Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1968/R1367.html
Cite as: [1968] EUECJ R-13/67

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61967J0013
Judgment of the Court of 4 April 1968.
Firma Kurt A. Becher v Hauptzollamt München-Landsbergerstrasse.
Reference for a preliminary ruling: Finanzgericht München - Germany.
Case 13-67.
European Court reports
French edition 1968 Page 00275
Dutch edition 1968 Page 00266
German edition 1968 Page 00282
Italian edition 1968 Page 00250
English special edition 1968 Page 00187
Danish special edition 1965-1968 Page 00503
Greek special edition 1965-1968 Page 00739
Portuguese special edition 1965-1968 Page 00813

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1 . POLICY OF THE EEC - COMMON RULES - TAX PROVISIONS - CUMULATIVE MULTI-STAGE TAX - AVERAGE RATES FOR IMPORTED PRODUCTS OR GROUPS OF IMPORTED PRODUCTS WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 97 - NO INDIVIDUAL RIGHTS
2 . POLICY OF THE EEC - COMMON RULES - TAX PROVISIONS - INTERNAL TAXATION IMPOSED BY ONE MEMBER STATE ON PRODUCTS FROM OTHER MEMBER STATES - CONCEPT
( EEC TREATY, ARTICLE 95 )

1 . CF . PARAGRAPH 4, SUMMARY, CASE 28/67 . ( 1968 ) ECR 143 .
THE FIRST PARAGRAPH OF ARTICLE 97, WHICH APPLIES WHERE MEMBER STATES OPERATING A TURNOVER TAX ACCORDING TO A CUMULATIVE MULTI-STAGE TAX SYSTEM HAVE ACTUALLY EXERCISED THE RIGHT THEREIN GRANTED TO THEM, DOES NOT, IN THE PRESENT STATE OF COMMUNITY LAW, CREATE INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT . IT IS THEREFORE NOT FOR NATIONAL COURTS TO APPRAISE WHETHER AVERAGE RATES ESTABLISHED BY MEMBER STATES CONFORM TO THE PRINCIPLES OF ARTICLE 95 .
*/ 667J0028 /*.
2 . CF . PARAGRAPH 3, SUMMARY, CASE 28/67 . ( 1968 ) ECR 143 .
THE TERMS 'DIRECTLY OR INDIRECTLY' APPEARING IN THE FIRST PARAGRAPH OF ARTICLE 95 OF THE EEC TREATY MUST BE WIDELY INTERPRETED . BY INTERNAL TAXATION IMPOSED DIRECTLY OR INDIRECTLY ON SIMILAR DOMESTIC PRODUCTS, THIS PROVISION REFERS TO ALL TAXATION WHICH IS ACTUALLY AND SPECIFICALLY IMPOSED ON THE DOMESTIC PRODUCT AT ALL EARLIER STAGES OF ITS MANUFACTURE AND MARKETING OR WHICH CORRESPOND TO THE STAGE AT WHICH THE PRODUCT IS IMPORTED FROM OTHER MEMBER STATES .
*/ 667J0028 /*.

IN CASE 13/67
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ), MUNICH, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
FIRMA KURT A . BECHER, MUNICH,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) MUENCHEN-LANDSBERGERSTRASSE,

ON THE INTERPRETATION OF ARTICLES 95 AND 97 OF THE EEC TREATY,

P . 194
BY ORDER DATED 26 APRIL 1967, WHICH REACHED THE COURT ON THE FOLLOWING 3 MAY, THE FINANZGERICHT, MUNICH, UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, REFERRED TO THE COURT SEVERAL QUESTIONS ON THE INTERPRETATION OF ARTICLES 95 AND 97 OF THE SAID TREATY .
SUBSTANCE
IN ITS FIRST QUESTION THE COURT MAKING THE REFERENCE ASKS THE COURT TO STATE WHETHER;
' THE FIRST PARAGRAPH OF ARTICLE 97 OF THE EEC TREATY PRODUCES DIRECT EFFECTS AND CREATES INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT OR WHETHER, IF AN AVERAGE RATE DOES NOT CONFORM TO THE PRINCIPLES LAID DOWN IN ARTICLE 95 OF THE EEC TREATY, THE ONLY REMEDY LIES IN THE RIGHT OF THE COMMISSION TO ADDRESS APPROPRIATE DIRECTIVES OR DECISIONS TO THE STATE CONCERNED IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 97 '.
THE SECOND QUESTION ASKS : ' HOW THE EXPRESSION " AVERAGE RATES " APPEARING IN ARTICLE 97 OF THE EEC TREATY IS TO BE INTERPRETED ' PARTICULARLY AS REGARDS VARIOUS SITUATIONS SPECIFICALLY SET OUT BY THE FINANZGERICHT .
FINALLY THE THIRD QUESTION OF THE FINANZGERICHT RAISES THE PROBLEM ' WHAT IS TO BE UNDERSTOOD BY INTERNAL TAXATION IMPOSED INDIRECTLY ON SIMILAR DOMESTIC PRODUCTS ', AND IN PARTICULAR WHETHER THIS EXPRESSION ' INCLUDES THE TURNOVER TAX OR THE TRANSPORTATION TAX ON AUXILIARY MATERIALS, PACKAGING MATERIALS, WORKING MATERIALS AND THE MEANS OF PRODUCTION USED TO MANUFACTURE AND DELIVER SIMILAR PRODUCTS, AND TRANSPORT EFFECTED BY THIRD PARTIES '.
IN ITS JUDGMENT OF 3 APRIL 1968 IN CASE 28/67 REFERRED BY THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ), THE COURT OF JUSTICE HAS ALREADY GIVEN ITS RULING ON QUESTIONS OF AN IDENTICAL NATURE .
REFERENCE SHOULD THEREFORE BE MADE TO THAT DECISION .

THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED THEIR OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE FINANZGERICHT, MUNICH, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT, MUNICH, BY ORDER OF THAT COURT OF 26 APRIL 1967,
REFERS TO THE INTERPRETATION GIVEN IN ITS JUDGMENT IN CASE 28/67, NAMELY :
1 . ON THE FIRST QUESTION :
THE FIRST PARAGRAPH OF ARTICLE 97, WHICH APPLIES WHERE MEMBER STATES OPERATING A TURNOVER TAX ACCORDING TO THE CUMULATIVE MULTI-STAGE TAX SYSTEM HAVE ACTUALLY EXERCISED THE RIGHT THEREIN GRANTED TO THEM AND ESTABLISHED AVERAGE RATES, DOES NOT CREATE INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST PROTECT;
2 . ON THE SECOND QUESTION :
IN STATES WHICH HAVE EXERCISED THE POWER MADE AVAILABLE TO THEM BY ARTICLE 97, RATES ARE CONSIDERED AS ' AVERAGE RATES ' IF THEY ARE ESTABLISHED AS SUCH BY THE STATES IN QUESTION, WITHOUT PREJUDICE TO THE OPERATION OF THE SECOND PARAGRAPH OF THAT ARTICLE;
3 . ON THE THIRD QUESTION :
BY THE EXPRESSION ' INTERNAL TAXATION IMPOSED DIRECTLY OR INDIRECTLY ON SIMILAR DOMESTIC PRODUCTS ' THE FIRST PARAGRAPH OF ARTICLE 95 REFERS TO ALL TAXATION WHICH IS ACTUALLY AND SPECIFICALLY IMPOSED ON THE DOMESTIC PRODUCT AT ALL EARLIER STAGES OF ITS MANUFACTURE AND MARKETING OR WHICH CORRESPOND TO THE STAGE AT WHICH THE PRODUCT IS IMPORTED FROM OTHER MEMBER STATES;
AND DECLARES :
IT IS FOR THE FINANZGERICHT, MUNICH, TO MAKE AN ORDER AS TO THE COSTS OF THE PRESENT PROCEEDINGS .