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/R2067.html
Cite as: [1968] EUECJ R-20/67

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61967J0020
Judgment of the Court of 4 April 1968.
Firma Kunstmühle Tivoli v Hauptzollamt Würzburg.
Reference for a preliminary ruling: Finanzgericht München - Germany.
Case 20-67.
European Court reports
French edition 1968 Page 00293
Dutch edition 1968 Page 00282
German edition 1968 Page 00300
Italian edition 1968 Page 00266
English special edition 1968 Page 00199
Danish special edition 1965-1968 Page 00505
Greek special edition 1965-1968 Page 00741
Portuguese special edition 1965-1968 Page 00817

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1 . POLICY OF THE EEC - COMMON RULES - TAX PROVISIONS - IMPORTS FROM THIRD COUNTRIES - INAPPLICABILITY OF ARTICLE 95 OF THE EEC TREATY
2 . AGRICULTURE - COMMON AGRICULTURAL POLICY - COMMON ORGANIZATION OF THE MARKETS - TURNOVER EQUALIZATION TAX - NOT A CHARGE HAVING AN EFFECT EQUIVALENT TO THAT OF CUSTOM DUTIES
( REGULATION NO 19 OF THE COUNCIL OF THE EEC ON THE PROGRESSIVE ESTABLISHMENT OF THE MARKET IN CEREALS, ARTICLE 20(1 ))

1 . SINCE THE PROVISIONS OF ARTICLE 95 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY RELATE ONLY TO PRODUCTS ORIGINATING IN MEMBER STATES, THEY CANNOT BE APPLIED TO IMPORTS FROM A THIRD COUNTRY .
2 . A TAX WHICH IS LEVIED WITHIN THE FRAMEWORK OF TURNOVER TAX LEGISLATION AND IS DESIGNED TO PLACE ALL CATEGORIES OF PRODUCTS, WHATEVER THEIR ORIGIN, IN A COMPARABLE FISCAL SITUATION DOES NOT, IN THE ABSENCE OF ANY PROTECTIVE INTENTION, CONSTITUTE A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY WITHIN THE MEANING OF ARTICLE 20(1 ) OF REGULATION NO 19 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS .
CF . PARAGRAPH 1, SUMMARY, CASE 7/67 .
CF . PARAGRAPH 5, SUMMARY, CASE 57/65, ( 1966 ) ECR 295 .

IN CASE 20/67
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY BY THE FINANZGERICHT, MUNICH, ( A COURT WITH JURISDICTION IN TAXATION MATTERS ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
FIRMA KUNSTMUEHLE TIVOLI, MUNICH,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) WUERZBURG,

ON THE INTERPRETATION OF REGULATION NO 19 OF THE COUNCIL ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL OF 20 APRIL 1962, P.933 ET SEQ .)

