Opinion of Mr Advocate General
Mr President,
Members of the Court,
1. Introduction
1.1. Subject-matter
The two cases which I am to deal with today, Cases 106 and 243/84, again raise the question of the conditions in which alcoholic beverages are to be regarded as similar within the meaning of the first paragraph of Article 95 and of the conditions in which they are to be regarded as being merely in indirect competition with one another for the purposes of the second paragraph of that article.
In its direct action in Case 106/84 the Commission refers to certain decisions of the Court concerning alcoholic beverages, from which it draws the conclusion — which those Members of the Court who are wine connoisseurs may find somewhat surprising — that Danish fruit wine is to be regarded as similar to table wine made from grapes. However, the action is also concerned with liqueur wine, whether made from grapes or other fruit. It must be inferred from the Commission's arguments that its position is also based on its own proposals for harmonizing excise duties charged on alcoholic beverages. Those proposals also play a part in the Commission's discussions with the Danish Government concerning the date on which these proceedings were instituted, that is to say a number of years after the Danish legislation now under challenge was notified to the Commission. Finally, another question which is relevant to this case is whether the Danish Government was right to rely in its defence upon the judgments of the Court in Case 140/79 (Chemial Farmaceutici [1981] ECR 1) and Case 46/80 (Vīna/[1981] ECR 77).
In Case 243/84, which is a reference for a preliminary ruling, it seems at first sight to follow automatically from the judgment of the Court in Case 171/78 (Commission v Denmark [1980] ECR 447) that whisky must be regarded as similar to other distilled beverages (aquavit in that case). The taxation of whisky at a higher rate than aquavit was, according to the Court's survey of the facts in that case, the main, though not the only ground for the initiation of proceedings. Accordingly, whisky cannot at the same time be regarded as similar to liqueur wine, as John Walker maintains in this case. It is clear from paragraph 12 of the judgment in Case 171/78, however, that the Court left unresolved the question whether whisky should be classified in the category of liqueur wine or in that of spirits. In that paragraph, the Court states on the one hand that there is, in the case of spirits considered as a whole, an indeterminate number of beverages which must be classified as similar products within the meaning of the first paragraph of Article 95. On the other hand, however, the Court adds in the same paragraph that it may be difficult to decide this in specific cases, in view of the nature of the factors implied by distinguishing criteria such as flavour and consumer habits. Since the other major products with which Case 171/78 was concerned were vodka, cognac, gin and rum, it seems likely that the Court also had whisky in mind when it added those words, especially in the light of paragraphs 9 to 13 of the Court's judgment of the same date in Case 168/78 which are more explicit in that regard. With regard to consumer habits, at receptions whisky is normally served — after dilution of the alcohol content by the addition of water, soda water or ice — in the same way as aperitifs, liqueur wines and other long drinks such as Campari Soda, gin and tonic or other alcoholic beverages which are clearly related thereto, which have been diluted with soda water or tonic. However, the question arises whether the classification of whisky as spirits on the one hand or as a liqueur wine or aperitif on the other should again be left in abeyance in these proceedings. The length of John Walker's written and oral submissions in support of the view that whisky and liqueur wine are similar products, and the fiscal and economic consequences of the Court's answer, underline the importance of this question.
1.2. The market trend for the products concerned in Denmark
In order to gain a proper grasp of the economic background to both cases, I consider it desirable in the first place to incorporate in my Opinion the statistics furnished by the Danish Government and set out in Annexes II and IV to its answers to the questions put to it by the Court. The figures set out in Annex II have the twofold advantage of facilitating a comparison with the Commission's scheme for harmonization and of clarifying the share of the market held by the different types of alcoholic beverages and the ratio between domestic production and imports from other countries. Annex IV illustrates in more detail the trend regarding the importation of whisky in general and of Johnny Walker whisky in particular.
I should like to begin by making the following remarks in relation to the first set of statistics.
In the first place, it is clear that the increase in consumption of fruit wine other than wine of the liquer type after 1977 was primarily to the advantage of imports of fruit wine from other countries and not to the detriment of imports of table wine made from grapes, which have increased to a much greater extent in volume and virtually to the same extent in percentage terms.
