OPINION OF MR CAPOTORTI — CASE 142/77 STATENS KONTROL MED ÆDLE METALLER v LARSEN

Mr President

Members of Court,

1. This: procedure for a preliminary ruling coi. ns the interpretation of Articles It 95 of the EEC Treaty which pr bit respectively customs duties or xports and discriminatory internal ation. The question is essentiali i to establish whether a domestic tern of taxation on articles of precir metal which is also, but not exclusiement imposed on articles intend e. for export, is compatible with those two. provisions.

2. In the present case two Danish undertakings which manufacture articles of goldsmithery for undertakings in other Member States and which export their production without previously applying their mark thereto unsuccessfully requested the Statens Kontrol med Ædle Metaller to exempt manufacturers from the duty to pay the charge in question in respect of the proportion of their production which is intended for export without application of their mark to the goods. This attempt however failed and they brought legal proceedings against the Statens Kontrol med Ædle Metaller, contesting the compatibility of the above-mentioned legislation with the EEC Treaty, as results from the interpretation of it given in the above-mentioned judgment of the Østre Landsret; in fact in their opinion, in so far as goods exported without the application of a mark are concerned, the charge is capable of constituting a heavier burden than in the case of products marketed in similar conditions and at the same marketing stage on the domestic market.

3. As explained in previous decisions of this Court, within the system of the EEC Treaty one and the same fiscal charge cannot belong simultaneously to the category of customs duties and charges having equivalent effect, which are prohibited by Article 12 et seq., and to that of internal taxation referred to in Article 95 (judgment of 18 June 1975 in Case 94/74 IGAV v Ente Nazionale per la Cellulosa e per la Carta [1975] ECR 699; judgment of 22 March 1977 in Case 78/76 Firma Steinike und Weinlig v Federal Republic of Germany [1977] ECR 595). According to the established case-law of this Court any pecuniary charge, regardless of its amount, designation and mode of application, which is imposed unilaterally by a Member State on domestic or foreign goods by reason of the fact that they cross a frontier constitutes a customs duty or at least a charge having equivalent effect (judgment of 1 July 1969 in Joined Cases 2 and 3/69 Sociaal Fonds voor de Diamantarbeiders v SA Ch. Brachfeld and Sons and Chougol Diamond Co. [1969] ECR 211). However, financial charges within a general system of internal taxation applying systematically to domestic and imported products according to the same criteria do not constitute charges having an effect equivalent to customs duties.

4. In order to establish whether the levy in question must be considered as contrary to the first paragraph of Article 95 of the Treaty it is appropriate to recall the wording of that provision. It provides as follows: No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

5. I therefore consider that in order to avoid the above-mentioned serious lacuna in the system of the movement of goods within the Community it is necessary to regard the charges levied on exported products as coming within the field of application of the first paragraph of Article 95.

6. It would be possible to put forward an alternative hypothesis, in other words that internal taxation which discriminates against exports comes within the field of application of Article 34, which lays down the prohibition on quantitative restrictions on exports and measures having equivalent effect. It might be possible to maintain that, in view of the wide and residual character of the category of measures having an effect equivalent to quantitative restrictions on exports, a discriminatory charge of the kind mentioned above might well come within that category. A lack of harmony would however remain in the structure of the system since, whilst customs duties and charges having equivalent effect, quantitative restrictions and measures having equivalent effect are all prohibited, both on exports and on imports, the discriminatory treatment from the tax point of view would be prohibited as such only with regard to imports, and internal taxation arranged so that it discriminates against exports would eventually be incorporated in a provision different from that relating specifically to the field of tax.

7. It is now appropriate to turn to the first question put by the Danish court. Reworded along the lines I have indicated above — in other words replacing the reference to Article 16 and to the concept of a measure equivalent to a charge on exports by a reference to Article 95 and to the concept of a discriminatory charge — that question prompts us to examine whether the levying of the charge involved is contrary to the first paragraph of Article 95 in so far as it applies in such a way that the same goods are certainly subject to charge on only one occasion in Denmark but without taking into account any further taxation in other Member States.

8. The second question referred to the Court by Københavns Byret is related more to the particular mechanism of the charge described above. It concerns the difference in treatment existing between Danish goldsmiths who manufacture for third dealers according to whether the customer to whom the goods are consigned is situated in Denmark or in another State of the Community. It has been seen in fact that when the manufacturer consigns the article to the customer without previously applying his mark to it the precious metal used is not included in the calculation of the chargeable value if the customer is established in Denmark whereas the same metal is included for the purposes of the application of the charge involved when the production is carried out for a foreign undertaking which is not a taxpayer in Denmark regardless of the kind of legal relationship between the Danish manufacturer and the foreign customer.

9. With regard to the third question put by the Danish court I would observe that the fact that the precious metal intended to be worked in Denmark has been sent to the Danish manufacturer by the foreign customer to whom the finished product is then sent does not alter the terms of the problem in the least. I have already had occasion to observe that the charge is applied in relation to the precious metal used to produce articles of goldsmithery and in relation to the control (even if it is not carried out systematically) as to whether such products comply with the qualitative requirements laid down by the national legislation. Therefore the fact that articles manufactured for foreign clients using precious metal which those clients have supplied for that purpose are also made subject to the system of taxation at issue corresponds to that function.

10. For all these reasons I conclude by proposing to the Court that it should answer as follows the questions referred to it for a preliminary ruling by Københavns Byret by decision of 2 November 1977:

1 Translated from the Italian.