P . 204
IN ITS ORDER OF 17 MAY 1967, WHICH REACHED THE COURT ON 24 MAY 1967, THE FINANZGERICHT, MUNICH, PUT TO THE COURT THE FOLLOWING QUESTION UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY : ' IS THE TURNOVER EQUALIZATION TAX LEVIED ON THE IMPORTATION OF A PRODUCT A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY WITHIN THE MEANING OF REGULATION NO 19 ( OF THE COUNCIL OF THE EEC ) WHEN NO SIMILAR OR COMPETING PRODUCT ( WHICH COULD BE USED AS A SUBSTITUTE ) WITHIN THE MEANING OF THE FIRST AND SECOND PARAGRAPHS OF ARTICLE 95 OF THE EEC TREATY IS PRODUCED IN THE NATIONAL TERRITORY? '.
IT APPEARS FROM THE FILE THAT THE MAIN ACTION CONCERNS THE IMPORTATION OF CEREALS FROM A THIRD COUNTRY . SINCE THE PROVISIONS OF ARTICLE 95 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY RELATE ONLY TO PRODUCTS ORIGINATING IN MEMBER STATES, THEY CANNOT BE APPLIED TO IMPORTS FROM A THIRD COUNTRY . THEREFORE THE QUESTION ASKED BY THE COURT MAKING THE REFERENCE MUST BE ANSWERED SOLELY ON THE BASIS OF THE PROVISIONS OF ARTICLE 20(1 ) OF REGULATION NO 19, ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS, WHICH WAS IN FORCE AT THE TIME WHEN THE MAIN ACTION AROSE .
ALTHOUGH ARTICLE 177 OF THE TREATY DOES NOT GIVE THE COURT JURISDICTION TO APPLY THE PROVISIONS OF COMMUNITY LAW TO A NATIONAL TAX, NEVERTHELESS THE COURT MAY INTERPRET ARTICLE 20 OF REGULATION NO 19 WITH REGARD TO THE ELEMENTS OF A NATIONAL TAX LEVIED ON CEREALS FROM THEIR COUNTRIES AND WHICH ADAPTS TO THE PRODUCTS IMPORTED A GENERAL TURNOVER TAX LEVIED ON ALL PRODUCTS SOLD WITHIN A MEMBER STATE . ARTICLE 20(1 ) OF THE SAID REGULATION PROVIDES THAT THE APPLICATION OF THE LEVY SYSTEM TO THIRD COUNTRIES, WHICH WAS ESTABLISHED BY THAT SAME REGULATION, ' SHALL ENTAIL THE ABOLITION OF ALL CUSTOMS DUTIES, OR CHARGES HAVING EQUIVALENT EFFECT, ON IMPORTS FROM THIRD COUNTRIES '. IT FOLLOWS THAT THE QUESTION REFERRED TO THE COURT AMOUNTS TO WHETHER A TAX LEVIED IN THE CIRCUMSTANCES STATED ABOVE FALLS UNDER THIS PROHIBITION .
REGULATION NO 19 HAS AS ITS PURPOSE IN PARTICULAR TO SUBSTITUTE A UNIFORM SYSTEM OF LEVIES FOR ALL THE PROTECTIVE MEASURES OF DIFFERENT KINDS PREVIOUSLY APPLIED BY MEMBER STATES .
P . 205
IN CONSEQUENCE, ARTICLE 20(1 ) OF THE SAME REGULATION ABOLISHED ALL NATIONAL MEASURES HAVING PROTECTIVE EFFECTS SIMILAR TO THOSE OF THE LEVY .
TAXATION SUCH AS THAT WHICH IS THE SUBJECT OF THE MAIN ACTION, LEVIED WITHIN THE FRAMEWORK OF LEGISLATION RELATING TO THE TURNOVER TAX, DOES NOT CONSTITUTE A SPECIFIC TAX ON IMPORTED PRODUCTS, BUT A GENERAL TAX APPLYING WITHOUT DISTINCTION TO ALL CATEGORIES OF PRODUCTS WHETHER DOMESTIC OR IMPORTED, EVEN IF CHARGED AT THE MOMENT OF IMPORTATION .
SUCH A CHARGE, OF AN ESSENTIALLY FISCAL NATURE, WHEN IT IS IMPOSED ON IMPORTATION, IS INTENDED TO PLACE IN A COMPARABLE FISCAL SITUATION ALL CATEGORIES OF PRODUCTS WHATEVER THEIR ORIGIN MAY BE .
HENCE, IN THE ABSENCE OF A PROTECTIVE PURPOSE, AN INTERNAL TAX OF THE TYPE REFERRED TO BY THE COURT MAKING THE REFERENCE CANNOT BE CONSIDERED AS A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY WITHIN THE MEANING OF ARTICLE 20(1 ) OF REGULATION NO 19 .

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, AND AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, 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 17 MAY 1967, HEREBY RULES :
A TAX IMPOSED ON THE IMPORTATION OF PRODUCTS ORIGINATING IN THIRD COUNTRIES DOES NOT CONSTITUTE A CHARGE HAVING AN EFFECT EQUIVALENT TO A CUSTOMS DUTY WITHIN THE MEANING OF ARTICLE 20(1 ) OF REGULATION NO 19 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN CEREALS WHEN IT IS IMPOSED AS A CHARGE UNDER THE NATIONAL SYSTEM OF TURNOVER TAX;
AND DECLARES :
IT IS FOR THE COURT MAKING THE REFERENCE TO DECIDE ON THE COSTS OF THE PRESENT PROCEEDINGS .