Secondly, the impression that fruit wine of that kind is protected either directly or indirectly, which may be gained from the undoubtedly lower rate of tax charged per litre of such wine, is not confirmed by those figures either. The share of the market held by that fruit wine (including imported fruit wine) has always been less than 3% of the share of the market held by table wine made from grapes, even after 1977. In that respect the amounts at issue in Case 106/84 are relatively insignificant and the Commission may attach some importance to them on account of the disruptive effect which the difference in the tax on table wine and on fruit wine may have on its proposals to achieve harmonization. However, those remarks concerning table wine are incomplete without the observation that consumption of fruit wine of the liqueur type has steadily increased since 1978 (by almost 70%), that imports of grape wine of the liqueur type over the same period (after rising in 1979) have steadily fallen (by approximately 20% in all) and that imports of fruit wine of the liqueur type have invariably accounted for less than 1% of total consumption. This is the result of the protectionist effect of the different rates of tax for liqueur wine made from grapes and for liqueur wine made from other fruit. Accordingly, it may not be purely fortuitous that at the hearing the Commission referred exclusively to liqueur wine as the subject-matter of the dispute.
Thirdly, it is striking that although spirits are taxed more heavily than liqueur wine, they have consistently held a significantly larger share of the market (in the region of 20% to 30%) since 1978. In my view, that finding is in itself of some importance for the assessment of the question whether whisky has been subject to direct or indirect discrimination as ą^result of being classified in the category of spirits rather than in that of liqueur wine.
Fourthly, it would appear that after a slump in 1978 (the year in which proceedings were instituted against Denmark in Case 171/78), imports of spirits increased to a far greater extent (that is to say by approximately 50%) than total consumption of spirits (which rose by no more than approximately 20%).
As regards imports of whisky in particular, Annex IV to the Danish Government's answer is of particular interest:
It is clear from that second statistical table that between 1 January 1980 (the year in which the Court delivered its judgment of 27 February 1980 in Case 171/78) and 1 January 1985 imports of whisky rose by approximately 30% although imports of Johnny Walker over the same period declined by the same proportion (and to a much greater extent over a longer period). I would remind the Court that at the hearing John Walker's representative attributed that reversal in the trend to the effect of the high ad valorem charge included in Danish excise duty on spirits. Clearly, more expensive products are taxed more heavily than cheaper products.
1.3. Subdivision of this Opinion
Following my general introduction to the two cases I shall proceed, in view of the similarities and the differences between them, in the following manner: in the second and third parts of my Opinion I have incorporated the facts and the conclusions, submissions and arguments of the parties in Cases 106 and 243/84 as set out in the Reports for the Hearing and supplemented by certain details of my own. In the fourth part of my Opinion I shall briefly analyse the 12 judgments of the Court which are relevant for one of the two cases (five judgments) or for both cases (seven judgments). In that connection I will consider in particular what conclusions may be drawn from those judgments with regard to the two cases at issue. Finally, in the fifth part of my Opinion, I shall set forth my conclusions in Case 106/84 and in Case 243/84 in turn. In the fourth and fifth parts of my Opinion I shall also devote some attention to any fresh arguments presented at the hearing.
2. The facts and the conclusions, submissions and arguments of the parties in Case 106/84
2.1. Facts
2.1.1. The Danish legislation charging duty on alcoholic beverages distinguishes three categories: (1) spirits, (2) wine and fruit wine and (3) beer.
2.1.2. Article 1 (1) of Coordinated Law No 371 of 1 July 1982 {Lovtidende, A, 1982), as amended by Law No 149 of 11 April 1984, which charges duty on wine and fruit wine, specifies which products are taxable :
2.1.3. Point 1 of Article 2 (1) of Coordinated Law No 371 fixes the rate of duty per litre of grape wine at DKR 10.725 for table wine, at DKR 19.93 for sparkling wine and at DKR 19.93 for other products. Point 2 of Article 2(1) fixes the rate of duty per litre of fruit wine at DKR 6.92 for wine of the table-wine type of an alcoholic strength not exceeding 14% by volume and at DKR 11.02 for other products.
2.1.4. Law No 371 does not define fruit wine. According to a circular issued in 1978 by the Danish Directorate General for Customs, fruit wine is a product manufactured by the fermentation of fruit juice or honey, but without subsequently being distilled. It must contain at least one litre of pure undistilled fermented alcohol per 100 litres. Within the limits laid down by law for the purposes of classification, the alcohol content of such wine may be increased by the addition of distilled alcohol.
