JUDGMENT OF 22. 10. 1974 — CASE 27/74 DEMAG v FINANZAMT DUISBURG-SÜD

In Case 27/74 Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht Düsseldorf for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, C. Ó Dálaigh and Lord Mackenzie Stuart, Presidents of Chambers, A. M. Donner (Rapporteur), R. Monaco, J. Mertens de Wilmars, P. Pescatore, H. Kutscher, M. Sørensen, Judges, Advocate-General: G. Reischl Rigstrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

1. First Question

2. Second Question

Law

First Question

Second Question

Costs

I —. Facts and procedure

1. Does the prohibition against the introduction of charges having an effect equivalent to customs duties under Article 12 of the EEC Treaty include the introduction of a charge

2. Can the possible infringement by such a charge of Article 12 of the EEC Treaty be justified by the argument that the purpose of its introduction was to avoid a currency revaluation? Can there be deduced from the power reserved to Member States by Article 107 of the EEC Treaty to alter rates of exchange an authority also to introduce charges having an effect equivalent to customs duties that are to take the place of a revaluation? Under what conditions might the introduction of such a charge be justified as a protective measure within the meaning of Article 109 (1)? Where the conditions of Article 109 (1) of the EEC Treaty are not present, can the introduction of a charge having an effect equivalent to customs duty and taking the place of a revaluation be justified by the argument that the tasks of the Community under Article 2 of the Treaty include an increase in stability and thus also the maintenance of the external value of currency and under Article 3 (g) of the Treaty the remedy of disequilibria in the balances of payments of Member States?

II —. Observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice

1. First Question

2. Second Question

(a). There must be a sudden crisis in the balance of payments: difficulties or threatening circumstances in external economic policy do not suffice for the application of this provision;

(b). A decision is not immediately taken in accordance with Article 108 (2);

(c). The safeguard measures must be limited to strictly necessary interventions and disturb the functioning of the Common Market as little as possible;

(d). The Commission and the other Member States must be informed of the measures adopted at the latest on their entry into force.

1. By order dated 8 March 1974, filed at the Registry on 19 April 1974, the Finanzgericht Düsseldorf, pursuant to Article 177 of the EEC Treaty, referred two question on the interpretation of Articles 12 and 107 to 109 of the said Treaty.

2. Under this law, passed in order to put a brake on exports and to promote imports in order to reduce the surplus in the balance of payments and to prevent internal disequilibrium, exports effected between 29 November 1968 and 31 March 1970 were liable to a special turnover tax, at the rate of 4 % in general and 2 % as regards certain goods listed in Annex I to the law on turnover tax.

3. The plaintiff in the main action, having been required to pay this special turnover tax, brought an action before the national court claiming that the collection of this tax infringed Article 12 of the Treaty.

4. It is first asked whether the prohibition against the introduction of charges having an effect equivalent to customs duties under Article 12 of the EEC Treaty include the introduction of a charge which

5. It appears from the file that the question seeks to know whether a tax such as is mentioned comes within the category of charges having equivalent effect referred to in Article 12 of the Treaty or whether it may be regarded as coming under internal taxation referred to in Article 95 from the fact that it is integrated into the national system of turnover tax.

6. Articles 12 and 13 on the one hand and 95 on the other cannot be applied jointly in the same case, since charges having an effect equivalent to customs duties on the one hand and internal taxation on the other are subject to different systems and provisions.

7. Whereas Article 12 prohibits Member States from introducing between themselves any new customs duties on imports or exports or any charges having equivalent effect, Article 95 is limited to prohibiting discrimination against the products of other Member States by means of internal taxation.

8. In the procedure for a preliminary ruling under Article 177 of the Treaty, the Court cannot classify a specific national tax for the purpose of applying Articles 12 und 95, since the interpretation of legislative and other acts of a national nature remains within the jurisdiction of the national court and this Court is competent only to interpret and assess the validity of the Community acts referred to in the said Article.

9. In these circumstances it is right to observe that a national measure described as a special turnover tax and which refers back to concepts of national law on turnover tax can subject commercial exports to other Member States to a financial charge.

10. In addition, the plaintiff in the main action, observing that as from 1 October 1968 the turnover tax in the Federal Republic of Germany had been replaced by a system of value added tax, referred, to Article 10 of the Second Council Directive of 11 April 1967 on the harmonization of legislation of Member States concerning turnover taxes (OJ 71/67, p. 1303).

11. Under Article 10 (1) (a) exemption from value added tax is accorded to the supply of goods consigned or transported to places outside the territory in which the State concerned applies value added tax.

12. However, the provision, based on Articles 99 and 100 of the Treaty, imposed obligations on Member States only as from 1 January 1972 (Third Council Directive of 9 November 1969, OJ L 320/69, p. 34).

13. Since the German measure in question expired before this date, the argument is not therefore relevant to the case.

14. The second question asks whether the possible infringement of Article 12 of the Treaty could be justified in particular under Article 107 to 109 of the Treaty, by the fact that the purpose of introducing the charge was to avoid a currency revaluation.

15. This question has been asked in the event of the first question receiving an affirmative reply.

16. The costs incurred by the Commission of the European Communities. and the Federal Republic of Germany, which have submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the amin action are concerned, a step in the action pending before a national court, the decision on costs is a matter for that court.

On those grounds, THE COURT in answer to the questions referred to it by the Finanzgericht Düsseldorf by order of that court dated 8 March 1974, hereby rules: