Zusammenfassung der Ressource
Art.110 Internal Taxation
- TFEU Art.110(1) - prohibits discriminatory taxation in
respect of SIMILAR products, may be directly or
indirectly discriminatory
- Genuine internal taxes which comply with
Art.110 don't breach the treaties
- Capolongo (Egg Box) Case 77/72 - Financial charges
within a general system of internal taxation applying
systematically to domestic and imported products alike
according to the same criteria ]irrespective of the origin
of the products] are not to be considered as CHEEs
- But if it doesn't comply with Art.110 and discriminates
against imports or is protective of domestic products,
it is prohibited
- What is similar?
- Case law
- Commission v Denmark Case 106/84 - Fruit table
wines and grape table wines are similar based on two
stage test
- John Walker v Ministeriet for Skatter og Afgifter Case 243/84 -
Scotch whisky and fruit liqueur not similar
- Commission v Italy Case 184/85 -
Apples and bananas not similar
- Commission v France Case 302/00 -
Dark and light tobaccos similar
- CofJ tests
- Fink-Frucht Case 27/67 - Formal test
based on product classification
- Commission v France (French Spirits)
Case 168/78 - Broader, two part test
- 1) Factual/Objective Comparison: do products have similar
characteristics? Takes into account composition and physical
characteristics, and methods of production
- 2) Economic Comparison of use: do products meets same
need from point of view of the consumer? Takes into account
consumer perception and usage of products
- Direct or Indirect
- Direct - on face of it, there is less
favourable treatment of imported goods
- No defence, must remove discriminatory
element and equalise tax
- Case examples...
- Lutticke Case 57/65 - Only imported product is taxed
- Haahr Petroleum Case 90/94 -
Imported product taxed at higher rate
- Bobie Case 127/75 - MS uses different methods for
calculating tax for domestic and imported products
- Commission v Ireland Case 55/79 - Different conditions
under which tax is paid or tax relief is granted for
imported products
- Indirect - on face of it, do not impose different tax
rates based on country of origin but do nevertheless
place greater burden upon imported product
- May be objectively justified, eg if tax difference
is based on objective criteria, provided it is proportionate
- Objective criteria may include: protection of environment,
regional development, saving scarce resources
- TFEU Art.110(2) - prohibits discriminatory taxation
in respect of products IN COMPETITION
- What is competing?
- Commission v UK (Beer and Wines) Case 170/78 - Two stage test
- 1) Is there a competitive relationship between the products? "Test of
Substitutability" - Do the products represent alternative choices for the
consumer?
- 2) Is the tax system, in fact, protective of domestic products? Does the
tax policy 'crystallise consumer habits' and thus consolidate/reinforce
the advantageous position of the domestic product? Is a potential
market for an imported product suppressed by an unfair tax system? If
yes, the tax will violate Art.110(2)
- Where goods aren't similar for Art.110(1) look to
goods in competition for Art.110(2)
- Remedies for breach
- Breach of Art.110(2) - the protective effect must be
removed, not necessarily needing the equalisation
of taxes
- Breach of Art.110(1) - the tax must be equalised