2.1.5. In a letter of 21 September 1982 addressed to the Danish Government, the Commission pointed out that Coordinated Law No 371 is contrary to Article 95 of the EEC Treaty inasmuch as it accords more favourable tax treatment to domestic fruit wine than to imported grape wine, which is a similar or at least a competing product.
2.1.6. In its reply of 25 November 1982, the Danish Government denied that there was any similarity or competitive relationship between those products. It emphasized that harmonization had not been achieved at Community level in the field of taxation.
2.1.7. On 9 September 1983 the Commission delivered a reasoned opinion in which it charged the Danish Government with infringing Article 95 of the EEC Treaty and requested it to comply with the terms of its opinion within one month.
2.1.8. In its reply of 17 November 1983 the Danish Government denied infringing Article 95 of the EEC Treaty.
2.2. Conclusions of the parties
2.2.1. The Commission claims that the Court should:
2.2.2. The Kingdom of Denmark, the defendant, contends that the Court should:
2.3. Submissions and arguments of the parties
2.3.1. The Commission maintains that the Danish legislation is contrary to Article 95 of the EEC Treaty.
2.4. The Government of the Kingdom of-Denmark denies infringing Article 95 of the EEC Treaty in any way.
3. The facts, the questions submitted, the written observations submitted to the Court and the answers given to questions from the Court in Case 243/84
3.1. Facts and questions submitted
3.1.1. The Danish legislation charging duty on alcoholic beverages distinguishes three categories: (1) spirits, (2) wine and fruit wine and (3) beer.
3.1.2. Article 1 (1) of Coordinated Law No 370 of 1 July 1982 {Lovtidende, A, 1982), as amended by Law No 149 of 11 April 1984, which charges duty on spirits, specifies the products which are taxable; they include:
3.1.3. Article 1 (1) of Coordinated Law No 371 of 1 July 1982 {Lovtidende, A, 1982), as amended by Law No 149 of 11 April 1984, which charges duty on wine and fruit wine, specifies as taxable products the following:
3.1.4. Law No 371 does not define fruit wine. According to a circular issued in 1978 by the Danish Directorate General for Customs, fruit wine is a product manufactured by the fermentation of fruit juice or honey, but without subsequently being distilled. It must contain at least one litre of pure undistilled fermented alcohol per 100 litres. Within the limits laid down by law for the purposes of classification, the alcohol content may be increased by the addition of distilled alcohol excluding flavoured alcohol, such as cognac, rum or whisky.
3.1.5. According to Article 33 of Law No 370 and Article 25 of Law No 371, a special committee established under the law on value-added tax is responsible for assessing beverages for duty.
3.1.6. John Walker & Sons Ltd, the plaintiff in the main proceedings, produces and markets, under the brand name Johnny Walker, Scotch whisky of an alcoholic strength of 40o. In 1982 it instituted proceedings against the Danish Ministry for Fiscal Affairs before the Østre Landsret for an order abolishing taxation which differentiates, contrary to Article 95 of the EEC Treaty, between Johnny Walker whisky and similar or competing Danish products, namely certain kinds of fruit wine of the liqueur type.
3.1.7. By judgment of 27 September 1984 the Østre Landsret stayed the proceedings pending a decision by the Court of Justice, to be given by way of a preliminary ruling, on the following questions:
3.1.8. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the Commission of the European Communities, John Walker & Sons Ltd, the plaintiff in the main proceedings, the Government of the Italian Republic and the Danish Government.
3.1.9. Upon hearing the report of the Judge Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory enquiry. However, it requested the Commission and the Danish Government to reply in writing to certain questions. The parties acceded to that request within the specified period.
3.2. Written observations submitted to the Court
3.2.1. John Walker & Sons Ltd, the plaintiff in the main proceedings, outlined certain considerations of a general nature before examining the questions referred to the Court for a preliminary ruling.
3.2.2. The Danish Government and, in particular, the Minister for Fiscal Affairs consider the questions submitted in their legal and economic context.
3.2.3. According to the Italian Government, it is necessary in the first place to ascertain whether the products concerned are similar or in competition with one another. A positive answer would raise the question of the compatibility of the Danish tax system with the principle of nondiscrimination embodied in Article 95.
3.2.4. The Commission, after summarizing the Danish legislation and the positions of the parties, considers the questions referred to the Court in the context of the efforts made to achieve harmonization.
