Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht (Finance Court), Hamburg, 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), Presidents 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. Contents of the order containing the reference; arguments of the Finanzgericht

II — Procedure

III — Summary of the observations submitted by the parties concerned

Question (a)

Question (b)

Question (c)

Grounds of judgment

I —. Facts

1. Summary

2. Contents of the order containing the reference; arguments of the Finanzgericht

A —. On 11 August 1967 the Finanzgericht, Hamburg, decided to ask the Court to give a preliminary ruling on the following questions:

B —. On this subject the Finanzgericht points out in particular that the wording of Article 95 of the Treaty is limited to prohibiting Member States from imposing on products imported from other Member States internal taxation in excess of that imposed directly or indirectly on similar domestic products or ones which may be substituted for them; on the other hand it does not contain any provision applicable to the lemons imported by Firma Stier in view of the fact that in the Federal Republic there-exists no similar domestic product or one which may be substituted for it.

II —. Procedure

III —. Summary of the observations submitted by the parties concerned

(a). It is true that the first paragraph of Article 95 deals first of all with the case — the normal one — in which the imported product is in competition with similar domestic products. But when that Article prescribes that the former may not be subjected to taxation in excess of that imposed on the latter, it is formulating not only a prohibition but also an authorization. However, the latter is clearly limited to the case in question so that, in the contrary case, the prohibition on imposing a fiscal charge flows directly from Article 95.

(b). In the event of the Court's rejecting the argument set out at (a) above, inquiry must be made as to whether the turnover equalization tax is not a customs duty or at least a charge having an effect equivalent to a customs duty.

(1). Question (a) inquires substantially whether the Treaty must be interpreted as prohibiting a Member State from imposing internal taxation on imported products originating in another Member State which compete neither with similar domestic products within the meaning of the first paragraph of Article 95 of the Treaty establishing the EEC nor with domestic products which may be substituted for them within the meaning of the second paragraph of Article 95 of the Treaty.

(2). Question (c) inquires whether, in the cases referred to in Question (a), the Treaty fixes limits with regard to the amount of internal taxation affecting the imported product, and, if so, requests the Court to rule what those limits are.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of the Government of the Federal Republic of Germany, the Commission of the European Communities and the applicant in the main action; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Economic Community, especially Articles 95 and 177; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, 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, Hamburg, by order of that court dated 11 August 1967, hereby rules:

1 The provisions of Article 95 of the Treaty establishing the European Economic Community do not prohibit Member States from imposing internal taxation on imported products originating in other Member States when there is no similar domestic product or other domestic products capable of being protected;

2 In the cases referred to in paragraph 1 above, the Treaty does not have the effect of restricting the freedom of Member States to fix rates of taxation which remain within the general framework of the national system of internal taxation of which the tax in question forms part;