3.3. Answers to questions from the Court
The Commission was invited to outline its proposals for achieving harmonization and, in particular, to indicate which beverages it regards as similar products. It pointed out that the steps taken by it had been unsuccessful. A proposal for a directive laying down certain rules on indirect taxes which affect the consumption of alcoholic drinks (85/C 114/08; Official Journal 1985, C 114, p. 6), which was submitted to the Council on 24 April 1985, establishes certain minimal rules in respect of wine and, in particular, a specific rate of tax based on volume in respect of still wine. According to the Court's judgment of 12 July 1983, the difference between the duty on wine and that on beer may not exceed, in respect of a specific quantity, the difference between the alcohol content of table wine and that of a given kind of beer. Moreover, in order to prevent the objectives of neutral taxation and the establishment of equal conditions of competition, pursued by the harmonization of the rules for charging duty, from being circumvented by the application of different rates of VAT, each Member State should apply the same rate of VAT within the following categories: wine and beer; wine and fruit wine to which alcohol has been added, and similar products; alcohol. A system maintaining the status quo would serve to promote long-term harmonization.
The proposal for a Council directive concerning the harmonization of excise duties on fortified wine and similar products (85/C 114/09; Official Journal 1985, C 114, p. 7), which was also submitted to the Council on 24 April 1985, is designed initially to achieve neutral conditions of competition and subsequently to harmonize the rates of duty applied. It applies to intermediate products of an alcoholic strength of between 15% and 20% by volume which are fermented products, for instance wine, and to distilled beverages such as spirits. The products concerned are natural fermented beverages to which alcohol or other ingredients have been added, but which have retained their characteristic flavour. The initial proposal applied only to products derived from grape wine since products derived from fruit wine of an alcoholic strength exceeding 15% by volume were to be regarded as spirituous beverages. In view of their similarity, the new proposal also includes products falling within heading 22.07 of the Common Customs Tariff. Since the addition of alcohol makes a fermented beverage increasingly comparable to a spirituous beverage, an upper limit of 22% by volume was established. In the case of products with a low alcohol content, the distinction between still wine and liqueur wine falling under tariff heading 22.05 may be based on the definitions set out in the relevant Community regulations. Products falling under tariff heading 22.06 (vermouths and other wines) are covered by the proposed directive provided they fall within the definition of vermouths set out in the proposal for a regulation submitted in 1982 (see Official Journal 1982, C 189, p. 7). Products falling under tariff heading 22.07 (other fermented beverages) of a total alcoholic strength of less than 15% by volume or of an actual alcoholic strength equal or inferior to 12% are excluded. The products concerned are subject to a specific duty calculated by reference to the volume and applied at a reduced rate by comparison with the rate applied to alcohol. The rate can be fixed by reference to the volume or the actual alcoholic strength by volume of the intermediate product or a combination of those two criteria. In any event, the aggregate fiscal burden should be the same for all intermediate products of the same actual alcoholic strength. The range of duties charged on those intermediate products varies at present from 7% to over 100% of the total fiscal burden borne by spirituous beverages and is to be brought within narrower limits, namely 20% and 65% respectively.
According to the Commission, beer, still wine and still wine made from fruit, sparkling wine and sparkling fruit wine, wine to which alcohol has been added and fruit wine to which alcohol has been added, and alcohol, constitute sufficiently homogeneous categories of beverages for the products to be regarded as similar. The same classification for tariff purposes merely raises a presumption of similarity.
Asked to explain the substantial proportion of distilled alcohol permitted in liqueur wine, the Danish Government stated that spirituous beverages are not automatically taxed as fruit wine if the end product is of an alcoholic strength not exceeding 20% by volume, including 1% by volume of fermented alcohol. The beverages concerned are intermediate products falling under tariff heading 22.07, manufactured by fermentation and of an alcoholic strength not exceeding 20% by volume. Products manufactured otherwise than by the fermentation of fruit juice or honey are taxed as spirits. An increase in the alcoholic strength by the addition of alcohol cannot affect classification. Most kinds of liqueur wine derived from grape wine are also fortified. In order to ensure that spirits are not taxed at a lower rate, beverages to which products other than ethyl alcohol are added that are taxable as spirits and beverages which exhibit the characteristics of spirits because they contain bitter or aromatic substances, sugar and so on, are also excluded. The requirement of a minimum fermented alcohol content of 1% by volume, prescribed by the relevant ministerial circular, constitutes a minimum condition and in no way replaces the conditions laid down by law. Proposal for a directive No 85/C 114/09 allows more favourable treatment to be accorded to intermediate products falling within tariff heading 22.07 and of an alcoholic strength exceeding 15% by volume, on condition that the distilled alcohol added represents less than 50% by volume of the actual alcohol content of the end product or that an actual alcoholic strength of at least 7% by volume in the end product has been obtained by natural fermentation. As regards the alcoholic strength by volume of the end product, provision is made for an upper limit of 22% as against the 20% limit currently applied in Denmark. On qualitative grounds, the addition of distilled alcohol is preferable to the natural fermentation of fruit juice. The plaintiff in the main proceedings endeavours to deflect the Court's attention away from the broad range of traditional Danish fruit wines, referred to in the questions submitted to the Court for a preliminary ruling, and towards certain less popular products.
In response to a request from the Court to provide a comprehensive picture of the consumption of alcoholic beverages in Denmark by reference to domestic and imported products, the Danish Government submitted a summary table showing consumption in Denmark for 1971 to 1984 of grape wine of the table-wine type, fruit wine of the table-wine type, grape wine of the liqueur type, fruit wine of the liqueur type, and spirits. Between 1975 and 1984, total consumption of whisky did not decline. The plaintiffs share of the market has declined for reasons other than those indicated by it. The relevant statistics have been incorporated in the introduction to this Opinion.
4. Relevant case-law
4.1. Criterion of simikrity
From the 12 judgments to which particular reference is made in the cases under consideration (namely the judgments in Cases 27/67, 31/67, 148/77, 45/75, 168/78, 169/78, 170/78 (two judgments), 171/78, 45/79, 46/80, 206/81 and 319/81) it is necessary to deduce, for the purpose of establishing similarity between products, which is a crucial factor in the application of the first paragraph of Article 95, the following criteria:
4.2. The concept of indirect protection in the second paragraph of Article 95
In the last paragraph on page 232 of its judgment in Case 27/67 (Fink-Frucht) the Court stated that indirect protection would occur if internal taxation were to impose a heavier burden on an imported product than on a domestic product with which the imported is, by reason of one or more economic uses to which it may be put, in competition, even though the condition of similarity for the purposes of the first paragraph of Article 95 is not fulfilled.
In Case 31/67 (Stier [1968] ECR 235) the Court added that in the absence of comparable domestic production it was not permissible to impose on imported products charges of such an amount that the free movement of goods within the common market would be impeded as far as those products were concerned, but that the taxation on imported products had no protective effect when the rate of taxation remains within the general framework of the national system of taxation of which the tax in question is an integral part (paragraph 2 on p. 241 of the decision). Those findings may be of some importance in Case 243/84 since whisky at any rate falls within the general scope of the Danish tax system applicable to spirits.
4.3. Relationship between the first and second paragraphs of Article 95
In those of the aforesaid judgments which are most relevant in the cases under consideration there was no need ultimately for the Court to answer the question whether, and if so to what extent, the first or — to be precise — the second paragraph of Article 95 was applicable. Even if the second paragraph of Article 95 had been applicable, it was clear in those cases that the contested tax legislation was unequivocally protective in its effects. Accordingly in Case 319/81 (Commission v Italy [1983] ECR 601) the Court was content to state (in paragraph 17 of its decision) that:
4.4. Permissibility of differential taxation
In the cases under consideration Denmark has also relied on the case-law of the Court concerning the permissibility of differential rates of tax. In that connection, the judgments of the Court in Case 148/77 (Hansen [1978] ECR 1787), Case 140/79 (Chemial Farmaceutici [1981] ECR 1), Case 46/80 (Vinal [1981] ECR 77) and Case 319/81 (Commission v Italy [1983] ECR 601) are of particular interest. In the Hansen case, as is well known, differential taxation which is intended to serve legitimate economic or social purposes, such as the use of certain raw materials, the continued production of particular spirits of high quality or the continuance of certain classes of undertakings such as agricultural distilleries, was held to be compatible in principle with Community law (paragraph 16 of the decision). In paragraph 17 of its decision in that case, however, the Court added that such preferential systems must, for the purposes of Article 95, be extended without discrimination to spirits coming from other Member States.
In Chemial Farmaceutici and Vinal, the Court added to those criteria the further conditions, worded in identical terms, that the economic policy objectives at issue in those cases must be themselves compatible with the requirements of the Treaty and its secondary law and that the detailed rules which differentiate between products must be such as to avoid any form of discrimination, direct or indirect in regard to imports from other Member States or any form of protection of competing domestic products. However, the Court considered that differential taxation such as that which exists in Italy for denatured synthetic alcohol on the one hand and denatured alcohol obtained by fermentation on the other satisfied those requirements. It appears in fact that that system of taxation pursues an objective of legitimate industrial policy in that it is such as to promote the distillation of agricultural products as against the manufacture of alcohol from petroleum derivatives (paragraph 15 of the decision). According to the Court, there was no indirect protection of domestic production since, by reason of the taxation of synthetic alcohol, it had been impossible to develop profitable production of that type of alcohol on national territory (although it was in itself technicaly and economically feasible) (paragraph 18 of the decision).
In order to apply the Chemial Farmaceutici and Vinal judgments to Case 106/84 by analogy, it is important in my view in the first place to determine whether favourable treatment of certain domestic agricultural products (fruit) to the detriment of imported agricultural products (grapes) can be viewed in the same terms as favourable treatment of an agricultural product to the detriment of a nonagricultural product. In my view that question must be answered in the negative as a result of the common agricultural policy (optimum allocation of competing products and the prohibition of discrimination laid down by Article 40 (3)). Secondly, there is a clear distinction between Cases 140/79 and 46/80 on the one hand and Case 106/84 on the other inasmuch as synthetic alcohol can be produced in Italy but grape wine cannot be produced in Denmark. As regards Case 243/84, it is clear that the reasons for which scarcely any whisky is produced in Denmark have nothing to do with taxation.
Moreover, of particular importance in Case 243/84 is the question whether the application of a higher rate of tax for spirits than for liqueur wine can be justified on social grounds, such as the need to combat the consumption of a beverage with an alcohol content which is twice as high. In my view that question must in principle, in the light of the case-law of the Court, be answered in the affirmative, provided that the application of a higher rate has no discriminatory or protectionist effect.
4.5. Objectives of Article 95
The general objectives of Article 95 are variously described in the case-law of the Court. In Case 27/67 (Fink-Fmcht [1968] ECR 223) the purpose of that provision was described as to ensure normal conditions of competition and to remove all restrictions of a fiscal nature capable of hindering the free movement of goods within the common market.
According to paragraph 4 of the decision in Case 168/78, the provisions of the first and second paragraphs of Article 95 supplement the relevant provisions on the abolition of customs duties and charges having equivalent effect. Their aim is to ensure free movement of goods between the Member States in normal conditions of competition by the elimination of all forms of protection which result from the application of internal taxation which discriminates against products from other Member States. Article 95 must guarantee the complete neutrality of internal taxation as regards competition between domestic and imported products. The Court expressed itself in similar terms in its judgment in Case 216/81.
In paragraph 20 of its decision in Case 171/78 the Court explained the different objectives pursued by Article 95 and by the harmonization of tax legislation on the basis of Article 99. Whilst Article 95 aims to eliminate discrimination and protection resulting from a given national tax system, Article 99 aims to reduce trade barriers arising from the differences between the national tax systems. In my view, that definition is useful and it is also relevant to the cases under consideration. Contrary to the impression which may be conveyed by the wording used in Case 27/67, not all tax barriers to trade can be removed on the basis of Article 95.
The Court also pointed out in paragraph 20 that the implementation of the programme of harmonization provided for by Article 99 cannot constitute a preliminary to the application of Article 95. Those two explanations, viewed together, are of particular significance with regard to the assessment of Case 106/84.
To summarize, I infer from the case-law of the Court that the purpose of the first and second paragraphs of Article 95 is to eliminate certain kinds of tax barriers to trade that distort competition, namely barriers to trade which arise from discrimination against imported products and from protection of domestic products. In my view, that objective of Article 95 is also relevant for determining whether the products at issue are similar, within the meaning of the first paragraph of Article 95, or only competing, for the purposes of the second paragraph of Article 95, and for resolving the question whether there is discrimination or only protection for the purposes of those two paragraphs. Statistics on sales or other figures may in certain circumstances show that tax legislation which at first sight is discriminatory or protective has no such effect in practice.
5. Conclusion
5.1. Case 106/84
5.2. Case 243/84
1 Translated from the Dutch.
2 Source: Foreign Trade Statistics issued by the Danish Statistical Office.
3 Source: Written observations submitted by John Walker's representative.